State v. Robert A. Ragsdale, 2004 WI App 178, PFR filed 8/5/04
For Ragsdale: Timothy T. Kay
Issue: Whether an occupant’s consent to search his home “as long as he was present” limited an officer’s authority to question the occupant’s three-year-old son apart from his father, and thus inhibit the officer’s recovery of an illicit weapon based on information received from the child.
¶10. Here, Ragsdale contends that questioning his three-year-old son outside of his presence violated the scope of his consent and amounted to coercion. We disagree. Ragsdale consented to permit the search of his home as long as he was present. Ragsdale took one of the officers into the bedroom, leaving the other officer in the living room with his three-year-old son. One who consents to a search “may of course delimit as he chooses the scope of the search to which he consents.” Jimeno, 500 U.S. at 252. Ragsdale did not make any attempt to prevent Stein from speaking with his son. He did not tell Stein not to talk to the boy. He did not take the boy with him into the other room. Quite the opposite, he left Stein alone with the boy without any restrictions or conditions at all. Such conduct suggests that Ragsdale did not assert any reasonable expectation of privacy prohibiting Stein from speaking with his son.
¶11. Moreover, we are not convinced that Stein’s question to the three-year-old even constituted a search. Rather, the question constituted on-the-scene questioning of a potential witness in an ongoing investigation. Ragsdale has not provided, nor are we able to find, any authority prohibiting Stein from speaking with the boy about whether a gun was in the house. Ragsdale limited the scope of his consent to searching the premises only with Ragsdale present. He did not limit the police officers from speaking to his son while he was present. If Stein had asked the boy to show him where the gun was or to get the gun, our conclusion would be quite different because such questions would have necessarily implicated the scope of Ragsdale’s consent. Stein, however, did not conduct any search outside of Ragsdale’s presence.
Emphasis supplied. After Ragsdale gave his limited consent, he and an officer went into one room. His son stayed behind with another officer. Big mistake. The officer asked the child if there were any guns in the house, and the obliging youngster opened a register, which exposed the gun. ¶¶2-3. The italicized portion suggests a limited holding: Stein didn’t ask the kid where the gun was, he merely asked if there was a gun. Seems like a fairly hypertechnical distinction. Still, it shows the court’s sensitivity to the issue. Note that the court doesn’t say that the hypothetically posed situation “might” cause a different result; itwould cause one. The court does leave a bit unsaid – which is not necessarily to suggest that the court is wrong. The issue is consent, and Ragsdale argues coercion but why is it necessary to go that far? A three year-old doesn’t have the capacity to consent to a search. See 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 home). No wonder, then, that the court takes the trouble to say that this wasn’t a search. But justification for seizing the gun is ultimately left hanging. Ragsdale did tell the cops that any search outside his presence was unauthorized; and a cop did seize a gun outside his presence. Apparently, this was a “plain view” seizure, though the court doesn’t put it in those terms. The cop just happened to question the child about guns and the child just happened to take him to the item; inadvertence squared. Note that the court stresses that Ragsdale “did not limit the police officers from speaking to his son while he was present.” But the court also says that talking to the child was “on-the-scene questioning of a potential witness in an ongoing investigation.” Is that something that Ragsdale had the power to prevent? Possibly so: otherwise, why would the court mention it?