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Defense win! SCOW holds closing door on officer wasn’t consent to enter

State v. Faith N. Reed, 2018 WI 109, reversing an unpublished court of appeals decision, 2016AP1609; case activity (including briefs)

Here’s something not seen in a while: our state supreme court suppressing evidence because the police violated the Fourth Amendment.

You might think it obvious that someone actively trying to keep an officer out of an apartment–by trying to close the door on him–isn’t consenting to that officer’s entry. Six of our seven justices would agree with you, and, in fact, so would the state, sometimes–it tried, earlier in this litigation, to confess error, urging both the supreme court and the court of appeals to reverse. But the court of appeals wouldn’t do so–it thought, based on its review of the officer’s body-cam video, that consent was given.

What that camera shows is an officer responding to a call about an argument in an apartment. He found two men standing outside the complex, and spoke to them. One of the men described the argument, and the officer eventually directed the other to lead him to his apartment, where he said one of the argument’s participants would be.

When they got to the door of the apartment, the man knocked, opened the door just widely enough to slip in, and began to shut the door behind him. The officer, though, pushed open the door and walked in. He saw marijuana, which led eventually to Reed’s arrest.

Justice Abrahamson, writing for a five-justice majority, reaches three conclusions:

(1) the law enforcement officer did not have consent to enter Reed’s apartment; (2) even if the officer had initially been given consent to enter the apartment, which he was not, consent would have been unequivocally revoked before the officer’s entry into the apartment; and (3) exigent circumstances did not justify the officer’s opening Reed’s apartment door.

(¶5). Along the way, it calls various factual findings of the circuit court and the court of appeals clearly erroneous–based on its review of the video, directed by Akira Kurosawa. There are too many facts to summarize concisely, but the nub is this:

Simply put, Sullivan’s conduct throughout the entire interaction between him and Officer Keller, including leading Officer Keller to the threshold of the apartment and entering the apartment, does not imply that Sullivan granted Officer Keller consent to enter Unit 206. Sullivan unequivocally demonstrated that he did not consent to Officer Keller entering Reed’s apartment when Sullivan attempted to prohibit Officer Keller’s entry by shutting the apartment door behind him.

Sullivan’s conduct is more properly characterized as “mere acquiescence” to Officer Keller’s show of authority than as free and voluntary actions evincing consent. Throughout the entire interaction, Sullivan was simply following Officer Keller’s orders.

(¶¶60-61). After observing that “[t]here is perhaps no action that could more clearly communicate ‘Do Not Enter’ than attempting to shut a door in someone’s face,” the court also concludes nothing about the situation–which was, after all, a police response to a reported verbal argument about a pair of shoes–created an exigency justifying the officer’s warrantless entry. The discussion is worth reading, if only for the court’s uncommon pointedness in dismissing some of the state’s less plausible arguments.

Justice Ziegler concurs. She disagrees with the majority’s description of the test for consent–specifically, that it has to be “unequivocal and specific” to be valid. In her view, the Wisconsin case that said that, Gautreaux v. State, 52 Wis. 2d 489, 492-93, 190 N.W.2d 542 (1971), was superseded by Schneckloth v. Bustamonte, 412 U.S. 218
(1973). It’s a little bit unclear what she’s driving at–is the point that valid consent can be equivocal?–but in any case, the other five justices in the majority don’t sign on, so it seems that “unequivocal and specific” is the law in Wisconsin.

Justice Roggensack dissents. She argues, among other things, that the closing of the door was not necessarily an attempt to prevent the officer from coming in–it could have been an attempt merely to delay him. How that should make any difference is left unexplained. If I say you may not come in now, have I consented to you coming in now? Like the concurrence, she also thinks there is no requirement that consent be unequivocal and specific–in contrast to the withdrawal of consent, which does have to meet this test.

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