State v. Brian T. St. Martin

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Appeal No. 2009AP1209-CR Cir. Ct. No. 2006CF747

WISCONSIN COURT OF APPEALS
DISTRICT il

STATE OF WISCONSIN,

PLAINITFF-RESPONDENT, FILED

V. JUL 28, 2010
BRIANT. ST. MARTIN,

A. John Voel ker
Acting Clerk of
Suprene Court

DEFENDANT-APPELLANT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Neubauer, P.J., Anderson and Snyder, JJ.

Pursuant to WIS. STAT, RULE 809.61 (2007-08)' this court certifies
the appeal in this case to the Wisconsin Supreme Court for its review and
determination.

ISSUE

Whether the rule regarding consent to search a shared dwelling in

Georgia v. Randolph, 547 U.S. 103 (2006), which states that a warrantless search

cannot be justified when a physically present resident expressly refuses consent,
applies where the physically present resident is taken forcibly from his residence

' All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise
noted.

No. 2009AP1209-CR
2
by law enforcement officers but remains in close physical proximity to the
residence such that the refusal is made directly to law enforcement on the scene?
BACKGROUND
On June 8, 2006, Latoya M. made a complaint of domestic abuse
against Brian T. St. Martin at the Racine police department. She spoke with
Officer Andrew Matson, who then called Officer John Spieker to accompany him
to the apartment that Latoya shared with St. Martin. Spieker was driving the
transport van, and he anticipated picking up St. Martin for further investigation or
possibly making an arrest.
When Matson, Spieker and Latoya arrived at the apartment, they
encountered a locked door. No one responded when they knocked. Latoya
provided a key to Matson and, as he opened the door, they all observed St. Martin
standing in the doorway. The officers then handcuffed St. Martin and took him
into custody for domestic abuse. They placed St. Martin in the transport van
parked outside.
After St. Martin was secured in the van, Spieker talked to Latoya.
Latoya told Spieker that she and St. Martin had recently “broken up” and that she
“had suspicions that [he] was dealing drugs.” She said that on June 2, 2006, she
had seen St. Martin “cutting out a kilo of cocaine in the bathroom probably about a
week before” the domestic violence incident. Latoya stated that St. Martin had
split up the cocaine and put it into plastic sandwich bags. She said she thought
there might still be cocaine in the apartment. Latoya told Spieker that St. Martin
was “making trips back and forth in the attic” and, if there was cocaine on the
premises, it would be up in the attic. Latoya did not say she saw cocaine in the
attic.

No. 2009AP1209-CR
3
Latoya told Matson that she wanted to cooperate with a drug
investigation and she gave her consent to search the attic. Matson then went to
talk to St. Martin, who was outside in the transport van. Matson asked for
St. Martin’s consent to search and St. Martin refused.
Matson, Spieker and Latoya then went into the attic together.
Matson recalled that they were not in the attic very long and that he “basically just
walked through … [and] didn’t see anything.” Spieker described the attic as
“messy” and in “disarray.” As they were getting ready to go down the stairway
from the attic, Spieker “noticed money beneath some clothing.” Spieker “moved
the clothing from above the money and below the clothing [were] two bags of
cocaine.”
After they found the cocaine, Matson took it to be tested and
weighed. Spieker stayed at the apartment and waited for investigators to arrive
and obtain a search warrant. Spieker talked to Investigator Sorenson, who
prepared an affidavit to support the warrant. Sorenson’s affidavit, paragraph Nos.
3-6, stated as follows:2
3. Your affiant states that Officers A. Matson and
Spieker responded to 1012 College Avenue #4 with the
intention of arresting St. Martin on domestic abuse related
charges based on the statements provided by [Latoya].
When the officers arrived St. Martin was arrested on
domestic abuse related charges.
4. That your affiant states that Officer A. Matson was
approached by [Latoya] after St. Martin was in custody.
[Latoya] told A. Matson that St. Martin regularly has large
amounts of cocaine in the apartment and that he regularly
2 We observe that Officer Matson’s name is misspelled throughout the affidavit. We
have taken the liberty of correcting the spelling in all quotations from the affidavit.

No. 2009AP1209-CR
4
brings kilograms of cocaine into the apartment, where he
would divide it into smaller pieces and re-bag[] it into
smaller bags for resale. [Latoya] further stated that
St. Martin often hides that cocaine in the attic.
5. That your affiant reports that with [Latoya’s]
permission both Officers A. Matson and Spieker entered
the attic from apartment #4. [I]n plain view in the attic A.
Matson recovered a plastic baggie that contained a white[]
powdery substance and that this baggie was next to a large
amount of U.S. currency.
6. That your affiant reports that A. Matson transported
this baggie to the Racine Police Department where he
[weighed] it and conducted a field test for cocaine. The
total gross weight was 64.9 grams and the field test was
positive for cocaine.
The circuit court issued the search warrant. The police then searched the premises
and seized cash, a scale, cell phones and documents.
The State charged St. Martin with one count of battery, contrary to
WIS. STAT. § 940.19(1) and one count of possession of cocaine with intent to
deliver, contrary to WIS. STAT. § 961.41(1m)(cm)4. St. Martin moved to suppress
all evidence obtained in the warrantless home entry and the subsequent search
pursuant to the warrant.
The circuit court held a hearing on the motion.3 The State conceded
at the hearing that its initial search of the attic was improper.4 In its written
3 The circuit court judge who heard the pretrial motion to suppress was not the same
circuit court judge who signed the search warrant.
4 In its response brief, the State explains, “It should also be noted that, although the
State ‘conceded’ in the lower court that the initial search of the attic was ‘improper,’ this alleged
concession of law does not bind this court.” See Lloyd Frank Logging v. Healy, 2007 WI App
249, ¶15 n.5, 306 Wis. 2d 385, 742 N.W.2d 337 (we are not bound by a party’s concession of
law).

No. 2009AP1209-CR
5
decision, the circuit court summarized its factual findings. It acknowledged the
State’s concession that the warrantless “search of the attic was illegal because
Mr. St. Martin had specifically not consented to the search.” With regard to the
subsequent search, the court explained that statements made in paragraph No. 4 of
Sorenson’s affidavit, which provided the probable cause to issue a search warrant,
“were not true.” The State asked the court to “reform” paragraph No. 4 of
Sorenson’s affidavit to read:
That your affiant states that Officer A. Matson was
approached by [Latoya] after St. Martin was in custody.
[Latoya] told A. Matson that St. Martin has large amounts
of cocaine in the apartment and that he brings kilograms of
cocaine into the apartment, where he would divide it into
smaller pieces and re-bag[] it into smaller bags for resale.
[Latoya] further stated that St. Martin hides that cocaine in
the attic.
The revision removed the terms “regularly” and “often” from Latoya’s description
of St. Martin’s drug activities. The court rejected the State’s new version and
concluded that it could not “simply reform” paragraph No. 4, but instead would
redact all untrue statements from the paragraph and then assess what remained to
determine whether it supported probable cause for a search warrant. Thus, the
court considered the following statement:
That your affiant states that Officer A. Matson was
approached by [Latoya] after St. Martin was in custody.
[Latoya] told A. Matson that St. Martin may have cocaine
in the apartment. That she had seen St. Martin divide
cocaine into smaller pieces and rebag it into smaller bags.
[Latoya] further stated that St. Martin may hide cocaine in
the attic.
The court then posed the question of whether a neutral magistrate
would have found probable cause from the redacted statement. It characterized
this as “a very close case,” but ultimately held that “the redacted Paragraph 4 …

No. 2009AP1209-CR
6
has sufficient information under the totality of the circumstances to justify a search
of the apartment.”
The circuit court denied St. Martin’s motion to suppress. St. Martin
pled guilty to one count of possession of cocaine with intent to deliver and pursued
this appeal.
DISCUSSION
The certified issue asks whether the Randolph rule contemplates the
refusal of a resident who has been removed from the premises by law enforcement
but who is nonetheless in close proximity and has been asked by law enforcement
to grant or refuse consent.5 Federal Fourth Amendment jurisprudence has
addressed warrantless search issues in the context of a shared dwelling before. In
United States v. Matlock, 415 U.S. 164, 170 (1974), the Supreme Court
established that consent from one with “common authority ... is valid as against
[an] absent, nonconsenting person with whom that authority is shared.” More
recently, the Supreme Court held that a warrantless search cannot be justified
when a “physically present resident” expressly refuses consent. Randolph, 547
U.S. at 120. The key distinction between Matlock and Randolph is the
contemporaneous physical presence of the defendant at the time consent to search
is requested. An absent party’s refusal is not valid; however, a “physically present
resident” may effectively refuse, even over a co-dweller’s consent.
5 On appeal, St. Martin also challenges the search warrant on grounds it was obtained
using untrue allegations to support probable cause. St. Martin argues that the circuit court
improperly redacted the untrue allegations and reassessed the document for probable cause,
thereby nullifying the role of the neutral magistrate. He further argues that because the cocaine
was seized during the warrantless search, it should have been suppressed regardless of the
validity of the search warrant.

No. 2009AP1209-CR
7
In Randolph, the police responded to a domestic dispute and found
both Randolph and his wife at the door. Randolph, 547 U.S. at 107. While
Randolph’s wife gave the police consent to search the house, Randolph
“unequivocally refused” consent. Id. The police searched the home while
ignoring his protests. Id. The Court held “that a warrantless search of a shared
dwelling for evidence over the express refusal of consent by a physically present
resident cannot be justified as reasonable as to him on the basis of consent given to
the police by another resident.” Id. at 120. The Court reasoned that “there is no
common understanding that one co-tenant generally has a right or authority to
prevail over the express wishes of another, whether the issue is the color of the
curtains or invitations to outsiders.” Id. at 114.
Here, the facts demonstrate that St. Martin was in a van just outside
the apartment when he refused consent to search his dwelling. He was in the van
because the officers arrested him on the domestic violence complaint, took him
from his apartment, and placed him in the van. Shortly thereafter, having talked to
Latoya about possible drugs in the apartment, the officers asked St. Martin for
consent to search his apartment. He refused.
Unlike the situation presented in Randolph, St. Martin was not in
the apartment when he refused to consent; rather, he was nearby in the police van.
He was close enough for officers to ask him directly whether they could search his
apartment. The Randolph court anticipated some of these twists on this issue:
[W]e have to admit that we are drawing a fine line; if a potential
defendant with self-interest in objecting is in fact at the door and
objects, the co-tenant’s permission does not suffice for a
reasonable search, whereas the potential objector, nearby but not
invited to take part in the threshold colloquy, loses out.

No. 2009AP1209-CR
8
Id. at 121. Here, St. Martin was “nearby” and was directly invited to take part in
the “threshold colloquy” by Matson, who asked St. Martin for consent to search.
The Randolph court also anticipated a problem if law enforcement
preemptively removed a resident from a dwelling for the purpose of preventing
that person’s ability to refuse consent: “[E]vidence that the police have removed
the potentially objecting tenant ... for the sake of avoiding a possible objection”
might invalidate a subsequent search with respect to that tenant. Id. at 121-22.
There is no suggestion here that the officers removed St. Martin from his
apartment to avoid a possible objection; indeed, they sought out his consent even
while he sat waiting outside in the van.
The State argues that the Randolph rule must be limited “to only
those situations where the co-tenants are both present when the consent question is
asked, with one objecting and one consenting.” It directs us to several Seventh
Circuit cases where the holding in Randolph was construed very narrowly. See,
e.g., United States v. Groves, 530 F.3d 506, 511-12 (7th Cir. 2008) (Randolph
requires co-tenant’s objection at the door and expressly disinvites anything other
than the narrowest of readings); United States v. Henderson, 536 F.3d 776, 783
(7th Cir. 2008) (the contemporaneous presence of the objecting and consenting co-
tenants is indispensable to the decision in Randolph); United States v. Hicks, 539
F.3d 566, 569 (7th Cir. 2008) (Randolph requires objector’s physical presence at
the time consent is originally sought to nullify a co-occupant’s permission).
St. Martin argues that his detention “just outside the house is a red
herring.” He asserts that St. Martin was “physically present” as contemplated by
Randolph and that the State’s narrow interpretation elevates form over substance.
He emphasizes that key factors derived from the Supreme Court’s decision in

No. 2009AP1209-CR
9
Randolph are present here: (1) St. Martin was nearby, (2) he refused consent after
Latoya told officers they could search the attic, and (3) his refusal was made
directly to officers on the scene. The Randolph court summarized the rule
regarding refusal of consent by a “physically present resident” as follows:
So long as there is no evidence that the police have
removed the potentially objecting tenant from the entrance
for the sake of avoiding a possible objection, there is
practical value in the simple clarity of complementary
rules, one recognizing the co-tenant’s permission when
there is no fellow occupant on hand, the other according
dispositive weight to the fellow occupant’s contrary
indication when he expresses it.
Randolph, 547 U.S. at 121-22. The question here then comes down to what the
United States Supreme Court meant by a “physically present resident” when it
introduced that element into the inquiry. See id. at 120. Was St. Martin physically
present when he was forcibly removed to a van just outside his apartment, yet was
nearby and was invited to take part in the “threshold colloquy” regarding consent
to search?
CONCLUSION
The interpretation of Randolph in this context implicates the
constitutional right to be free from unreasonable search and seizure. This right is
eroded when law enforcement can manipulate a situation in a way that invalidates
a resident’s refusal to consent to a search. Likewise, the state’s ability to
investigate and prosecute criminal activity is restrained when police officers are
provided insufficient guidance regarding the proper execution of their duties.
Because Randolph has not been interpreted or applied in the context of a resident
who is removed from his residence but remains nearby and refuses consent when
asked, law enforcement officers and the bench and bar would benefit from

No. 2009AP1209-CR
10
guidance on the issue. We respectfully certify the question to the Wisconsin
Supreme Court.

No. 2009AP1209-CR
11