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Consent to Search

State v. Robert L. Stokes, 2009AP919-CR, District 1, 2/1/11

court of appeals decision (3-judge, not recommended for publication); for Stokes: John M. Bolger; case activity; Stokes BiC; State Resp.; Reply

Given trial court credibility findings, the resident’s consent to the police to enter and search was voluntary.

¶19      Finally, we are not convinced by Robert’s argument that the trial court erred in denying his suppression motion regardless of whether Deborah’s consent was valid because police had no lawful reason to be in the Stokes’ yard and on their porch.  Robert’s argument ignores the fact that police initially came into the yard in pursuit of a suspicious subject, saw what appeared to be an illegal substance (a marijuana blunt) in the yard, and went to the porch to ask permission to search for evidence of illegal activity—dog fighting—that they had reason to believe was going on given their observations in the yard.  Furthermore, Robert’s citation to State v. Wilson, 229 Wis. 2d 256, 263‑66, 600 N.W.2d 14, which held that the area near the back of an arrestee’s house was protected curtilage under the Fourth Amendment, does not persuade us that the front yard and porch in this case constituted protected curtilage under the Fourth Amendment.  In Wilson, several factors convinced us that the area near the back of the defendant’s house enjoyed a reasonable expectation of privacy and thus protection under the Fourth Amendment, including:  the nature and use of the area as a place for family activities; the fact that the area was not viewable from the front of the house, nor from the street or sidewalk; and the fact that the defendant took steps to protect the area from observation.  See id.  Robert does not explain how the factors we found persuasive in Wilson demonstrate a reasonable expectation of privacy for his front porch area, and we decline to develop such arguments for him. See Brown, 258 Wis. 2d 915, ¶4 n.3.

Unremarkable result, in light of findings of fact adverse to coercion. But the court’s discussion usefully summarizes general principles applicable to consent searches. As for the unreached illegal entry issue, there may not have been much if anything to it anyway. If all the police did was access an area open to the public – and although Stokes may not have quite joined that issue, that appears to be what the police did – then what they did may not have been much more than a routine “knock and talk.” That is, the police don’t need a “lawful reason” to access an area generally accessible to the public.

(Note: the court modified ¶19 subsequent to the opinion’s initial release, and as a result the comment immediately above was slightly modified.)

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