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COURT OF APPEALS DECISION DATED AND RELEASED August 29, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1038-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
BENJAMIN L. STEWART,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County: DENNIS P. MORONEY, Judge. Affirmed.
SULLIVAN,
J. Benjamin L. Stewart appeals from a judgment of conviction, upon a
guilty plea, for one count of possession of a controlled substance—marijuana,
and one count of possession of a controlled substance—cocaine. Stewart pleaded guilty after the trial court
denied his motion to suppress evidence that the police obtained in a
warrantless search of his apartment and padlocked bedroom. Stewart presents essentially one issue for
our consideration—whether the State met its burden in showing that he consented
to the search of his apartment and locked bedroom. The trial court concluded that Stewart did consent to both
searches and, thus, the court declared that the evidence, including marijuana
and cocaine, was admissible. After
reviewing the record and applicable law, this court affirms the judgment of
conviction.[1]
The following evidence
was presented at the suppression hearing.
On February 17, 1994, at approximately 12:10 a.m., City of Milwaukee
Police Officers Christopher Bruns and Ronald Fohr were dispatched to an
apartment building on Milwaukee's north side.
The officers responded to a report of a man wielding a gun in
Apartment #6 of that building.
Officer Bruns and Officer Gregory Marr, who had arrived in a “backup”
squad car, entered the building and were met on the stairway by two residents
who told the officers that earlier in the evening an armed individual from
Apartment #6 had confronted them after they asked the occupants of the
apartment to turn down their stereo.
Officers Bruns, Marr, and Fohr then proceeded to Apartment #6 where
they knocked on the door. The evidence
as to what occurred next is conflicting.
1. Officer
Bruns testimony.
Officer Bruns testified
that the door opened and that the officers spoke with Stewart and another
individual, and that the officers asked to be “let in” to the apartment. Bruns
also testified that Stewart originally indicated that he was not going to let
the officers into the apartment without a warrant. Eventually, however, they were allowed into the apartment. Officer Bruns could not recall who gave the
officers consent to enter the apartment, but he testified that he thought
“Charles Stewart was there.” Officer
Bruns then testified that after explaining why the officers were at the
building, he asked Stewart if he could search the apartment and that Stewart
said yes. He testified that he did not
find anything in the apartment, but discovered a bedroom locked with a
padlock. He further testified that he
asked to whom the room belonged and that Stewart said the room was his. He then asked if Stewart “could unlock the
lock” so the officers could search the room.
Officer Bruns testified that Stewart made no verbal response or other
indication that he did not want to open the padlock, but proceeded to unlock
the padlock, whereupon he and Officer Bruns entered the room. Officer Bruns testified that if Stewart
would have refused to open the door, the officers could have attempted to get a
search warrant, but that he did not believe they had enough evidence to obtain
a search warrant.
While searching the
room, Bruns found two guns under the bed in the room and then arrested
Stewart. The officer then searched the
room and, when he lifted the mattress off the bed to recover the guns, he saw a
yellow glove with a plastic bag containing what he believed to be marijuana and
cocaine.
2. Officer
Fohr's testimony.
Officer Fohr testified
that when they knocked on the door to Apartment #6 someone opened the
door, and that after the police asked if they could enter, someone let them
into the apartment. He could not recall
anyone in the apartment either mentioning the need for a search warrant, or
refusing to let them enter the apartment.
Further, he could not recall which officer asked to be let into the
apartment or which person in the apartment allowed the officers to enter. Nor
could he recall if any of the officers asked the apartment's occupants whether
the police could search the apartment.
He testified that the police searched the apartment and did not find
anything. He also testified that while
he was guarding two of the apartment's occupants he saw Officer Bruns and
Stewart standing in front of the padlocked bedroom door and that Officer Bruns
asked if he could look in the room.
Stewart unlocked the door, although Officer Fohr testified that he could
not recall if Stewart made any verbal response to Officer Bruns before he
opened the padlock.
3. Officer
Marr's testimony.
Officer Marr testified
that after either Officer Bruns or Officer Fohr knocked, someone opened the
door—although he could not remember who it was. He testified that one of the officers spoke to someone inside and
that the door opened even though the occupants were “hesitant” to open the
door, and the police walked into the apartment “under no objection.” He testified that although he could not
remember which officer asked if they could search the apartment, or which of
the apartment's occupants responded, the officers eventually began the search
and uncovered nothing. He testified
that he then saw Officer Bruns standing outside the padlocked door with Officer
Fohr and Stewart. Officer Marr further
testified that he heard Officer Bruns ask Stewart, who lived in the locked
bedroom; that Stewart said the room was his, and that Officer Bruns asked if he
could search the room. Although he
could not recall if Stewart told the officers that they could not enter the
bedroom without a warrant, he testified that Stewart produced a key and that he
then “voluntarily” unlocked the door.
4. Stewart's
testimony.
Finally, Stewart
testified that he was in the apartment bathroom when he heard the knock on the
door, that his brother asked who was outside, and that the police announced
their presence. Stewart said he cracked
the door open, that the police explained that they were looking for a gun and
asked if they could enter the apartment.
Stewart testified that he and his brother asked the police five times if
they had a search warrant, and that one officer said, “We don't need a search
warrant.” Stewart testified that he
asked, “Why?” and the officer responded, “We don't have to have a search
warrant on cases like this.” He then
testified that he said “I am not going to let you in.” Then one officer pushed him and his brother
out of the doorway and entered. He
testified that the officers began searching the apartment. He testified that while he was in the living
room the officers found the locked bedroom and asked whose room it was, Stewart
said it was his and that he had “no choice” but to open it. He testified that when he told the officers
that they needed a search warrant, they responded that they did not need one,
and that he felt he was “forced” to open the door by the way the officers were
speaking. He testified that after the
door was opened, the officers looked under the bed and that he told the
officers that a man who was moving upstairs had asked him to store several guns
for him in the bedroom. He was arrested and the officers then found the
controlled substances.
The trial court denied
Stewart's suppression motion, concluding that Stewart consented to the search
of the apartment and the locked room.
In reaching this conclusion, the court found that Stewart's “opening of
the door indicated consent to come in;” that the officers' version of the
events were more believable than Stewart's; i.e., that he was not pushed out of
the way by the officers; that there was “no showing” that Stewart was coerced
into opening the padlocked door, but that it was voluntary because “he provided
the key to open the padlock.” Further,
the trial court found that, based upon the “totality of the circumstances,” the
police entry was “with permission” and the search was voluntary. After the
trial court denied the suppression motion, Stewart pleaded guilty and now
appeals his judgment of conviction.
Generally, evidence
seized by the police in a warrantless search is inadmissible “absent a
well-delineated, judicially-recognized exception.” State v. Johnson, 177 Wis.2d 224, 231, 501 N.W.2d
876, 879 (Ct. App. 1993). Consent to a
warrantless search is a recognized exception.
Id. at 233, 501 N.W.2d at 879. “When asserting the consent exception, the State bears `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.'” Id.
(citation omitted). Further, the “`test
for voluntariness of consent ... is whether under the totality of the
circumstances it was coerced.'” Id.
(citation omitted).
When this court reviews
a trial court's denial of a suppression motion, we will not disturb the trial
court's findings of “historical” fact unless they are clearly erroneous;
however, this court's application of such facts to the constitutional
requirement of consent is a question of law which we review de novo. Id. at 230‑31, 233, 501
N.W.2d at 232-33. Further, in
determining the voluntariness of the consent, we can look at whether the
consenter assisted the police in the search.
State v. Nehls, 111 Wis.2d 594, 599, 331 N.W.2d 603, 605‑06
(Ct. App. 1983) (wife led police to hidden marijuana located in basement).
Although the trial court
made few specific factual findings, it did find that the officers' testimonies
were more credible than Stewart's version of the events. See State v. Poellinger,
153 Wis.2d 493, 506, 451 N.W.2d 752, 756 (1990) (credibility determinations are
left to the fact finder). This court
can locate nothing in the record that makes these findings clearly erroneous. Accordingly, this court independently
reviews the officers' versions of the events to determine if the consent
exception properly applies in this case.
Based upon the officers' testimonies, both the entry to the apartment
and the entry to the locked bedroom were consensual and voluntary. The officers independently testified that
the occupants of the apartment allowed the officers into the apartment, and
that they were given permission to search the apartment. Further, although the bedroom was originally
locked, the officers testified that Stewart produced a key, opened the lock,
and allowed the officers to search his bedroom. Cf. Nehls, 111 Wis.2d at 599, 331 N.W.2d at
605‑06 (assistance is evidence of consent).
Based upon the trial
court's factual findings, we conclude the State met its burden in showing that
Stewart consented to both searches. The
trial court properly denied the suppression motion.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.