Consent — Acquiescence — Entry to Residence

State v. John Tomlinson, Jr., 2002 WI 91, affirming 2002 WI App 212, 247 Wis. 2d 682, 635 N.W.2d 201

For Tomlinson: John J. Gray

Issue: Whether the actions of the defendant’s minor daughter, in opening the door to the police and then walking back into the house when they asked for permission to enter, amounted consent for the police to enter.

Holding:

¶36. Whether an individual in fact gives consent is a question of historical fact. Phillips, 218 Wis. 2d at 196-97. Thus, we will uphold the trial court’s finding on this issue unless it is against the great weight and clear preponderance of the evidence. Id. at 197. Here, although Tomlinson’s formulation of the events is one possible characterization of events, the finding of the circuit court on this issue was not against the great weight of the evidence, and we uphold the circuit court’s conclusion that the girl’s actions were sufficient to give consent to enter.

¶37. Consent to search does not have to be given verbally. Consent may be given in non-verbal form through gestures or conduct. Id. (citing United States v. Griffin, 530 F.2d 739, 741-42 (7th Cir. 1976)); see alsoUnited States v. Walls, 225 F.3d 858, 862-63 (7th Cir. 2000). The girl who answered the door turned to enter the house upon the officer’s request to enter–this could reasonably have been interpreted as an invitation to follow her inside. Additionally, Tomlinson was present and apparently said nothing when this occurred. Under the totality of the circumstances, the circuit court did not err when it held that the girl gave consent for the officers to enter the house.

But alter the facts a bit and the result may well be altered, see e.g., U.S. v. Poe, 8th Cir No. 06-1730, 9/19/06 (no implied consent where door opened in response to demand under color of authority); State v. Martin, OR App No. A131591, 9/3/08 (“In short, whether a defendant consents to police entry when she opens a door and then retreats depends on the particular facts in each case”; no consent on the facts in that case).