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Search of home — apparent authority to consent; scope of consent; plain view

State v. Royce Markel Wheeler, 2013 WI App 53; case activity

Police went to a duplex in response to domestic abuse complaint from what they believed was the lower unit, with the caller saying she had been assaulted and was bleeding. (¶¶2, 4-6). After officers spent some 20 minutes knocking on the duplex’s common front door and yelling, a woman named Bates opened the door, saying she lived in the upper unit. (¶6). She said she knew nothing about domestic violence in the lower unit, but consented to a search of the basement area, which found nothing. Police then asked her for consent to search the upper unit; she consented to this, too, and identified her boyfriend as the only person who might be up there. (¶¶7-8). Before police began their search, however, two men left the upper unit, one of whom was Wheeler, the defendant. (¶7). After detaining the men, police searched the unit and, in the attic, found a gun and a partially open potato chip bag containing cocaine. (¶9). Bates later admitted that she did not live there, but that Wheeler had asked to lie and say she did and to tell the police no one else was there. (¶10).

Apparent authority to consent to search

The police reasonably concluded that Bates had authority to give them consent to search the upper unit, distinguishing State v. Guard, 2012 WI App 8, 338 Wis. 2d 385, 808 N.W.2d 718, and State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998):

¶19      Unlike the circumstances in Kieffer, the police in this case did not attempt to obtain consent from a third-party property owner. Rather, they attempted to obtain consent from a person claiming to reside in the unit.  Although Bates did indeed lie about her residency and whether anyone was in the unit, her actions did not indicate that she lacked the authority to consent to a search of the unit.  According to testimony from the suppression hearing, Bates came down the stairs leading from the upper unit to the common door to make contact with the police.  She expressly told police that she lived in and controlled the upper unit.  When asked about the domestic violence call associated with the lower unit, Bates offered to contact the landlord, pulled out her cellular phone, and acted as though she was making the phone call.  The presence of other individuals did not necessarily vitiate Bates’s clear assertions—through her words and actions—that she lived in the upper unit.

….

¶21      Unlike the circumstances in Guard, Bates established a relationship to the upper unit.  Although we recognize that “‘officers may not always take [a person’s] consent to a search at face value,’” they “‘must consider the surrounding circumstances.’”  State v. Tomlinson, 2002 WI 91, ¶25, 254 Wis. 2d 502, 648 N.W.2d 367 (citation omitted).  The circumstances surrounding police in this instant case are the following: (1) Bates came down the staircase between the upper unit and the common entrance and opened the door for the police, a seemingly clear indication that she lived in the upper unit; (2) Bates identified herself; (3) Bates expressly stated that she lived in the upper unit; (4) Bates granted consent to search both verbally and in writing; and (5) Bates acted as though she had access to the landlord by pretending to call him or her.

¶22      Moreover, the record demonstrates that Wheeler wanted police to believe that Bates had authority over the upper unit.  It is undisputed that Wheeler instructed Bates to lie to police and claim that she lived in the upper unit.  To argue now that police wrongly relied on Bates’s authority, when Wheeler orchestrated the attempt to mislead police, is disingenuous.

Scope of the consent to search

The consent to search was not limited by Bates, so the police did not exceed the scope of the consent by going into the attic:

¶26      Based on the testimony of the officers at the suppression hearing, the trial court found that Bates did not limit the scope of the officers’ search.  Police told Bates that they were responding to a domestic violence call and were looking for people who may have been involved in the incident, specifically, anyone who may be injured and/or hiding.  Bates consented, simply saying something to the effect of “I have no problem with that.”  At no point did Bates attempt to limit the scope of the consent by telling officers to avoid the attic space.  At no point did Bates attempt to add a written limitation to her written consent.  Given the facts that:  (1) Bates did not object to the officers’ search of the attic area, (2) police were looking for injured parties in relation to a domestic violence call who may have been hiding, and (3) the attic area was large enough for a person to hide, we conclude that the police did not exceed the scope of Bates’s consent when they searched in the attic area and retrieved cocaine and a firearm.

Whether the cocaine was in plain view

Over a dissent, the court concludes that the plain view doctrine authorized seizure of the potato chip bag containing cocaine:

¶28      All three elements are satisfied in this case.  First, the officers visibly saw, in plain view, a potato chip bag after entering the attic. The bag was already open.  By simply obtaining the bag and looking inside, the officers did not violate the scope of their consent.  Second, having a right to be in the attic, the officers had a lawful right of access to the bag.  The potato chip bag was in plain view and was open.  Upon looking inside of the already-open bag, the officers discovered a chunky, white substance.  Based on their experiences, the officers reasonably suspected the substance to be cocaine.  We conclude, therefore, that the open potato chip bag, and in turn, the cocaine found inside, were within the officers’ plain view.

The dissent disputes this application of the doctrine, saying “only the potato-chip bag was in ‘plain view’; the cocaine inside the bag was not.  Under controlling Fourth-Amendment law as set out in Arizona v. Hicks, 480 U.S. 321 (1987), looking inside the bag was a no-no because the officers were searching for persons, not contraband, and they had no reason to look inside the bag.” (¶33). Explained more colorfully:

¶35      Here, the scope of the consent was for persons, not contraband.  Unless the persons for whom the officers had consent to search were even smaller than the Lilliputians, perhaps the size of the family about whom “The Littles” was written, there was no possibility that they were in the potato-chip bag. [Footnote omitted.]

Both the majority and dissent agree the gun was in plain view, as there is no contention it was hidden in any way. (¶¶29, 36).

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