By: WISCONSIN LAW JOURNAL STAFF//June 7, 2011//
Search and Seizure
Warrantless entry; consent
The consent of one occupant to enter overrides the refusal of another occupant, when neither are the subject of the search or arrest.
“Randolph acknowledged that ‘Fourth Amendment rights [with regard to third-party consent] are not limited by the law of property,’ but rather, rested on ‘“mutual use,”’ id. at 110 (citation omitted), and that ‘there is no societal or legal understanding of superior and inferior as between co-tenants’ unless there is a ‘recognized hierarchy, e.g., parent and child,’ id., 547 U.S. at 114. Nonchatlon acknowledged her mother’s authority over the house by waking her mother up after letting the officers into the house. Because the officers were aware that Hewings was the leaseholder of the house, that Nonchatlon had not previously lived there and that Nonchatlon went to wake Hewings up after the officers arrived, it was reasonable for the officers to conclude that Hewings had the authority to consent to them proceeding up the stairs. Lathan was not present to object to the consent. Nonchatlon, who did object, was not the subject of the search.”
Affirmed.
Recommended for publication in the official reports.
2010AP1228-CR State v. Lathan
Dist. I, Milwaukee County, McMahon, J., Kessler, J.
Attorneys: For Appellant: Tauscheck, George, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Moeller, Marguerite M., Madison