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Apparent authority to consent to search; voluntariness of consent

State v. Antoine Lamont Massey, 2012AP1124-CR, District 1, 3/5/13; court of appeals decision (not recommended for publication); case activity

A daughter of the leaseholder had both actual and apparent authority to consent to a search of the apartment, including the back bedroom in which drugs were found, applying, among other cases, State v. Tomlinson, 2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367, State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998), and Illinois v. Rodriguez, 497 U.S. 177 (1990):

¶23      The evidence presented by the State during the suppression hearing supports the trial court’s decision that Lewis had actual and apparent authority over the entire house, including the back bedroom. Lewis was the adult daughter of Boyce, the house’s leaseholder, who was left in charge of the house while Boyce was incarcerated. Boyce entrusted Lewis to pay the bills, and to watch her younger sisters who lived in the home. As part of her duties, Boyce expected Lewis to check in daily and to occasionally sleep in the back bedroom. In other words, Boyce had given Lewis “run of the apartment” while she was there. See United States v. Garcia, 690 F.3d 860, 862-63 (7th Cir. 2012) (neighbor who had “run of the apartment” to watch the defendant’s children while he worked had actual authority to consent to search of the home); see also Sobczak, 338 Wis. 2d 410, ¶12 (houseguest who is given “‘the run of the house’” may give actual consent) (citation omitted) [petition for review granted June 13, 2012].

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¶25      Furthermore, even if Lewis did not have actual authority to consent to the search, Officer Lopez reasonably believed she had such authority. Officer Lopez testified, and the trial court found his testimony credible, that Lewis told him that Boyce had left her in charge, that she was paying the rent, that she was in charge of her sisters who lived at the house, and that she occasionally slept in the back bedroom. A reasonable person hearing this information would believe that Lewis had the actual authority to consent to a search of the entire house, including the back bedroom.

Relying on State v. St. Martin, 2011 WI 44, ¶¶3-7, 334 Wis. 2d 290, 800 N.W.2d 858, the court also rejects the contention  Lewis did not have authority to consent to a search of the back bedroom because he had a greater privacy interest in the bedroom than she did: “Even if true, and we do not conclude that it is, his complaint is irrelevant. As the State correctly points out, even if Massey had a privacy interest in the back bedroom, at the time the police asked Lewis for permission to search, Massey was under arrest in a police car and was not present to object to the search.”

Voluntariness of consent

Under the factors listed in State v. Bermudez, 221 Wis. 2d 338, 348-49, 585 N.W.2d 628 (Ct. App. 1998), Lewis voluntarily consented to the search of the home where: she was not handcuffed and police did not have their guns drawn; she was in her mother’s house, a place she likely felt safe; and there was no evidence demonstrating that Lewis had reason to feel scared or tricked at the time she consented to the search. (¶¶29-30). Massey’s reliance on Lewis’s suppression hearing testimony that police entered the residence with their guns drawn and ordered her out of the way, intimidating her, is rejected: “The trial court explicitly found that Officer Lopez was more credible than Lewis. And if even if the police did make a show of force when they entered the home to arrest Massey, there was no such show of force later when Lewis consented to the search.” (¶30).

The trial court also made findings of fact about the voluntariness of Lewis’s consent based on a recording the officer made of her second consent to search, and because the recording is not in the record, the court of appeals assumes the trial court’s interpretation is accurate. (¶31).

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