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State v. Torres

Court of Appeals of Wisconsin, District II

March 28, 2018

State of Wisconsin, Plaintiff-Respondent,
v.
Dorian M. Torres, Defendant-Appellant.

          APPEAL from a judgment of the circuit court for Sheboygan County, Cir. Ct. No. 2014CF67 TERENCE T. BOURKE, Judge. Affirmed.

          Before Neubauer, C.J., Reilly, P.J., and Hagedorn, J.

          NEUBAUER, C.J.

         ¶1 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 affirm.

         BACKGROUND

         ¶2 Seventeen-year-old Dorian lived in an apartment with his father, Emilio Torres. Dorian's mother, Shelly Torres, and Emilio were divorced in 2009.[1] Although living apart, Shelly and Emilio were coparenting Dorian.[2] They spoke with each other regularly.

         ¶3 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."

         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 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.

         ¶9 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.

         ¶10 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 intentional homicide.

         ¶11 Dorian moved to suppress the evidence stemming from the search of the apartment, asserting that the lack of a warrant rendered the search unconstitutional.[3] 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 ...

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