State v. Faith N. Reed ( 2018 )

2018 WI 109
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP1609-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Faith N. Reed,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 375 Wis. 2d 328, 897 N.W.2d 68
(2017 – unpublished)
OPINION FILED: December 7, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 7, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Monroe
JUDGE: J. David Rice
JUSTICES:
CONCURRED: ZIEGLER, J., concurs.
DISSENTED: ROGGENSACK, C.J., dissents.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed and an oral argument by Joseph Ehmann, state public
defender.
For the plaintiff-respondent, there was a brief filed by
Clayton P. Kawski, assistant attorney general, Scott E. Rosenow,
assistant attorney general, and Brad D. Schimel, attorney
general. There was an oral argument by Clayton Kawski.
2018 WI 109
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP1609-CR
(L.C. No. 2015CM545)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
DEC 7, 2018
Faith N. Reed,
Sheila T. Reiff
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 SHIRLEY S. ABRAHAMSON, J. This is a review of an
unpublished decision of the court of appeals affirming a
judgment of conviction of the Circuit Court for Monroe County,
David Rice, Judge.1 The case was decided by one judge, Judge
Brian Blanchard, pursuant to Wis. Stat. § 752.31(2)(f) (2015-
1
State v. Reed, No. 2016AP1609-CR, unpublished slip op.
(Wis. Ct. App. Mar. 23, 2017).
No. 2016AP1609-CR
16).2 Faith Reed, the defendant, was convicted of possession of
a controlled substance in violation of Wis. Stat.
§ 961.41(3g)(b) and bail jumping in violation of Wis. Stat.
§ 946.49(1)(a), both misdemeanors.
¶2 In the circuit court, Reed claimed that the officer's
warrantless entry into her apartment, sometimes referred to here
as Unit 206, violated her rights under the Fourth Amendment of
the United States Constitution and Article I, Section 11 of the
Wisconsin Constitution. Reed argued that the warrantless entry
into her apartment was not justified under any of the well-
recognized exceptions to the Fourth Amendment's warrant
requirement. Specifically, Reed contended that the officer did
not have consent to enter her apartment and that exigent
circumstances did not exist justifying entrance to her
apartment. Consequently, she argued that the evidence obtained
during the searches of her apartment and her person should be
suppressed.
¶3 The circuit court denied Reed's motion to suppress the
evidence. The circuit court concluded that the law enforcement
officer had consent to enter Reed's apartment, that the consent
was never revoked, and that exigent circumstances justified the
officer's pushing open the apartment door. The court of appeals
affirmed the circuit court's denial of Reed's motion to
suppress. The court of appeals agreed with the circuit court
2
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
2
No. 2016AP1609-CR
that the officer had consent to enter Reed's apartment and that
the consent was never revoked. The court of appeals did not
address the issue of exigent circumstances.
¶4 The instant case presents the following issues: (1)
whether the officer had consent to enter Reed's apartment; (2)
if consent was initially given to the officer, whether that
consent was revoked before the officer's entry into Reed's
apartment; and (3) whether exigent circumstances justified the
officer's pushing open Reed's apartment door.
¶5 We conclude as follows: (1) the law enforcement
officer did not have consent to enter Reed's apartment; (2) even
if the officer had initially been given consent to enter the
apartment, which he was not, consent would have been
unequivocally revoked before the officer's entry into the
apartment; and (3) exigent circumstances did not justify the
officer's opening Reed's apartment door.
¶6 The following principles of law apply in the instant
case.
¶7 A warrantless search does not violate the Fourth
Amendment of the United States Constitution or Article I,
Section 11 of the Wisconsin Constitution if the search is
conducted with consent3 or is justified by exigent
circumstances.4
3
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State
v. Johnson, 2007 WI 32, ¶16, 299 Wis. 2d 675, 729 N.W.2d 182.
4
Payton v. New York, 445 U.S. 573, 590 (1980); State v.
Dalton, 2018 WI 85, ¶39, 383 Wis. 2d 147, 914 N.W.2d 120.
3
No. 2016AP1609-CR
¶8 Consent to search must be unequivocal and specific,5
and it must be freely and voluntarily given.6 Consent is not
freely and voluntarily given if it is the result of mere
"acquiescence to a claim of lawful authority."7 Once given,
consent may be revoked. Revocation of consent need not be
communicated through particular "magic words," but intent to
revoke consent must be made by unequivocal acts or statements.8
¶9 In the instant case, the law enforcement officer
neither requested nor obtained consent to enter Reed's
apartment. Kirk Sullivan, who was staying with Reed at her
apartment and led the officer to Reed's apartment, never told
the officer that the officer was allowed to enter the apartment.
In leading the officer to the threshold of Reed's apartment,
Sullivan was merely following the directives and commands of the
officer. Sullivan's conduct falls far short of unequivocal and
specific consent that was freely and voluntarily given.
5
Andrews v. Hickman Cty., 700 F.3d 845, 854 (6th Cir.
2012); United States v. Chan-Jimenez, 125 F.3d 1324, 1328 (9th
Cir. 1997); Gautreaux v. State, 52 Wis. 2d 489, 492, 190
N.W.2d 542 (1971).
6
Bumper v. North Carolina, 391 U.S. 543, 549 (1968); State
v. Johnson, 2007 WI 32, ¶16, 299 Wis. 2d 675, 729 N.W.2d 182.
7
Bumper, 391 U.S. at 549; see also Johnson, 299
Wis. 2d 675, ¶16.
8
United States v. Sanders, 424 F.3d 768, 774 (8th Cir.
2005); State v. Wantland, 2014 WI 58, ¶33, 355 Wis. 2d 135, 848
N.W.2d 810.
4
No. 2016AP1609-CR
¶10 Moreover, even if Sullivan had initially given the
officer consent to enter Reed's apartment (which, we emphasize,
he did not), consent would have been unequivocally revoked when
Sullivan opened the apartment door just enough to allow himself
entry and attempted to shut the door behind him to prohibit the
officer from entering the apartment.
¶11 Additionally, a warrantless search may also be
justified by exigent circumstances.9 "The objective test for
determining whether exigent circumstances exist is whether a
police officer, under the facts as they were known at the time,
would reasonably believe that delay in procuring a search
warrant would gravely endanger life . . . or greatly enhance the
likelihood of the suspect's escape."10
¶12 We conclude that no exigent circumstances justified
the officer's pushing open Reed's apartment door. Under the
circumstances known to the officer at the time he pushed the
door open, there were no facts upon which to base a reasonable
belief that the delay in procuring a search warrant would
gravely endanger life or greatly enhance the likelihood of the
suspect's escape.
¶13 Accordingly, we conclude that the searches at issue
violated the United States and Wisconsin constitutions. We
9
Payton, 445 U.S. at 590; Dalton, 383 Wis. 2d 147, ¶39.
10
State v. Hughes, 2000 WI 24, ¶24, 233 Wis. 2d 280, 607
N.W.2d 621; see also Minnesota v. Olson, 495 U.S. 91, 100
(1990).
5
No. 2016AP1609-CR
therefore reverse the decision of the court of appeals and
remand the cause to the circuit court with instructions to
suppress the challenged evidence and vacate Reed's convictions.
I
¶14 The following facts are drawn primarily from the body
camera footage of Officer Steven Keller of the Tomah Police
Department.
¶15 On December 13, 2015, at 1:20 p.m., Officer Keller was
dispatched to 308 Murdock Street in Tomah, Wisconsin. Officer
Keller was responding to a report of an altercation between two
individuals that had taken place in the street. When Officer
Keller arrived at the scene, he encountered two men later
identified as Daniel Cannon and Kirk Sullivan. Officer Keller
asked Cannon and Sullivan what was going on, and Cannon
responded, "They were fighting over stupid shit."11 Officer
Keller asked, "Where are they?" Cannon pointed ahead, saying
"One of them went back the house that way——" Cannon then turned
around, but before he could say anything else, Officer Keller
asked Cannon if he and Sullivan were involved in the
altercation. Cannon responded, "We were trying to stop it."
¶16 Cannon then explained that "homeboy," referring to the
other individual involved in the altercation, "went back to his
11
As the officer later learned, "they" were brothers,
Brandon and Jerome Harris, and the "stupid shit" they were
fighting about was a pair of Air Jordan basketball shoes.
6
No. 2016AP1609-CR
house just to cool off." By "his" house, Cannon was referring
to Sullivan.
¶17 Officer Keller asked Cannon, "Which apartment they
in?" Cannon said that "they" were in number 11. Dispatch12
could be heard saying that as the parties to the altercation
were leaving, a female and male in a white T-shirt went to
"apartment number 11." Cannon was heard off-screen chuckling
and saying, "Yep, they're in number 11."
¶18 Referring to the individual who went back to
Sullivan's apartment to cool off, Cannon reappeared on screen
and began talking to Officer Keller again, stating, "And he's——"
¶19 At this time, Officer Keller noticed that Sullivan,
now a short distance away, was walking away towards his
apartment building.
¶20 Officer Keller said loudly to Sullivan, "Hey, why
don't you come back here. Don't just leave." Sullivan turned
around and walked back towards Officer Keller with his hands in
his pockets as Cannon reiterated that the other individual went
back to Sullivan's apartment to cool off. After a few seconds,
Officer Keller told Sullivan to "[k]eep your hands out of your
pockets for me, OK?" Sullivan removed his hands from his
pockets and showed his open palms to Officer Keller.
12
For the sake of clarity, the instant opinion refers to
voices heard over Officer Keller's radio as "Dispatch" unless
otherwise indicated.
7
No. 2016AP1609-CR
¶21 Cannon again reiterated that he and Sullivan were
trying to defuse the situation when Sullivan, speaking for the
first time, said "Yep." Cannon then explained to Officer Keller
that the altercation was related to shoes. Cannon says "that
was pretty much the whole argument," and that "they" were
supposed to "sit there and watch football."
¶22 Officer Keller then asked Sullivan, "So you were
involved with this?" Sullivan responded, "I was just trying to
break it up. That's it."
¶23 Officer Keller then asked Cannon and Sullivan for
identification. Describing Cannon and Sullivan as "witnesses,"
Officer Keller radioed their names to Dispatch for a warrant
check. While waiting to hear back from Dispatch, Officer Keller
confirmed with Cannon and Sullivan that the altercation was a
verbal argument about shoes that never got physical.
¶24 As Cannon and Sullivan were describing the altercation
in greater detail, another male officer could be heard on
Officer Keller's radio speaking with a female officer. The male
officer said that he and "Andy" were "not having any luck" at
apartment number 11. The female officer responded, "I have a
Jerome Harris at that location. Contact with him on November
11th. Reference: a warrant." As to Sullivan, the female
officer commented, "Reference: a commitment." The male officer
asked the female officer to "run Jerome" and "look for a
Brandon——maybe same last name."
¶25 Officer Keller then asked Cannon and Sullivan, "Can
you guys stick around this area for a moment?" Sullivan asked,
8
No. 2016AP1609-CR
"You mean stand outside?" Officer Keller pointed to a nearby
building and responded, "Well, do you want to hang out in this
building?" In response, Sullivan laughed and said, "I was going
to watch the game, I guess." Gesturing with his hands, Officer
Keller responded, "Until we can get everything straightened
out."
¶26 At this time, Cannon turned to Sullivan and said,
"Well, cause he went to your house, he's at your apartment."
Sullivan responded, "Yeah, he supposed to go to my——my apartment
to watch football." Cannon then said to Officer Keller, "So, I
mean, if you want to go with him and I can stand by where I
live——" Officer Keller then asked Sullivan, "Who's at your
house right now, one of the guys involved?" Cannon responded,
"Yes." Sullivan said, "Yeah he's supposed to——he was supposed
to come to my house. He's supposed to."
¶27 Officer Keller asked Sullivan, "All right, and he's
over there right now?" Sullivan responded, "I——I don't know he
was supposed to go." Cannon said that he saw Jerome head
towards Sullivan's apartment building after the argument ended
and that Jerome "might be there already."
¶28 Dispatch could be heard telling Officer Keller that
Sullivan was on probation for battery, strangulation, and
suffocation. Dispatch also told Officer Keller that Sullivan
had contact restrictions with the defendant, Faith Reed.
¶29 Officer Keller asked Sullivan if "that" is where he
was, referring to Reed's apartment. Sullivan said, "Mm-hm."
Officer Keller asked, "Is she there?" Sullivan answered, "Yeah,
9
No. 2016AP1609-CR
she's there." There was then some confusion among Sullivan,
Officer Keller, and Dispatch about the specifics of Sullivan's
contact restrictions with Reed, but eventually, it was
established that Sullivan was not prohibited from in-person
contact with Reed.13
¶30 Officer Keller asked Sullivan, "Who's over at your
house right now that was involved with this? What's his name?"
Sullivan responded, "Ah, Jerome. He was supposed to——he was
supposed to go over there. I stood out here and me and him was
talking about it."
¶31 The same male officer from before could again be heard
stating over the radio that nobody was answering the door at
apartment number 11. This male officer asked if they thought
Jerome was in number 11 and Brandon took off. Officer Keller
responded into his radio, "Kirk's advising that Jerome might be
at his residence over here and the others in number 11 there."
Officer Keller then asked, "Is it Brandon that was involved?"
It is not clear to whom this question was directed, and nobody
responded to it.
¶32 Officer Keller again confirmed with Cannon and
Sullivan that the argument was verbal and not physical. Officer
Keller then communicated that information into his radio. Over
the radio, a male officer can be heard saying, "We're looking
13
Sullivan's phone contact with Reed was restricted, not
his in-person contact with Reed.
10
No. 2016AP1609-CR
for Brandon Harris and Jerome Harris. You can run both of them—
—make sure they're not wanted——could be helpful."
¶33 Officer Keller then gestured towards an apartment
building and said to Sullivan, "All right, let's go——ah——let's
go look over——see if he's over there. If anything we could just
talk to him." Officer Keller told Cannon that he was "good to
go."
¶34 Officer Keller and Sullivan began walking towards
Reed's apartment building with Sullivan walking to Officer
Keller's left. As they walked, Dispatch could be heard saying
that Jerome had two "body only" warrants, one of which was
related to "operating while revoked." After about 30 seconds,
Officer Keller told Sullivan, "Hey, do you want to step over
here with me. I'm going to see if this other party's here."
Sullivan then began to walk in front of Keller such that he was
clearly visible in the body camera footage.
¶35 With Sullivan in front of Officer Keller, the two
entered an unlocked entryway to a stairwell in the apartment
building. They climbed a set of stairs to the second story of
the building. At the top of the stairs was another unlocked
door. Sullivan opened the door, exited the stairwell, and
looked back while holding the door open for Officer Keller.
Sullivan then led Officer Keller to Reed's apartment, Unit 206,
about halfway down the hallway on the left. Just as they
reached the threshold of Reed's apartment, Officer Keller stated
into his radio, "Andy, I'll be in apartment number 206."
11
No. 2016AP1609-CR
¶36 Sullivan briefly knocked on the door, opened the door
just wide enough to facilitate his own entry into the apartment,
began to shut the door behind him, and called out for Jerome.14
The door to Unit 206 was inches away from shutting when Officer
Keller pushed open the door, stating, "Hey, don't just walk in
there."15 Sullivan, another man later identified as Jerome
Harris, and a woman later identified as the defendant, Faith
Reed, could be seen inside the apartment after Officer Keller
pushed open the door but before he entered the apartment.
Sullivan could be seen trying to conceal something that was on
the kitchen counter. Officer Keller entered the apartment and
subsequently discovered marijuana on the counter.
¶37 Reed was arrested for possession of marijuana. During
the booking process, a single Adderall pill was found in Reed's
sock. Reed was charged with one count each of possession of an
illegally obtained prescription drug in violation of Wis. Stat.
§ 450.11(7)(h), possession of dextroamphetamine sulfate
(Adderall) in violation of Wis. Stat. § 961.41(3g)(b),
14
The circuit court found that it was ambiguous whether
Sullivan was shutting the apartment door or if it was another
occupant of the apartment. This finding is clearly erroneous.
Officer Keller's body camera clearly shows that it was Sullivan
who was attempting to shut the apartment door behind him.
15
The court of appeals stated that Jerome said "Hey, don't
just walk in like that." This finding is also clearly
erroneous. In the body camera footage, Officer Keller, not
Jerome, could clearly be heard saying, "Hey, don't just walk in
there" as Sullivan entered the apartment and began shutting the
door behind him.
12
No. 2016AP1609-CR
possession of THC as a party to a crime in violation of Wis.
Stat. § 961.41(3g)(e), and bail jumping in violation of Wis.
Stat. § 946.49(1)(a).
¶38 On February 9, 2016, Reed filed a motion to suppress
the evidence on the basis that the warrantless searches violated
her rights under the Fourth Amendment to the United States
Constitution and Article I, Section 11 of the Wisconsin
Constitution. A hearing was held on March 15, 2016, at which
Officer Keller testified and the prosecutor played relevant
portions of Officer Keller's body camera footage.
¶39 At the hearing, Officer Keller admitted that Sullivan
had not given him permission to go into Unit 206. Officer
Keller testified that Sullivan "did not tell me that I had to
stay out of the apartment nor did he tell me to just come right
in, either." Officer Keller testified that "[a]t no point did
[Sullivan] tell me I could not follow him into the residence."
Officer Keller further testified that he pushed opened the door
to the apartment in part out of concern for his own safety.
¶40 The circuit court denied Reed's motion to suppress.
The circuit court concluded that "by his conduct Mr. Sullivan
freely and voluntarily implied that the officer could follow him
to [Unit 206] and that he was going to locate and identify Mr.
Harris who was one of the suspects in connection with this
altercation so that the officer could talk with him." The
circuit court found that it was not clear who closed the door
13
No. 2016AP1609-CR
(i.e., either Sullivan or another occupant of Reed's
apartment),16 and that from Officer Keller's perspective, it
would have been "ambiguous" why the door was shutting. The
circuit court concluded that "there was nothing about
[Sullivan's] entry into the room that revoked——revoked that
consent that the officer follow him." The circuit court also
concluded that "under the circumstances that the officer was in
an isolated location without anyone else there to back him up
dealing with individuals one of whom was on probation, had a
warrant for his arrest who had just been in an altercation, I
think it was reasonable for him to push the door partially open
to make sure he knew who was in front of him and what was going
on."
¶41 After the motion to suppress was denied, Reed pleaded
no contest to possession of a controlled substance in violation
of Wis. Stat. § 961.41(3g)(b) and bail jumping in violation of
Wis. Stat. § 946.49(1)(a). Reed appealed her convictions to the
court of appeals, arguing that the circuit court erroneously
denied her motion to suppress.
¶42 The court of appeals, Judge Brian Blanchard sitting
alone pursuant to Wis. Stat. § 752.31(2)(f), affirmed the
circuit court's denial of Reed's motion to suppress. With
regard to whether Sullivan provided consent for Officer Keller
16
This finding is clearly erroneous.
14
No. 2016AP1609-CR
to enter Unit 206, the court of appeals concluded that Sullivan
provided consent:
[T]o a typical, reasonable person, both of the
following were unequivocally and specifically
expressed: (1) Keller's request that Sullivan permit
Keller to talk to Jerome in Unit 206, including
proposing that "we could just talk to him," and (2)
Sullivan's consent, expressed through an extended
course of conduct, that Keller enter Unit 206.17
¶43 The court of appeals disagreed with the circuit
court's finding that it was ambiguous who closed the door. The
court of appeals stated that "[i]t is clear that neither Jerome
nor Reed pushed on the door from the inside," such that "the
only logical deduction from the video is that as Sullivan
entered Unit 206 he applied slight to moderate pressure to the
make [sic] the door slowly swing toward the closed position."18
¶44 The court of appeals characterized Sullivan's
attempted closing of the door as "a nuanced attempt to
momentarily delay Keller's entrance, by slipping into the
apartment and giving the door a soft backward push."19 The court
of appeals acknowledged that Sullivan's "last-second, soft
backwards push on the door . . . suggests the possibility that
Sullivan had last-second concern about agreeing to allow Keller
to enter Unit 206[,]" but ultimately, the court of appeals
17
Reed, No. 2016AP1609-CR, ¶25.
18
Id., ¶12 n.3.
19
Id., ¶13.
15
 No. 2016AP1609-CR
concluded that "[t]his nuanced possible delaying tactic was an
equivocal act."20
¶45 Reed petitioned this court for review in April 2017.
The State did not file a formal response. After being ordered
to do so by this court, the State filed a response in August
2017. In its response, the State agreed with Reed that Sullivan
did not give unequivocal and specific consent for Officer Keller
to enter the apartment. Rather, according to the State,
Sullivan merely acquiesced to Officer Keller's request to broker
a meeting with Jerome, and Sullivan did so by leading Officer
Keller through areas that Officer Keller did not need consent to
enter: a parking lot, the unlocked exterior door to a multi-
unit apartment building, a set of stairs, and an unlocked
hallway. The State wrote in its response that when they reached
the apartment door, Sullivan "did nothing to suggest that entry
was permitted. He did the opposite. Sullivan knocked, opened
the door only wide enough to enter, slipped in, and attempted to
push the door close[d]——indicating that he did not want Officer
Keller to follow him."
¶46 The State agreed with Reed that the court of appeals'
decision should be reversed, recommending that this court
summarily reverse and remand the cause to the circuit court with
an instruction to suppress the challenged evidence.
20
Id., ¶30.
16
 No. 2016AP1609-CR
¶47 In October 2017, this court granted Reed's petition
for review of the court of appeals' decision and remanded the
cause to the court of appeals "for reconsideration in light of
the State's concession in its response to Ms. Reed's petition
for review." Chief Justice Roggensack dissented joined by
Justice Ziegler and Justice Gableman, writing that the State's
concession appeared to be factually unwarranted and inconsistent
with its position in the circuit court and court of appeals.
¶48 Nine days after we remanded the cause to the court of
appeals for reconsideration, the court of appeals, Judge
Blanchard again sitting alone pursuant to Wis. Stat.
§ 752.31(2)(f), issued an order refusing to reconsider the case.
The court of appeals' order reads in full as follows:
Following the supreme court's October 10, 2017 order,
I asked the parties to inform me whether new or
supplemental briefing is necessary for purposes of
resolving the reconsideration issue or instead whether
I may rely on their submissions in the supreme court.
They inform me that no new submissions are necessary.
I am not persuaded by the State's new legal argument
on appeal and therefore do not accept the State's new
concession.
IT IS ORDERED that reconsideration is denied.
¶49 In November 2017, Reed again petitioned this court for
review, "reviv[ing] the issues raised in her initial petition
for review." As it did in response to Reed's first petition for
review, the State responded to Reed's second petition by
agreeing that Sullivan did not give express or implied consent
17
No. 2016AP1609-CR
to enter Reed's apartment and that reversal of the court of
appeals' decision was necessary.
II
¶50 We begin by setting forth the applicable standard of
review of the court of appeals' decision affirming the circuit
court's denial of Reed's motion to suppress evidence.
¶51 Whether evidence should be suppressed is a question of
constitutional fact.21 When presented with a question of
constitutional fact, this court engages in a two-step inquiry.
First, we review the circuit court's findings of historical fact
under the clearly erroneous standard.22 Second, we independently
apply constitutional principles to these historical facts.23
III
21
Johnson, 299 Wis. 2d 675, ¶13; State v. Knapp, 2005 WI
127, ¶19, 285 Wis. 2d 86, 700 N.W.2d 899.
22
Johnson, 299 Wis. 2d 675, ¶13.
The parties disagree about whether to apply the clearly
erroneous standard or the de novo standard to the circuit
court's findings of historical fact, given that the circuit
court's findings were based on Officer Keller's body camera
footage. See State v. Jimmie R.R., 2000 WI App 5, ¶39, 232
Wis. 2d 138, 606 N.W.2d 196 (1999) (when the only evidence on a
factual question is reflected in a video recording, the court of
appeals is in the same position as the circuit court to
determine a question of law based on the recording).
We decline to address this disagreement because doing so is
unnecessary in the instant case. As we explained above, even
under the more deferential clearly erroneous standard, we reject
the circuit court's finding with respect to who closed the
apartment door.
23
Johnson, 299 Wis. 2d 675, ¶13.
18
No. 2016AP1609-CR
¶52 The Fourth Amendment to the United States Constitution
and Article I, Section 11 of the Wisconsin Constitution
prohibiting unreasonable searches and seizures guide our
analysis.24 In particular, the "physical entry of the home" has
been described by the United States Supreme Court as "the chief
evil against which the wording of the Fourth Amendment is
directed."25
¶53 In Boyd v. United States, 116 U.S. 616, 635 (1886),
the United States Supreme Court issued the following guidance:
"It is the duty of courts to be watchful for the constitutional
rights of the citizen, and against any stealthy encroachments
thereon."26
¶54 Because "the warrant procedure minimizes the danger of
needless intrusions" by the government, "[i]t is a 'basic
principle of Fourth Amendment law' that searches and seizures
24
U.S. Const. amend. IV; Wis. Const. art. I, § 11; State v.
Eason, 2001 WI 98, ¶16, 245 Wis. 2d 206, 629 N.W.2d 625
(recognizing the protections under both the United States and
Wisconsin constitutions).
25
United States v. United States District Court, 407 U.S.
297, 313 (1972); see also Payton, 445 U.S. at 585; State v.
Douglas, 123 Wis. 2d 13, 17-18, 365 N.W.2d 580 (1985) ("The
courts, including this one, have scrutinized with the greatest
care claims by the state to the use of evidence seized in
warrantless searches of one's home").
26
See also Douglas, 123 Wis. 2d at 21 ("That principle
[announced in Boyd] is no less true today than it was a century
ago. The fourth amendment has been liberally construed to
protect the security of person and property when exceptions to
the warrant requirement are sought.").
19
No. 2016AP1609-CR
inside a home without a warrant are presumptively
unreasonable."27 However, both the United States and Wisconsin
constitutions have "jealously and carefully drawn" exceptions to
their warrant requirements.28
¶55 The instant case presents issues related to two of
those well-recognized exceptions to the warrant requirement:
consent29 and exigent circumstances.30
A
¶56 We now address whether Officer Keller obtained consent
to enter Reed's apartment.
¶57 Consent to search need not be expressed by words.
Consent may be given or inferred through gestures or conduct.31
Whether consent is verbal or inferred from one's actions,
27
Payton, 445 U.S. at 586 (quoting Coolidge v. New
Hampshire, 403 U.S. 443, 477-78 (1971)); Johnson v. United
States, 333 U.S. 10, 13-14 (1948); see also Douglas, 123 Wis. 2d
at 18.
28
Jones v. United States, 357 U.S. 493, 499 (1958);
Douglas, 123 Wis. 2d at 22.
29
Schneckloth, 412 U.S. at 219; Johnson, 299 Wis. 2d 675,
¶16.
30
Kentucky v. King, 563 U.S. 452, 460 (2011); Dalton, 383
Wis. 2d 147, ¶39.
31
United States v. Castellanos, 518 F.3d 965, 970 (8th Cir.
2008); State v. Phillips, 218 Wis. 2d 180, 197, 577 N.W.2d 794
(1998).
20
No. 2016AP1609-CR
consent must be unequivocal and specific.32 Consent to a search
should not, however, be lightly inferred.33
¶58 Consent must be freely and voluntarily given; it is
not enough to show mere "acquiescence to a claim of lawful
authority."34 The State bears the burden of proving consent by
clear and convincing evidence.35
¶59 In the instant case, the State failed to meet its
burden.
¶60 Simply put, Sullivan's conduct throughout the entire
interaction between him and Officer Keller, including leading
Officer Keller to the threshold of the apartment and entering
the apartment, does not imply that Sullivan granted Officer
Keller consent to enter Unit 206. Sullivan unequivocally
demonstrated that he did not consent to Officer Keller entering
Reed's apartment when Sullivan attempted to prohibit Officer
Keller's entry by shutting the apartment door behind him.
¶61 Sullivan's conduct is more properly characterized as
"mere acquiescence" to Officer Keller's show of authority than
32
Andrews v. Hickman County, 700 F.3d 845, 854 (6th Cir.
2012); Chan-Jimenez, 125 F.3d at 1328; Gautreaux, 52 Wis. 2d at
492.
33
United States v. Como, 340 F.2d 891, 893 (2nd Cir. 1965);
State v. Rodgers, 119 Wis. 2d 102, 107, 349 N.W.2d 453 (1984);
Kelly v. State, 75 Wis. 2d 303, 316, 249 N.W.2d 800 (1977).
34
Bumper, 391 U.S. at 549; Johnson, 299 Wis. 2d 675, ¶16.
35
United States v. Mapp, 476 F.2d 67, 77 (2nd Cir. 1973);
State v. Tomlinson, 2002 WI 91, ¶21, 254 Wis. 2d 502, 648
N.W.2d 367.
21
No. 2016AP1609-CR
as free and voluntary actions evincing consent.36 Throughout the
entire interaction, Sullivan was simply following Officer
Keller's orders.
¶62 It is noteworthy that at the very beginning of the
interaction, Sullivan tried to leave without talking to Officer
Keller. In fact, Sullivan had gotten several yards away before
Officer Keller noticed that Sullivan was leaving, prompting him
to loudly tell Sullivan, "Hey, why don't you come back here.
Don't just leave." Without a word, Sullivan complied with
Officer's Keller's directive. As Sullivan was returning,
Officer Keller said to Sullivan, "Keep your hands out of your
pockets for me, OK?" Again, without a word, Sullivan complied
with Officer Keller's directive and showed Officer Keller his
palms.
¶63 After learning that Jerome might be at Unit 206,
Officer Keller said to Sullivan, "All right, let's go——ah——let's
go look over, see if he's over there. If anything we could all
just kind of talk to him."
¶64 Given Sullivan's pattern of complying with Officer
Keller's previous commands, it is unsurprising that Sullivan did
not verbally respond to Officer Keller's statement and instead
simply departed towards the apartment building with Officer
Keller in tow.
36
See Bumper, 391 U.S. at 548; Johnson, 299 Wis. 2d 675,
¶16 & n.6.
22
No. 2016AP1609-CR
¶65 None of this conduct, viewed together or in isolation,
implies that Officer Keller had Sullivan's consent to enter Unit
206. After reaching the second floor of the apartment building,
Sullivan held the door between the stairwell and the hallway
open behind him, implying that Officer Keller was to follow
Sullivan into the hallway. However, Sullivan unequivocally
implied that Officer Keller did not have his consent to enter
the apartment when Sullivan attempted to prohibit Officer
Keller's entry by attempting to shut the apartment door in
Officer Keller's face.
¶66 Moreover, we observe that Officer's Keller's statement
was not an unequivocal request to enter Unit 206. There is
nothing about Officer Keller's statement that suggests that he
meant to physically enter Unit 206——the statement could just as
readily imply that Officer Keller intended to follow Sullivan to
the threshold of Unit 206 while Sullivan entered to see if
Jerome was present in the apartment.
¶67 We further observe that Officer Keller's statement was
not a request at all. Officer Keller was not asking a question
or asking for Sullivan's permission to accompany him into Unit
206.37 There is no reasonable way to interpret Officer Keller's
statement other than as a directive to Sullivan to lead Officer
Keller to Unit 206, a directive with which Sullivan complied as
he had complied with Officer Keller's previous commands.
37
See Johnson, 299 Wis. 2d 675, ¶19 ("As the record
indicates, neither [Officer] Stillman nor [Officer] Dummer asked
for Johnson's permission to search the car.").
23
No. 2016AP1609-CR
¶68 In light of all of the facts and circumstances
presented in the instant case, we conclude that Officer Keller
did not have consent to enter Reed's apartment.
B
¶69 We could end our consent analysis here, having
concluded that consent to enter Reed's apartment was never
given. However, in light of both the circuit court and court of
appeals' conclusions with regard to the revocation of consent,
we address whether consent would have been revoked had Sullivan
initially given consent (which, we emphasize, he did not).
¶70 We conclude that Sullivan would have unequivocally
withdrawn consent, had he initially given it, by attempting to
shut the door to the apartment, prohibiting Officer Keller's
entry.
¶71 Once given, consent to search may be withdrawn.
"Withdrawal of consent need not be effectuated through
particular 'magic words,' but an intent to withdraw consent must
be made by unequivocal act or statement."38 "The standard for
measuring the scope of a suspect's consent under the Fourth
Amendment is that of 'objective' reasonableness——what would the
typical reasonable person have understood by the exchange
between the officer and the suspect?"39
38
United States v. Gray, 369 F.3d 1024, 1026 (8th Cir.
2004); State v. Wantland, 2014 WI 58, ¶33, 355 Wis. 2d 135, 848
N.W.2d 810.
39
Fla. v. Jimeno, 500 U.S. 248, 251 (1991); Wantland,
355 Wis. 2d 135, ¶33.
24
No. 2016AP1609-CR
¶72 Examples of unequivocal acts or statements sufficient
to constitute withdrawal of consent have included slamming shut
the trunk of a car during a search40 and grabbing back the item
to be searched from the officer.41
¶73 In the instant case, although Sullivan never provided
consent for Officer Keller to enter Unit 206, Sullivan would
have unequivocally revoked consent, had it initially been given,
by attempting to shut the door to the apartment before Officer
Keller pushed it open.
¶74 Immediately prior to arriving at the threshold of Unit
206, Sullivan led Officer Keller out of a stairwell and into the
hallway of the apartment building. In doing so, Sullivan looked
back and held the door between the stairwell and the hallway
open behind him, as one does when he or she anticipates someone
will be following him or her through the doorway.
¶75 Sullivan's actions between the stairwell and the
hallway are in stark contrast to Sullivan's actions after
arriving at the threshold of Unit 206. Upon arriving at Unit
206, Sullivan briefly knocked on the door, opened the door just
enough to facilitate his own entry into the apartment, began to
close the door behind him with Officer Keller still in the
hallway, and called out for Jerome. The door was within inches
40
See United States v. Flores, 48 F.3d 467, 468 (10th Cir.
1995).
41
See United States v. Ho, 94 F.3d 932, 934 (5th Cir.
1996); see also Wantland, 355 Wis. 2d 135, ¶34 (citing Flores
and Ho).
25
No. 2016AP1609-CR
of being fully closed when Officer Keller pushed the door open,
stating, "Hey, don't just walk in there."
¶76 The body camera footage is unambiguous and conclusive.
There is perhaps no action that could more clearly communicate
"Do Not Enter" than attempting to shut a door in someone's face.
Shutting the door is akin to slamming shut the trunk of a car
during a search or grabbing back the item to be searched by the
officer, actions that courts have recognized as unequivocal
revocations of consent to search.42
C
¶77 We conclude by addressing whether exigent
circumstances existed that justify Officer Keller's pushing open
of Reed's apartment door.
¶78 Both this court and the United States Supreme Court
have identified several exigencies that may justify a
warrantless search of a home. We have explained that "[t]he
objective test for determining whether exigent circumstances
exist is whether a police officer, under the facts as they were
known at the time, would reasonably believe that delay in
procuring a search warrant would gravely endanger life, risk
destruction of evidence, or greatly enhance the likelihood of
the suspect's escape."43
42
See Wantland, 355 Wis. 2d 135, ¶34.
43
Hughes, 233 Wis. 2d 280, ¶24; see also Olson, 495 U.S. at
100; Coolidge, 403 U.S. at 478; Dalton, 383 Wis. 2d 147, ¶39.
26
No. 2016AP1609-CR
¶79 It is the State's burden to prove that the warrantless
search at issue was justified by exigent circumstances.44
¶80 The State argues that Officer Keller's pushing open
Reed's apartment door without a warrant was justified because
(1) Officer Keller reasonably believed that Sullivan and Jerome
were dangerous; and (2) Officer Keller could reasonably have
thought that Jerome would likely try to escape.
¶81 The totality of the circumstances known to Officer
Keller at the time he pushed open door to Reed's apartment does
not establish exigent circumstances. Officer Keller was
repeatedly told that the altercation that he was investigating
had been verbal, not physical, in nature. Officer Keller knew
that the altercation was over. He knew that Brandon and Jerome
Harris left in opposite directions, i.e., that they were no
longer together, and that Jerome had been "cooling off" in
Sullivan's apartment.
¶82 Furthermore, Sullivan was cooperating with Officer
Keller throughout Officer Keller's investigation. Sullivan
returned to Officer Keller and removed his hands from his
pockets when directed to do so by Officer Keller. He answered
all of Officer Keller's questions. Although the State points
out that Sullivan was on probation for violent crimes, it fails
to connect that fact with its assertion that it was objectively
reasonable for Officer Keller to believe that Sullivan had a
44
Coolidge, 403 U.S. at 474-75; State v. Richter, 2000 WI
58, ¶26, 235 Wis. 2d 524, 612 N.W.2d 29.
27
No. 2016AP1609-CR
weapon or would suddenly become violent. Indeed, such a broad
assertion would appear to create a categorical exigent
circumstances exception.45
¶83 Likewise, there was no objective, reasonable basis for
believing that Jerome had a weapon or would become violent.
Although Jerome had two outstanding body warrants, Officer
Keller knew that at least one of those warrants stemmed from a
non-violent crime, and there was no indication that Jerome posed
any greater risk of attempting to evade arrest than any other
individual with an outstanding warrant.
¶84 An outstanding warrant for a suspect's arrest, by
itself, does not give rise to exigent circumstances justifying
the warrantless entry into someone else's home in which the
suspect does not reside.46
¶85 The State relies on State v. Kirby, 2014 WI App 74,
355 Wis. 2d 423, 851 N.W.2d 796, for its assertion that exigent
circumstances justified Officer Keller's pushing open the door
to Unit 206.
45
See Missouri v. McNeely, 569 U.S. 141, 152-58 (2013)
(rejecting categorical exigency rule in drunk driving cases
premised on the dissipation of alcohol in the suspect's blood).
46
See Payton, 445 U.S. at 603 ("[F]or Fourth Amendment
purposes, an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in
which the suspect lives when there is reason to believe the
suspect is within.") (emphasis added); State v. Delap, 2018 WI
64, ¶29-32, 382 Wis. 2d 92, 913 N.W.2d 175.
28
No. 2016AP1609-CR
¶86 In Kirby, two police officers went to an apartment to
question young men who had reportedly been fighting outside.47
One officer had learned prior to arriving at the apartment that
"the main aggressor" in the fight had threatened "to come back
to the area with a gun."48 The door to the apartment unit was
open, and five men were inside.49 When the officers were about
to leave after speaking with the men, one officer received a
phone call and learned that an informant had told police that if
there was a black backpack in the apartment, it had a handgun
and sawed-off shotgun inside.50 The officer then noticed a black
backpack, opened it, and found a sawed-off shotgun.51 The court
of appeals held that the possible threat to officer safety
justified the officer's search of the backpack, and that "even
had the officer been outside the threshold of the apartment,"
the officer would have been justified in entering it to look for
the backpack.52
¶87 The State also argues that State v. Ayala, 2011 WI App
6, 331 Wis. 2d 171, 793 N.W.2d 511, supports its position that
47
State v. Kirby, 2014 WI App 74, ¶¶4-5, 355 Wis. 2d 423,
851 N.W.2d 796.
48
Id., ¶3.
49
Id., ¶6.
50
Id., ¶9.
51
Id., ¶12.
52
Id., ¶¶18-19.
29
 No. 2016AP1609-CR
exigent circumstances justified Officer Keller's pushing open
Reed's apartment door.
¶88 In Ayala, police officers lawfully entered the
defendant's bedroom without a warrant because of the chance that
he could try to escape or violently resist arrest.53 Noting that
"the risk of danger, the gravity of the crime[,] and the
likelihood that the suspect is armed" are all proper
considerations in determining whether exigent circumstances
existed, the court of appeals summarized what was known to the
officers when they entered the defendant's bedroom without a
warrant:
(1) [T]here had been what appeared to be an
intentional homicide using a gun; (2) officers had
information from the other robbery/homicide
participants that Ayala was the shooter; (3) Ayala was
believed by officers to be a Latin Kings gang member;
(4) the weapon used in the homicide had not been
recovered, leading officers to believe Ayala might
still have the gun in his possession; (5) the gun
might be evidence of a crime; (6) if Ayala possessed
the missing gun, it put the officers at risk of being
shot by Ayala if they announced themselves or asked
Ayala for consent to enter the bedroom; (7) the tavern
below the apartment was frequented by Latin King
members; (8) [a resident of the apartment] operated
the tavern below the apartment; and (9) because there
were civilians in the apartment as well as the tavern
below, all were at risk if Ayala began shooting while
police procured a warrant.54
53
State v. Ayala, 2011 WI App 6, ¶¶18-19, 331 Wis. 2d 171,
793 N.W.2d 511.
54
Ayala, 331 Wis. 2d 171, ¶¶16-18.
30
No. 2016AP1609-CR
¶89 In the instant case, Officer Keller never received
information suggesting that either Sullivan or Jerome was armed
or dangerous. There was nothing to suggest that Officer Keller
was being led to a known gang hangout or that gangs were in any
way involved in his investigation. Officer Keller was
investigating a verbal argument in the street between two
brothers about shoes, not an intentional homicide using a gun.
In sum, neither Kirby nor Ayala presents factual circumstances
remotely similar to those in the instant case. The State's
reliance on these cases is, therefore, misplaced.
¶90 The State points out that Officer Keller found it
suspicious that Sullivan would knock on the door to his own
apartment, and that in doing so, Sullivan may have been
attempting to alert those inside the apartment that he was
accompanied by a police officer. The most succinct response to
the State's argument is, so what if Sullivan was attempting to
alert those inside that he was accompanied by a police officer?
Police officers frequently knock on doors and announce their
presence and identities.
¶91 Indeed, the police are generally required to announce
their presence and their intent to search before entering closed
premises, and this obligation only "gives way when officers
'have a reasonable suspicion that knocking and announcing their
presence, under the particular circumstances, would be dangerous
or futile, or . . . would inhibit the effective investigation of
31
No. 2016AP1609-CR
the crime by, for example, allowing the destruction of
evidence."55
¶92 Simply put, there were no circumstances known to
Officer Keller at the time he pushed open the apartment door
that would give rise to a reasonable belief that he was in
danger. Law enforcement is an inherently dangerous profession.
In the course of investigating a crime, any individual might
have a weapon, and any individual could attempt to flee.
55
United States v. Banks, 540 U.S. 31, 36 (2003) (quoting
Richards v. Wisconsin, 520 U.S. 385, 394 (1997)); see also
Wilson v. Arkansas, 514 U.S. 927, 931-32 (1995).
The Supreme Court recently summarized the privacy rights
enjoyed by individuals in their homes:
When law enforcement officers who are not armed with a
warrant knock on a door, they do no more than any
private citizen might do. And whether the person who
knocks on the door and requests the opportunity to
speak is a police officer or a private citizen, the
occupant has no obligation to open the door or to
speak. When the police knock on a door but the
occupants choose not to respond or to speak, "the
investigation will have reached a conspicuously low
point," and the occupants "will have the kind of
warning that even the most elaborate security system
cannot provide." And even if an occupant chooses to
open the door and speak with the officers, the
occupant need not allow the officers to enter the
premises and may refuse to answer any questions at any
time.
King, 563 U.S. at 469-70.
32
No. 2016AP1609-CR
However, these generalized concerns for safety and risk of
flight are not enough to give rise to exigent circumstances.56
¶93 The test is whether there are objective facts known to
the officer that would reasonably lead him to believe that the
delay caused by obtaining a warrant would gravely endanger life
or greatly enhance the likelihood of the subject's escape.57
Finding the existence of exigent circumstances in the instant
case would allow the exigent circumstances exception to swallow
the warrant requirements of the United States and Wisconsin
constitutions.
IV
¶94 We conclude that the law enforcement officer in the
instant case did not have consent justifying his warrantless
entry into Reed's apartment. Even if consent had initially been
given, which it was not, consent would have been unequivocally
revoked before the officer breached the threshold of the
apartment. Finally, we conclude that no exigent circumstances
justified the officer's warrantless searches.
56
The consequence of the State's reasoning appears to
result in categorical exigencies. For example, if the subject
has an outstanding arrest warrant, exigent circumstances would
exist because the subject might try to violently resist arrest
or flee. Additionally, if the subject has ever been convicted
of a violent crime, exigent circumstances would exist because he
might become violent towards the police officer. "[T]he Fourth
Amendment will not tolerate adoption of an overly broad
categorical approach that would dilute the warrant requirement
in a context where significant privacy interests are at stake."
McNeely, 569 U.S. at 158.
57
Hughes, 233 Wis. 2d 280, ¶24.
33
No. 2016AP1609-CR
¶95 Accordingly, we reverse the court of appeals and
remand the cause to the circuit court with instructions to
suppress the challenged evidence and vacate Reed's convictions.
By the Court.—The decision of the court of appeals is
reversed and the cause is remanded to the circuit court.
34
No. 2016AP1609-CR.akz
¶96 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I agree
with the result the majority reaches. I concur and write
separately because I disagree with the majority's assertion that
consent to a search "must be unequivocal and specific."
Majority op., ¶¶8, 57 (relying on Gautreaux v. State, 52
Wis. 2d 489, 492-93, 190 N.W.2d 542 (1971)). What the majority
does not make clear is that Gautreaux has been "explained" by
this court in State v. Rodgers, 119 Wis. 2d 102, 114, 349
N.W.2d 453 (1984). In Rodgers this court noted that Gautreaux
was decided a year and a half before the United States Supreme
Court precedent set by Schneckloth v. Bustamonte, 412 U.S. 218
(1973). Id. We then adopted the test from Schneckloth. See
State v. Wantland, 2014 WI 58, ¶¶20, 23-24, 355 Wis. 2d 135, 848
N.W.2d 810; see also State v. Brar, 2017 WI 73, ¶26, 376
Wis. 2d 685, 898 N.W.2d 499. Schneckloth does not use the
phrase "unequivocal and specific." Instead, in Schneckloth the
Supreme Court made clear that for consent to operate as a valid
exception to the warrant requirement, two conditions must be
satisfied: consent must be (1) freely and voluntarily given, (2)
by an individual having either actual or apparent authority over
the place to be searched. 412 U.S. at 219, 222. In the
interest of clarity and consistency we should use the language
from Schneckloth.
¶97 Moreover, the majority opinion's use of "unequivocal
and specific" is not explained, interpreted, or analyzed.
Perhaps this is because it is used incidentally and is entirely
unnecessary to this case. The majority opinion correctly
1
No. 2016AP1609-CR.akz
states, "Sullivan's conduct is more properly characterized as
'mere acquiescence' to Officer Keller's show of authority than
as free and voluntary actions evincing consent." Majority op.,
¶61. In other words, the majority is correct to state that
consent was not freely and voluntarily given under the test of
Schneckloth. Neither Sullivan's words nor his actions establish
free and voluntary consent. As is apparent from this and other
cases that use the phrase "unequivocal or specific," the test
continues to be whether consent was freely and voluntarily given
by one with the authority to so consent. Here, no such consent
was given in the first instance. In short, the additional
language is unnecessary to the Schneckloth analysis we are to
apply. I would not use it.
¶98 More specifically, the majority opinion largely and
inexplicably relies on Gautreaux for the proposition that
consent must be "unequivocal and specific." Gautreaux, 52
Wis. 2d at 492. To be clear, Gautreaux is distinguishable from
the case now before the court. In Gautreaux there was no
dispute that the consent was unequivocal and specific. Rather,
the focus in Gautreaux was whether consent was voluntary.
Gautreaux is not particularly instructive concerning the issue
before our court, which is, in my view, whether consent was
given in the first instance. In my view, it was not.
¶99 Furthermore, our court has distanced itself from the
"unequivocal and specific" language noting that in Gautreaux,
the court was without the benefit of knowing what test the
United States Supreme Court would provide in Schneckloth.
2
No. 2016AP1609-CR.akz
Rodgers, 119 Wis. 2d at 114 ("The words used in Gautreaux do not
differ in meaning from a voluntary consent as defined in
Schneckloth. There is nothing in sec. 968.07, Stats., nor Art.
I, secs. 8 and 11 that requires the definition of consent for
entry into the home to be any different than the definition for
consent under the fourth amendment of the United States
Constitution as stated in Schneckloth. In this case, since the
state relied upon consent for the entry, it had the burden of
proving that the consent was freely and voluntarily given.").
The Rodgers court could have chosen to continue with the
Gautreaux language, but it did not. Despite strong advocacy in
a dissent arguing in favor of remaining with the Gautreaux
verbage, the Rodgers court nonetheless chose the language and
the test of Schneckloth. Id. at 115-16.
¶100 One might think that our clarification in Rodgers and
our more recent precedent would cause the court to pause when
using subsequently exacted language of Gautreaux. In our more
recent cases analyzing the consent exception to the warrant
requirement, we have not used the "unequivocal and specific"
language. Notably, the court does not now overrule Rodgers, the
test as stated in State v. Wantland and State v. Brar, or any
host of other cases, wherein, consistent with Schneckloth, we
again confirmed that consent to a search has two requirements.
"First, the consent must [be] 'freely and voluntarily given.'
Second, the consent must be given by an individual having either
actual or apparent authority over the place to be searched."
Wantland, 355 Wis. 2d 135, ¶23 (citation omitted); see Brar, 376
3
No. 2016AP1609-CR.akz
Wis. 2d 685, ¶26. Presumably then, the court today means no
change be made to that test, unlike Rodgers wherein the court
specifically "explained" the language of Gautreaux.
¶101 Other recent cases have similarly eschewed the
"unequivocal and specific" language. They remain precedent.
See, e.g., State v. Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786
N.W.2d 430 ("The State bears the burden of proving that consent
was given freely and voluntarily."); State v. Blackman, 2017 WI
77, ¶4, 377 Wis. 2d 339, 898 N.W.2d 774 ("When the legality of a
warrantless search is based on the consent of the defendant,
that consent must be freely and voluntarily given.").
¶102 Our court has the ability to engage in new federalism
if it so chooses. See Diane Sykes, "Reflections on the
Wisconsin Supreme Court," Marquette Lawyer, Summer/Fall 2006, at
52-63, https://law.marquette.edu/assets/marquette-lawyers/pdf/
marquette-lawyer/2006-summer/Summer06pp52-63.pdf. If the
majority now wished to invoke additional constitutional
protections under our State constitution, as advocated by the
majority opinion writer's then-dissent in Rodgers, it would
plainly do so. See Rodgers, 119 Wis. 2d at 125 (Abrahamson, J.,
dissenting) ("Although the majority concludes that Article I,
section 11, is substantially the same as the fourth amendment,
it errs in analyzing the consent issue under the state
constitution by guessing what the United States Supreme Court
might hold under the fourth amendment."); id. at 128
(Abrahamson, J., dissenting) ("In light of the frequent use of
consent to justify noncompliance with the warrant requirement,
4
No. 2016AP1609-CR.akz
diluting the meaning of consent dilutes the impact of the state
constitutional guarantee of the sanctity of the home. This
court should avoid facilitating the erosion of the state
constitutional guarantee of privacy. The solution to the
problem presented by this case is not to reduce the requirements
for consent but to prevent the problem from arising by
encouraging officers to obtain warrants."). Since the court has
neither disavowed the Schneckloth test nor has it overruled our
precedent, it ought not provoke confusion by using language that
could be interpreted to the contrary.
¶103 And so I write to question why, despite the court's
clarification in Rodgers and our adoption of the Schneckloth
test, the majority opinion nonetheless chooses the language from
Gautreaux. In addition, instead of turning to our own
precedent, United States Supreme Court precedent, or even
precedent from the Seventh Circuit, our court now reaches for
distinguishable cases from the Sixth and Ninth Circuits in
support of the terms "unequivocal and specific." See Andrews v.
Hickman Cty., 700 F.3d 845, 854 (6th Cir. 2012) (holding that
officer's alleged warrantless entry into parents' home after
being told to wait outside cannot be justified on the basis of
consent); United States v. Chan-Jimenez, 125 F.3d 1324 (9th Cir.
1997) (concluding that defendant's failure to respond verbally
to officer's request to search his truck supports the argument
that defendant did not voluntarily consent the search). If the
majority intended to adopt a specificity requirement in addition
to the established Schneckloth test, it should so indicate. It
5
No. 2016AP1609-CR.akz
does not. Courts, like ours, which use "unequivocal and
specific" leave to the imagination what, if anything, that
phrase might mean. In fact, the courts that have used this
language nonetheless continue to analyze the issue in terms of
whether consent was freely and voluntarily given by one with the
authority to do so.
¶104 Courts which have used "unequivocal and specific,"
nonetheless leave that phrase undefined and unexamined. The
legal analysis and conclusions employed do not analyze the
"unequivocal and specific" requirement but instead continue to
rest on whether consent was given in terms of being free and
voluntary. See, e.g., United States v. Salas, 756 F.3d 1196,
1203 (10th Cir. 2014) (reciting language from a prior case
requiring consent to be "unequivocal and specific," yet deciding
that consent was voluntarily given without subsequently using
the words "unequivocal" or "specific"); Andrews, 700 F.3d at 854
(stating that consent must be "voluntary, unequivocal,
specific," and then concluding that there was actually no
consent at all). I am unaware of any case wherein the
Schneckloth test is met, but consent was nonetheless deemed
insufficient because it was too equivocal or lacked sufficient
specificity. Thus, even when the suspect phrase has been used,
the analysis of Schneckloth seems to be the test. We should
strive to clarify legal standards, rather than sow seeds of
confusion.
¶105 To be sure, Article 1, Section 11 of the Wisconsin
Constitution is substantively identical to the Fourth Amendment
6
No. 2016AP1609-CR.akz
to the United States Constitution, which requires in relevant
part that "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated."1 U.S. Const.
amend. IV; see also Wis. Const. art. I, § 11. A search
conducted without a warrant issued upon probable cause is per se
unreasonable, subject to only a few specifically established and
well-delineated exceptions. Schneckloth, 412 U.S. at 219; State
v. Krajewski, 2002 WI 97, ¶24, 255 Wis. 2d 98, 648 N.W.2d 385.
One such exception is consent——a warrantless search does not
violate the Fourth Amendment to the United States Constitution,
nor Article 1, Section 11 of the Wisconsin Constitution, if the
search is conducted with consent. Schneckloth, 412 U.S. at 219;
Krajewski, 255 Wis. 2d 98, ¶24.
¶106 The United States Supreme Court has repeatedly held
that consent must be "freely and voluntarily given" by someone
with authority in order to satisfy the Fourth Amendment's
reasonableness requirement. See, e.g., Schneckloth, 412 U.S. at
222, 248 ("We hold only that when the subject of a search is not
in custody and the State attempts to justify a search on the
basis of his consent, the Fourth and Fourteenth Amendments
1
Neither the Wisconsin Constitution nor the United States
Constitution require, by their terms, unequivocal and specific
consent. We interpret Article 1, Section 11 of the Wisconsin
Constitution coextensively with the United States Supreme
Court's interpretation of the Fourth Amendment. State v. Floyd,
2017 WI 78, ¶19, 377 Wis. 2d 394, 898 N.W.2d 560; State v.
Dumstrey, 2016 WI 3, ¶14, 366 Wis. 2d 64, 873 N.W.2d 502. Thus,
we follow Schneckloth v. Bustamonte, 412 U.S. 218 (1973), in our
interpretation of consent to search.
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require that it demonstrate that the consent was in fact
voluntarily given."); Florida v. Royer, 460 U.S. 491, 497 (1983)
("[It is not] disputed that where the validity of a search rests
on consent, the State has the burden of proving that the
necessary consent was obtained and that it was freely and
voluntarily given."). However, as stated in our plurality
opinion in Brar this, along with the individual having actual or
apparent authority over the place to be searched, is the extent
of the constitutional requirement for consent. See Brar, 376
Wis. 2d 685, ¶¶26-27 ("Contrary to Supreme Court precedent,
decisions from the court of appeals have required the State to
prove consent was given knowingly and intelligently. The
Supreme Court in Schneckloth rejected precisely this
requirement. As we interpret our constitution consistent with
the Fourth Amendment, we withdraw any language from these cases
that requires that consent to a search be given knowingly or
intelligently." (citations omitted)); see also Schneckloth, 412
U.S. at 235 ("Our cases do not reflect an uncritical demand for
a knowing and intelligent waiver in every situation where a
person has failed to invoke a constitutional protection."). The
Supreme Court has never held that consent must be "unequivocal
and specific."
¶107 Further, any requirement that consent to search be
"unequivocal and specific" appears to be at odds with other
United States Supreme Court precedent. In Florida v. Jimeno,
500 U.S. 248 (1991), a suspect gave the police officer consent
to search his car. Id. at 249-50. Without receiving consent to
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do so, the officer opened a container inside the car and found a
kilogram of cocaine inside it. Id. at 250. The defendant
challenged the search arguing that he did not "specifically"
give the officer permission to search the container. The Court
held that this search did not violate the Fourth Amendment
concluding that the test for consent is an objective one: "what
would the typical reasonable person have understood by the
exchange between the officer and the suspect?" Id. at 251-52;
id. at 252 ("Respondents argue . . . that if the police wish to
search closed containers within a car they must separately
request permission to search each container. But we see no
basis for adding this sort of superstructure to the Fourth
Amendment's basic test of objective reasonableness."). In
Jimeno the Court concluded that it was objectively reasonable
for an officer to expect that general consent to search the car
included consent to search a container inside the car, even
though it was argued that such consent to search the container
was not specifically given. Id. at 251.
¶108 Following the United States Supreme Court's lead, many
jurisdictions, including the Seventh Circuit, have concluded
that consent be as required in Schneckloth. See, e.g., United
States v. Sabo, 724 F.3d 891, 893-94 (7th Cir. 2013) (concluding
that consent to search is implied where officer requested to
enter residence and defendant stepped back and to side to allow
entry; further, that "[c]onsent can come in many forms, but it
must always be given voluntarily"); United States v. Jones, 701
F.3d 1300, 1317, 1320-21 (10th Cir. 2012) (stating that
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"'[v]oluntary consent' consists of two parts: (1) the law
enforcement officers must receive either express or implied
consent, and (2) that consent must be freely and voluntarily
given" and then concluding that defendant can be deemed to have
impliedly consented to officers' entry into his residence if
defendant said or did something which permitted the officers to
form a reasonable belief they were authorized to enter
residence); see also United States v. Reynolds, 646 F.3d 63, 73
(1st Cir. 2011) (holding that consent to search headboard is
implied when defendant gestured to headboard while answering
"yes" to officer's question of whether defendant had weapons,
because gesture demonstrated defendant understood officer
intended not only to learn of existence of weapons but also to
find them); United States v. Stabile, 633 F.3d 219, 231, 233 (3d
Cir. 2011) (following Schneckloth and requiring only that
consent to a search be voluntarily given by a person having
authority to give it); United States v. Sanchez, 156 F.3d 875,
878 (8th Cir. 1998) ("[W]hether or not the suspect has actually
consented to a search, the Fourth Amendment requires only that
the police reasonably believe the search to be consensual.").
¶109 When considered in the broader context of the United
States Supreme Court's jurisprudence surrounding consent
searches, it makes sense that courts consider the circumstances
which concern whether consent was freely and voluntarily given.
"As with other factual determinations bearing upon search and
seizure, determination of consent to enter must be 'judged
against an objective reasonable person standard.'" Illinois v.
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Rodriguez, 497 U.S. 177, 188 (1990); Jimeno, 500 U.S. at 251.
The United States Supreme Court has long recognized that this
objective standard protects citizens from police overreach, as
"[a]nything less would invite intrusions upon constitutionally
guaranteed rights based on nothing more substantial than
inarticulate hunches." Terry v. Ohio, 392 U.S. 1, 22 (1968).
Because we interpret our constitution's provisions governing
searches and seizures coextensively with the United States
Supreme Court's interpretation of the Fourth Amendment, Floyd,
377 Wis. 2d 394, ¶19, I would not fuel confusion by using this
additional, undefined, unanalyzed phrase.
¶110 As a result, I respectfully concur.
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No. 2016AP1609-CR.pdr
¶111 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). The
circuit court found as an historic fact that Kirk Sullivan
consented to Officer Steven Keller's entry into the apartment he
shared with Faith Reed. This finding is not clearly erroneous.
Furthermore, under the totality of circumstances, Sullivan's
consent was voluntarily given and was not unequivocally
withdrawn. Accordingly, I would affirm the court of appeals,
and I respectfully dissent from the majority opinion.
I. BACKGROUND
¶112 Officer Steven Keller of the Tomah Police Department
responded to a call that two men were causing a disturbance.
When he arrived, the altercation had stopped. He met two men,
neither of whom was involved in the altercation. One of the men
was Kirk Sullivan who said that the disturbance involved two
brothers. Sullivan said that he thought that one of the
brothers, Jerome Harris, was in Sullivan's apartment watching a
football game.
¶113 Officer Keller, in a very conversational tone
according to the record produced by the audio-video camera he
was wearing, asked Sullivan if they could go to his apartment to
talk with Harris. Sullivan did not verbally respond, but began
walking toward an apartment building. Keller did not know in
which apartment Sullivan lived; therefore, in response to
Keller's request, Sullivan led the way to his apartment.
¶114 Sullivan opened the ground floor door of a nearby
apartment building, and Keller followed him into the building.
Sullivan led the way up the stairs to the second floor. Keller
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followed. Sullivan opened the door into the second floor
hallway, held the door open for Keller, and Keller followed
Sullivan into the second floor hallway. Sullivan led Keller to
apartment 206 where he lived with Reed.
¶115 Sullivan knocked on his apartment door and then
immediately opened it. Sullivan stepped inside and partially
closed the door behind him. Keller then pushed the partially
open door, saw Reed and Jerome Harris, and entered the
apartment. Keller saw Sullivan sticking something into his
pocket. He told Sullivan to put the object he had stuck in his
pocket on the counter.
¶116 The object was marijuana. More marijuana was found,
and Reed, who was also in the apartment, and Harris were
arrested. Reed moved to suppress the marijuana based on the
allegation that Keller did not have consent to enter the
apartment that she shared with Sullivan.
¶117 The circuit court found that by his conduct of
"leading the way to the apartment" Sullivan freely and
voluntarily consented to Keller's entry into his apartment and
that his partial closing of the apartment door was not an
unequivocal withdrawal of consent. Accordingly, the circuit
court denied Reed's motion to suppress. The court of appeals
affirmed.
II. DISCUSSION
A. Standard of Review
¶118 Determining whether consent was given involves a
question of constitutional fact to which we apply a two-step
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analysis. State v. Post, 2007 WI 60, ¶8, 301 Wis. 2d 1, 733
N.W.2d 634. First, we examine whether consent was given as a
question of historic fact based on what was said and what
actions and gestures occurred. State v. Brar, 2017 WI 73, ¶13,
376 Wis. 2d 685, 898 N.W.2d 499. We uphold a circuit court's
finding of historic fact unless it is clearly erroneous. Id.
Stated otherwise, "[w]e uphold a finding of consent in fact if
it is not contrary to the great weight and clear preponderance
of the evidence." State v. Artic, 2010 WI 83, ¶30, 327 Wis. 2d
392, 786 N.W.2d 430. Second, we apply the facts found to
constitutional principles to determine whether consent was
voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218,
222-23 (1973).
B. Consent
¶119 The Fourth Amendment to the United States Constitution
and Article I, Section 11 of the Wisconsin Constitution protect
against unreasonable searches and seizures. Ordinarily, they
are construed coextensively when we consider the question of
consent. State v. Johnson, 2007 WI 32, ¶20, 299 Wis. 2d 675,
729 N.W.2d 182. Although warrantless searches are presumed to
be unconstitutional, consent to search is an exception to the
warrant requirement. Schneckloth, 412 U.S. at 219; State v.
Phillips, 218 Wis. 2d 180, 196, 577 N.W.2d 794 (1998).
¶120 The majority opinion inserts a new test for consent
saying that consent must be "specific."1 Asserting that consent
1
Majority op., ¶¶8, 58, 60.
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must be "specific" is not required by a United States Supreme
Court opinion, but rather, it is cobbled together from cases
where defendants were either under arrest or compelled to
consent by some means. The audio-video recording does not
support a conclusion that Sullivan was arrested or compelled to
take Keller to his apartment to speak with Harris. Sullivan was
never commanded or ordered to do so. Here, the majority uses
the requirement that consent be "specific" to overturn the
historic fact of consent by conduct that the circuit court
found, saying that Keller never asked to enter Reed's apartment.2
Separation of the historic facts from whether consent was
voluntarily given assists in applying the correct standard to
questions of constitutional fact. The majority opinion
conflates the two standards.
1. Circuit court finding
¶121 As I review the circuit court's decision, the first
consideration is whether consent was given, as an historic fact.
Consent may be given orally or through gestures or conduct.
Brar, 376 Wis. 2d 685, ¶17. As we have explained, consent need
not be granted explicitly but may be granted by implication
after considering the totality of circumstances. Id. The
context in which consent is said to have been given is an
important part of our assessment of a circuit court's finding of
consent in fact. Id., ¶22.
2
Majority op., ¶9.
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¶122 Here, the circuit court found that Sullivan consented
to Keller's entry into his apartment. The court based this
finding on Sullivan's statement that Harris, the man to whom
Officer Keller wanted to speak "was probably in the apartment
that Mr. Sullivan described as my apartment," combined with
Sullivan and Keller walking to Sullivan's apartment when
"Sullivan was in the lead."
¶123 As I examine the circuit court's findings of historic
fact, they are not clearly erroneous. The audio-visual
recording from the body camera that Officer Keller wore shows he
asked Sullivan if they could go and talk with Harris. Sullivan
had said that Harris was in his apartment watching a football
game. Although Sullivan did not verbally respond to Keller's
request, he began leading the way to his apartment. The audio-
visual recording clearly shows Sullivan leading the way. That
he did so is logical because Keller did not know where Sullivan
lived.
¶124 As they approached apartment 206, Officer Keller can
be heard telling dispatch that he will be in apartment 206.
Sullivan then knocked on the door of his own apartment. It
appears Sullivan did so because he was bringing Keller into the
apartment, otherwise there would have been no reason for
Sullivan to knock on the door of his own apartment before
entering. Therefore, in this context, where Keller wanted to
talk to Harris combined with Sullivan's statement that Harris
was in his apartment and Sullivan's knock on the door before
entry, the circuit court's finding that Sullivan consented to
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Keller's entry into his apartment is not against the great
weight and clear preponderance of the evidence presented to the
circuit court.
2. Voluntariness
¶125 When consent as a matter of historic fact has been
found, we then consider whether consent was given freely and
voluntarily. The State bears the burden of proving by clear and
convincing evidence that consent was given freely and
voluntarily. Schneckloth, 412 U.S. at 222; Phillips, 218
Wis. 2d at 197. To make this determination, we again consider
the totality of circumstances surrounding the alleged consent.
Artic, 327 Wis. 2d 392, ¶33. The circumstances are examined
using multiple non-exclusive factors such as:
(1) whether the police used deception, trickery, or
misrepresentation in their dialogue with the defendant
to persuade him to consent; (2) whether the police
threatened or physically intimidated the defendant or
"punished" him by the deprivation of something like
food or sleep; (3) whether the conditions attending
the request to search were congenial, non-threatening,
and cooperative, or the opposite; (4) how the
defendant responded to the request to search; (5) what
characteristics the defendant had as to age,
intelligence, education, physical and emotional
condition, and prior experience with the police; and
(6) whether the police informed the defendant that he
could refuse consent.
Id.
¶126 In regard to whether Sullivan's consent was
voluntarily given, I agree with the circuit court's conclusion.
Keller did not order or command Sullivan to take him to his
apartment so he could talk with Harris. Rather, he asked
Sullivan if they could go to his apartment to talk to Harris.
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No. 2016AP1609-CR.pdr
The tone of Keller's voice on the audio-video recording is very
conversational. He never ordered or commanded Sullivan to take
him to his apartment. No tricks, threats or punishments were
used to obtain Sullivan's consent to enter his apartment.
3. Withdrawal of consent
¶127 Consent lawfully given may be withdrawn. United
States v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005).
Withdrawal of consent must be made by an unequivocal act or
statement. State v. Wantland, 2014 WI 58, ¶33, 355 Wis. 2d 135,
848 N.W.2d 810.
¶128 Accordingly, I must determine whether Sullivan's
partially closing the door to his apartment after he knocked to
announce their entry and did not ask Officer Keller to remain in
the hallway unequivocally constituted withdrawal of Sullivan's
consent to Keller to enter his apartment. I conclude that under
the totality of circumstances Sullivan's consent was not
unequivocally withdrawn.
¶129 First, Sullivan knocked on the door to announce their
entry. Second, he said nothing to Keller about waiting in the
hall, and third, he did not close the door completely, but left
it partially open.
¶130 Sullivan brought Keller to his apartment to talk with
Harris. If Sullivan wanted Keller to wait in the hall, he could
have said, "wait here" or he could have closed the door
completely. He did neither. Therefore, it was reasonable for
Keller to push on the door and follow Sullivan into his
apartment to talk to Harris, as that was the reason for which
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Sullivan brought Keller to the apartment he shared with Reed.
Sullivan did not unequivocally withdraw consent to come into his
apartment to talk with Harris.
¶131 The majority opinion asserts that Sullivan "attempted
to shut the door behind him to prohibit the officer from
entering the apartment."3 That asserted reason is pure fiction.
The record contains no statement about why Sullivan partially
closed the door. Sullivan did not testify nor did he state on
the audio-visual recording why he partially closed the door. We
do not know why he did it.
¶132 One could easily postulate that Sullivan partially
closed the door because as he entered his apartment, he saw
marijuana lying on the counter and he wanted to give himself a
moment to stuff it into his pocket before Keller entered the
apartment. Certainly, that hypothesis fits the audio-visual
recording that shows Sullivan stuffing something into his pocket
as he entered the apartment. The audio-visual recording was
presented to the circuit court, and the "something" Sullivan
stuffed into his pocket was marijuana.
¶133 I agree with the circuit court. Sullivan's partial
closing of the apartment door was not an unequivocal withdrawal
of his consent for Keller to enter.
3
Majority op., ¶¶10, 60.
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III. CONCLUSION
¶134 The circuit court found as an historic fact that
Sullivan consented to Keller's entry into the apartment he
shared with Reed. This finding is not clearly erroneous.
Furthermore, under the totality of circumstances, Sullivan's
consent was voluntarily given and was not unequivocally
withdrawn. Accordingly, I would affirm the court of appeals,
and I respectfully dissent from the majority opinion.
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1