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Search & Seizure: Consent to Enter – Expectation of Privacy (Overnight Guest) – Exigent Circumstances

State v. Miguel A. Ayala, 2011 WI App 6; for Ayala: Martin E. Kohler, Craig S. Powell; case activity; Ayala BiC; State Resp.; Reply

Search & Seizure – Consent to Enter

Based on trial court findings on disputed facts, the resident of an apartment gave the police consent to enter a bedroom and look for Ayala (as to whom, they had probable cause to arrest and information he was present), ¶¶12-13.

Appears to be thoroughly routine issue. The trial court made findings of fact to the effect that the resident: pointed to the upstairs room and said she “knew (Ayala) was no good”; told the police, “go,” when asked if they could go upstairs to get him; and, signed a police memo book corroborating her verbal consent. Ayala didn’t dispute that this constellation of facts would make out voluntary consent but, rather, argued that its derivation was based on inadequate fact-finding. (More specifically: the trial court didn’t adequately weigh the resident’s testimony – to the effect that the police coerced her “consent,” nor account for discrepancies in the police suppression testimony.) Nonetheless, once the trial court findings are accepted as valid, voluntary consent necessarily follows.

Expectation of Privacy – Overnight Guest

¶15      The Supreme Court has held that an invited overnight guest has a reasonable expectation of privacy on a premises occupied for the night that is protected by the Fourth Amendment.  Minnesota v. Olson, 495 U.S. 91, 96-100 (1990) (“[A person’s] status as an overnight guest is alone enough to show that [the person] had an expectation of privacy in the home that society is prepared to recognize as reasonable.”).  The State does not dispute that, as an overnight guest at the apartment, Ayala had a legitimate expectation of privacy under the Fourth Amendment.  Nor does any party contend that Ayala consented to police entry into the bedroom.  Thus the warrantless entry into the bedroom occupied by Ayala is illegal unless otherwise justified.

Ayala was given permission to stay in the bedroom overnight by the apartment occupant’s son. The occupant didn’t discover Ayala there until some time the next morning, but didn’t ask him to leave, ¶14.

Warrantless Entry – Exigent Circumstances

Warrantless entry into the bedroom where Ayala was sleeping was supported by the exigent circumstances doctrine:

¶18      When officers arrived at the Cervantes residence, they had probable cause to arrest Ayala for the Milford homicide and the three related armed robberies.[5]  Various factors created probable cause:  (1) there had been what appeared to be an intentional homicide using a gun; (2) officers had information from the other robbery/homicide participants that Ayala was the shooter; (3) Ayala was believed by officers to be a Latin Kings gang member; (4) the weapon used in the homicide had not been recovered, leading officers to believe Ayala might still have the gun in his possession; (5) the gun might be evidence of a crime; (6) if Ayala possessed the missing gun, it put the officers at risk of being shot by Ayala if they announced themselves or asked Ayala for consent to enter the bedroom; (7) the tavern below the apartment was frequented by Latin King members; (8) Rochelle operated the tavern below the apartment; and (9) because there were civilians in the apartment as well as the tavern below, all were at risk if Ayala began shooting while police procured a warrant.

¶19      We also note that a delay in obtaining a warrant might have facilitated an escape, or an escape attempt by Ayala, possibly with the assistance of his acquaintances who were still in the apartment or persons unknown in the tavern.  In considering the factors and objective test described in Smith, we conclude that the officers “reasonably believe[d] that delay in procuring a warrant would gravely endanger life or risk destruction of evidence or greatly enhance the likelihood of [Ayala’s] escape.”  See id., 131 Wis. 2d at 230.  Had the officers waited for a warrant to enter the bedroom while guarding the slightly open door of the bedroom they reasonably believed an  armed and dangerous suspect to be in, both police and civilians either in the apartment or in the tavern below would have been at an unreasonable risk of injury had Ayala awakened and realized the circumstances.  The alternative of the officers surrounding the building while waiting for a warrant was also not a viable solution for two reasons.  First, the additional time needed to obtain enough police officers to secure the property (including the tavern) increased the risk that Ayala would awaken and attempt to escape.  The commotion that additional law enforcement presence would cause would likely draw a crowd, make Ayala aware of the presence and intent of police, and increase the risk of injury to the officers and civilians if, as the officers suspected, Ayala was armed and/or attempted escape.  Second, police uncertainty as to how many people might render assistance to Ayala increased their risk of injury, as well as the risk to civilians, had Ayala become aware of the circumstances during the delay required to obtain a warrant.  We conclude that Ayala’s arrest was lawful because the urgency reasonably perceived by the officers was compelling, and the danger they reasonably perceived for themselves and others if they did not move quickly was substantial.  Based on all the circumstances known to a reasonable police officer at the time, exigent circumstances made the warrantless entry into the bedroom constitutionally permissible.

The court cites no on-point authority, which isn’t to say none exists, only that the omission is curious. Is it because none exists, or because the application of the exgient circumstances doctrine to these facts is so mundane that searching for relevant precedent is unnecessary? If future courts read the holding broadly enough, the temptation to apply it to virtually all probable cause based arrests for violent crime may prove irresistable. And if that proves to be the case, then there may not be much left of the exigent circumstances doctrine. Happy holidays.

All may not be lost, though. Keep an eye on Kentucky v. King, USSC No. 09-1272, cert. grant 9/29/10, raising the question of whether police-created exigency inhibits application of the doctrine.  Not that the police here necessarily created the exigency – though, to be sure, Ayala argued that they did; the court ignored the argument -, only that such a limitation may attach generally.

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