State v. Rodgers

349 N.W.2d 453, 119 Wis. 2d 102, 1984 Wisc. LEXIS 2589

• Court: Wisconsin Supreme Court
• Decided: June 12, 1984
• Docket: 82-1930-CR
• Status: Published

Opinions

STEINMETZ, J.

The issue in this case is whether the defendant’s mother voluntarily consented to the entry into her home by sheriff’s deputies who arrested her son. The deputies asked the defendant’s mother whether the defendant was home and whether they could talk to him. After entering, they placed the defendant under arrest without questioning him. Although the deputies did not have a warrant to arrest the defendant, they did have probable cause for the arrest.

The defendant, Michael Paul Rodgers, was charged with one count of false imprisonment in violation of sec. 940.30, Stats.

At the preliminary hearing, the defendant was bound over for trial, and thereafter, an information was filed charging the defendant with false imprisonment.

The defendant filed a motion to dismiss on the ground the trial court lacked jurisdiction since the arrest was illegal. The parties stipulated that there was probable cause for the arrest and the state did not rely on exigent circumstances to justify the entry into the home. The parties also stipulated that the testimony taken at the preliminary hearing could be used by the trial court to decide the motion. The trial court, the Kenosha county circuit court, Honorable Michael S. Fisher, granted the motion to dismiss finding that the warrantless arrest of the defendant in his home was unconstitutional. The trial court concluded that: “[T]he entry into the defendant’s home was not obtained by consent that could be considered a free, intelligent, unequivocal and specific waiver.” The state appealed the trial court’s order.

The court of appeals, in a published decision, affirmed the trial court’s order holding that the consent to enter the home was invalid because it was obtained from the defendant’s mother by deception since the deputies did not tell her that they intended to arrest the defendant. State v. Rodgers, 115 Wis. 2d 118, 339 N.W.2d 605 (Ct. App. 1983).

Detective Mielke testified that on June 10,1982, he was assigned to a follow-up investigation in reference to assault and false imprisonment charges involving the defendant. Detective Mielke said that shortly after noon on June 11, 1982, he and Detective Vena went to the defendant’s home where the defendant’s mother met them át the door. Mielke said that they identified themselves, told her they wanted to talk to her son, and asked whether he was home. Neither deputy told the mother that he was there to arrest the defendant. The mother said he (the defendant) was seated in the living room on a couch and let them into the home; the detectives could see the defendant from the outside.¹ The detectives told the defendant they wanted to talk to him and when the defendant got up and started to say something, Mielke told him he was under arrest. Mielke estimated that he was in the house one or two minutes before arresting the defendant. Mielke told the defendant they were there in connection with an incident involving Carmen Karau on June 9, 1982, who complained of a fight with the defendant and that she had been hurt and forced to ride with him from Kenosha to a point approximately 45 miles from Green Bay and back to Kenosha. Mielke told the defendant he was under arrest for battery and false imprisonment. After the defendant was arrested he was taken to the squad car and advised of his rights. Enroute to the sheriff’s department the defendant gave a verbal statement, and after they arrived at the sheriff’s department, the defendant gave a written statement.

The defendant moved to dismiss the action on the ground that his warrantless arrest in his home was in violation of sec. 968.07, Stats.,² Art. I, secs. 8 and 11 of the Wisconsin Constitution,³ and the fourth, fifth and fourteenth amendments of the United States Constitution.⁴

The law governing warrantless arrests in a person’s home has been set forth in Payton v. New York, 445 U.S. 573, 576, 590 (1980), and Laasch v. State, 84 Wis. 2d 587, 596, 267 N.W.2d 278 (1978). The police can make a valid warrantless arrest in the person’s home if the police possess probable cause and exigent circumstances exist to justify entry into the home or they have consent to enter the home. Neither Payton nor Laasch dealt directly with entry into a home with consent.⁵ Laasch did recognize that consent to enter the home was an exception to the exigent circumstances requirement.

The parties stipulated that there was probable cause for the warrantless arrest and the state does not rely on exigent circumstances to justify the entry into the home. Therefore, the issue is whether the defendant’s mother gave consent to the entry of the deputies into the home so that the warrantless arrest based on probable cause was constitutional.

Laasch held at 592:

“Consent to an entry is not to be lightly inferred, but must be shown by clear and convincing evidence. Kelly v. State, 75 Wis. 2d 303, 316, 249 N.W.2d 800 (1977). The burden is on the state to show a free, intelligent, unequivocal and specific waiver. Gautreaux v. State, 52 Wis. 2d 489, 190 N.W.2d 542 (1971).”

The present case concerns what legal significance is to be attached to the facts over which there is no dispute. Since the case presents a question of law not fact, the trial court’s decision is not entitled to any deference. State v. Felton, 110 Wis. 2d 485, 504, 329 N.W.2d 161 (1983); Compton v. Shopko Stores, Inc., 93 Wis. 2d 613, 616, 287 N.W.2d 720 (1980).

In reaching its decision, the trial court cited three points; they were: (1) there was nothing in the record that provided any reason for not obtaining a warrant; (2) the consent could not be valid unless it could be considered “a free, intelligent, unequivocal and specific waiver;” (3) and, the deputies did not tell the defendant's mother the real purpose for their visit, that being to arrest her son.

There is no requirement that the police or deputy sheriffs obtain a warrant to make an arrest. In Laasch, we held at 591:

“This court has rejected the argument that whenever there is time to do so, a warrant must be obtained before making a felony arrest. In Rinehart v. State, supra, at 766, 767, this court adopted the rationale of United States v. Millen (E.D. Wis. 1972), 338 Fed. Supp. 747, 750, 751, that:

“ ‘ . as long as probable cause for an arrest exists, arrest warrants are unnecessary, even where there is time to obtain them. See Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964)

The trial court also said that “the deputies did not tell the defendant’s mother the real purpose for their visit, that being to arrest her son.” This appeared to the trial court to have been a deception. The trial court also said that the consent was not valid because it could not be considered “a free, intelligent, unequivocal and specific waiver.” These statements demonstrate that the trial court applied a waiver standard to determine whether the consent was voluntary. The court of appeals also found the consent was obtained by deception and applied a waiver standard.

The standard for determining the voluntariness of consent under the fourth amendment was set forth in Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973), where the Supreme Court used the test for voluntary confessions to determine the voluntariness of consent in fourth amendment cases. In Schneckloth, a car in which the defendant was a passenger was stopped by the police because a headlight and the license plate light were burned out. A police officer asked if the car could be searched and one of the passengers consented. The police officer did not advise the defendant of the reason for the search or that any evidence or contraband, if found, would be seized. While searching the car trunk, which a passenger had unlocked, three stolen checks were found wadded up under the left rear seat. In that case the Court stated:

“ ‘The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.’ Culombe v. Connecticut, supra, at 602.” [Culombe, 367 U.S. 568 (1961)]

In Schneckloth, the Court criticized the approach taken by the Court of Appeals for the Ninth Circuit as follows:

“The approach of the Court of Appeals for the Ninth Circuit finds no support in any of our decisions that have attempted to define the meaning of ‘voluntariness.’ Its ruling, that the State must affirmatively prove that the subject of the search knew that he had a right to refuse consent, would, in practice, create serious doubt whether consent searches could continue to be conducted. There might be rare cases where it could be proved from the record that a person in fact affirmatively knew of his right to refuse— . . . But more commonly where there was no evidence of any coercion, explicit or implicit, the prosecution would nevertheless be unable to demonstrate that the subject of the search in fact had known of his right to refuse consent.

"

“One alternative that would go far toward proving that the subject of a search did know he had a right to refuse consent would be to advise him of that right before eliciting his consent. That, however, is a suggestion that has been almost universally repudiated by both federal and state courts, and, we think, rightly so. For it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies.” Id. at 229-32. (Footnotes omitted.)

There is a difference between consent for searches and seizures and waiver of trial rights. In Schneckloth, the Court distinguished between them as follows:

“There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. Nothing, either in the purposes behind requiring a ‘knowing’ and ‘intelligent’ waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures.” Id. at 241.

A person must be informed in order to waive a right; however, a consent must be voluntary only, in other words, free of coercion, which is determined from the totality of the circumstances. In Schneckloth at 242-43, the Court stated:

“While the Fourth and Fourteenth Amendments limit the circumstances under which the police can conduct a search, there is nothing constitutionally suspect in a person’s voluntarily allowing a search. . . . We have only recently stated: ‘[I]t is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.’ Coolidge v. New Hampshire, 403 U.S., at 488.”

At 246 of Schneckloth, the Court held:

“[T]here is nothing in the purposes or application of the waiver requirements of Johnson v. Zerbst that justifies, much less compels, the easy equation of a knowing waiver with a consent search. . . .

“Much of what has already been said disposes of the argument that the Court’s decision in the Miranda case requires the conclusion that knowledge of a right to refuse is an indispensable element of a valid consent. The considerations that informed the Court’s holding in Miranda are simply inapplicable in the present case.”

Finally, in Schneckloth, at 248-49, the Court stated:

“Our decision today is a narrow one. We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.”

Deputy Mielke’s uncontradicted testimony shows that when the deputies arrived at the defendant’s home, they identified themselves to the defendant’s mother, advised her they wanted to talk to her son and asked whether he was home. There is no evidence that the deputies used force or threatened the use of force or that they relied on an untruthful claim of lawful authority to enter the home in order to obtain consent. There is no evidence of police coercion that would render the consent involuntary. The mother led the deputies into the home and she exercised her free choice to permit their entry into her home. The deputies gave the mother all the information she needed to consent to their entry by telling her they wanted to talk to her son. The dissent stresses the alleged deception perpetrated on the mother. However, the state does not concede there was deception and, in fact, the officers upon entry did start to talk to the defendant and when he got up and started to say something, they told him he was under arrest.

In In re Anthony F., 298 Md. 146, 442 A.2d 975 (1982), on facts almost identical to those in the instant case, the Maryland Court of Appeals found the arrest was valid. The court found no merit in the argument that the voluntary character of the permission to enter was destroyed because the police only told the sister that they wanted to talk to her brother. That court stated:

“Regarding the question of a policeman’s modus op-erandi in obtaining consent, the Supreme Court in Schneckloth observed that, ‘two competing concerns must be accommodated in determining the meaning of a “voluntary” consent — the legitimate need for such [police entry] and the equally important requirement of assuring the absence of coercion.’ Schneckloth v. Bustamonte, supra, 412 U.S. at 227, 93 S. Ct. at 2048. We do not think that the officers’ statement of their purpose in this case in any way undermined the voluntary character of the young lady’s consent. They did not mask their official capacities, nor did they misrepresent their purpose for being there. Without being explicit, they stated that they wanted to talk with the brother, and the sister sought no further elaboration. Certainly, a policeman has a right to execute his lawful function without gratuitously advertising his every move to anyone he might encounter in that pursuit.” 442 A.2d at 980.

The reasoning of Anthony is sound and realistic. To say it is deception for the officers to state that they wanted to speak to the brother, without advising that they were also there to arrest him, is to apply an unwarranted assumption by using a scrupulous analysis not borne out by the total circumstances, which were that the officers identified themselves, asked whether the defendant was home, even though they could see him from the outside, and asked permission to enter. There was no coercion or misstatement of their authority.

Other authorities have held the consent as voluntary under circumstances similar to those of the instant case. They are: People v. Bean, 84 Ill. 2d 64, 417 N.E.2d 608, 611 (1981); People v. Kraman, 96 Ill. App. 3d 390, 421 N.E.2d 346 (1981); People v. Lane, 106 Ill. App. 3d 793, 436 N.E.2d 704 (1982); People v. Garcia, 94 Ill. App. 3d 940, 419 N.E.2d 542 (1981). In none of these cases did the police officers mention a possible arrest when they asked whether they could enter the home. The officers asked to talk to someone, or to see someone, or asked whether a particular person lived at the residence; the police officers never said that the reason they wanted to enter the home was to arrest someone. In all of these cases, the appellate courts found that consent was voluntarily given and that the police entry into the homes and the warrantless arrests were constitutional. Ricketts v. State, 46 Md. App. 410, 417 A.2d 465, 469 (1980), aff'd 290 Md. 287, 429 A.2d 1025 (1981), held that the fourth amendment does not require the police to inform the suspect of the purpose of a search. This is supported in Schneckloth where the officer only asked the suspect if he could search the car. There is no indication in the Schneckloth opinion that the officer told the suspect of the reason for the search or that he intended to seize contraband or evidence if he found any. Still, the United States Supreme Court found that the consent to search had not been coerced.

The trial court relied on Johnson v. Zerbst, 304 U.S. 458 (1938) as the standard for waiver, that being' whether the state demonstrated “an intentional relinquishment or abandonment of a known right or privilege.” This same test was applied by the court of appeals. The Johnson test for the waiver of a constitutional right is not applicable to a consent search or consensual home entry under the fourth amendment. Schneckloth, 412 U.S. at 241, 242, 243-44 n. 31, 246. The proper test for volun-tariness of consent under the fourth amendment is whether under the totality of the circumstances it was coerced.

In Gautreaux v. State, 52 Wis. 2d 489, 492-93, 190 N.W.2d 542 (1971), which was decided one and one-half years before the Schneckloth decision, this court stated:

“Although the state has the burden of proving by clear and positive evidence the search was the result of a free, intelligent, unequivocal and specific consent without any duress or coercion, actual or implied, . . . there is no presumption a consent to a search given by a person under arrest is involuntary and coerced as a matter of law.”

The defendant in Gautreaux was under arrest and the owner of the car, after twice refusing to allow a search, consented to allow the search. The words used in Gautreaux do not differ in meaning from a voluntary consent as defined in Schneckloth. There is nothing in sec. 968.07, Stats., nor Art. I, secs. 8 and 11 that requires the definition of consent for entry into the home to be any different than the definition for consent under the fourth amendment of the United States Constitution as stated in Schneckloth.

In this case, since the state relied upon consent for the entry, it had the burden of proving that the consent was freely and voluntarily given. Schneckloth, 412 U.S. at 222. In State v. Mazur, 90 Wis. 2d 293, 302, 280 N.W.2d (1979), this court stated: “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search he has the burden of proving that consent was freely and voluntarily given.” The state has met its burden. The defendant’s mother’s knowledge of a right to refuse entrance into the home is not a prerequisite to establishing a voluntary consent; it is only one factor to be considered under the totality of the circumstances. Schneckloth, 412 U.S. at 234, 249.

The dissent cites Wisconsin case law interpreting and applying the Wisconsin Constitution, Art. I, sec. 11; however, these cases predate by many years Wolf v. Colorado, 338 U.S. 25 (1949), which held that the fourth amendment of the United States Constitution applied to each of the states through the fourteenth amendment. The language of Wisconsin Constitution Art. I, sec. 11 is identical to and was copied from the United States Constitution’s fourth amendment. Since Wolf, the Wisconsin cases cited by the dissent would have to be evaluated to determine whether their valid reasonings gave different interpretations than those now being given by the United States Supreme Court regarding the fourth amendment and whether the search and seizure law of Wisconsin differs in any respects by giving greater civil rights to its state citizens than those already extended by the fourth amendment of the United States Constitution. In this case, we state that the rulings of the United States Supreme Court are not at odds with Art. I, sec. 11 of the Wisconsin Constitution. If there is any reason for the dissent’s disappointment with the use of the English language, it is with the United States Supreme Court’s distinction between consent being arrived at voluntarily and the waiver of a constitutional right being done knowingly and intelligently.

Applying the proper standard of consent to this case, i.e., whether under the total circumstances it was voluntarily given, we hold that the defendant’s mother’s consent was voluntary.

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

1 The record does not explain what the deputy meant by “seeing the defendant from the outside,” i.e., whether that was an observation as they stood in the open door or whether it was a previous view through a window.

2 Sec. 968.07(1), Stats., provides:

“968.07 Arrest by a law enforcement officer. (1) A law enforcement officer may arrest a person when:

“(a) He has a warrant commanding that such person be arrested; or

“(b) He believes, on reasonable grounds, that a warrant for the person’s arrest has been issued in this state; or

“(c) He believes, on reasonable grounds, that a felony warrant for the person’s arrest has been issued in another state; or

“(d) There are reasonable grounds to believe that the person is committing or has committed a crime. . . .”

3 Art. I, Sec. 8 of the Wisconsin Constitution provides as follows:

“Prosecutions; double jeopardy; self-incrimination; bail; habeas corpus. Section 8. (1) No person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself. . .

Art. I, sec. 11 of the Wisconsin Constitution provides as follows:

“Searches and seizures. Section 11. 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 warrant 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.”

4 The fourth amendment of the United States Constitution provides as follows:

“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.”

The fifth amendment of the United States Constitution provides as follows:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The fourteenth amendment, sec. 1, of the United States Constitution provides as follows:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

5 The dissent also cites the recent decision of Welsh v. Wisconsin, - U.S. - (No. 82-5466, filed May 15, 1984), in that it affirmed the rulings in Payton and United States v. United States District Court, 407 U.S. 297 (1972). However, Welsh is not relevant to the instant case regarding voluntary consent since the U.S. Supreme Court assumed for the purposes of its decision that there was no valid consent to enter the petitioner’s home in that case. See, Welsh, n. 1.