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Consent — Authority — Minor Child — Entry of Residence

State v. John Tomlinson, Jr., 2002 WI 91, affirming 2002 WI App 212, 247 Wis. 2d 682, 635 N.W.2d 201
For Tomlinson: John J. Gray

Issue: Whether the police had consent from a minor to enter the defendant’s home in order to arrest him.

Holding: Warrantless entry of a home to effectuate an arrest requires probable cause and exigent circumstances or consent. ¶20. Probable cause and lack of exigent circumstances are conceded, leaving consent as the crucial issue. The court finds consent, for the following reasons.  The police were let into the defendant’s home by a teenager. In such instances of third-party consent, the police may rely on either actual authority (which turns on mutual use of the property by someone having joint control for most purposes) or apparent authority (which requires reasonable reliance on the ability to control access to the property). The court draws a conclusion of apparent authority and therefore doesn’t reach actual authority. ¶26. The decisive factors are as follows. The police had descriptions of the defendant’s teenage daughters and could reasonably believe that one of them answered the door. ¶28. Although a parent’s interest in the home is generally superior to his or her minor child’s, there are situations where the child may reasonably consent to police entry; this depends on the child’s age, intelligence and maturity, and scope of the search or seizure. ¶30-31. (The older the child, the greater the responsibility. ¶32, citing Laasch v. State, 84 Wis. 2d 587, 593-94, 267 N.W.2d 278 (1978) (five-year old son didn’t possess authority to consent to enter).)

¶33. In the present case, given the age of the girl who answered the door, the limited scope of the entry, and the surrounding circumstances, the officers could have reasonably concluded that the consent to enter the house was valid. A high school-aged child will likely have at least some authority to allow limited entry into the home. Courts that have addressed this issue are generally in agreement on this point. See, e.g.Doyle v. State, 633 P.2d 306, 309 (Alaska 1981); Mears v. State, 533 N.E.2d 140, 142 (Ind. 1989); State v. Folkens, 281 N.W.2d 1, 4 (Iowa 1979); State v. Griffin, 756 S.W.2d 475, 484-85 (Mo. 1988). There is no evidence here that the girl who answered the door lacked the intelligence or maturity such that the officers’ reliance on the consent would have been called into question.

Court also emphasizes, ¶34, limited scope of consent — into entryway and kitchen; time of day — early evening; and defendant’s standing nearby when the door was opened, and failing to object when the police entered, along with the daughter’s failing to ask her father’s permission for police entry.

Though there may not be a per se rule under the fourth amendment with respect to age and capacity to consent, for authority that under an “enhanced right to privacy” stateconstitutional provision “a youth under the age of sixteen does not have the capacity or the authority to relinquish her parents’ privacy rights,” see State v. Schwarz, 2006 MT 120.

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