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Wisconsin Supreme Court Rules Attempt to Close Door in Officer’s Face Clear Signal that Consent Not Given for Warrantless Entry

by Douglas Ankney

On December 7, 2018, the Supreme Court of Wisconsin reversed a decision of the court of appeals that affirmed a circuit court’s denial of a motion to suppress. The Court ordered the challenged evidence be suppressed and instructed the circuit court to vacate the convictions.

In December 2015, Officer Steven Keller of the Tomah Police Department responded to a report of two individuals fighting in the street. Keller learned from witness Daniel Cannon that two brothers, Jerome and Brandon Harris, had a heated argument in the road without any physical altercation. Cannon advised that he and Kirk Sullivan attempted to defuse the situation and stated that the brothers left in opposite directions, with Jerome going to Sullivan’s apartment to “cool off.” Sullivan confirmed that Jerome was likely there since they were planning to watch football together.

During this time, Keller heard over the radio: that no one is responding to knocking by other officers at Sullivan’s apartment, that Sullivan is on probation and has contact restrictions with Faith Reed who lives in the apartment, and that Jerome has two “body only” warrants out on him.

Keller said to Sullivan, “[L]et’s go ... see if he’s over there.” In response to Keller’s instructions, Sullivan led the way to his apartment. Upon arrival, Sullivan opened the door just enough to allow himself inside, but as he began pushing the door shut, Keller forced it open and entered behind him.

In the apartment, Keller saw marijuana on the kitchen counter. He arrested Faith Reed, the legal resident of the apartment. She was charged with various drug offenses.

Reed moved to suppress the evidence because of the warrantless entry and search. Keller testified that Sullivan didn’t give him permission to enter the apartment, but he “did not tell me that I had to stay out.” He added that he pushed his way in partly out of concern for his safety. The trial court denied the motion, concluding that “by his conduct Mr. Sullivan freely and voluntarily implied” Keller could follow him into the apartment.

Reed then pleaded no contest and appealed her convictions to the court of appeals. The appellate court affirmed the trial court’s decision, and Reed sought further review in the Supreme Court of Wisconsin.

Upon appeal, the State agreed with Reed that the suppression decision should be reversed, so the Court remanded to the court of appeals for reconsideration in light of the State’s position. The lower court denied reconsideration, and Reed appealed. The State again agreed with Reed, stating that Sullivan didn’t give implied or express consent and that reversal was necessary.

The Supreme Court began by reciting that both the Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the Wisconsin Constitution prohibit unreasonable searches and seizures. Warrantless searches and seizures inside a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573 (1980). There are well-defined exceptions to the warrant requirement under both constitutions. For purposes of the present case, consent and exigent circumstances exceptions are at issue.

The Court first addressed whether Sullivan consented to Keller’s entry. Consent isn’t limited to words; it may be granted by gestures or conduct. Kentucky v. King, 563 U.S. 452 (2011). However, it must be unequivocal and specific and must be freely given, not mere “acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543 (1963).

The Court easily determined that Sullivan “unequivocally demonstrated that he did not consent … by shutting the apartment door behind him.” At best, Sullivan’s behavior was that of “mere acquiescence” to Keller’s show of authority, not “free and voluntary actions evincing consent,” according to the Court. Based on that action, together with the conduct between the two—from initial contact to entering the apartment—the Court concluded that “Keller did not have consent to enter Reed’s apartment.”

The Court then turned to the issue of revocation of consent, which the lower courts seemed to have focused on. The Court reiterated that consent was not given, but even assuming that it had, Sullivan “would have unequivocally withdrawn” it. Revocation, like consent, can be communicated through gestures or actions and must be unequivocal. State v. Wantland, 848 N.W.2d 810 (Wis. 2014). According to the Court, trying to shut the door in someone’s face unequivocally communicates “Do Not Enter” and thus constitutes a valid revocation of consent. Thus, even if Sullivan initially consented, he clearly revoked it by attempting to close the door on Keller.

Finally, the Court examined whether exigent circumstances justified Keller’s warrantless entry. It explained that the test “for determining whether exigent circumstances exist is whether a police officer, under the facts as they were known at the time, would reasonably believe that delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of the suspect’s escape.” State v. Hughes, 233 Wis. 2d 280 (2000).

The Court concluded that the facts known to Keller at the moment he pushed his way into the apartment do not establish exigent circumstances. Keller was advised that the altercation being investigated was verbal, the participants went to separate locations, and Jerome was in the apartment “cooling off.” Additionally, Sullivan had been cooperating, and there was no objective, reasonable basis to believe that Sullivan or Jerome was armed or dangerous. An outstanding arrest warrant alone doesn’t amount to exigent circumstances nor does being on probation for a violent crime. If it did, it would “create a categorical exigent circumstance exception,” the Court observed.

Accordingly, the Wisconsin Supreme Court reversed the court of appeals and remanded to the trial court with instructions to suppress the evidence in question and vacate the convictions. See: State v. Reed, 2018 WI 109 (2018). 

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