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Consent to Search – Apparent Authority: Owner of Residence, Allowing Search of Renter’s Room

State v. Roemie T. St. Germaine, 2007 WI App 214, PFR filed 9/27/07
For St. Germaine: Rex Anderegg

Issue: Whether the owner of the residence (Briseno) had apparent authority to consent to police search of renter St. Germaine’s room, at least where St. Germaine was present was consent was sought and never objected.

Holding:

¶17 St. Germaine argues that there was no reasonable basis for the officers to search his room because they knew it was rented and that Briseno could not consent. However, “in order to satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government … is not that they always be correct, but that they always be reasonable.” Rodriguez, 497 U.S. at 185 (emphasis added).

¶18 To support his position, St. Germaine relies on State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998). In so doing, however, St. Germaine overlooks a critical difference between the facts of the instant matter and the facts at issue there. …

¶19 Unlike the circumstances in Kieffer, St. Germaine was present in the kitchen and overheard the entire exchange that took place between the officers and Briseno, during which Briseno told the police officers that St. Germaine rented a room (without identifying which room) and consented to a search of the entire premises without limitation. See United States v. Elam, 441 F.3d 601, 604 (8th Cir. 2006) (where “a third party with apparent authority gives unequivocal consent, and the defendant is present and fails to disclose a superior privacy interest and object to a search,” the silence makes it “objectively reasonable” for the officers to believe that they had consent); cf. State v. Matejka, 2001 WI 5, ¶37, 241 Wis. 2d 52, 621 N.W.2d 891 (concluding that the owner of a vehicle had the capacity to consent not only to a search of the vehicle but also to the search of a jacket that a passenger had brought into the vehicle, and finding support for its conclusion based on the fact that the passenger was present and aware that the owner had consented to a search of the interior of the vehicle and yet, the passenger “made no attempt to circumscribe the scope of the search to exclude her jacket”).

¶20 In further support of the State’s position that Briseno had apparent authority to authorize the search of the entire house, including St. Germaine’s room, there is nothing in the record to indicate that St. Germaine’s room was identified for the officers. … Consequently, there was no way for the police officers to distinguish St. Germaine’s room from the rest of the house for which they had consent to search. Based on these circumstances, we conclude that St. Germaine’s silence served as a tacit affirmation supporting the police officers’ reasonable belief that Briseno had the apparent authority to provide such consent.

 

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