Murder case tests limits of third-party consent

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Truth is stranger than fiction.

The compelling facts in State v. Torres arose in Sheboygan County in 2014. Dorian Torres was the son of divorced parents, Emilio and Shelly. Although divorced, his parents had an amicable and cooperative relationship and spoke to each other often. Dorian lived with his father, but both his father and mother filled parental roles.

Emilio gave Shelly a key to his apartment “in case she needed to … do anything that he needed or that Dorian needed or just to check on Dorian.” She also performed household tasks there at Emilio’s request. She had been in the apartment “many times.”

Emilio goes missing

One day in late January, 2014, Emilio did not return any of Shelly’s telephone calls. She regarded his nonresponsiveness as unusual. When she called his employer, she was told he had been absent.

Four days later, Dorian came to Shelly’s home, and she asked him where Emilio was. Dorian responded that he’d gone to Texas. Shelly regarded this, too, as unusual because it was “out of character” for Emilio to leave without telling her.

Then Dorian told her that Emilio had given him his bank card and told him he could have all the money. He asked Shelly for Emilio’s social security number and personal identification number for the bank card. Dorian’s requests “unsettled” her.

The next night, Shelly called police to report Emilio missing for almost a week. When an officer arrived at her home, she also reported Dorian’s requests from the previous day. She decided to go to Emilio’s apartment that night to check on the situation. Police told her they should accompany her to ensure she would be safe.

Entry into Emilio’s apartment

Shelly did not knock but rather used her key to enter the apartment and allow two police officers to come in behind her. Dorian was sitting on the couch and remained silent.

Shelly went to Emilio’s bedroom to look for his suitcase. Upon entering the room with one of the officers, she noticed that the window was open and the room felt very cold. The room was in “disarray” and the mattress was turned on its side against the wall.

The officer helped Shelly move the mattress and observed a wrapped-up body. The body was Emilio’s.

Trial court proceedings

Dorian was arrested and charged with first-degree intentional homicide. He brought a motion to suppress the evidence obtained from the search of the apartment, arguing that the search was unconstitutional because it was warrantless.

In denying the motion, Sheboygan County Circuit Judge Terence Bourke first reasoned that the police were acting as community caretakers in entering and searching the apartment and thus did not need a warrant under the community-caretaker exception.

He went on to analyze the facts in the light of Shelly’s acting “within the scope of authority given to her by Emilio in that Emilio wanted her to assist in parenting Dorian,” who was a 17-year-old minor at the time.

“And it’s certainly consistent with (their parental interest) to see that Dorian is properly cared for (and) that Shelly would want to make sure that there was parental supervision in the residence.”

The officers were in the apartment with Shelly’s permission.

Dorian’s case was then tried before the judge without a jury. Judge Bourke found him guilty and convicted him as charged.

Dorian appealed.

Court of appeals analysis

Chief Judge Lisa Neubauer wrote the opinion of the court of appeals. The court immediately seized upon third-party consent as the appropriate, applicable exception to the warrant requirement. Indeed, it never reached the community-caretaker exception.

“Police may conduct a warrantless search when authorized consent has been given, which can include consent from someone who is not the subject of the search—a third party.” The consent is valid if the third party possesses a sufficient relationship with the property and its owner.

The court concluded that there was “considerable” evidence that Shelly had a sufficient relationship with the apartment and Emilio.

“Shelly was Emilio’s former wife and Dorian’s mother. They were coparenting Dorian. Emilio had given an apartment key to Shelly and asked her to enter his apartment for various reasons, including to ‘check on’ Dorian. Shelly had been in the apartment ‘many times’ and spoke with Emilio regularly. She showed genuine concern for Emilio’s welfare and, after reporting him missing, told police that she was going to the apartment herself. At the apartment door, Shelly did not knock or call out, but straightaway opened the locked door with her key and entered, bringing the officers with her. Dorian voiced no objection to the entry or search.”

Accordingly, an officer of reasonable caution would view these circumstances as demonstrating that Shelly had authority to consent to their entry into the apartment.

The court then picked apart Dorian’s reliance on the Sobczak case, marshalling the facts of Shelly’s relationship to the apartment and Emilio as well as citing federal case law, including two cases from the 7th circuit.

Commentary

Here is another well written, cogent and concise opinion from Judge Neubauer. She is chief judge of our vibrant court of appeals, which contributes in measured, non-egotistical ways to the development of the law within its level of review.

The opinion gives the bench and bar a logical application of apparent authority to consent by a third party.

The case also gives us a peek into the mind of a killer, which is always a bit startling. On the other hand, the case graces us with an authentically amicable relationship between divorced individuals.