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"Here, Milwaukee police officers properly obtained consent to enter the home where they eventually located and arrested Deundra Lathan," says Van Hollen. "Good police work took another dangerous offender off the streets."
MILWAUKEE - In 2006, the United States Supreme Court held in Georgia v. Randolph that, in the absence of a warrant, police could not lawfully search a shared dwelling over the express refusal of a co-resident of the dwelling. This morning, the Wisconsin Court of Appeals held that Randolph does not apply in situations where one resident refuses to consent to a search, a second resident grants consent, and a third resident—the subject sought by police—is not present to either consent or refuse to consent.
Milwaukee police suspected Deundra R. Lathan of involvement in the murder of a man during a dice game. Police officers visited the home of Lathan's grandmother (Hewings) in an effort to locate him. When the officers arrived and sought entry, Lathan's mother (Nonchatlon) allowed them to enter the living room of the home, but did not allow them to accompany her upstairs to look for her son. As police waited, Hewings entered the living room. The officers asked her for permission to go upstairs and look for Lathan. Hewings gave them permission. The officers went upstairs and found Lathan coming out of his bedroom. They arrested him. A Milwaukee County jury eventually convicted him of felony murder and possession of a firearm by a felon.
Lathan challenged the constitutionality of his arrest, claiming that police violated Randolph by entering the home and searching the upstairs area without lawful consent. The Wisconsin Court of Appeals disagreed. The court focused on the fact that the investigating officers knew that Hewings was the leaseholder of the home, not Nonchatlon. From the court's decision (quotation marks and legal citations omitted):
Randolph acknowledged that Fourth Amendment rights [with regard to third-party consent] are not limited by the law of property, but rather, rested on mutual use, and that there is no societal or legal understanding of superior and inferior as between co-tenants unless there is a recognized hierarchy, e.g., parent and child. Nonchatlon acknowledged her mother’s authority over the house by waking her mother up after letting the officers into the house. Because the officers were aware that Hewings was the leaseholder of the house, that Nonchatlon had not previously lived there and that Nonchatlon went to wake Hewings up after the officers arrived, it was reasonable for the officers to conclude that Hewings had the authority to consent to them proceeding up the stairs. Lathan was not present to object to the consent. Nonchatlon, who did object, was not the subject of the search.
The Wisconsin Court of Appeals concluded that, as a matter of law, Hewings' consent overrode Nonchatlon's nonconsent.
In a separate portion of its opinion, the Wisconsin Court of Appeals concluded that doctrines of probable cause and exigent circumstances also justified the police entry into the home and Lathan's arrest.
Attorney General J.B. Van Hollen praised the decision. "Here, Milwaukee police officers properly obtained consent to enter the home where they eventually located and arrested Deundra Lathan," said Van Hollen. "Good police work took another dangerous offender off the streets."
The Wisconsin Court of Appeals' decision and opinion in State of Wisconsin v. Deundra R. Lathan, No. 2010AP1228-CR, appears on the court's website:
Wisconsin Department of Corrections records indicate that Deundra R. Lathan remains incarcerated at the Wisconsin Secure Program Facility in Boscobel, Wisconsin.
The Milwaukee County District Attorney's Office prosecuted Lathan in Milwaukee County Circuit Court. Assistant Attorney General Marguerite Moeller represented the State of Wisconsin in the Wisconsin Court of Appeals.