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| We're well past the curtilage at this point |
By Elizabeth Kruska
Ever have it when you don’t expect to find police in your kitchen? But then you leave the room for a second, and bam! Cops in the kitchen.
That’s sort of what happened here. Christian Allis lived with his girlfriend. Back in October of 2015, police got a call about what looked like a car crash. They arrived on scene and found Christian’s pickup truck in a ditch, and some evidence nearby suggesting the truck had crashed. They ran the plate, learned who the owner was, and learned where he lived. They travelled to the house to try to find out what was going on.
The police knocked on the door, which was answered by Christian’s girlfriend. They asked for him, and she said he was upstairs. She turned to go get him, and unbeknownst to her, they came in behind her. When she returned, she was a little surprised to find a pair of cops in her kitchen. The police believed that when she said she’d go get him and turned that it was an implied invitation for them to come in behind her.
Christian was ultimately arrested for a DUI and filed a motion to suppress his interaction with the police, saying they were unlawfully inside the home since they were never invited in. The judge denied the motion after a hearing, so Christian pled guilty upon the condition that he could appeal the suppression decision.
So, he appeals, and SCOV reverses, because unless it’s something you want or unless there’s a clear, valid exception to Ye Olde Warrant Requirement, you shouldn’t have unexpected cops in the kitchen.
There was a suppression and civil suspension hearing. One of the police officers testified. He said, basically, that he thought when the girlfriend went to find Christian, she implicitly invited the police inside.
SCOV ultimately reverses, but stops short of saying that someone must explicitly say the police are invited in. There are times when someone’s conduct is clear that they mean to invite the police in, but they don’t say it. Suppose someone holds open the door and swoops their arms inside with a grand flourish and points indoors. A reasonable officer seeing that would think, “Huh, I think I could go in.”
That would be an example of pretty obvious unstated voluntary consent. And that’s what the state has to show in cases like this—that consent to enter was validly and voluntarily given. Based on the facts that came out during the hearing, SCOV finds that the girlfriend’s actions—basically saying he was inside and that she’d go get him, and then turning to do that, was insufficient to signal to the police that they were invited to go in behind her. SCOV distinguishes this from another case where a person tried to open a door to admit someone from the outside, and her actions pretty clearly indicated the person could come in. It’s less clear here, and since it’s not clear enough to be obvious voluntary consent, SCOV reverses.
There’s a dissent on two points. First of all, the dissent finds that the court didn’t give the trial court appropriate deference in factfinding. Generally speaking, SCOV is going to give quite a bit of deference to the trial court as factfinder unless the facts found are clearly erroneous. The dissent is unsettled by the fact that SCOV instead drew its own conclusions. The right thing to do here would have been to adopt the lower court’s factfinding, or to remand to the lower court for additional factfinding. There were two witnesses who testified about the gesture (or lack thereof). The trial court didn’t make an express finding about whose testimony it credited more. The trial court also didn’t get any testimony from the officer that he interpreted the girlfriend’s gesture as an invitation to come inside. Since this isn’t clear, it’s not an especially helpful record from which to do factfinding.
But wait, there’s more! Step two is to take a look at the law. The dissent also finds that the majority misapplied the law relative to consent to enter a home. The question is whether or not a reasonable person would have believed the girlfriend’s gesture meant, “Hey, come on in!” The problem SCOV has, of course, is that the justices weren’t there to:(a) see the gesture the girlfriend did at the time; or (b) hear the testimony from the witnesses at the hearing about what the girlfriend did that made the police think they could come in.
Since the case pretty much turns on what that gesture was, and if it could be reasonably interpreted as a gesture to welcome the police in, the dissent believes this should actually be remanded to get some additional facts.
There’s this great footnote in the majority opinion that takes some issue with the dissent regarding the standard of review. The last paragraph of the footnote also says that the majority disagrees with the dissent’s remedy of reversing for a new evidentiary hearing. The issue in the case was always clear, and the State just didn’t elicit the right facts during the hearing they got to have. They don’t get to have a new hearing with new testimony for not having gotten it done the first time.
There was a suppression and civil suspension hearing. One of the police officers testified. He said, basically, that he thought when the girlfriend went to find Christian, she implicitly invited the police inside.
SCOV ultimately reverses, but stops short of saying that someone must explicitly say the police are invited in. There are times when someone’s conduct is clear that they mean to invite the police in, but they don’t say it. Suppose someone holds open the door and swoops their arms inside with a grand flourish and points indoors. A reasonable officer seeing that would think, “Huh, I think I could go in.”
That would be an example of pretty obvious unstated voluntary consent. And that’s what the state has to show in cases like this—that consent to enter was validly and voluntarily given. Based on the facts that came out during the hearing, SCOV finds that the girlfriend’s actions—basically saying he was inside and that she’d go get him, and then turning to do that, was insufficient to signal to the police that they were invited to go in behind her. SCOV distinguishes this from another case where a person tried to open a door to admit someone from the outside, and her actions pretty clearly indicated the person could come in. It’s less clear here, and since it’s not clear enough to be obvious voluntary consent, SCOV reverses.
There’s a dissent on two points. First of all, the dissent finds that the court didn’t give the trial court appropriate deference in factfinding. Generally speaking, SCOV is going to give quite a bit of deference to the trial court as factfinder unless the facts found are clearly erroneous. The dissent is unsettled by the fact that SCOV instead drew its own conclusions. The right thing to do here would have been to adopt the lower court’s factfinding, or to remand to the lower court for additional factfinding. There were two witnesses who testified about the gesture (or lack thereof). The trial court didn’t make an express finding about whose testimony it credited more. The trial court also didn’t get any testimony from the officer that he interpreted the girlfriend’s gesture as an invitation to come inside. Since this isn’t clear, it’s not an especially helpful record from which to do factfinding.
But wait, there’s more! Step two is to take a look at the law. The dissent also finds that the majority misapplied the law relative to consent to enter a home. The question is whether or not a reasonable person would have believed the girlfriend’s gesture meant, “Hey, come on in!” The problem SCOV has, of course, is that the justices weren’t there to:(a) see the gesture the girlfriend did at the time; or (b) hear the testimony from the witnesses at the hearing about what the girlfriend did that made the police think they could come in.
Since the case pretty much turns on what that gesture was, and if it could be reasonably interpreted as a gesture to welcome the police in, the dissent believes this should actually be remanded to get some additional facts.
There’s this great footnote in the majority opinion that takes some issue with the dissent regarding the standard of review. The last paragraph of the footnote also says that the majority disagrees with the dissent’s remedy of reversing for a new evidentiary hearing. The issue in the case was always clear, and the State just didn’t elicit the right facts during the hearing they got to have. They don’t get to have a new hearing with new testimony for not having gotten it done the first time.
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