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Warrantless entry and search authorized by third-party consent

State v. Dorian M. Torres, 2018 WI App 23; case activity (including briefs)

Dorian Torres’s mother Shelly allowed police into the apartment Dorian was living in with his father, Emilio. The police found Emilio’s body during a search of the apartment, leading to Dorian being charged with homicide. The court of appeals holds the police reasonably relied on Shelly having authority to consent to their entry and search of the apartment.

Emilio and Shelly, Emilio’s ex-wife, lived apart but were “coparenting” 17-year-old Dorian, so Emilio had given Shelly a key to his apartment so she could help Emilio and Dorian and “check on” Dorian.” (¶¶2-3). Shelly became concerned about Emilio after he failed to return her phone calls and didn’t show up for work. (¶¶4-5). After Shelly called police to report Emilio missing, two officers accompanied her to Emilio’s apartment to check on the situation. Though Dorian was there, Shelly simply unlocked the door with her key and allowed police in behind her. (¶¶6-9).

The circuit court concluded the police lawfully entered and searched under the community caretaker doctrine (¶11), but the court of appeals decides the officers reasonably relied on Shelly’s apparent authority to consent to their entry into the apartment:

¶19     The authority of the third party may be either actual or apparent, as long as, in the case of apparent authority, reliance on the authority is reasonable. State v. Kieffer, 217 Wis. 2d 531, 548, 577 N.W.2d 352. Whether a person has authority to consent is dependent on the totality of the circumstances, and the State has the burden of proving valid third-party consent by clear and convincing evidence. [State v.] Tomlinson, [2009 WI 91,] 254 Wis. 2d 502, ¶¶21, 31[, 648 N.W.2d 367].

¶20     The evidence that shows Shelly’s “common authority over or other sufficient relationship to” the apartment is considerable. [United States v.] Matlock, 415 U.S. [164,] 171 [(1974)]. By the time Shelly permitted the police to enter the apartment, the police knew the following. Shelly was Emilio’s former wife and Dorian’s mother. They were coparenting Dorian. Emilio had given an apartment key to Shelly and asked her to enter his apartment for various reasons, including to “check on” Dorian. Shelly had been in the apartment “many times” and spoke with Emilio regularly. She showed genuine concern for Emilio’s welfare and, after reporting him missing, told police that she was going to the apartment herself. At the apartment door, Shelly did not knock or call out, but straightaway opened the locked door with her key and entered, bringing the officers with her. Dorian voiced no objection to the entry or search. See Tomlinson, 254 Wis. 2d 502, ¶¶28, 34, 37 (consent is supported when the defendant expresses no opposition to the entry taking place nearby); State v. St. Germaine, 2007 WI App 214, ¶21, 305 Wis. 2d 511, 740 N.W.2d 148 (defendant’s silence bolstered the reasonableness of the officers’ belief that they had consent to search). Viewing the foregoing circumstances would plainly “warrant [an officer] of reasonable caution in the belief that [Shelly] had authority over the premises” to consent to entry into the apartment. Kieffer, 217 Wis. 2d at 542. Because the officers’ reliance on her apparent authority was reasonable, a warrant was unnecessary.Tomlinson, 254 Wis. 2d 502, ¶38.

5 We do not address whether Shelly also had actual authority because “[a]pparent authority is enough.” United States v. Rodriguez, 888 F.2d 519, 523 (7th Cir. 1989).

Dorian argues Shelly lacked apparent authority based on State v. Sobczak, 2013 WI 52, ¶20, 347 Wis. 2d 724, 833 N.W.2d 59, which identified three factors that are especially relevant to apparent consent of invited guests: (1) the relationship of the consenter to the property owner, including familial connections and social ties; (2) the duration of the consenter’s stay; and (3) whether the consenter was permitted to be at the property alone. The court disagrees. While Shelly and Emilio were divorced and living apart, the ongoing relationship and coparenting arrangement constitute a significant relationship. Further, Shelly was allowed to be at the apartment alone to assist Emilio and Dorian with errands, food, and cleaning. Although that permission was presumably for stays of short duration, she had been there “many times” in her coparenting role. (¶¶21-27).

Nor was Shelly’s apparent authority undermined by Dorian’s presence at the apartment and the fact he wasn’t asked for consent to enter. “Nothing about Dorian’s presence diminishes Shelly’s authority to enter the apartment of her minor son—which is founded upon the multitude of circumstances discussed above—particularly when he voiced no objection at the time.” Moreover, police had no obligation under the circumstances to request consent from Dorian. See Georgia v. Randolph, 547 U.S. 103, 122 (2006) (police not required to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received). (¶27 n.8).

{ 1 comment… add one }
  • Attorney Raj Kumar Singh March 29, 2018, 10:10 am

    I note the contradiction (a) in our law allowing the defendant to be charged as an adult, because the alleged crime happened when he was 17, but, then, (b) finding that his non-custodial mother had the apparent authority to enter the defendant’s home uninvited because, in large part, the defendant was a “minor” at the time.

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