                                                                            2018 WI 109

                  SUPREME COURT                OF   WISCONSIN
CASE NO.:               2016AP1609-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Faith N. Reed,
                                  Defendant-Appellant-Petitioner.

                             REVIEW OF DECISION OF THE COURT OF APPEALS
                             Reported at 375 Wis. 2d 328, 897 N.W.2d 68
                                        (2017 – unpublished)

OPINION FILED:          December 7, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          September 7, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Monroe
   JUDGE:               J. David Rice

JUSTICES:
   CONCURRED:           ZIEGLER, J., concurs.
   DISSENTED:           ROGGENSACK, J., dissents.
   NOT PARTICIPATING:

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed    and      an    oral   argument   by    Joseph     Ehmann,        state   public
defender.


       For the plaintiff-respondent, there was a brief filed by
Clayton P. Kawski, assistant attorney general, Scott E. Rosenow,
assistant         attorney     general,   and    Brad      D.        Schimel,    attorney
general.            There    was   an   oral    argument        by     Clayton    Kawski.
                                                                       2018 WI 109
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.       2016AP1609-CR
(L.C. No.   2015CM545)

STATE OF WISCONSIN                            :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent,
                                                                     FILED
      v.
                                                                 DEC 7, 2018
Faith N. Reed,
                                                                   Sheila T. Reiff
            Defendant-Appellant-Petitioner.                     Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.                  Reversed and

cause remanded.


      ¶1    SHIRLEY S. ABRAHAMSON, J.             This is a review of an

unpublished     decision   of   the   court       of   appeals       affirming       a

judgment of conviction of the Circuit Court for Monroe County,

David Rice, Judge.1        The case was decided by one judge, Judge

Brian Blanchard, pursuant to Wis. Stat. § 752.31(2)(f) (2015-




      1
       State v. Reed, No. 2016AP1609-CR, unpublished slip op.
(Wis. Ct. App. Mar. 23, 2017).
                                                                      No.       2016AP1609-CR



16).2       Faith Reed, the defendant, was convicted of possession of

a     controlled       substance          in        violation        of        Wis.        Stat.

§ 961.41(3g)(b)        and    bail    jumping       in   violation        of    Wis.       Stat.

§ 946.49(1)(a), both misdemeanors.

        ¶2     In the circuit court, Reed claimed that the officer's

warrantless entry into her apartment, sometimes referred to here

as Unit 206, violated her rights under the Fourth Amendment of

the United States Constitution and Article I, Section 11 of the

Wisconsin Constitution.              Reed argued that the warrantless entry

into her apartment was not justified under any of the well-

recognized       exceptions         to    the       Fourth        Amendment's         warrant

requirement.         Specifically, Reed contended that the officer did

not     have   consent       to   enter    her      apartment       and     that      exigent

circumstances         did     not    exist         justifying       entrance          to     her

apartment.       Consequently, she argued that the evidence obtained

during the searches of her apartment and her person should be

suppressed.

        ¶3     The circuit court denied Reed's motion to suppress the
evidence.       The circuit court concluded that the law enforcement

officer had consent to enter Reed's apartment, that the consent

was never revoked, and that exigent circumstances justified the

officer's pushing open the apartment door.                        The court of appeals

affirmed       the   circuit        court's        denial    of     Reed's       motion       to

suppress.       The court of appeals agreed with the circuit court

        2
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.


                                               2
                                                                            No.     2016AP1609-CR



that the officer had consent to enter Reed's apartment and that

the consent was never revoked.                        The court of appeals did not

address the issue of exigent circumstances.

     ¶4     The instant case presents the following issues:                                     (1)

whether the officer had consent to enter Reed's apartment; (2)

if consent was initially given to the officer, whether that

consent   was       revoked        before    the       officer's      entry       into     Reed's

apartment; and (3) whether exigent circumstances justified the

officer's pushing open Reed's apartment door.

     ¶5     We      conclude        as    follows:            (1)    the    law     enforcement

officer did not have consent to enter Reed's apartment; (2) even

if the officer had initially been given consent to enter the

apartment,       which        he     was     not,        consent         would      have      been

unequivocally         revoked       before        the        officer's      entry      into     the

apartment; and (3) exigent circumstances did not justify the

officer's opening Reed's apartment door.

     ¶6     The following principles of law apply in the instant

case.
     ¶7     A    warrantless             search       does     not   violate        the    Fourth

Amendment      of     the     United       States       Constitution         or     Article      I,

Section   11     of     the    Wisconsin          Constitution         if    the       search    is

conducted        with       consent3         or         is      justified         by      exigent

circumstances.4
     3
       Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); State
v. Johnson, 2007 WI 32, ¶16, 299 Wis. 2d 675, 729 N.W.2d 182.
     4
       Payton v. New York, 445 U.S. 573, 590 (1980); State v.
Dalton, 2018 WI 85, ¶39, 383 Wis. 2d 147, 914 N.W.2d 120.


                                                  3
                                                                     No.    2016AP1609-CR



     ¶8     Consent to search must be unequivocal and specific,5

and it must be freely and voluntarily given.6                         Consent is not

freely    and    voluntarily       given   if    it     is   the     result       of   mere

"acquiescence to a claim of lawful authority."7                            Once given,

consent    may   be     revoked.     Revocation         of   consent       need    not   be

communicated     through     particular        "magic    words,"      but     intent     to

revoke consent must be made by unequivocal acts or statements.8

     ¶9     In    the    instant     case,      the   law     enforcement         officer

neither    requested        nor     obtained      consent      to      enter       Reed's

apartment.       Kirk Sullivan, who was staying with Reed at her

apartment and led the officer to Reed's apartment, never told

the officer that the officer was allowed to enter the apartment.

In leading the officer to the threshold of Reed's apartment,

Sullivan was merely following the directives and commands of the

officer.     Sullivan's conduct falls far short of unequivocal and

specific consent that was freely and voluntarily given.




     5
       Andrews v. Hickman Cty., 700 F.3d 845, 854 (6th Cir.
2012); United States v. Chan-Jimenez, 125 F.3d 1324, 1328 (9th
Cir. 1997); Gautreaux v. State, 52 Wis. 2d 489, 492, 190
N.W.2d 542 (1971).
     6
       Bumper v. North Carolina, 391 U.S. 543, 549 (1968); State
v. Johnson, 2007 WI 32, ¶16, 299 Wis. 2d 675, 729 N.W.2d 182.
     7
       Bumper,  391         U.S.     at    549;       see     also     Johnson,          299
Wis. 2d 675, ¶16.
     8
       United States v. Sanders, 424 F.3d 768, 774 (8th Cir.
2005); State v. Wantland, 2014 WI 58, ¶33, 355 Wis. 2d 135, 848
N.W.2d 810.


                                           4
                                                                        No.     2016AP1609-CR



     ¶10     Moreover,      even   if     Sullivan         had    initially      given   the

officer consent to enter Reed's apartment (which, we emphasize,

he did not), consent would have been unequivocally revoked when

Sullivan opened the apartment door just enough to allow himself

entry and attempted to shut the door behind him to prohibit the

officer from entering the apartment.

     ¶11     Additionally,         a     warrantless           search     may     also     be

justified by exigent circumstances.9                       "The objective 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 . . . or greatly enhance the

likelihood of the suspect's escape."10

     ¶12     We conclude that no exigent circumstances justified

the officer's pushing open Reed's apartment door.                                Under the

circumstances known to the officer at the time he pushed the

door open, there were no facts upon which to base a reasonable

belief     that    the   delay     in    procuring         a     search   warrant     would
gravely endanger life or greatly enhance the likelihood of the

suspect's escape.

     ¶13     Accordingly, we conclude that the searches at issue

violated     the   United    States      and       Wisconsin       constitutions.          We


     9
          Payton, 445 U.S. at 590; Dalton, 383 Wis. 2d 147, ¶39.
     10
        State v. Hughes, 2000 WI 24, ¶24, 233 Wis. 2d 280, 607
N.W.2d 621; see also Minnesota v. Olson, 495 U.S. 91, 100
(1990).


                                               5
                                                                        No.    2016AP1609-CR



therefore    reverse        the    decision      of     the    court    of    appeals       and

remand   the   cause        to    the    circuit      court    with     instructions        to

suppress the challenged evidence and vacate Reed's convictions.

                                             I

    ¶14     The following facts are drawn primarily from the body

camera footage of Officer Steven Keller of the Tomah Police

Department.

    ¶15     On December 13, 2015, at 1:20 p.m., Officer Keller was

dispatched to 308 Murdock Street in Tomah, Wisconsin.                                Officer

Keller was responding to a report of an altercation between two

individuals that had taken place in the street.                               When Officer

Keller   arrived       at    the    scene,       he   encountered        two     men      later

identified as Daniel Cannon and Kirk Sullivan.                           Officer Keller

asked    Cannon    and       Sullivan      what       was     going    on,     and     Cannon

responded,     "They     were      fighting      over    stupid       shit."11       Officer

Keller asked, "Where are they?" Cannon pointed ahead, saying

"One of them went back the house that way——"                          Cannon then turned

around, but before he could say anything else, Officer Keller
asked    Cannon    if        he    and     Sullivan         were      involved       in    the

altercation.      Cannon responded, "We were trying to stop it."

    ¶16     Cannon then explained that "homeboy," referring to the

other individual involved in the altercation, "went back to his




    11
       As the officer later learned, "they" were brothers,
Brandon and Jerome Harris, and the "stupid shit" they were
fighting about was a pair of Air Jordan basketball shoes.


                                             6
                                                                    No.    2016AP1609-CR



house just to cool off."              By "his" house, Cannon was referring

to Sullivan.

       ¶17    Officer      Keller    asked       Cannon,   "Which    apartment      they

in?"        Cannon said that "they" were in number 11.                      Dispatch12

could be heard saying that as the parties to the altercation

were leaving, a female and male in a white T-shirt went to

"apartment number 11."              Cannon was heard off-screen chuckling

and saying, "Yep, they're in number 11."

       ¶18    Referring       to    the      individual      who    went     back    to

Sullivan's apartment to cool off, Cannon reappeared on screen

and began talking to Officer Keller again, stating, "And he's——"

       ¶19    At this time, Officer Keller noticed that Sullivan,

now    a     short    distance      away,    was     walking   away       towards   his

apartment building.

       ¶20    Officer      Keller    said    loudly    to    Sullivan,      "Hey,   why

don't you come back here.              Don't just leave."           Sullivan turned

around and walked back towards Officer Keller with his hands in

his pockets as Cannon reiterated that the other individual went
back to Sullivan's apartment to cool off.                    After a few seconds,

Officer Keller told Sullivan to "[k]eep your hands out of your

pockets      for     me,   OK?"     Sullivan       removed   his    hands    from   his

pockets and showed his open palms to Officer Keller.




       12
       For the sake of clarity, the instant opinion refers to
voices heard over Officer Keller's radio as "Dispatch" unless
otherwise indicated.


                                             7
                                                                     No.        2016AP1609-CR



       ¶21     Cannon    again    reiterated         that    he    and    Sullivan       were

trying to defuse the situation when Sullivan, speaking for the

first time, said "Yep."            Cannon then explained to Officer Keller

that the altercation was related to shoes.                         Cannon says "that

was    pretty    much     the    whole    argument,"         and   that     "they"       were

supposed to "sit there and watch football."

       ¶22     Officer    Keller     then     asked     Sullivan,         "So     you    were

involved with this?"            Sullivan responded, "I was just trying to

break it up.       That's it."

       ¶23     Officer    Keller     then     asked     Cannon      and    Sullivan       for

identification.          Describing Cannon and Sullivan as "witnesses,"

Officer Keller radioed their names to Dispatch for a warrant

check.       While waiting to hear back from Dispatch, Officer Keller

confirmed with Cannon and Sullivan that the altercation was a

verbal argument about shoes that never got physical.

       ¶24     As Cannon and Sullivan were describing the altercation

in    greater    detail,       another    male    officer         could    be     heard       on

Officer Keller's radio speaking with a female officer.                             The male
officer said that he and "Andy" were "not having any luck" at

apartment number 11.             The female officer responded, "I have a

Jerome Harris at that location.                   Contact with him on November

11th.        Reference:    a     warrant."        As    to    Sullivan,         the     female

officer commented, "Reference: a commitment."                        The male officer

asked    the    female     officer       to   "run     Jerome"      and    "look        for    a

Brandon——maybe same last name."

       ¶25     Officer Keller then asked Cannon and Sullivan, "Can
you guys stick around this area for a moment?"                           Sullivan asked,
                                              8
                                                                    No.    2016AP1609-CR



"You mean stand outside?"              Officer Keller pointed to a nearby

building and responded, "Well, do you want to hang out in this

building?"        In response, Sullivan laughed and said, "I was going

to watch the game, I guess."              Gesturing with his hands, Officer

Keller    responded,       "Until    we   can     get    everything       straightened

out."

      ¶26    At    this    time,    Cannon      turned   to   Sullivan      and    said,

"Well, cause he went to your house, he's at your apartment."

Sullivan responded, "Yeah, he supposed to go to my——my apartment

to watch football."          Cannon then said to Officer Keller, "So, I

mean, if you want to go with him and I can stand by where I

live——"      Officer Keller then asked Sullivan, "Who's at your

house right now, one of the guys involved?"                        Cannon responded,

"Yes."      Sullivan said, "Yeah he's supposed to——he was supposed

to come to my house.         He's supposed to."

        ¶27 Officer Keller asked Sullivan, "All right, and he's

over there right now?"             Sullivan responded, "I——I don't know he

was   supposed      to    go."     Cannon       said   that   he   saw    Jerome   head
towards Sullivan's apartment building after the argument ended

and that Jerome "might be there already."

      ¶28    Dispatch could be heard telling Officer Keller that

Sullivan     was     on    probation      for     battery,     strangulation,       and

suffocation.        Dispatch also told Officer Keller that Sullivan

had contact restrictions with the defendant, Faith Reed.

      ¶29    Officer Keller asked Sullivan if "that" is where he

was, referring to Reed's apartment.                      Sullivan said, "Mm-hm."
Officer Keller asked, "Is she there?"                   Sullivan answered, "Yeah,
                                            9
                                                               No.       2016AP1609-CR



she's there."      There was then some confusion among Sullivan,

Officer Keller, and Dispatch about the specifics of Sullivan's

contact    restrictions    with     Reed,         but    eventually,        it     was

established   that   Sullivan     was    not      prohibited      from     in-person

contact with Reed.13

     ¶30   Officer   Keller     asked    Sullivan,       "Who's    over     at    your

house right now that was involved with this?                What's his name?"

Sullivan   responded,   "Ah,    Jerome.      He    was   supposed        to——he    was

supposed to go over there.        I stood out here and me and him was

talking about it."

     ¶31   The same male officer from before could again be heard

stating over the radio that nobody was answering the door at

apartment number 11.       This male officer asked if they thought

Jerome was in number 11 and Brandon took off.                     Officer Keller

responded into his radio, "Kirk's advising that Jerome might be

at his residence over here and the others in number 11 there."

Officer Keller then asked, "Is it Brandon that was involved?"

It is not clear to whom this question was directed, and nobody
responded to it.

     ¶32   Officer     Keller    again       confirmed      with     Cannon        and

Sullivan that the argument was verbal and not physical.                      Officer

Keller then communicated that information into his radio.                         Over

the radio, a male officer can be heard saying, "We're looking



     13
       Sullivan's phone contact with Reed was restricted, not
his in-person contact with Reed.


                                        10
                                                                        No.        2016AP1609-CR



for Brandon Harris and Jerome Harris.                     You can run both of them—

—make sure they're not wanted——could be helpful."

       ¶33    Officer     Keller      then     gestured         towards       an     apartment

building and said to Sullivan, "All right, let's go——ah——let's

go look over——see if he's over there.                     If anything we could just

talk to him."        Officer Keller told Cannon that he was "good to

go."

       ¶34    Officer     Keller      and    Sullivan          began    walking        towards

Reed's    apartment       building        with     Sullivan      walking        to     Officer

Keller's left.          As they walked, Dispatch could be heard saying

that    Jerome   had     two    "body      only"    warrants,       one    of       which   was

related to "operating while revoked."                      After about 30 seconds,

Officer Keller told Sullivan, "Hey, do you want to step over

here with me.           I'm going to see if this other party's here."

Sullivan then began to walk in front of Keller such that he was

clearly visible in the body camera footage.

       ¶35    With   Sullivan        in    front    of    Officer       Keller,       the   two

entered an unlocked entryway to a stairwell in the apartment
building.      They climbed a set of stairs to the second story of

the building.        At the top of the stairs was another unlocked

door.        Sullivan    opened      the    door,       exited    the     stairwell,        and

looked back while holding the door open for Officer Keller.

Sullivan then led Officer Keller to Reed's apartment, Unit 206,

about    halfway     down      the   hallway       on    the    left.      Just       as    they

reached the threshold of Reed's apartment, Officer Keller stated

into his radio, "Andy, I'll be in apartment number 206."


                                             11
                                                                 No.    2016AP1609-CR



     ¶36    Sullivan briefly knocked on the door, opened the door

just wide enough to facilitate his own entry into the apartment,

began to shut the door behind him, and called out for Jerome.14

The door to Unit 206 was inches away from shutting when Officer

Keller pushed open the door, stating, "Hey, don't just walk in

there."15        Sullivan,     another     man    later   identified     as   Jerome

Harris, and a woman later identified as the defendant, Faith

Reed, could be seen inside the apartment after Officer Keller

pushed    open    the   door    but   before      he   entered    the   apartment.

Sullivan could be seen trying to conceal something that was on

the kitchen counter.           Officer Keller entered the apartment and

subsequently discovered marijuana on the counter.

     ¶37    Reed was arrested for possession of marijuana.                    During

the booking process, a single Adderall pill was found in Reed's

sock.     Reed was charged with one count each of possession of an

illegally obtained prescription drug in violation of Wis. Stat.

§ 450.11(7)(h),         possession         of      dextroamphetamine          sulfate

(Adderall)       in     violation     of        Wis.   Stat.     § 961.41(3g)(b),


     14
       The circuit court found that it was ambiguous whether
Sullivan was shutting the apartment door or if it was another
occupant of the apartment.    This finding is clearly erroneous.
Officer Keller's body camera clearly shows that it was Sullivan
who was attempting to shut the apartment door behind him.
     15
       The court of appeals stated that Jerome said "Hey, don't
just walk in like that."        This finding is also clearly
erroneous.   In the body camera footage, Officer Keller, not
Jerome, could clearly be heard saying, "Hey, don't just walk in
there" as Sullivan entered the apartment and began shutting the
door behind him.


                                           12
                                                                         No.    2016AP1609-CR



possession of THC as a party to a crime in violation of Wis.

Stat. § 961.41(3g)(e), and bail jumping in violation of Wis.

Stat. § 946.49(1)(a).

      ¶38    On February 9, 2016, Reed filed a motion to suppress

the evidence on the basis that the warrantless searches violated

her   rights    under    the      Fourth      Amendment      to     the    United      States

Constitution     and     Article         I,    Section       11     of    the     Wisconsin

Constitution.         A hearing was held on March 15, 2016, at which

Officer     Keller    testified      and      the    prosecutor          played    relevant

portions of Officer Keller's body camera footage.

      ¶39    At the hearing, Officer Keller admitted that Sullivan

had not given him permission to go into Unit 206.                                   Officer

Keller testified that Sullivan "did not tell me that I had to

stay out of the apartment nor did he tell me to just come right

in, either."         Officer Keller testified that "[a]t no point did

[Sullivan] tell me I could not follow him into the residence."

Officer Keller further testified that he pushed opened the door

to the apartment in part out of concern for his own safety.
      ¶40    The circuit court denied Reed's motion to suppress.

The circuit court concluded that "by his conduct Mr. Sullivan

freely and voluntarily implied that the officer could follow him

to [Unit 206] and that he was going to locate and identify Mr.

Harris    who   was    one   of    the     suspects     in    connection          with   this

altercation     so    that   the    officer         could    talk    with      him."      The

circuit court found that it was not clear who closed the door




                                              13
                                                                       No.     2016AP1609-CR



(i.e.,       either      Sullivan         or       another      occupant       of   Reed's

apartment),16      and    that       from      Officer   Keller's      perspective,        it

would have been "ambiguous" why the door was shutting.                                   The

circuit       court      concluded          that      "there     was    nothing         about

[Sullivan's]      entry       into    the      room    that     revoked——revoked        that

consent that the officer follow him."                         The circuit court also

concluded that "under the circumstances that the officer was in

an isolated location without anyone else there to back him up

dealing with individuals one of whom was on probation, had a

warrant for his arrest who had just been in an altercation, I

think it was reasonable for him to push the door partially open

to make sure he knew who was in front of him and what was going

on."

       ¶41    After the motion to suppress was denied, Reed pleaded

no contest to possession of a controlled substance in violation

of Wis. Stat. § 961.41(3g)(b) and bail jumping in violation of

Wis. Stat. § 946.49(1)(a).                Reed appealed her convictions to the

court of appeals, arguing that the circuit court erroneously
denied her motion to suppress.

       ¶42    The court of appeals, Judge Brian Blanchard sitting

alone       pursuant     to   Wis.        Stat.     § 752.31(2)(f),          affirmed     the

circuit      court's     denial      of     Reed's     motion    to    suppress.         With

regard to whether Sullivan provided consent for Officer Keller




       16
            This finding is clearly erroneous.


                                               14
                                                                           No.     2016AP1609-CR



to enter Unit 206, the court of appeals concluded that Sullivan

provided consent:

       [T]o a typical, reasonable person, both of the
       following   were    unequivocally   and    specifically
       expressed: (1) Keller's request that Sullivan permit
       Keller to talk to Jerome in Unit 206, including
       proposing that "we could just talk to him," and (2)
       Sullivan's consent, expressed through an extended
       course of conduct, that Keller enter Unit 206.17
       ¶43    The     court    of       appeals       disagreed         with     the     circuit

court's finding that it was ambiguous who closed the door.                                   The

court of appeals stated that "[i]t is clear that neither Jerome

nor Reed pushed on the door from the inside," such that "the

only    logical       deduction      from       the    video      is     that    as     Sullivan

entered Unit 206 he applied slight to moderate pressure to the

make [sic] the door slowly swing toward the closed position."18

       ¶44    The      court       of     appeals           characterized           Sullivan's

attempted        closing      of    the     door       as    "a     nuanced        attempt    to

momentarily         delay     Keller's      entrance,          by       slipping      into    the

apartment and giving the door a soft backward push."19                                 The court

of     appeals      acknowledged         that        Sullivan's         "last-second,        soft

backwards push on the door . . . suggests the possibility that

Sullivan had last-second concern about agreeing to allow Keller

to   enter     Unit    206[,]"      but     ultimately,           the    court     of    appeals



       17
            Reed, No. 2016AP1609-CR, ¶25.
       18
            Id., ¶12 n.3.
       19
            Id., ¶13.


                                                15
                                                                 No.    2016AP1609-CR



concluded that "[t]his nuanced possible delaying tactic was an

equivocal act."20

       ¶45    Reed petitioned this court for review in April 2017.

The State did not file a formal response.                  After being ordered

to do so by this court, the State filed a response in August

2017.       In its response, the State agreed with Reed that Sullivan

did not give unequivocal and specific consent for Officer Keller

to   enter     the   apartment.         Rather,      according    to   the    State,

Sullivan merely acquiesced to Officer Keller's request to broker

a meeting with Jerome, and Sullivan did so by leading Officer

Keller through areas that Officer Keller did not need consent to

enter:       a parking lot, the unlocked exterior door to a multi-

unit    apartment       building,   a   set     of   stairs,     and   an   unlocked

hallway.      The State wrote in its response that when they reached

the apartment door, Sullivan "did nothing to suggest that entry

was permitted.          He did the opposite.          Sullivan knocked, opened

the door only wide enough to enter, slipped in, and attempted to

push the door close[d]——indicating that he did not want Officer
Keller to follow him."

       ¶46    The State agreed with Reed that the court of appeals'

decision      should     be   reversed,        recommending    that    this    court

summarily reverse and remand the cause to the circuit court with

an instruction to suppress the challenged evidence.




       20
            Id., ¶30.


                                          16
                                                             No.    2016AP1609-CR



      ¶47   In October 2017, this court granted Reed's petition

for review of the court of appeals' decision and remanded the

cause to the court of appeals "for reconsideration in light of

the State's concession in its response to Ms. Reed's petition

for   review."      Chief    Justice   Roggensack      dissented     joined   by

Justice Ziegler and Justice Gableman, writing that the State's

concession appeared to be factually unwarranted and inconsistent

with its position in the circuit court and court of appeals.

      ¶48   Nine days after we remanded the cause to the court of

appeals     for   reconsideration,      the    court    of    appeals,    Judge

Blanchard     again       sitting   alone     pursuant       to    Wis.   Stat.

§ 752.31(2)(f), issued an order refusing to reconsider the case.

The court of appeals' order reads in full as follows:

      Following the supreme court's October 10, 2017 order,
      I asked the parties to inform me whether new or
      supplemental briefing is necessary for purposes of
      resolving the reconsideration issue or instead whether
      I may rely on their submissions in the supreme court.
      They inform me that no new submissions are necessary.

      I am not persuaded by the State's new legal argument
      on appeal and therefore do not accept the State's new
      concession.

      IT IS ORDERED that reconsideration is denied.
      ¶49   In November 2017, Reed again petitioned this court for

review, "reviv[ing] the issues raised in her initial petition

for review."      As it did in response to Reed's first petition for

review,     the   State    responded   to     Reed's   second      petition   by

agreeing that Sullivan did not give express or implied consent




                                       17
                                                        No.    2016AP1609-CR



to enter Reed's apartment and that reversal of the court of

appeals' decision was necessary.

                                    II

     ¶50    We begin by setting forth the applicable standard of

review of the court of appeals' decision affirming the circuit

court's denial of Reed's motion to suppress evidence.

     ¶51    Whether evidence should be suppressed is a question of

constitutional    fact.21    When    presented   with   a     question   of

constitutional fact, this court engages in a two-step inquiry.

First, we review the circuit court's findings of historical fact

under the clearly erroneous standard.22      Second, we independently

apply constitutional principles to these historical facts.23

                                    III

     21
       Johnson, 299 Wis. 2d 675, ¶13; State v. Knapp, 2005 WI
127, ¶19, 285 Wis. 2d 86, 700 N.W.2d 899.
     22
          Johnson, 299 Wis. 2d 675, ¶13.

     The parties disagree about whether to apply the clearly
erroneous standard or the de novo standard to the circuit
court's findings of historical fact, given that the circuit
court's findings were based on Officer Keller's body camera
footage.   See State v. Jimmie R.R., 2000 WI App 5, ¶39, 232
Wis. 2d 138, 606 N.W.2d 196 (1999) (when the only evidence on a
factual question is reflected in a video recording, the court of
appeals is in the same position as the circuit court to
determine a question of law based on the recording).

     We decline to address this disagreement because doing so is
unnecessary in the instant case.    As we explained above, even
under the more deferential clearly erroneous standard, we reject
the circuit court's finding with respect to who closed the
apartment door.
     23
          Johnson, 299 Wis. 2d 675, ¶13.


                                    18
                                                              No.        2016AP1609-CR



       ¶52   The Fourth Amendment to the United States Constitution

and    Article    I,   Section    11   of    the       Wisconsin    Constitution

prohibiting       unreasonable    searches       and     seizures        guide    our

analysis.24      In particular, the "physical entry of the home" has

been described by the United States Supreme Court as "the chief

evil    against    which   the   wording    of   the     Fourth     Amendment      is

directed."25

       ¶53   In Boyd v. United States, 116 U.S. 616, 635 (1886),

the United States Supreme Court issued the following guidance:

"It is the duty of courts to be watchful for the constitutional

rights of the citizen, and against any stealthy encroachments

thereon."26

       ¶54   Because "the warrant procedure minimizes the danger of

needless     intrusions"    by   the   government,        "[i]t     is     a   'basic

principle of Fourth Amendment law' that searches and seizures


       24
       U.S. Const. amend. IV; Wis. Const. art. I, § 11; State v.
Eason, 2001 WI 98, ¶16, 245 Wis. 2d 206, 629 N.W.2d 625
(recognizing the protections under both the United States and
Wisconsin constitutions).
       25
       United States v. United States District Court, 407 U.S.
297, 313 (1972); see also Payton, 445 U.S. at 585; State v.
Douglas, 123 Wis. 2d 13, 17-18, 365 N.W.2d 580 (1985) ("The
courts, including this one, have scrutinized with the greatest
care claims by the state to the use of evidence seized in
warrantless searches of one's home").
       26
       See also Douglas, 123 Wis. 2d at 21 ("That principle
[announced in Boyd] is no less true today than it was a century
ago.    The fourth amendment has been liberally construed to
protect the security of person and property when exceptions to
the warrant requirement are sought.").


                                       19
                                                                       No.     2016AP1609-CR



inside        a   home        without    a        warrant        are         presumptively

unreasonable."27          However, both the United States and Wisconsin

constitutions have "jealously and carefully drawn" exceptions to

their warrant requirements.28

       ¶55     The instant case presents issues related to two of

those       well-recognized     exceptions        to     the   warrant        requirement:

consent29 and exigent circumstances.30

                                             A

       ¶56     We now address whether Officer Keller obtained consent

to enter Reed's apartment.

       ¶57     Consent   to    search   need       not    be   expressed        by   words.

Consent may be given or inferred through gestures or conduct.31

Whether       consent    is    verbal   or       inferred      from    one's       actions,




       27
       Payton, 445 U.S. at 586 (quoting Coolidge v. New
Hampshire, 403 U.S. 443, 477-78 (1971)); Johnson v. United
States, 333 U.S. 10, 13-14 (1948); see also Douglas, 123 Wis. 2d
at 18.
       28
       Jones v. United States,                    357     U.S.    493,       499     (1958);
Douglas, 123 Wis. 2d at 22.
       29
            Schneckloth, 412 U.S. at 219; Johnson, 299 Wis. 2d 675,
¶16.
       30
       Kentucky v. King, 563 U.S. 452, 460 (2011); Dalton, 383
Wis. 2d 147, ¶39.
       31
        United States v. Castellanos, 518 F.3d 965, 970 (8th Cir.
2008); State v. Phillips, 218 Wis. 2d 180, 197, 577 N.W.2d 794
(1998).


                                         20
                                                                 No.     2016AP1609-CR



consent must be unequivocal and specific.32                 Consent to a search

should not, however, be lightly inferred.33

      ¶58    Consent must be freely and voluntarily given; it is

not   enough    to    show   mere    "acquiescence     to    a   claim    of   lawful

authority."34        The State bears the burden of proving consent by

clear and convincing evidence.35

      ¶59    In the instant case, the State failed to meet its

burden.

      ¶60    Simply put, Sullivan's conduct throughout the entire

interaction between him and Officer Keller, including leading

Officer Keller to the threshold of the apartment and entering

the   apartment,      does    not    imply    that   Sullivan    granted       Officer

Keller     consent     to    enter   Unit     206.     Sullivan        unequivocally

demonstrated that he did not consent to Officer Keller entering

Reed's     apartment    when    Sullivan      attempted     to   prohibit      Officer

Keller's entry by shutting the apartment door behind him.

      ¶61    Sullivan's conduct is more properly characterized as

"mere acquiescence" to Officer Keller's show of authority than

      32
       Andrews v. Hickman County, 700 F.3d 845, 854 (6th Cir.
2012); Chan-Jimenez, 125 F.3d at 1328; Gautreaux, 52 Wis. 2d at
492.
      33
       United States v. Como, 340 F.2d 891, 893 (2nd Cir. 1965);
State v. Rodgers, 119 Wis. 2d 102, 107, 349 N.W.2d 453 (1984);
Kelly v. State, 75 Wis. 2d 303, 316, 249 N.W.2d 800 (1977).
      34
           Bumper, 391 U.S. at 549; Johnson, 299 Wis. 2d 675, ¶16.
      35
       United States v. Mapp, 476 F.2d 67, 77 (2nd Cir. 1973);
State v. Tomlinson, 2002 WI 91, ¶21, 254 Wis. 2d 502, 648
N.W.2d 367.


                                         21
                                                                   No.     2016AP1609-CR



as free and voluntary actions evincing consent.36                     Throughout the

entire     interaction,      Sullivan        was    simply      following       Officer

Keller's orders.

     ¶62     It is noteworthy that at the very beginning of the

interaction, Sullivan tried to leave without talking to Officer

Keller.     In fact, Sullivan had gotten several yards away before

Officer Keller noticed that Sullivan was leaving, prompting him

to loudly tell Sullivan, "Hey, why don't you come back here.

Don't     just    leave."    Without     a    word,      Sullivan     complied     with

Officer's        Keller's   directive.         As       Sullivan     was    returning,

Officer Keller said to Sullivan, "Keep your hands out of your

pockets for me, OK?"          Again, without a word, Sullivan complied

with Officer Keller's directive and showed Officer Keller his

palms.

     ¶63     After    learning   that     Jerome        might   be    at    Unit   206,

Officer Keller said to Sullivan, "All right, let's go——ah——let's

go look over, see if he's over there.                   If anything we could all

just kind of talk to him."
     ¶64     Given    Sullivan's   pattern         of    complying       with   Officer

Keller's previous commands, it is unsurprising that Sullivan did

not verbally respond to Officer Keller's statement and instead

simply     departed    towards   the     apartment        building       with   Officer

Keller in tow.



     36
       See Bumper, 391 U.S. at 548; Johnson, 299 Wis. 2d 675,
¶16 & n.6.


                                         22
                                                                  No.     2016AP1609-CR



       ¶65    None of this conduct, viewed together or in isolation,

implies that Officer Keller had Sullivan's consent to enter Unit

206.     After reaching the second floor of the apartment building,

Sullivan held the door between the stairwell and the hallway

open behind him, implying that Officer Keller was to follow

Sullivan      into    the    hallway.      However,     Sullivan        unequivocally

implied that Officer Keller did not have his consent to enter

the    apartment      when     Sullivan     attempted     to    prohibit       Officer

Keller's      entry    by    attempting    to    shut   the    apartment       door   in

Officer Keller's face.

       ¶66    Moreover, we observe that Officer's Keller's statement

was not an unequivocal request to enter Unit 206.                           There is

nothing about Officer Keller's statement that suggests that he

meant to physically enter Unit 206——the statement could just as

readily imply that Officer Keller intended to follow Sullivan to

the    threshold      of    Unit   206   while   Sullivan      entered    to    see   if

Jerome was present in the apartment.

       ¶67    We further observe that Officer Keller's statement was
not a request at all.              Officer Keller was not asking a question

or asking for Sullivan's permission to accompany him into Unit

206.37      There is no reasonable way to interpret Officer Keller's

statement other than as a directive to Sullivan to lead Officer

Keller to Unit 206, a directive with which Sullivan complied as

he had complied with Officer Keller's previous commands.
       37
       See Johnson, 299 Wis. 2d 675, ¶19 ("As the record
indicates, neither [Officer] Stillman nor [Officer] Dummer asked
for Johnson's permission to search the car.").


                                           23
                                                                       No.     2016AP1609-CR



     ¶68    In     light   of    all     of     the     facts     and        circumstances

presented in the instant case, we conclude that Officer Keller

did not have consent to enter Reed's apartment.

                                          B

     ¶69    We     could   end     our        consent     analysis           here,       having

concluded    that     consent    to     enter       Reed's     apartment           was    never

given.     However, in light of both the circuit court and court of

appeals' conclusions with regard to the revocation of consent,

we address whether consent would have been revoked had Sullivan

initially given consent (which, we emphasize, he did not).

     ¶70    We   conclude       that    Sullivan        would    have        unequivocally

withdrawn consent, had he initially given it, by attempting to

shut the door to the apartment, prohibiting Officer Keller's

entry.

     ¶71    Once      given,    consent        to     search     may     be        withdrawn.

"Withdrawal      of    consent         need     not     be      effectuated          through

particular 'magic words,' but an intent to withdraw consent must

be made by unequivocal act or statement."38                        "The standard for
measuring the scope of a               suspect's consent under the Fourth

Amendment is that of 'objective' reasonableness——what would the

typical     reasonable     person       have        understood     by        the     exchange

between the officer and the suspect?"39

     38
       United States v. Gray, 369 F.3d 1024, 1026 (8th Cir.
2004); State v. Wantland, 2014 WI 58, ¶33, 355 Wis. 2d 135, 848
N.W.2d 810.
     39
       Florida v. Jimeno, 500 U.S. 248, 251 (1991); Wantland,
355 Wis. 2d 135, ¶33.


                                          24
                                                                No.    2016AP1609-CR



     ¶72        Examples of unequivocal acts or statements sufficient

to constitute withdrawal of consent have included slamming shut

the trunk of a car during a search40 and grabbing back the item

to be searched from the officer.41

     ¶73        In the instant case, although Sullivan never provided

consent for Officer Keller to enter Unit 206, Sullivan would

have unequivocally revoked consent, had it initially been given,

by attempting to shut the door to the apartment before Officer

Keller pushed it open.

     ¶74        Immediately prior to arriving at the threshold of Unit

206, Sullivan led Officer Keller out of a stairwell and into the

hallway of the apartment building.             In doing so, Sullivan looked

back and held the door between the stairwell and the hallway

open behind him, as one does when he or she anticipates someone

will be following him or her through the doorway.

     ¶75        Sullivan's   actions    between      the    stairwell       and     the

hallway     are    in   stark    contrast     to   Sullivan's       actions       after

arriving at the threshold of Unit 206.                  Upon arriving at Unit
206, Sullivan briefly knocked on the door, opened the door just

enough to facilitate his own entry into the apartment, began to

close     the    door   behind   him   with   Officer      Keller   still     in   the

hallway, and called out for Jerome.                The door was within inches

     40
          See United States v. Flores, 48 F.3d 467, 468 (10th Cir.
1995).
     41
       See United States v. Ho, 94 F.3d 932, 934 (5th Cir.
1996); see also Wantland, 355 Wis. 2d 135, ¶34 (citing Flores
and Ho).


                                         25
                                                                     No.     2016AP1609-CR



of being fully closed when Officer Keller pushed the door open,

stating, "Hey, don't just walk in there."

       ¶76       The body camera footage is unambiguous and conclusive.

There is perhaps no action that could more clearly communicate

"Do Not Enter" than attempting to shut a door in someone's face.

Shutting the door is akin to slamming shut the trunk of a car

during a search or grabbing back the item to be searched by the

officer,         actions   that    courts     have     recognized     as    unequivocal

revocations of consent to search.42

                                              C

       ¶77       We     conclude         by       addressing        whether       exigent

circumstances existed that justify Officer Keller's pushing open

of Reed's apartment door.

       ¶78       Both this court and the United States Supreme Court

have        identified     several        exigencies         that    may       justify    a

warrantless search of a home.                      We have explained that "[t]he

objective        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."43



       42
            See Wantland, 355 Wis. 2d 135, ¶34.
       43
       Hughes, 233 Wis. 2d 280, ¶24; see also Olson, 495 U.S. at
100; Coolidge, 403 U.S. at 478; Dalton, 383 Wis. 2d 147, ¶39.


                                              26
                                                                  No.     2016AP1609-CR



      ¶79    It is the State's burden to prove that the warrantless

search at issue was justified by exigent circumstances.44

      ¶80    The State argues that Officer Keller's pushing open

Reed's apartment door without a warrant was justified because

(1) Officer Keller reasonably believed that Sullivan and Jerome

were dangerous; and (2) Officer Keller could reasonably have

thought that Jerome would likely try to escape.

      ¶81    The   totality    of    the    circumstances        known    to    Officer

Keller at the time he pushed open door to Reed's apartment does

not   establish      exigent     circumstances.            Officer       Keller        was

repeatedly told that the altercation that he was investigating

had been verbal, not physical, in nature.                   Officer Keller knew

that the altercation was over.              He knew that Brandon and Jerome

Harris left in opposite directions, i.e., that they were no

longer     together,    and   that     Jerome     had   been     "cooling       off"    in

Sullivan's apartment.

      ¶82    Furthermore,      Sullivan         was   cooperating       with    Officer

Keller     throughout    Officer       Keller's       investigation.           Sullivan
returned     to    Officer    Keller    and      removed   his    hands        from    his

pockets when directed to do so by Officer Keller.                        He answered

all of Officer Keller's questions.                    Although the State points

out that Sullivan was on probation for violent crimes, it fails

to connect that fact with its assertion that it was objectively

reasonable for Officer Keller to believe that Sullivan had a

      44
       Coolidge, 403 U.S. at 474-75; State v. Richter, 2000 WI
58, ¶26, 235 Wis. 2d 524, 612 N.W.2d 29.


                                           27
                                                          No.    2016AP1609-CR



weapon or would suddenly become violent.             Indeed, such a broad

assertion    would    appear     to   create     a    categorical    exigent

circumstances exception.45

     ¶83    Likewise, there was no objective, reasonable basis for

believing that Jerome had a weapon or would become violent.

Although    Jerome   had   two    outstanding    body   warrants,    Officer

Keller knew that at least one of those warrants stemmed from a

non-violent crime, and there was no indication that Jerome posed

any greater risk of attempting to evade arrest than any other

individual with an outstanding warrant.

     ¶84    An   outstanding     warrant   for   a   suspect's   arrest,   by

itself, does not give rise to exigent circumstances justifying

the warrantless entry into someone else's home in which the

suspect does not reside.46

     ¶85    The State relies on State v. Kirby, 2014 WI App 74,

355 Wis. 2d 423, 851 N.W.2d 796, for its assertion that exigent

circumstances justified Officer Keller's pushing open the door

to Unit 206.




     45
       See Missouri v. McNeely, 569 U.S. 141, 152-58 (2013)
(rejecting categorical exigency rule in drunk driving cases
premised on the dissipation of alcohol in the suspect's blood).
     46
       See Payton, 445 U.S. at 603 ("[F]or Fourth Amendment
purposes, an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in
which the suspect lives when there is reason to believe the
suspect is within.") (emphasis added); State v. Delap, 2018 WI
64, ¶29-32, 382 Wis. 2d 92, 913 N.W.2d 175.


                                      28
                                                             No.   2016AP1609-CR



      ¶86    In Kirby, two police officers went to an apartment to

question young men who had reportedly been fighting outside.47

One officer had learned prior to arriving at the apartment that

"the main aggressor" in the fight had threatened "to come back

to the area with a gun."48          The door to the apartment unit was

open, and five men were inside.49          When the officers were about

to leave after speaking with the men, one officer received a

phone call and learned that an informant had told police that if

there was a black backpack in the apartment, it had a handgun

and sawed-off shotgun inside.50        The officer then noticed a black

backpack, opened it, and found a sawed-off shotgun.51                The court

of   appeals    held   that   the   possible   threat   to    officer   safety

justified the officer's search of the backpack, and that "even

had the officer been outside the threshold of the apartment,"

the officer would have been justified in entering it to look for

the backpack.52

      ¶87    The State also argues that State v. Ayala, 2011 WI App

6, 331 Wis. 2d 171, 793 N.W.2d 511, supports its position that


      47
       State v. Kirby, 2014 WI App 74, ¶¶4-5, 355 Wis. 2d 423,
851 N.W.2d 796.
      48
           Id., ¶3.
      49
           Id., ¶6.
      50
           Id., ¶9.
      51
           Id., ¶12.
      52
           Id., ¶¶18-19.


                                      29
                                                                   No.     2016AP1609-CR



exigent circumstances justified Officer Keller's pushing open

Reed's apartment door.

       ¶88     In    Ayala,       police     officers       lawfully     entered      the

defendant's bedroom without a warrant because of the chance that

he could try to escape or violently resist arrest.53                      Noting that

"the    risk    of     danger,     the     gravity     of   the   crime[,]      and   the

likelihood          that    the    suspect        is   armed"     are     all    proper

considerations         in    determining          whether   exigent      circumstances

existed, the court of appeals summarized what was known to the

officers when they entered the defendant's bedroom without a

warrant:

       (1) [T]here had been what appeared to be an
       intentional homicide using a gun; (2) officers had
       information    from    the    other   robbery/homicide
       participants that Ayala was the shooter; (3) Ayala was
       believed by officers to be a Latin Kings gang member;
       (4) the weapon used in the homicide had not been
       recovered, leading officers to believe Ayala might
       still have the gun in his possession; (5) the gun
       might be evidence of a crime; (6) if Ayala possessed
       the missing gun, it put the officers at risk of being
       shot by Ayala if they announced themselves or asked
       Ayala for consent to enter the bedroom; (7) the tavern
       below the apartment was frequented by Latin King
       members; (8) [a resident of the apartment] operated
       the tavern below the apartment; and (9) because there
       were civilians in the apartment as well as the tavern
       below, all were at risk if Ayala began shooting while
       police procured a warrant.54



       53
       State v. Ayala, 2011 WI App 6, ¶¶18-19, 331 Wis. 2d 171,
793 N.W.2d 511.
       54
            Ayala, 331 Wis. 2d 171, ¶¶16-18.


                                             30
                                                                        No.       2016AP1609-CR



      ¶89   In    the       instant       case,     Officer    Keller      never     received

information suggesting that either Sullivan or Jerome was armed

or dangerous.          There was nothing to suggest that Officer Keller

was being led to a known gang hangout or that gangs were in any

way   involved         in     his        investigation.            Officer       Keller     was

investigating      a        verbal       argument     in     the    street       between    two

brothers about shoes, not an intentional homicide using a gun.

In sum, neither Kirby nor Ayala presents factual circumstances

remotely similar to those in the instant case.                                   The State's

reliance on these cases is, therefore, misplaced.

      ¶90   The    State       points       out     that   Officer     Keller       found    it

suspicious that Sullivan would knock on the door to his own

apartment,       and    that        in    doing     so,    Sullivan        may    have     been

attempting    to       alert    those       inside     the    apartment       that    he    was

accompanied by a police officer.                     The most succinct response to

the State's argument is, so what if Sullivan was attempting to

alert those inside that he was accompanied by a police officer?

Police officers frequently knock on doors and announce their
presence and identities.

      ¶91   Indeed, the police are generally required to announce

their presence and their intent to search before entering closed

premises,    and       this    obligation         only     "gives    way     when    officers

'have a reasonable suspicion that knocking and announcing their

presence, under the particular circumstances, would be dangerous

or futile, or . . . would inhibit the effective investigation of




                                               31
                                                                No.     2016AP1609-CR



the    crime    by,    for    example,        allowing    the   destruction       of

evidence."55

       ¶92    Simply   put,    there   were      no   circumstances       known   to

Officer Keller at the time he pushed open the apartment door

that would give rise to a reasonable belief that he was in

danger.      Law enforcement is an inherently dangerous profession.

In the course of investigating a crime, any individual might

have    a    weapon,   and    any   individual        could   attempt     to   flee.




       55
       United States v. Banks, 540 U.S. 31, 36 (2003) (quoting
Richards v. Wisconsin, 520 U.S. 385, 394 (1997)); see also
Wilson v. Arkansas, 514 U.S. 927, 931-32 (1995).

     The Supreme Court recently summarized the privacy rights
enjoyed by individuals in their homes:

       When law enforcement officers who are not armed with a
       warrant knock on a door, they do no more than any
       private citizen might do. And whether the person who
       knocks on the door and requests the opportunity to
       speak is a police officer or a private citizen, the
       occupant has no obligation to open the door or to
       speak.    When the police knock on a door but the
       occupants choose not to respond or to speak, "the
       investigation will have reached a conspicuously low
       point," and the occupants "will have the kind of
       warning that even the most elaborate security system
       cannot provide."   And even if an occupant chooses to
       open the door and speak with the officers, the
       occupant need not allow the officers to enter the
       premises and may refuse to answer any questions at any
       time.

King, 563 U.S. at 469-70.


                                         32
                                                               No.    2016AP1609-CR



However,      these   generalized       concerns   for     safety    and    risk   of

flight are not enough to give rise to exigent circumstances.56

       ¶93    The test is whether there are objective facts known to

the officer that would reasonably lead him to believe that the

delay caused by obtaining a warrant would gravely endanger life

or    greatly    enhance    the   likelihood    of   the    subject's      escape.57

Finding the existence of exigent circumstances in the instant

case would allow the exigent circumstances exception to swallow

the    warrant    requirements     of    the   United    States     and    Wisconsin

constitutions.

                                         IV

       ¶94    We conclude that the law enforcement officer in the

instant case did not have consent justifying his warrantless

entry into Reed's apartment.            Even if consent had initially been

given, which it was not, consent would have been unequivocally

revoked      before   the    officer     breached    the     threshold      of     the

apartment.       Finally, we conclude that no exigent circumstances

justified the officer's warrantless searches.

       56
       The consequence of the State's reasoning appears to
result in categorical exigencies.   For example, if the subject
has an outstanding arrest warrant, exigent circumstances would
exist because the subject might try to violently resist arrest
or flee.   Additionally, if the subject has ever been convicted
of a violent crime, exigent circumstances would exist because he
might become violent towards the police officer. "[T]he Fourth
Amendment will not tolerate adoption of an overly broad
categorical approach that would dilute the warrant requirement
in a context where significant privacy interests are at stake."
McNeely, 569 U.S. at 158.
       57
            Hughes, 233 Wis. 2d 280, ¶24.


                                         33
                                                                 No.    2016AP1609-CR



    ¶95    Accordingly,       we   reverse    the       court    of    appeals    and

remand   the    cause   to   the   circuit    court      with    instructions     to

suppress the challenged evidence and vacate Reed's convictions.

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

reversed and the cause is remanded to the circuit court.




                                      34
                                                                              No.    2016AP1609-CR.akz


       ¶96     ANNETTE KINGSLAND ZIEGLER, J.                          (concurring).           I agree

with    the    result             the    majority         reaches.        I   concur        and    write

separately because I disagree with the majority's assertion that

consent       to        a    search          "must    be     unequivocal            and     specific."

Majority       op.,         ¶¶8,        57     (relying      on    Gautreaux         v.     State,      52

Wis. 2d 489, 492-93, 190 N.W.2d 542 (1971)).                                   What the majority

does not make clear is that Gautreaux has been "explained" by

this    court       in       State        v.    Rodgers,      119    Wis. 2d 102,            114,      349

N.W.2d 453 (1984).                  In Rodgers this court noted that Gautreaux

was decided a year and a half before the United States Supreme

Court precedent set by Schneckloth v. Bustamonte, 412 U.S. 218

(1973).       Id.           We then adopted the test from Schneckloth.                                 See

State v. Wantland, 2014 WI 58, ¶¶20, 23-24, 355 Wis. 2d 135, 848

N.W.2d 810;         see          also     State      v.    Brar,     2017     WI     73,     ¶26,      376

Wis. 2d 685,            898       N.W.2d 499.             Schneckloth         does    not     use      the

phrase "unequivocal and specific."                            Instead, in Schneckloth the

Supreme Court made clear that for consent to operate as a valid

exception to the warrant requirement, two conditions must be
satisfied: consent must be (1) freely and voluntarily given, (2)

by an individual having either actual or apparent authority over

the    place       to       be    searched.          412    U.S.     at   219,       222.         In   the

interest of clarity and consistency we should use the language

from Schneckloth.

       ¶97     Moreover, the majority opinion's use of "unequivocal

and    specific"             is     not        explained,     interpreted,            or     analyzed.

Perhaps this is because it is used incidentally and is entirely
unnecessary         to        this      case.         The    majority         opinion       correctly

                                                      1
                                                                   No.   2016AP1609-CR.akz


states, "Sullivan's conduct is more properly characterized as

'mere acquiescence' to Officer Keller's show of authority than

as free and voluntary actions evincing consent."                           Majority op.,

¶61.      In other words, the majority is correct to state that

consent was not freely and voluntarily given under the test of

Schneckloth.          Neither Sullivan's words nor his actions establish

free and voluntary consent.                As is apparent from this and other

cases that use the phrase "unequivocal or specific," the test

continues to be whether consent was freely and voluntarily given

by one with the authority to so consent.                      Here, no such consent

was    given    in    the    first    instance.        In    short,      the    additional

language is unnecessary to the Schneckloth analysis we are to

apply.       I would not use it.

       ¶98     More specifically, the majority opinion largely and

inexplicably          relies    on    Gautreaux       for    the    proposition          that

consent       must    be    "unequivocal     and     specific."            Gautreaux,      52

Wis. 2d at 492.            To be clear, Gautreaux is distinguishable from

the    case    now     before   the    court.        In     Gautreaux      there    was    no
dispute that the consent was unequivocal and specific.                             Rather,

the    focus     in    Gautreaux       was   whether        consent      was    voluntary.

Gautreaux is not particularly instructive concerning the issue

before our court, which is, in my view, whether consent was

given in the first instance.               In my view, it was not.

       ¶99     Furthermore, our court has distanced itself from the

"unequivocal and specific" language noting that in Gautreaux,

the    court    was    without       the   benefit    of     knowing     what     test    the
United       States     Supreme      Court    would       provide     in       Schneckloth.

                                             2
                                                                No.    2016AP1609-CR.akz


Rodgers, 119 Wis. 2d at 114 ("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.").

The   Rodgers     court     could     have       chosen   to   continue      with    the

Gautreaux language, but it did not.                  Despite strong advocacy in

a   dissent    arguing      in   favor   of      remaining     with    the   Gautreaux

verbage, the Rodgers court nonetheless chose the language and

the test of Schneckloth.            Id. at 115-16.

      ¶100 One might think that our clarification in Rodgers and

our more recent precedent would cause the court to pause when

using subsequently exacted language of Gautreaux.                          In our more

recent    cases     analyzing      the   consent     exception        to   the   warrant
requirement, we have not used the "unequivocal and specific"

language.      Notably, the court does not now overrule Rodgers, the

test as stated in State v. Wantland and State v. Brar, or any

host of other cases, wherein, consistent with Schneckloth, we

again confirmed that consent to a search has two requirements.

"First, the consent must [be] 'freely and voluntarily given.'

Second, the consent must be given by an individual having either

actual or apparent authority over the place to be searched."
Wantland, 355 Wis. 2d 135, ¶23 (citation omitted); see Brar, 376

                                             3
                                                                   No.   2016AP1609-CR.akz


Wis. 2d 685, ¶26.             Presumably then, the court today means no

change be made to that test, unlike Rodgers wherein the court

specifically "explained" the language of Gautreaux.

      ¶101 Other           recent     cases        have    similarly     eschewed           the

"unequivocal         and    specific"       language.       They   remain       precedent.

See, e.g., State v. Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786

N.W.2d 430 ("The State bears the burden of proving that consent

was given freely and voluntarily."); State v. Blackman, 2017 WI

77, ¶4, 377 Wis. 2d 339, 898 N.W.2d 774 ("When the legality of a

warrantless search is based on the consent of the defendant,

that consent must be freely and voluntarily given.").

      ¶102 Our court has the ability to engage in new federalism

if   it   so     chooses.           See    Diane     Sykes,    "Reflections           on    the

Wisconsin Supreme Court," Marquette Lawyer, Summer/Fall 2006, at

52-63,      https://law.marquette.edu/assets/marquette-lawyers/pdf/

marquette-lawyer/2006-summer/Summer06pp52-63.pdf.                                If          the

majority       now     wished        to     invoke        additional     constitutional

protections under our State constitution, as advocated by the
majority    opinion         writer's       then-dissent       in   Rodgers,      it        would

plainly do so.         See Rodgers, 119 Wis. 2d at 125 (Abrahamson, J.,

dissenting) ("Although the majority concludes that Article I,

section 11, is substantially the same as the fourth amendment,

it   errs      in    analyzing       the      consent      issue    under       the    state

constitution by guessing what the United States Supreme Court

might     hold       under     the        fourth     amendment.");        id.     at        128

(Abrahamson, J., dissenting) ("In light of the frequent use of
consent to justify noncompliance with the warrant requirement,

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                                                                    No.   2016AP1609-CR.akz


diluting the meaning of consent dilutes the impact of the state

constitutional guarantee of the sanctity of the home.                                       This

court    should   avoid        facilitating          the    erosion       of     the    state

constitutional     guarantee       of     privacy.            The    solution          to    the

problem presented by this case is not to reduce the requirements

for     consent   but    to     prevent        the    problem        from      arising        by

encouraging officers to obtain warrants.").                        Since the court has

neither disavowed the Schneckloth test nor has it overruled our

precedent, it ought not provoke confusion by using language that

could be interpreted to the contrary.

      ¶103 And so I write to question why, despite the court's

clarification in Rodgers and our adoption of the Schneckloth

test, the majority opinion nonetheless chooses the language from

Gautreaux.        In    addition,       instead        of     turning       to    our         own

precedent,    United      States       Supreme        Court       precedent,       or        even

precedent from the Seventh Circuit, our court now reaches for

distinguishable        cases    from    the     Sixth       and     Ninth      Circuits       in

support of the terms "unequivocal and specific."                          See Andrews v.
Hickman Cty., 700 F.3d 845, 854 (6th Cir. 2012) (holding that

officer's    alleged     warrantless       entry       into       parents'      home        after

being told to wait outside cannot be justified on the basis of

consent); United States v. Chan-Jimenez, 125 F.3d 1324 (9th Cir.

1997) (concluding that defendant's failure to respond verbally

to officer's request to search his truck supports the argument

that defendant did not voluntarily consent the search).                                If the

majority intended to adopt a specificity requirement in addition
to the established Schneckloth test, it should so indicate.                                   It

                                           5
                                                                       No.   2016AP1609-CR.akz


does    not.       Courts,       like       ours,     which     use     "unequivocal         and

specific"       leave   to     the    imagination           what,      if    anything,       that

phrase might mean.             In fact, the courts that have used this

language nonetheless continue to analyze the issue in terms of

whether consent was freely and voluntarily given by one with the

authority to do so.

       ¶104 Courts       which       have    used     "unequivocal           and    specific,"

nonetheless leave that phrase undefined and unexamined.                                      The

legal    analysis       and    conclusions           employed     do    not       analyze    the

"unequivocal and specific" requirement but instead continue to

rest on whether consent was given in terms of being free and

voluntary.       See, e.g., United States v. Salas, 756 F.3d 1196,

1203    (10th    Cir.     2014)      (reciting        language       from     a    prior    case

requiring consent to be "unequivocal and specific," yet deciding

that consent was voluntarily given without subsequently using

the words "unequivocal" or "specific"); Andrews, 700 F.3d at 854

(stating        that    consent           must       be     "voluntary,           unequivocal,

specific,"       and    then       concluding        that      there    was       actually    no
consent    at     all).        I     am     unaware       of   any     case       wherein     the

Schneckloth      test     is   met,       but    consent       was     nonetheless     deemed

insufficient because it was too equivocal or lacked sufficient

specificity.       Thus, even when the suspect phrase has been used,

the analysis of Schneckloth seems to be the test.                                   We should

strive to clarify legal standards, rather than sow seeds of

confusion.

       ¶105 To be sure, Article 1, Section 11 of the Wisconsin
Constitution is substantively identical to the Fourth Amendment

                                                 6
                                                                   No.   2016AP1609-CR.akz


to the United States Constitution, which requires in relevant

part that "[t]he right of the people to be secure in their

persons,        houses,      papers,     and       effects,   against       unreasonable

searches and seizures, shall not be violated."1                             U.S. Const.

amend.      IV;   see     also    Wis.    Const.       art.   I,    § 11.      A   search

conducted without a warrant issued upon probable cause is per se

unreasonable, subject to only a few specifically established and

well-delineated exceptions.               Schneckloth, 412 U.S. at 219; State

v. Krajewski, 2002 WI 97, ¶24, 255 Wis. 2d 98, 648 N.W.2d 385.

One such exception is consent——a warrantless search does not

violate the Fourth Amendment to the United States Constitution,

nor Article 1, Section 11 of the Wisconsin Constitution, if the

search is conducted with consent.                   Schneckloth, 412 U.S. at 219;

Krajewski, 255 Wis. 2d 98, ¶24.

       ¶106 The United States Supreme Court has repeatedly held

that consent must be "freely and voluntarily given" by someone

with       authority    in    order      to    satisfy    the      Fourth   Amendment's

reasonableness requirement.               See, e.g., Schneckloth, 412 U.S. at
222, 248 ("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

       1
       Neither the Wisconsin Constitution nor the United States
Constitution require, by their terms, unequivocal and specific
consent.   We interpret Article 1, Section 11 of the Wisconsin
Constitution coextensively with the United States Supreme
Court's interpretation of the Fourth Amendment. State v. Floyd,
2017 WI 78, ¶19, 377 Wis. 2d 394, 898 N.W.2d 560; State v.
Dumstrey, 2016 WI 3, ¶14, 366 Wis. 2d 64, 873 N.W.2d 502. Thus,
we follow Schneckloth v. Bustamonte, 412 U.S. 218 (1973), in our
interpretation of consent to search.


                                               7
                                                                 No.    2016AP1609-CR.akz


require   that    it   demonstrate       that       the    consent       was    in     fact

voluntarily given."); Florida v. Royer, 460 U.S. 491, 497 (1983)

("[It is not] disputed that where the validity of a search rests

on   consent,    the   State      has   the   burden       of    proving       that     the

necessary   consent       was    obtained     and    that       it     was    freely    and

voluntarily     given.").         However,     as    stated      in     our    plurality

opinion in Brar this, along with the individual having actual or

apparent authority over the place to be searched, is the extent

of the constitutional requirement for consent.                          See Brar, 376

Wis. 2d 685,     ¶¶26-27        ("Contrary    to     Supreme         Court    precedent,

decisions from the court of appeals have required the State to

prove   consent     was     given   knowingly        and    intelligently.              The

Supreme     Court      in       Schneckloth         rejected         precisely         this

requirement.      As we interpret our constitution consistent with

the Fourth Amendment, we withdraw any language from these cases

that requires that consent to a search be given knowingly or

intelligently." (citations omitted)); see also Schneckloth, 412

U.S. at 235 ("Our cases do not reflect an uncritical demand for
a knowing and intelligent waiver in every situation where a

person has failed to invoke a constitutional protection.").                             The

Supreme Court has never held that consent must be "unequivocal

and specific."

      ¶107 Further,       any    requirement       that    consent       to    search    be

"unequivocal and specific" appears to be at odds with other

United States Supreme Court precedent.                     In Florida v. Jimeno,

500 U.S. 248 (1991), a suspect gave the police officer consent
to search his car.          Id. at 249-50.      Without receiving consent to

                                         8
                                                                    No.   2016AP1609-CR.akz


do so, the officer opened a container inside the car and found a

kilogram of cocaine inside it.                     Id. at 250.             The defendant

challenged the search arguing that he did not "specifically"

give the officer permission to search the container.                              The Court

held    that     this    search     did    not   violate      the    Fourth       Amendment

concluding that the test for consent is an objective one: "what

would    the     typical    reasonable       person       have   understood            by   the

exchange between the officer and the suspect?"                            Id. at 251-52;

id. at 252 ("Respondents argue . . . that if the police wish to

search    closed        containers    within       a    car   they    must       separately

request permission to search each container.                              But we see no

basis    for     adding    this     sort    of   superstructure           to     the   Fourth

Amendment's       basic     test     of    objective      reasonableness.").                  In

Jimeno the Court concluded that it was objectively reasonable

for an officer to expect that general consent to search the car

included consent to search a container inside the car, even

though it was argued that such consent to search the container

was not specifically given.               Id. at 251.
       ¶108 Following the United States Supreme Court's lead, many

jurisdictions,          including    the    Seventh       Circuit,        have    concluded

that consent be as required in Schneckloth.                          See, e.g., United

States v. Sabo, 724 F.3d 891, 893-94 (7th Cir. 2013) (concluding

that consent to search is implied where officer requested to

enter residence and defendant stepped back and to side to allow

entry; further, that "[c]onsent can come in many forms, but it

must always be given voluntarily"); United States v. Jones, 701
F.3d     1300,    1317,      1320-21       (10th       Cir.   2012)       (stating          that

                                             9
                                                                   No.    2016AP1609-CR.akz


"'[v]oluntary         consent'   consists        of    two     parts:      (1)     the    law

enforcement         officers   must     receive       either    express      or       implied

consent, and (2) that consent must be freely and voluntarily

given" and then concluding that defendant can be deemed to have

impliedly consented to officers' entry into his residence if

defendant said or did something which permitted the officers to

form     a    reasonable       belief     they     were      authorized          to     enter

residence); see also United States v. Reynolds, 646 F.3d 63, 73

(1st Cir. 2011) (holding that consent to search headboard is

implied      when    defendant    gestured       to    headboard         while    answering

"yes" to officer's question of whether defendant had weapons,

because      gesture      demonstrated          defendant       understood            officer

intended not only to learn of existence of weapons but also to

find them); United States v. Stabile, 633 F.3d 219, 231, 233 (3d

Cir.     2011)      (following    Schneckloth          and     requiring         only    that

consent to a search be voluntarily given by a person having

authority to give it); United States v. Sanchez, 156 F.3d 875,

878 (8th Cir. 1998) ("[W]hether or not the suspect has actually
consented to a search, the Fourth Amendment requires only that

the police reasonably believe the search to be consensual.").

       ¶109 When considered in the broader context of the United

States       Supreme     Court's        jurisprudence          surrounding            consent

searches, it makes sense that courts consider the circumstances

which concern whether consent was freely and voluntarily given.

"As with other factual determinations bearing upon search and

seizure,      determination      of     consent       to   enter    must     be       'judged
against an objective reasonable person standard.'"                           Illinois v.

                                           10
                                                           No.   2016AP1609-CR.akz


Rodriguez, 497 U.S. 177, 188 (1990); Jimeno, 500 U.S. at 251.

The United States Supreme Court has long recognized that this

objective standard protects citizens from police overreach, as

"[a]nything less would invite intrusions upon constitutionally

guaranteed      rights   based     on   nothing    more     substantial      than

inarticulate hunches."        Terry v. Ohio, 392 U.S. 1, 22 (1968).

Because    we   interpret    our   constitution's        provisions    governing

searches    and   seizures    coextensively       with    the    United   States

Supreme Court's interpretation of the Fourth Amendment, Floyd,

377 Wis. 2d 394, ¶19, I would not fuel confusion by using this

additional, undefined, unanalyzed phrase.

    ¶110 As a result, I respectfully concur.




                                        11
                                                                       No.    2016AP1609-CR.pdr


    ¶111 PATIENCE DRAKE ROGGENSACK, C.J.                              (dissenting).             The

circuit    court    found    as     an    historic           fact     that    Kirk    Sullivan

consented to Officer Steven Keller's entry into the apartment he

shared with Faith Reed.             This finding is not clearly erroneous.

Furthermore,       under    the   totality             of    circumstances,         Sullivan's

consent     was     voluntarily          given         and     was     not     unequivocally

withdrawn.        Accordingly, I would affirm the court of appeals,

and I respectfully dissent from the majority opinion.

                                  I.      BACKGROUND

    ¶112 Officer Steven Keller of the Tomah Police Department

responded to a call that two men were causing a disturbance.

When he arrived, the altercation had stopped.                            He met two men,

neither of whom was involved in the altercation.                              One of the men

was Kirk Sullivan who said that the disturbance involved two

brothers.         Sullivan    said       that      he       thought    that     one       of    the

brothers, Jerome Harris, was in Sullivan's apartment watching a

football game.

    ¶113 Officer           Keller,        in       a        very     conversational            tone
according to the record produced by the audio-video camera he

was wearing, asked Sullivan if they could go to his apartment to

talk with Harris.          Sullivan did not verbally respond, but began

walking toward an apartment building.                          Keller did not know in

which     apartment    Sullivan          lived;         therefore,       in     response         to

Keller's request, Sullivan led the way to his apartment.

    ¶114 Sullivan          opened    the       ground         floor    door    of     a   nearby

apartment building, and Keller followed him into the building.
Sullivan led the way up the stairs to the second floor.                                   Keller

                                               1
                                                                             No.    2016AP1609-CR.pdr


followed.        Sullivan          opened          the    door    into       the     second        floor

hallway, held the door open for Keller, and Keller followed

Sullivan into the second floor hallway.                            Sullivan led Keller to

apartment 206 where he lived with Reed.

       ¶115 Sullivan             knocked       on       his    apartment           door     and     then

immediately opened it.                   Sullivan stepped inside and partially

closed the door behind him.                         Keller then pushed the partially

open    door,        saw    Reed        and       Jerome       Harris,        and     entered        the

apartment.           Keller       saw    Sullivan         sticking       something          into     his

pocket.      He told Sullivan to put the object he had stuck in his

pocket on the counter.

       ¶116 The object was marijuana.                           More marijuana was found,

and    Reed,    who        was    also       in     the    apartment,         and        Harris     were

arrested.       Reed moved to suppress the marijuana based on the

allegation      that        Keller       did       not    have     consent          to     enter     the

apartment that she shared with Sullivan.

       ¶117 The       circuit          court        found      that     by     his        conduct     of

"leading       the     way       to      the       apartment"         Sullivan           freely      and
voluntarily consented to Keller's entry into his apartment and

that   his     partial       closing          of    the       apartment       door       was   not    an

unequivocal      withdrawal             of    consent.           Accordingly,            the   circuit

court denied Reed's motion to suppress.                               The court of appeals

affirmed.

                                        II.       DISCUSSION

                                  A.     Standard of Review

       ¶118 Determining               whether       consent       was        given        involves     a
question of constitutional fact to which we apply a two-step

                                                    2
                                                                     No.    2016AP1609-CR.pdr


analysis.             State v. Post, 2007 WI 60, ¶8, 301 Wis. 2d 1, 733

N.W.2d 634.             First, we examine whether consent was given as a

question         of    historic    fact    based     on     what   was     said    and   what

actions and gestures occurred.                  State v. Brar, 2017 WI 73, ¶13,

376 Wis. 2d 685, 898 N.W.2d 499.                         We uphold a circuit court's

finding of historic fact unless it is clearly erroneous.                                   Id.

Stated otherwise, "[w]e uphold a finding of consent in fact if

it is not contrary to the great weight and clear preponderance

of the evidence."            State v. Artic, 2010 WI 83, ¶30, 327 Wis. 2d

392,       786   N.W.2d    430.      Second,        we    apply    the     facts   found    to

constitutional           principles       to    determine         whether     consent      was

voluntarily given.                Schneckloth v. Bustamonte, 412 U.S. 218,

222-23 (1973).

                                      B.       Consent

       ¶119 The Fourth Amendment to the United States Constitution

and Article I, Section 11 of the Wisconsin Constitution protect

against unreasonable searches and seizures.                              Ordinarily, they

are construed coextensively when we consider the question of
consent.         State v. Johnson, 2007 WI 32, ¶20, 299 Wis. 2d 675,

729 N.W.2d 182.            Although warrantless searches are presumed to

be unconstitutional, consent to search is an exception to the

warrant requirement.               Schneckloth, 412 U.S. at 219; State v.

Phillips, 218 Wis. 2d 180, 196, 577 N.W.2d 794 (1998).

       ¶120 The majority opinion inserts a new test for consent

saying that consent must be "specific."1                      Asserting that consent


       1
           Majority op., ¶¶8, 58, 60.


                                                3
                                                                      No.    2016AP1609-CR.pdr


must be "specific" is not required by a United States Supreme

Court opinion, but rather, it is cobbled together from cases

where     defendants        were    either     under        arrest     or     compelled       to

consent     by    some     means.      The     audio-video           recording     does      not

support a conclusion that Sullivan was arrested or compelled to

take Keller to his apartment to speak with Harris.                             Sullivan was

never commanded or ordered to do so.                        Here, the majority uses

the   requirement          that    consent     be      "specific"      to     overturn       the

historic     fact     of    consent    by    conduct        that     the     circuit    court

found, saying that Keller never asked to enter Reed's apartment.2

Separation       of   the     historic       facts      from    whether        consent       was

voluntarily given assists in applying the correct standard to

questions        of   constitutional          fact.            The     majority        opinion

conflates the two standards.

                             1.    Circuit court finding

      ¶121 As I review the circuit court's decision, the first

consideration is whether consent was given, as an historic fact.

Consent may be given orally or through gestures or conduct.
Brar, 376 Wis. 2d 685, ¶17.                 As we have explained, consent need

not be granted explicitly but may be granted by implication

after     considering       the     totality      of    circumstances.            Id.        The

context     in    which     consent    is    said      to    have     been     given    is    an

important part of our assessment of a circuit court's finding of

consent in fact.           Id., ¶22.




      2
          Majority op., ¶9.


                                              4
                                                                    No.    2016AP1609-CR.pdr


       ¶122 Here, the circuit court found that Sullivan consented

to Keller's entry into his apartment.                         The court based this

finding on Sullivan's statement that Harris, the man to whom

Officer Keller wanted to speak "was probably in the apartment

that    Mr.   Sullivan       described      as    my    apartment,"        combined     with

Sullivan      and     Keller      walking        to    Sullivan's         apartment     when

"Sullivan was in the lead."

       ¶123 As I examine the circuit court's findings of historic

fact,    they       are     not   clearly        erroneous.          The       audio-visual

recording from the body camera that Officer Keller wore shows he

asked Sullivan if they could go and talk with Harris.                              Sullivan

had said that Harris was in his apartment watching a football

game.     Although Sullivan did not verbally respond to Keller's

request, he began leading the way to his apartment.                             The audio-

visual recording clearly shows Sullivan leading the way.                                That

he did so is logical because Keller did not know where Sullivan

lived.

       ¶124 As they approached apartment 206, Officer Keller can
be heard telling dispatch that he will be in apartment 206.

Sullivan then knocked on the door of his own apartment.                                   It

appears Sullivan did so because he was bringing Keller into the

apartment,         otherwise      there    would       have   been        no   reason   for

Sullivan      to    knock    on   the     door    of    his   own    apartment        before

entering.          Therefore, in this context, where Keller wanted to

talk to Harris combined with Sullivan's statement that Harris

was in his apartment and Sullivan's knock on the door before
entry, the circuit court's finding that Sullivan consented to

                                             5
                                                              No.    2016AP1609-CR.pdr


Keller's    entry    into    his    apartment     is   not    against     the   great

weight and clear preponderance of the evidence presented to the

circuit court.

                               2.     Voluntariness

      ¶125 When consent as a matter of historic fact has been

found, we then consider whether consent was given freely and

voluntarily.      The State bears the burden of proving by clear and

convincing      evidence       that     consent       was    given     freely     and

voluntarily.         Schneckloth,      412     U.S.    at    222;    Phillips,    218

Wis. 2d at 197.        To make this determination, we again consider

the totality of circumstances surrounding the alleged consent.

Artic, 327 Wis. 2d 392, ¶33.                  The circumstances are examined

using multiple non-exclusive factors such as:

      (1) whether the police used deception, trickery, or
      misrepresentation in their dialogue with the defendant
      to persuade him to consent; (2) whether the police
      threatened or physically intimidated the defendant or
      "punished" him by the deprivation of something like
      food or sleep; (3) whether the conditions attending
      the request to search were congenial, non-threatening,
      and cooperative, or the opposite; (4) how the
      defendant responded to the request to search; (5) what
      characteristics   the   defendant  had   as  to   age,
      intelligence,   education,   physical  and   emotional
      condition, and prior experience with the police; and
      (6) whether the police informed the defendant that he
      could refuse consent.
Id.

      ¶126 In       regard     to     whether      Sullivan's         consent     was

voluntarily given, I agree with the circuit court's conclusion.

Keller did not order or command Sullivan to take him to his

apartment    so   he   could    talk    with     Harris.       Rather,     he   asked
Sullivan if they could go to his apartment to talk to Harris.

                                          6
                                                                    No.    2016AP1609-CR.pdr


The tone of Keller's voice on the audio-video recording is very

conversational.       He never ordered or commanded Sullivan to take

him to his apartment.              No tricks, threats or punishments were

used to obtain Sullivan's consent to enter his apartment.

                             3.    Withdrawal of consent

       ¶127 Consent      lawfully         given       may   be    withdrawn.           United

States    v.   Sanders,           424    F.3d       768,    774     (8th     Cir.      2005).

Withdrawal of consent must be made by an unequivocal act or

statement.     State v. Wantland, 2014 WI 58, ¶33, 355 Wis. 2d 135,

848 N.W.2d 810.

       ¶128 Accordingly,           I    must        determine     whether      Sullivan's

partially closing the door to his apartment after he knocked to

announce their entry and did not ask Officer Keller to remain in

the hallway unequivocally constituted withdrawal of Sullivan's

consent to Keller to enter his apartment.                        I conclude that under

the    totality    of    circumstances              Sullivan's       consent        was   not

unequivocally withdrawn.

       ¶129 First, Sullivan knocked on the door to announce their
entry.    Second, he said nothing to Keller about waiting in the

hall, and third, he did not close the door completely, but left

it partially open.

       ¶130 Sullivan brought Keller to his apartment to talk with

Harris.    If Sullivan wanted Keller to wait in the hall, he could

have   said,    "wait        here"      or     he   could    have    closed      the      door

completely.       He did neither.              Therefore, it was reasonable for

Keller    to   push     on    the       door    and    follow      Sullivan      into     his
apartment to talk to Harris, as that was the reason for which

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Sullivan brought Keller to the apartment he shared with Reed.

Sullivan did not unequivocally withdraw consent to come into his

apartment to talk with Harris.

      ¶131 The majority opinion asserts that Sullivan "attempted

to   shut    the    door    behind    him       to   prohibit    the    officer    from

entering the apartment."3            That asserted reason is pure fiction.

The record contains no statement about why Sullivan partially

closed the door.           Sullivan did not testify nor did he state on

the audio-visual recording why he partially closed the door.                         We

do not know why he did it.

      ¶132 One      could    easily    postulate        that    Sullivan     partially

closed the door because as he entered his apartment, he saw

marijuana lying on the counter and he wanted to give himself a

moment to stuff it into his pocket before Keller entered the

apartment.         Certainly,   that    hypothesis        fits    the    audio-visual

recording that shows Sullivan stuffing something into his pocket

as he entered the apartment.                    The audio-visual recording was

presented to the circuit court, and the "something" Sullivan
stuffed into his pocket was marijuana.

      ¶133 I agree with the circuit court.                      Sullivan's partial

closing of the apartment door was not an unequivocal withdrawal

of his consent for Keller to enter.




      3
          Majority op., ¶¶10, 60.


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                               III.    CONCLUSION

    ¶134 The      circuit      court   found     as    an    historic     fact   that

Sullivan   consented     to    Keller's     entry      into    the    apartment    he

shared    with   Reed.      This   finding       is    not    clearly    erroneous.

Furthermore,     under   the    totality    of       circumstances,       Sullivan's

consent    was    voluntarily      given       and    was     not     unequivocally

withdrawn.       Accordingly, I would affirm the court of appeals,

and I respectfully dissent from the majority opinion.




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