from a judgment of the circuit court for Sheboygan County,
Cir. Ct. No. 2014CF67 TERENCE T. BOURKE, Judge. Affirmed.
Neubauer, C.J., Reilly, P.J., and Hagedorn, J.
Dorian M. Torres appeals from a judgment of conviction and
challenges the denial of his motion to suppress, asserting
that police discovered evidence through a warrantless and
unlawful search of his apartment. We conclude that police
reasonably relied on third-party consent for the search,
making a warrant unnecessary and the search lawful. We
Seventeen-year-old Dorian lived in an apartment with his
father, Emilio Torres. Dorian's mother, Shelly Torres,
and Emilio were divorced in 2009. Although living apart,
Shelly and Emilio were coparenting Dorian. They spoke with
each other regularly.
Emilio gave an apartment key to Shelly. He told her that
"he wanted [her] to hang on to the key in case [she]
needed to … do anything that he needed or that Dorian
needed or just to check on Dorian." Emilio would ask
Shelly to run errands for him, involving such matters as
mail, food, and apartment cleaning. Shelly had been in his
apartment "many times."
Despite speaking with each other often, Emilio failed to
return Shelly's calls on January 24, 2014. She called his
phone "quite a few times during the weekend with no
response." Shelly considered Emilio's
nonresponsiveness unusual. She called his employer, who told
her that Emilio had been absent.
On January 28, Dorian went to Shelly's house, and she
asked him where Emilio was. Dorian told her that he had gone
to Texas. It was out of character for Emilio to leave without
telling Shelly. Dorian also told Shelly that Emilio gave his
bank card to Dorian, telling him that he could have the
money. Dorian asked for Emilio's social security number
and the personal identification number for the bank card. His
requests unsettled Shelly.
On January 29, she called the police at around 10:00 p.m. to
report Emilio missing. Officer Brian Inger went to
Shelly's home. She told him that she had not heard from
Emilio for almost a week and described her troubling
conversations with Dorian. Inger said that police would
contact Emilio's employer and get back to her. Shelly
responded that she was going to Emilio's apartment to
check on the situation. Inger told her that police should go
along for safety reasons.
Inger and Shelly went to the apartment where they met with
Sergeant Timothy Patton outside. Shelly thought they had
arrived around 10:30 p.m. or 11:00 p.m. Patton thought it was
somewhere between 11:00 p.m. and 12:45 a.m.
Shelly used her key to unlock the door. She did not knock,
and there was no doorbell. She allowed the officers to enter
behind her. Nearby, Dorian was sitting on a living room
couch. Shelly questioned Dorian about Emilio's
whereabouts and then went to Emilio's bedroom. She knew
where Emilio typically kept his suitcase, so she intended to
see if it was there. Patton followed.
When Shelly entered the bedroom, the window was wide open and
the room felt very cold. It was in "disarray" with
clothes scattered everywhere. A mattress leaned against a
wall. Standing in the doorway and watching, Patton then
entered to help Shelly move the mattress. Behind the
mattress, Patton saw what appeared to be a wrapped-up body.
The body turned out to be Emilio.
Meanwhile, Inger talked with Dorian in the living room about
Emilio's whereabouts. Patton called Dorian to the bedroom
and asked what the wrapped object was. Dorian responded
something similar to, "What's that?" Patton
then arrested Dorian, who was charged with first-degree
Dorian moved to suppress the evidence stemming from the
search of the apartment, asserting that the lack of a warrant
rendered the search unconstitutional. After hearing testimony from
Shelly and Patton, the circuit court denied the motion,
reasoning as follows. The officers had lawfully entered
Emilio's apartment and found his body while acting as
"community caretaker[s], " an exception to the
warrant requirement. They objectively believed that Emilio
was in jeopardy, and the public highly values locating
missing persons. Shelly and Emilio shared a parental interest
in supervising seventeen-year-old Dorian. She used her key to
peacefully allow the officers into the apartment, acting
within the scope of [her] authority given to her by Emilio in
that Emilio wanted her to assist in parenting Dorian. Dorian
was 17 at the time of this incident. He was a minor. And
it's certainly consistent with [their parental interest]
to see that Dorian is properly cared for [and] that Shelly