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Court of appeals finds officer had consent to enter home based on de novo review of conduct on body cam video

State v. Faith N. Reed, 2016AP1609-CR, 3/23/17, District 4 (1-judge opinion; ineligible for publication), petition for review granted 3/13/18, reversed, 2018 WI 109; case activity (including briefs)

Officer Keller followed Sullivan into Reed’s apartment and saw controlled substances there. Reed sought suppression on the grounds that the officer did not have consent to enter her home. Based on a de novo, frame-by-frame review of a body cam video, the court of appeals held that Sullivan by his conduct (not his words) unequivocally invited Keller into Reed’s apartment.

“It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” ¶19 (quoting Welsh v. Wisconsin, 466 U.S. 740, 748 (1984). Every Wisconsin appellate decision concerning law enforcement’s entry into a home begins that way.  The vast majority of them then approve the entry. This decision does too.

Here, there was no dispute that Sullivan had actual or apparent authority to give Officer Keller consent to enter Reed’s apartment. ¶20. 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. According to the court of appeals:

¶28 When one person agrees to accompany an individual to the first person’s residence in order to meet with a third party who is said to be in the residence, the typical, reasonable person would expect that this would entail consent that the individual enter the residence to have the planned meeting. It would be strange to think otherwise, absent some indication to the contrary by the person asking for consent or the person asked for consent. It is wrong to say, as Reed does, that Keller “never even hinted” that his objective was to meet with Jerome in Sullivan’s apartment.  It was far more than a hint.  It was the unambiguous meaning of Keller’s request.

¶30 As for Sullivan’s last-second, soft backwards push on the door, as indicated above, this suggests the possibility that Sullivan had last-second concern about agreeing to allow Keller to enter Unit 206.  However, “‘an intent to withdraw consent must be made by unequivocal act or statement.’” Wantland, 355 Wis. 2d 135, ¶33 (quoted sources omitted).  This nuanced possible delaying tactic was an equivocal act.

The court of appeals is constitutionally barred from finding facts. However, this decision’s frame-by-frame exposition of Sullivan’s conduct reads like it’s doing just that–“finding” that Sullivan consented to letting the officer enter Reed’s apartment. The court of appeals  explains that when it comes to applying the law to facts reflected in a video, its vantage point is the same as the trial court’s. ¶5 n.2. (citing State v. Jimmie R.R., 2000 WI App 5, ¶39, 232 Wis. 2d 138, 606 N.W.2d 196). Jimmie R.R. says that’s true when the video itself is the only evidence on the question to be decided. In this case, however, there seems to be additional, non-video evidence regarding consent–namely, Officer Keller testified that he did not consider Sullivan “free to leave” at the point when he told Sullivan that he wanted to talk to a person inside Reeds apartment. The court of appeals dismisses this as just Officer Keller’s “subjective view” of the situation.   ¶41. It sounds more like a conflicting evidence which the court of appeals found less credible than the video.





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