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Consent to Search – Co-Tenant; Search Warrant – Factual Inaccuracies

State v. Brian T. St. Martin, 2011 WI 44, on certification; for St. Martin: Michael K. Gould, SPD, Milwaukee Appellate; case activity

Consent to Search – Co-Tenant – Georgia v. Randolph

Georgia v. Randolph, 547 U.S. 103 (2006) holds that a physically present resident’s objection trumps a co-tenant’s consent to a warrantless search of a residence. However, this rule does not apply, the court now holds, where the physically present resident is taken forcibly from his residence by law enforcement officers before objecting.

¶21  When we are in territory where fine lines are drawn and the law is unapologetically formalistic, we must look at the facts as they have been found by the circuit court and accept that small differences often become dispositive.  The decision here turns on where this case falls in relation to the fine line drawn by the United States Supreme Court in Randolph.[12] St. Martin was “a potential defendant with self-interest in objecting [to a search].” Randolph 547 U.S. at 121. If he was “in fact at the door and object[ing],” Latoya’s consent was not sufficient for a consent search of the apartment.  If he was “nearby but not invited to take part in the threshold colloquy,” the United States Supreme Court has said, he “loses out.”  Id.

¶23  St. Martin was clearly not “at the door and objecting.”  In fact, when he was “at the door” and the police entered, he did not object. …

¶27  We agree with those courts that the Randolph Court incorporated an express requirement of physical presence in its shared-dwelling consent rule.  An approach that reads the phrase “threshold colloquy” metaphorically would not be consistent with either the “physically present” requirement or the “fine line” framework set forth by the United States Supreme Court.  Such an approach cannot be reconciled with the clear statement of the Court that minor factual differences will be dispositive. …

The court extols the “simple clarity” of a rule-based approach, ¶5. The rule favored by the court appears to be that immediate objection by a resident at the threshold is required to override a co-tenant’s consent to search: “we are persuaded that the better approach is the one taken by the federal circuit courts that focus on the rule’s requirements for an express objection while the objecting co-tenant is physically present with the police at the dwelling’s threshold,” id. St. Martin didn’t object until he was outside the residence, so he doesn’t come within the rule. Slight caveat: the court stresses “that there is no allegation that the removal of St. Martin from the apartment was pretextual,” ¶7. The court doesn’t indicate how you’d show a “pretextual” removal (see below), but its observation suggests that if you can make the showing you might still find yourself within Randolph.

Hard to say how literally the court means its “at-the-threshold” rule to be taken, despite the court’s bow to the rule’s “unapologetically formalistic” nature. Does Randolph apply if the resident is beyond the threshold but within the curtilage? You’d think so. The dissent, however, takes the majority’s language very literally. (Dissent, ¶34: “The majority appears, at times, to construe ‘physically present’ to mean that the objecting inhabitant must be standing squarely under the doorframe when he registers his objection to the search.” But Randolph‘s “language clarifies that the defendant need not be at the door to be deemed physically present”; it is enough that he “is present at the scene,” ¶44.) On the one hand, by subscribing to an explicitly narrow reading of Randolph, the majority suggests that the dissent’s construction of its language is correct, ¶21 n. 12. But on the other, the majority suggests that the holding merely addresses the facts before it, ¶22 n. 13 (“we decide only the case before us and do not speculate about the application of this holding to the facts of other cases”). Is the holding based on a narrow reading of the applicable rule, or anchored narrowly to the particular facts? Future litigation will tell.

The court’s discussion of a split of lower court authority doesn’t quite resolve the ambiguity. The court appears to reject United States v. Murphy, 516 F.3d 1117, 1124 (9th Cir. 2008), which adopts what is termed “a more flexible application of the Randolph rule,” ¶5 n. 2, namely: a warrantless search is unconstitutional under Randolph where conducted after the defendant “refused consent and was subsequently arrested and removed from the scene.” But this assertedly conflicting authority turns on a situation critically different from this one, in which the defendant does immediately object at the threshold but the police later obtain consent to search from the co-tenant (the defendant, having been arrested and carted from the scene). If, as the majority appears to require, there must be an objection at the threshold, then St. Martin can’t take advantage of Murphy in any event. It is true that Murphy seemingly articulates a “more flexible” rule than the cases cited by St. Martin as upholding consent, United States v. Henderson, 536 F.3d 776, 783 (7th Cir. 2008) and United States v. Hudspeth, 518 F.3d 954, 960 (8th Cir. 2007). But they, too, dealt with immediate objections at the residence (followed by arrest, removal, and subsequent co-tenant consent). St. Martin didn’t immediately object, so he’s a step removed. If the court meant to endorse those holdings – even an immediate, “threshold” objection isn’t necessarily effectual if the person is arrested and carted away – then the majority has failed to heed its own caution: “Because we decide only the case before us and do not speculate about the application of this holding to the facts of other cases, the dissent’s consideration of various hypothetical fact patterns, Dissent,¶¶49-50, is not useful to the analysis,” ¶22 n. 13.

A subsequent case indicates that Murphy‘s holding was “thus referring to a pretextual arrest made for the specific purpose of preventing the arrestee’s subsequent objection to the search,” United States v. Brown, 563 F.3d 410, 417 (9th Cir. 2009). Given that the St. Martin court rejected the Murphy holding, it’s hard to think it would define “pretextual” in the same manner as that court. So it remains to be seen just what the court had in mind when it (arguably) reserved the possibility that “pretextual” police action might invalidate consent. The majority’s preference for a rule-based approach has its merits, of course, but questions nonetheless remain about this rule.

Search Warrant – Factual Inaccuracies in Application

Although the affidavit in support of the search warrant contained factual inaccuracies, when excised, the remainder established probable cause, and the warrant was still valid, ¶30. The court recites the operative analysis:

¶30  The second basis for the challenge is that the affidavit contained both tainted and untainted evidence.  As noted above, the inclusion of tainted evidence in an affidavit does not alone invalidate the warrant issued.  See O’Brien, 70 Wis. 2d at 424 (where a search warrant is issued based on both tainted and untainted evidence, this court can independently “determine that the [untainted evidence was] sufficient to support a finding of probable cause to issue the search warrant . . . .”).  See also Karo, 468 U.S. at 719 (where sufficient untainted evidence is presented in the warrant affidavit to establish probable cause, the warrant is valid) and Franks, 438 U.S. at 156 (stating that a search warrant must be voided and evidence seized excluded where “with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause . . . .”). …

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