WIS Supreme Court Upholds Search of Residence Based on Consent of Co-Tenant, Over Objection of Absent Co-Tenant, Who Was in Custody in a Nearby Police Van

Attorney General Van Hollen praised the decision as a “proper interpretation of United States Supreme Court precedent construing the Fourth Amendment.”

MADISON -- A co-tenant's consent to police to search a residence trumps the objection of a co-tenant who is not physically present at the residence at the time of the objection, the Wisconsin Supreme Court ruled today in upholding the Racine County conviction of Brian T. St. Martin for possession with intent to deliver cocaine.

Martin's girlfriend consented to the warrantless search, while St. Martin objected only after he was in custody in a nearby police van. In a 5-2 decision, written by Justice N. Patrick Crooks, the Supreme Court concluded that although an objection from a co-tenant who is physically present with police at the dwelling's threshold would prohibit a warrantless search, this rule does not apply to St. Martin, “given that there is no allegation or evidence that the removal of St. Martin from the apartment was pretextual.”

Attorney General J.B. Van Hollen lauded the decision as a “proper interpretation of United States Supreme Court precedent construing the Fourth Amendment.”

The Racine County District Attorney's Office prosecuted the case in the circuit court, and Assistant Attorney General Sarah K. Larson represented the State in the Wisconsin Supreme Court, which accepted the case on bypass from the Wisconsin Court of Appeals. The decision may be found at the following link:

http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=66371