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Consent — Authority — Common Authority over Premises

State v. Matthew J. Knapp, 2003 WI 121, on certification; vacated and remanded on other grounds (for further consideration in light of United States v. Patane542 U. S. ____ (2004)Wisconsin v. Knapp, No. 03-590)
For Knapp: Robert G. LeBell

Issue1: Whether the search of Knapp’s bedroom was properly consented to by his brother (George), with whom Knapp shared the apartment and to whom Knapp paid rent.

Holding: Third-party consent to search may be given by someone with common authority over the premises. ¶138, quoting United States v. Matlock, 415 U.S. 164, 171 n. 7 (1974). Under the facts found by the trial court (Knapp had his own key to the apartment, his bedroom door had a lock, George would not go into the bedroom without first asking, etc.), Knapp had “a clear expectation of privacy.” ¶145. Thus, “there was no ‘mutual use’ of the bedroom or ‘joint access for most purposes’ as required by Matlock.” Id.

¶146. Based upon these facts, the Kieffer court stated: “This testimony is indicative of a respect for the expectations of privacy held by the defendant and his wife, and not a mere ‘habit’ of the property owner.” Kieffer, 217 Wis. 2d at 546. The testimony in Kieffer allowed that court to distinguish it from United States v. Duran, 957 F.2d 499 (7th Cir. 1992).

¶147. We agree with Knapp’s assertion that George did not have actual authority to consent to a search of Knapp’s bedroom. Knapp and George did not have “mutual use for most purposes.” Matlock, 415 U.S. at 172. For Knapp the room was his place of residence; for George it was, at most, a place where he and his wife incidentally continued to store some hunting equipment and other personal property.

¶148. In reaching that conclusion, we note that this case is substantially similar to Kieffer in that Knapp’s expectation of privacy in the bedroom was superior to George’s, thus obviating George’s authority to consent to the search.

¶149. Additionally, Knapp’s plans to continue to reside at George’s apartment and pay rent for his use of the bedroom were sufficiently open-ended to establish that he was a permanent resident….

Issue/Holding2A consent search may be valid notwithstanding absence of actual authority to consent if the police reasonably believe that such authority did exist. ¶152, citing Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990). When insufficient information exists to make such a determination, the police must inquire further until authority is clarified. Id.

¶155. Under the essential facts of this case, which appear to be undisputed, and applying the objective standard set forth in Rodriguez, 497 U.S. at 181, we hold that an officer “of reasonable caution” could reasonably conclude that George apparently had authority over the entire apartment. We are satisfied that the State met its burden of proof in that regard. The majority in Rodriguez stated:

The Constitution is no more violated when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises, than it is violated when they enter without a warrant because they reasonably (though erroneously) believe they are in pursuit of a violent felon who is about to escape.

Rodriguez, 497 U.S. at 186 (citation omitted). Here, of course, the person who consented was a resident, and it was reasonable to conclude that he had full authority to consent to the search. To sum up, at the time of the search of the apartment, George was paying the rent for “my house,” and he and his fiancŽe were keeping several items of their personal property in the bedroom Knapp was using. Before signing the consent form, George was told of the nature of the search, he had the opportunity to confer with Knapp, and he made no attempt to limit the scope of the search by the officers. George and Helen were the “keepers of that residence.” That is enough to establish apparent authority under theRodriguez objective standard.

The dissent makes the point that the police are obligated to clarify whether authority to consent exists in fact, and that these “officers made no inquiry of George at all.” ¶205. The majority seems to agree with the operative legal principle — inquiry is required, ¶152 — so the dispute may be a narrow one of what the police knew before the search. The majority’s construction is summarized this way: “Thus, it appeared to the officers that George was in control of the premises and could make decisions whether or not to allow the police to search his residence.” ¶154. (Not raised by these facts, but of potentially recurrent interest: as to apparent authority of 3rd party to consent to search of closed container, see, U.S. v. Waller, 6th Cir No. 04-5204, 10/24/05.)Interesting factual variation is presented by Georgia v. Randolph, No. 04-0167, 3/22/06 (in absence of exigent circumstances, where “physically present cooccupant” refuses to give consent to search, but search nonetheless proceeds under consent given by other occupant, search is invalid as to refusing cooccupant; holding appears limited to instances where the person is both actually present and also objects), decision below: State v. Randolph, 604 S.E.2d 835 (GA 2004). Indeed a case decided very shortly after Randolph held “that a warrantless search of a residence is valid based on the consent of one occupant where the other occupant fails to object,” Casteel v. State, Nev No. 42436, 3/30/06 (no link available). Similar authority, to effect that Matlock remains viable such that co-tenant’s failure to object not tantamount to refusal to consent: U.S. v. Parker, 7th Cir No. 05-3330, 12/1/06. Matlockrather than Randolph held applicable where co-tenant not physically present at search but expressly refuses consent prior to police successfully seeking consent from on-site tenant,U.S. v. Hudspeth, 8th Cir No. 05-3316, 3/11/08, en banc (“Fourth Amendment was not violated when the officers sought Mrs. Hudspeth’s consent despite having received Hudspeth’s previous refusal”). But see State Brunetti, CT SC No. 16788, 11/1/05 (“the Connecticut constitution requires that the police must obtain the consent of all joint occupants who are present when consent is sought in order for a search by consent to be valid”).


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