On Point: 1. Consent

on review of published decision; for: Sobczak: Andrew Hinckel, SPD, Madison Appellate; case activity

Third-Party Consent 

Issues (Composed by On Point): 

Whether Sobczak’s girlfriend, a non-resident guest in his parents’ home, had authority to consent to police entry into the home and to search and seizure of Sobczak’s laptop.

A mere guest ordinarily may not consent to a search of the home,

State v. Timothy D. Moseley, 2011AP892-CR, District 1, 5/1/12 

court of appeals decision (not recommended for publication); for Moseley: Michael J. Steinle; case activity

Moseley’s contention, that he qualified his written consent to search with an oral limitation, was rejected by the trial court as a matter of credibility; that finding of fact is now affirmed:

¶18      The trial court is in the best position to judge the credibility of witnesses.  

State v. Kenneth M. Sobczak, 2012 WI App 6 (recommended for publication), petition for review granted, 6/13/12; for: Sobczak: Ryan J. Hetzel; case activity

¶6        The issue in this case is whether the girlfriend—as a guest in Sobczak’s parents’ home—had the authority to consent to the officer’s entry into the Sobczak residence and to the search and seizure of Sobczak’s laptop.[1]  We hold that she did

State v.

State v. Anthony D. Guard, 2012 WI App 8 (recommended for publication); for Guard: Richard L. Zaffiro; case activity

Warrantless Entry – Duplex, Common Hallway

Guard, a resident of a duplex upper flat, had a reasonable expectation of privacy in a hallway by which his unit was accessed, such that warrantless police entry into that hallway without consent or exigent circumstances violated the fourth amendment; factors enunciated by State v.

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.

State v. Deundra R. Lathan, 2011 WI App 104 (recommended for publication); for Lathan: George S. Tauscheck; case activity

Consent to Search, Co-Occupant

Consent to search premises given by one occupant overrides refusal to consent by co-occupant when neither is the subject of the search or ensuing arrest (resolving question expressly held open by Georgia v. Randolph, 547 U.S. 103, 120 n.

State v. Calvin Jerome Pirtle, 2011 WI App 89(recommended for publication); for Pirtle: Christopher J. Cherella; case activity

Consent to Search – Georgia v. Randolph

Pirtle’s failure to object to the police presence allowed them to act on the co-tenant’s consent to a warrantless search under Georgia v. Randolph, 547 U.S. 103 (2006):

¶15      In Randolph,

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.  

court of appeals decision (1-judge, not for publication); for Ebert: Chad A. Lanning; case activity; Ebert BiC; State Resp.; Reply

Consent-Based Entry

¶7        The Fourth Amendment’s warrant requirement does not apply when police have consent to enter a dwelling.  State v. Douglas, 123 Wis. 2d 13, 18, 365 N.W.2d 580 (1985).  The issue in this appeal is whether Ebert’s uncle consented to the search of Ebert’s residence,

State v. Mark D. Jensen, 2011 WI App 3; prior history: 2007 WI 26; for Jensen: Terry W. Rose, Christopher William Rose, Michael D. Cicchini; case activity; (Jensen BiC not posted); State Resp.; Jensen Reply

Confrontation – Generally

The Confrontation Clause regulates testimonial statements only, such that nontestimonial statements are excludable only under hearsay and other evidence-rule ¶¶22-26,