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00-3134 State v. John Tomlinson, Jr.

By: dmc-admin//August 20, 2001

00-3134 State v. John Tomlinson, Jr.

By: dmc-admin//August 20, 2001

“In determining whether a minor has actual authority to consent to the entry, two factors may guide the courts. The first factor is the age of the child because ‘as children grow older they … acquire discretion to admit … [persons] on their own authority.’ 3 Wayne R. LaFave, Search and Seizure, sec. 8.4(c), 773 (3d ed. 1996). In the instant case, although it is not clear whether the 14-year-old or 15-year-old daughter answered the door, either had the authority to consent to entry. Both girls are within the age where courts usually find that the child has acquired the discretion to admit persons on their own authority.

“The second factor to consider is the scope of the consent and whether the entry was to a common area or a more private area of the family home. Id. Here, the consent was access into a common area of the home, the front entranceway and the kitchen, as opposed to the entire residence, or what could arguably be considered more private areas. In addition, the consent in this case was not solely that of a teenage girl. Detective Kuchenreuther testified that Tomlinson was nearby when the police entered and proceeded into the kitchen, and at no time did he object to the entry.

“Based on the foregoing facts and circumstances, we conclude that the entry was constitutionally permissible; therefore, the trial court did not err in denying the motion to suppress.”


Recommended for publication in the official reports.

Dist I, Milwaukee County, Wagner, J., Wedemeyer, P.J.


For Appellant: John J. Grau, Waukesha

For Respondent: Robert D. Donohoo, Milwaukee; Christian R. Larsen, Madison


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