State v. Douglas

365 N.W.2d 580, 123 Wis. 2d 13, 1985 Wisc. LEXIS 2202

• Court: Wisconsin Supreme Court
• Decided: April 3, 1985
• Docket: 84-453-CR
• Status: Published

Opinions

DAY, J.

This is a review of an unpublished decision of the court of appeals affirming a pretrial order of the Circuit Court for Sauk County, Honorable J.R. Seering, Circuit Judge, suppressing admission into evidence of a written note found on the defendant’s bedroom floor by police approximately forty-five hours after their initial permissive entry into the defendant’s home. The issue on review is: If the defendant impliedly consented¹ to a search of his home by police, did they need a warrant to reenter that home for further investigation approximately forty-five hours after the implied consent was given and twenty-two and one-half hours after other investigative activities in the home had ceased ?

We hold that under the circumstances of this case, the state did need a warrant to reenter the defendant’s home and that evidence seized in such subsequent reentry was properly suppressed by the trial court. We therefore affirm the court of appeals decision which sustained the trial court’s action.

Shortly after 9:00 p.m. on the night of Monday, November 7, 1983, the defendant, Aaron Douglas, placed a phone call on the 911 emergency number and requested police assistance at his home. When asked what the problem was, the defendant responded, “I shot my mother.” Later in that conversation, the defendant said he “killed everyone”; that he had also shot his two sisters and said, with respect to all three victims, “They’re dead. Hurry.” When asked if he wanted the police to come down to the basement of the home where he was, the defendant said, “Tell them to come down here.” Pursuant to the defendant’s request, the police entered the defendant’s home and found the slain bodies of the defendant’s mother and two sisters. The defendant was taken into custody by police.

Technicians from the Wisconsin State Crime Laboratory were called and arrived at 11:50 p.m. and stayed on the scene until 3:30 a.m. the following morning, November 8, 1988. The police returned about 6:30 a.m. on November 8th to remove the bodies. The crime laboratory technicians also returned later that day to continue their investigation and left the house for the last time at approximately 8:00 p.m. that night.

The following evening, Wednesday, November 9, 1983, at 6:30 p.m., two police officers returned to the defendant’s home to review the scene of the crime and to “recreate” from the known facts the sequence of events that culminated in the slayings. In the defendant’s bedroom, the officers found and seized a handwritten note which was lying in an open area of the bedroom floor. In its pretrial order, the trial court ordered that evidence of the note be suppressed.²

Guards had been placed at the front and rear entrances of the defendant’s home on the night of November 7th. Those guards remained at the time until about 8:00 p.m. the night of November 9th.

No search warrant was ever obtained or sought.

In its memorandum decision filed February 3, 1984, on the defendant’s pretrial motion to suppress as evidence the note seized on November 9, 1983, the trial court held that the entry into the defendant’s bedroom on November 9th was in violation of the defendant’s constitutional rights under the fourth amendment and suppressed the evidence. The state appealed pursuant to sec. 974.05(1) (d)l and 2, Stats. § 1981-82.³ In its decision filed June 15, 1984, the court of appeals affirmed that portion of the trial court’s order which dealt with the note seized November 9, 1983. The defendant is awaiting trial on three counts of first-degree murder in violation of sec. 940.91.⁴ This court accepted review to determine whether the November 9th reentry of the defendant’s home by police violated his constitutional rights.

The fourth amendment to the United States Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

“[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. . . United States v. United States District Court, 407 (1972). A basic principle of fourth amendment law is that searches and seizures inside the home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980). Because, in the instant case, the house searched was the defendant’s home and because he was the one against whom the search was directed, the defendant has standing to challenge the lawfulness of the search. Bumper v. North Carolina, 391 U.S. 543, 548, n. 11 (1968). The defendant had a reasonable expectation of privacy in his home. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

One of the established exceptions to the warrant and probable cause requirements is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The defendant does not dispute that the initial entry into his house was with his consent. The issue is whether the state could justifiably rely upon that consent to reenter the defendant’s home without a search warrant on the evening of November 9, 1983, approximately forty-five hours later.

This court had occasion to pass on the effect of an earlier implied consent to search on a second search made less than twenty-four hours later in Kelly v. State, 75 Wis. 2d 303, 308-309, 249 N.W.2d 800 (1977). In that case, the defendant told a neighbor that “a man had been shot” at her place of residence. The defendant then went to another neighbor’s house and that neighbor called the police. Kelly, 75 Wis. 2d at 307. That evening, the police went into the home which the defendant and the victim' shared, they discovered the body of the victim and they took the defendant into custody shortly thereafter. The police then made “a complete search inside the house.” Kelly, 75 Wis. 2d at 308. In the afternoon of the next day, the police returned and again searched the home. The home had been guarded through the night. Kelly, 75 Wis. 2d at 309. As in the case at bar, no warrant to search the home was ever obtained. The defendant moved to suppress the evidence seized. Kelly, 75 Wis. 2d at 304.

This court, in Kelly, upheld the trial court’s conclusion that under the facts and circumstances, the defendant had given her consent to this first search of the premises. Kelly, 75 Wis. 2d at 311. This court stated:

“Under such circumstances there was an implied consent not only to aid the victim but to determine what had caused the death or injury and who was responsible ... In the case before us the presence of the officers was by the implied consent of the defendant, not only to help the victim but to investigate.” Kelly, 75 Wis. 2d at 313.

However, this court, in Kelly, also upheld the trial court’s conclusion that although the implied consent justified the warrantless search of the home on the night that consent was given, this consent did not carry over to justify another warrantless search of the home by police on the following day. Kelly, 75 Wis. 2d at 313.⁵

As in Kelly, the consent to search the home given in the instant case was implied from the conduct of the defendant. The trial court in the case before us, in finding that the defendant impliedly consented to a search of his home, focused on several factors. First, the defendant summoned the police to his home when he called for police assistance on the 911 emergency number. Second, in that telephone conversation the defendant said that he had killed his mother and that he had “killed everyone.” Third, during- that conversation the defendant, who was in the basement of the home, said the police should “bring some water when they come down here.” Fourth, in response to the dispatcher’s question of whether the defendant wanted the police to enter the house and go to the basement where he was, the defendant said, “Tell them to come down here.” As in Kelly, these facts amounted to an implied consent to enter and search the house.⁶ Under Kelly, however, the state cannot rely upon the implied consent of November 7th to justify a second search of the defendant’s home on November 9th, almost two full days after that consent was given.

The state argues that Kelly is distinguishable. First, because, in Kelly, the second search was broader in scope than the first. Second, because the defendant’s status changed with her becoming a suspect between the two searches. We disagree. There is no indication in Kelly that this court considered those factors relevant in determining that the implied consent would not justify the second search. With respect to the scope of the second search in Kelly, it is doubtful that it was broader than the scope of the first search since that first search involved “a complete search inside the house.” Kelly, 75 Wis. 2d at 308. With respect to the status of the defendant changing, it is apparent that at the least, she was a suspect almost immediately after police entered the home. This is not substantially different from this case in which the defendant became a suspect when he placed his call to the police. We conclude that the same factors that militated against receipt of the evidence found in a second search in Kelly preclude the admission of evidence discovered by the officers when they again entered the home at the time in question in the instant case.⁷

The defendant’s consent was implied and authorized and justified the search made at that time. But such authorization is not perpetual. The courts, including this one, have scrutinized with the greatest care claims by the state to the use of evidence seized in warrantless searches of one’s home. In Boyd v. United States, 116 U.S. 616, 635 (1886), the United States Supreme Court gave the following admonition:

“It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”

That principle is no less true today than it was a century ago. The fourth amendment has been liberally construed to protect the security of person and property when exceptions to the warrant requirement are sought. Such exceptions are “jealously and carefully drawn.” Jones v. United States, 357 U.S. 493, 499 (1958).

The rule is clear, absent exigent circumstances or consent, evidence seized in warrantless searches of one’s home is not admissible. Here the exigent circumstances had long since disappeared. The question then is, did the permission given in the initial consent still hover over the premises or had it evaporated in the two sun rises that intervened ?

A consent search is constitutionally reasonable to the extent that the search remains within the bounds of the actual consent. United States v. Dichiarinte, 445 F2d 126, 129 (7th Cir 1971). Giving the fourth amendment its usual construction, it would be inappropriate to conclude that an implied consent, which has no express bounds, is boundless. To refuse to allow the state to rely upon an implied consent to justify another investigative intrusion into the house almost two full days after that consent was given is consistent with the basic principles of fourth amendment law. We conclude that the passage of time from the consent and the lack of a showing that circumstances prevented or made impractical the obtaining of a search warrant in the instant case, vitiated the initial implied consent as to the reentry of the defendant’s home almost two days after that consent was given. Absent a warrant, the burden is on the state to show circumstances which demonstrate that the consenting party intended to consent to such an investigative intrusion. The state has made no such showing here.

The state contends that the reentry on November 9th was not a second search but a continuation of the lawful initial search. Therefore, the state argues, under this court’s decision in State v. Hebard, 50 Wis. 2d 408, , 184 N.W.2d 156 (1971), there should be no court imposed time limit on the completion of the search.⁸

Whether a subsequent investigative intrusion is a continuation of a lawful initial entry to search can only be determined in light of the facts and circumstances of each case. LaFournier v. State, 91 Wis. 2d 61, 70, 280 N.W.2d 746 (1979). The state argues that because the November 9th reentry did not expand the scope of the original entry and search and because the defendant’s home was secured by police from November 7th through November 9th, the November 9th reentry was only a continuation of the initial lawful entry to search of November 7th.⁹

Time, however, is an additional factor to consider in determining whether a reentry is simply a continuation of an initial lawful entry and search. In LaFournier, this court held that a subsequent warrantless entry by police within minutes after the officer making the initial entry had left the scene was a continuation of the lawful initial warrantless entry. LaFournier, 91 Wis. 2d at 69. This court said in so holding:

“We conclude that in the instant case the successive intrusion of Weiland and the three officers were close in time and practically identical in nature so as to be analytically and factually inseparable.” LaFournier, 91 Wis. 2d at 70.

In the instant case, the factor of time is dispositive on the issue of continuation. Assuming for purposes of this review that the continuing initial search was in progress until 8:00 p.m. of November 8th, an interruption in investigative activities until 6:30 p.m. of November 9th made the November 9th reentry factually and analytically separable. It would be contrary to the “liberal” construction to be given the fourth amendment to allow, under the guise of continuation, such separable warrantless intrusions into the home over an indefinite period simply because the initial search was broader in scope and because police were guarding the premises. If the warrantless reentry of the home occurs twenty-two and one-half hours after other investigative activities in the home have ceased, the rule of continuation will not be applied to avoid the warrant requirement without a showing by the state of overriding circumstances which would justify such application. The state has made no such showing in this case.¹⁰

Finally, the state contends that what occurred on November 9th was not a search for fourth amendment purposes, but was simply an attempt to reconstruct the events of November 7th which resulted in the discovery of a note which was in plain view. The state cites State v. Girdler, 675 P. 2d 1301 (Ariz. 1983), for the proposition that a re-creation of events is not a search under the fourth amendment. Girdler, however, is distinguishable because it involved an out-of-doors re-creation of events in an area that was open to the public. Girdler, 675 P. 2d at 1306. In Girdler, the defendant did not have a reasonable expectation of privacy in that area.

Since reentry for investigative purposes was not justified by consent, exigent circumstances or a warrant, it was unreasonable under the fourth amendment. In Payton v. New York, 445 U.S. at 576, the Supreme Court held that the fourth amendment prohibited police from making a warrantless non-consensual entry into a suspect’s home in order to make a routine felony arrest. In so holding the Court said:

“But the critical point is that any differences in the intrusiveness of entries to search and entries to arrest are merely ones of degrees rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual’s home. The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home—a zone that finds its roots in clear and specific constitutional terms: ‘The right of the people to be secure in their . . . houses . . . shall not be violated.’ That language unequivocally establishes the proposition that ‘[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ Silverman v. United States, 365 U.S. 505, 511. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”

The entry of the defendant’s home by police for purposes of recreating the events of a crime also involves that same fundamental characteristic: the breach of the entrance to the individual’s home. Although the note may have been in plain view in the defendant’s bedroom, the state was required to have a warrant to even cross the threshold of the defendant’s home to continue the investigation on November 9th.

The implied consent of the defendant in this case did not serve as a waiver of his expectation of privacy in his home with respect to a subsequent investigative intrusion on November 9, 1988. Since no warrant was sought and since no exception to the warrant requirement independent of the implied consent has been offered to justify the November 9th search, the evidence seized as a result of the November 9th entry was properly suppressed by the trial court.

By the Court. — The decision of the court of appeals is affirmed.

1 Black’s Law Dictionary 276 (rev. 5th ed. 1979), defines express and implied consent as follows:

“Express Consent. That directly given, either viva voce or in writing. It is positive, direct, unequivocal consent, requiring no inference or implication to supply its meaning.”

“Implied Consent. That manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption that the consent has been given.”

2 The note was an untitled list of five items with a sixth entry left blank:

“1 no parents

“2 no sisters

“3 super — ‘looks’

“4 decent looking & running car

“5 good paying easy job

“6 ”

3 “974.05. State’s appeal. (1) Within 45 days of entry of the judgment or order to be appealed and in the manner provided for civil appeals under chs. 808 and 809, an appeal may be taken by the state from any: . . . (d) Order or judgment the substantive effect of which results in: ... 2. Suppressing evidence; or 3. Suppressing a confession or admission.”

Note: Section 974.05(1) was modified by 83 Wis. Act 219 which provides:

“Section 45. 974.05(1) (intro.) of the statutes is amended to read:

“974.05(1) (intro.) Within the time period specified by sec. 808.04(4) and in the manner provided for civil appeals under chs. 808 and 809, an appeal may be taken by the state from any:

“Note: The appeal deadline of sec. 974.05(1), stats., is not changed but is replaced by a reference to sec. 808.04(4), stats., for ease of reference.”

4 “940.01. First-degree murder. Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.

“(2) In this chapter ‘intent to kill’ means the mental purpose to take the life of another human being.”

5 Contrary to the assertions of the dissent at p. 31, we do not dispute that there was an express consent to go into the home and into the basement where the defendant was. Any consent to enter and search the home in the furtherance of a criminal investigation, was, however, implied from the circumstances.

6 In Kelly v. State, 75 Wis. 2d 303, 316, 249 N.W.2d 800 (1977), this court held that the admission into evidence of the evidence seized in the second search was harmless error.

7 The state cites cases from other jurisdictions which are distinguishable from the instant case. State v. Koucoules, 343 A.2d 860 (Me. 1974), involved an express consent to search and the search was a continuous though temporarily recessed search during the course of a single day. Gray v. State, 441 A.2d 209 (Del. 1982) also involved an express consent and did not involve a search of the defendant’s home. People v. Trujillo, 576 P.2d 479 (Col. 1977) involved the search of an automobile and an express consent to search. Commonwealth v. Cantaloupo, 402 N.E.2d 1040 (Mass. 1980), involved an express consent to search and did not involve a question of time.

8 Because we conclude that there were two separate searches, we do not address the issue of whether a single continuous search based upon an implied consent could last two or more days.

9 It should be noted that in Kelly, discussed above, the home was also guarded between searches. Kelly, 75 Wis. 2d at 309.

10 In Michigan v. Tyler, 436 U.S. 499 (1978), fire department officers left the premises they were investigating for arson and returned approximately four hours later. They continued their investigation without a warrant. The Supreme Court, in holding that the entry four hours later was a continuation of the initial entry, focused on the fact that the investigation was severely hindered during the initial entry “by darkness, steam and smoke.” The instant case is distinguishable based upon both the length of the interruption and the lack of such hindering factors.