WI: Objecting defendant not actually in the doorway not subject to Randolph

In a rule almost impossible to apply, the Wisconsin Supreme Court concludes that the target of a search sitting in his car out front is not close enough to the house for his refusal to consent to be binding on his co-tenant from whom the police got consent. The defendant was not “present” for his objection to be valid under Randolph, which must be construed narrowly. State v. St. Martin, 2011 WI 44, 334 Wis. 2d 290, 800 N.W.2d 858 (2011):

[*P24] We next turn to whether he was “invited to take part in the threshold colloquy,” a point disputed by the parties. St. Martin argues that he was invited to take part because the officer came to him and asked for his consent. The State argues that the “threshold colloquy” referenced by the Court in Randolph cannot be rightly construed to include a colloquy that occurs outside the home.

. . .

[*P27] We agree with those courts that the Randolph Court incorporated an express requirement of physical presence in its shared-dwelling consent rule. An approach that reads the phrase “threshold colloquy” metaphorically would not be consistent with either the “physically present” requirement or the “fine line” framework set forth by the United States Supreme Court. Such an approach cannot be reconciled with the clear statement of the Court that minor factual differences will be dispositive. The Seventh Circuit’s analysis in Henderson noted that the Randolph concurrence by Justice Breyer stressed the fact-intensive nature of the analysis in this type of case. See Henderson, 536 F.3d at 781 (citing Randolph, 547 U.S. at 127 (Breyer, J., concurring)). In cases where the United States Supreme Court has drawn what it acknowledges are fine lines, the facts matter, and slight factual differences may take the analysis in far different directions. The argument that a slight variation in the facts would require an opposite result is therefore not persuasive. Slight differences in facts do actually often make a difference. We therefore agree with the State that under the justified formalism of the rules set forth by the United States Supreme Court, St. Martin was “nearby” and “not invited to take part in the threshold colloquy,” and that he therefore does not fall within the rule stated in Randolph such that the search should have been barred and the evidence gained from it suppressed.

Dissent:

[*P48] In making the determination that St. Martin was not physically present, the majority sidesteps Randolph’s holding. Instead, it handpicks the language from Randolph where the Court was applying its rule to the particular facts of the case.

[*P49] Under the majority’s analysis, it is unclear how close a nonconsenting occupant must be to the front door to be considered “physically present.” The majority notes that St. Martin “did not expressly object to [the officers’] entry as he stood at the door,” majority op., ¶22, and that when St. Martin did object, he was “not at the door and objecting.” Id., ¶23. Neither the court of appeals nor the State advances such a restrictive rule. Both acknowledge that the test is whether the defendant is “physically present.” See supra, ¶36.