Objection to search trumped by other’s consent

Listen to this article

A defendant’s objection to a search of his home doesn’t count if he is already in police custody in a squad car.

The Wisconsin Supreme Court on June 22 adopted a narrow reading of the U.S. Supreme Court opinion in Georgia v. Randolph, 547 U.S. 103 (2006), in which the court held that, if one occupant objects and another consents, a warrantless search is unlawful.

Instead, the court adopted a broad reading of U.S. v. Matlock, 441 U.S. 164 (1974), and classified the arrested occupant as “absent,” and thus unable to override a present occupant’s consent.

Brian T. St. Martin was arrested after his live-in girlfriend, Latoya M., reported he had battered her. Latoya also said that St. Martin possessed cocaine at their home.

After the officers arrested St. Martin and placed him in the squad car, they obtained consent to search the home from Latoya. They also asked St. Martin for consent, but he objected.

The search yielded cocaine and St. Martin was charged with drug offenses. He moved to suppress the evidence, relying on Randolph, but the circuit court denied the motion.

The Court of Appeals certified the case to the Supreme Court, which affirmed in an opinion by Justice N. Patrick Crooks.

Key to the court’s holding was that St. Martin did not object to the police initially entering the home: “St. Martin was clearly not ‘at the door and objecting.’ In fact, when he was ‘at the door’ and the police entered, he did not object.”

Also key was that St. Martin was no longer in the home when he did object to the search. The court concluded, “We agree with those courts that the Randolph Court incorporated an express requirement of physical presence in its shared-dwelling consent rule.”

Justice Ann Walsh Bradley dissented, in an opinion joined by Chief Justice Shirley Abrahamson.

To the dissenters, the important fact in Matlock was that the nonconsenting occupant was truly “absent.” When occupants are genuinely absent, it would be unreasonable for police to have to look for them before acting on consent already given by another tenant.

The dissenters found this concern does not exist when the nonconsenting occupant is present in a nearby squad car, and therefore, Randolph dictates that the search be held unlawful.

The dissent also took issue with the majority opinion’s emphasis on St. Martin’s permitting the officers to initially enter the home, finding it arbitrary.

The dissent posed a number of hypotheticals: “What if the nonconsenting occupant is standing just beyond the doorframe when he objects to the search? What if he is 10 feet away? What if he is at the bottom of the stairs leading up to the door? Does it make any difference if he is standing on the second step beyond the entryway, or on the fifth? To negate his co-occupant’s consent, must the nonconsenting occupant stand squarely under the doorframe of his residence and block the officers’ entry as he lodges his objection?”

Analysis

The opinion gives defense attorneys two significant avenues to distinguish it in similar cases. But both are problematic.

First, the opinion states on two occasions that there is no allegation or evidence that St. Martin’s arrest was just a pretext to remove him from the home, so that police could search it for cocaine. Pars. 22, 32.

Defense attorneys will be able to seize on these statements in similar cases, and allege that their clients were arrested only as a pretext to search the home.

But prosecutors will be able to counter that, even if the arrest was just a pretext, it is irrelevant.

In Whren v. U.S., 517 U.S. 806 (1996), the U.S. Supreme Court held that, where there is probable cause for a traffic stop, it is irrelevant that the stop is just a pretext for the police to pursue some other objective.

Logically, therefore, it should not matter if police arrest someone for a minor offense merely as a pretext for obtaining consent to search his home from another occupant, provided the arrest was lawful.

Second, the opinion makes much of the fact that St. Martin did not object to police entering the home at the beginning of the encounter. Defense attorneys will be able to seize on these statements to distinguish the holding when the defendant was not cooperative prior to his arrest.

But prosecutors will be able to counter, using other statements by the court. The court said that it found “persuasive the careful analysis conducted by the Seventh … Circuit” in U.S. v. Henderson, 536 F.3d 776 (7th Cir. 2008).”

The facts in Henderson were similar in that the defendant’s wife reported to police that she had been battered, and that her husband had illegal guns and drugs in the house. But the cases are different in that Henderson was not cooperative.

The court found, “in unequivocal terms,” Henderson ordered the police out of the house. He was then arrested for the domestic abuse, and afterwards, police obtained consent to search from his wife.

Nevertheless, the 7th Circuit held the search was lawful, even though Henderson was initially at home and objected to police presence when they arrived.

The court concluded, “It is undisputed that Henderson objected to the presence of the police in his home. Once he was validly arrested for domestic battery and taken to jail, however, his objection lost its force, and Patricia was free to authorize a search of the home.” Henderson, 536 F.3d at 785.

Thus, on one hand, the Wisconsin Supreme Court opinion puts great emphasis on St. Martin’s failure to object in the way Henderson did; but on the other hand, it calls the opinion in Henderson “persuasive,” even though the Henderson opinion attaches no significance to Henderson’s conduct prior to his arrest.

As a result, when defense attorneys file suppression motions in similar cases, both they and the prosecutors will be able to cite the Supreme Court’s opinion for support.

What the Court Held

Case: State v. St. Martin, No. 2009AP1209-CR

Issue: Is a warrantless search lawful, where one occupant consents, and a second objects, but the objecting occupant has already been arrested and removed from the home?

Holding: Yes. After the objecting tenant has been arrested and removed, his objection is trumped by the other occupant’s consent.

Attorneys: For Plaintiff: Sarah K. Larson, Madison; For Defendant: Michael K. Gould, Milwaukee.

David Ziemer can be reached at [email protected].