2009AP1209-CR State v. St. Martin

Listen to this article

Search and Seizure
Warrantless searches; consent

Where one resident consents to a search, and another, who is in custody, refuses, the warrantless search is lawful.

“The question then is whether a resident seated in a nearby vehicle is ‘physically present’ such that his express refusal to consent would bar a warrantless search notwithstanding the consent given by a co-tenant. We are persuaded that Randolph is to be construed narrowly. Although the language therein explaining the holding is very helpful, the rule stated in Randolph does not apply in this case because we conclude that St. Martin was not physically present at what the United States Supreme Court called the ‘threshold colloquy.’ Randolph, 547 U.S. at 121. This case closely resembles the facts presented in the Matlock case. The consent given by St. Martin’s co-tenant was valid, and as in the Matlock case, that consent rendered the search constitutionally permissible because it cannot be trumped by an objection from an absent tenant. The cocaine and currency seized in the initial search of the attic is therefore admissible evidence. Having resolved that question, we merely note that there is no reason to exclude that seizure from consideration by a different branch of the Racine County Circuit Court, which subsequently issued a warrant for a second search. As the circuit court later found, portions of the search warrant affidavit had contained inaccurate statements, and the circuit court correctly proceeded to evaluate the affidavit to determine whether the untainted information alone would have established probable cause to issue a search warrant. With the addition of the fruits of the first search, the affidavit’s sufficiency cannot be questioned. There is therefore no basis on which to suppress the scale, currency, cell phones and documents seized in the second search.”

2009AP1209-CR State v. St. Martin

Crooks, J.

Attorneys: For Appellant: Gould, Michael K., Milwaukee; For Respondent: Nieskes, Michael E., Racine; Larson, Sarah K., Madison

Full Text