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SCOW to decide whether going into apartment, trying to shut door on officer is “consent” to enter

State v. Faith N. Reed, 2016AP1609-CR, petition for review of an unpublished court of appeals decision granted 3/13/18; case activity (including briefs)

Issues (composed by On Point):

  1. Whether an apartment dweller consented to police entry of his apartment by leading an officer to the door and going in.

  2. If such consent was given, whether it was revoked by trying to close the door on the officer.

  3. Whether any such consent was free and voluntary where the officer directed the resident to take him to the apartment to speak to someone.

As we noted in our post on the court of appeals decision,

The issue was whether Sullivan gave unequivocal and specific consent when, during an outside encounter, Keller asked Sullivan to let him talk to a person inside Reed’s apartment, and Sullivan allegedly led the way to Reed’s apartment. Never mind that the officer did not ask for permission to enter the apartment or that Sullivan pushed the apartment door closed behind him to keep Officer Keller out.

And the court of appeals found consent. Huh. It did so based on its own review of the officer’s body camera footage of the encounter, so there’s a second question here: while the usual restrictions on appellate-court factfinding are relaxed when a video is the only evidence on an issue, State v. Jimmie R.R., 2000 WI App 5, ¶39, 232 Wis. 2d 138, 606 N.W.2d 196, here there was also testimony from the officer that he did not consider the apartment’s resident to be free to leave during the interaction.

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