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COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
December 11, 1997
A party may file with the Supreme Court a
                                                                                       Marilyn L. Graves                                                        petition  to  review  an  adverse  decision  by  the
                                                                                       Clerk, Court of Appeals                                                  Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                       of Wisconsin                                                             STATS.
No.                                                                                    97-2473-CR
STATE OF WISCONSIN                                                                     IN COURT OF APPEALS
                                                                                       DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
SUSAN J. DREYFUS,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Dane County:   P.
CHARLES JONES, Judge.  Affirmed.
VERGERONT, J.1    Susan Dreyfus appeals a judgment of conviction
for operating a  motor  vehicle  while intoxicated, third offense, in violation  of
§ 346.63(1)(b), STATS.   The dispositive issue on appeal is whether the officers had
consent to enter Dreyfus’s residence and to enter her bedroom.   We conclude that
1                                                                                      This appeal is decided by one judge pursuant to § 752.31(2)(c), STATS.




No. 97-2473-CR
the trial court properly held that the police officers did have consent, and we
therefore affirm.
BACKGROUND
According to the testimony of Madison police officers Samantha
Kellogg  and  Tara  Dommershausen,  they arrived  at  Dreyfus’s  residence  at  14
Hollywood Drive after having determined that she was the owner of a vehicle with
front end damage that had been left partially parked in a traffic lane on a city
street.   The vehicle and the first three numbers of the license plate matched the
description of a vehicle seen driving away from the scene of an accident by the
EMS officers who were called to the scene.   Officer Dommershausen testified that
she had been to the residence previously and was familiar with Dreyfus and her
boyfriend, Jose Camacho.   She knew that Camacho also lived at that address and
told Officer Kellogg.
The  officers  testified  that  upon  arriving  at  the  residence,  they
knocked on the door a number of times and no one responded.   While waiting at
the  front  door,  Camacho  approached  from  outside  and  indicated  that  he  had
spoken  with  dispatch  and  was  aware  that  Dreyfus  had  been  involved  in  an
accident.   The officers told Camacho that they needed to speak with the person
who had been driving the vehicle.   Camacho told the officers his girlfriend was
inside the trailer in the bedroom and that she told him she was involved in an
accident.    Camacho  then  opened  the  trailer’s  door,  held  the  door  open  and
motioned for the officers to come in.   And, once the officers got inside the trailer,
he motioned them to the bedroom.
Camacho also testified.   He acknowledged that he lived in the trailer
with Dreyfus but stated that the bedroom was her private room and that he usually
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No. 97-2473-CR
slept on the couch or in the back bedroom.   His testimony on his interaction with
the officers did not contradict theirs.   Camacho testified that he saw the officers
knocking on the door when he came from a neighbor’s house where he had called
911 about the accident, because Dreyfus came home, on foot, distraught, upset and
mentioned an accident.   The officers asked if Dreyfus was there, and Camacho
opened the  door, went in the house and said,  “She is in the house, in bed.”
Camacho opened the door and the officers followed him in.   They asked where she
was and he pointed to her room.   The officers did not specifically ask Camacho if
they could enter either the residence or the bedroom and he did not specifically tell
them it was okay for them to enter either.   Camacho testified that he did not say
anything to the officers because he figured that they were “there on business and I
felt like I was going to interfere and get into trouble if I refused them.”
The officers talked to Dreyfus and observed that her speech was
slurred, her eyes were bloodshot, she could not stand by herself, and she was
losing control of her temper.   Dreyfus acknowledged that she had been driving the
vehicle and was involved in an accident on Park Street.   After Dreyfus admitted to
operating  the  vehicle,  she  was  placed  under  arrest  for  operating  under  the
influence of an intoxicant.
The trial court determined that Camacho let the officers into the
residence and that the officers reasonably believed that he was consenting to their
approaching Dreyfus in the bedroom when he pointed to the room in response to
their question about where she was.   The court found there was no basis for a
reasonable officer to believe that Camacho lacked authority to give the officers
permission to approach Dreyfus in the bedroom, and the court made a specific
finding that Camacho’s testimony that they lived together but that he slept on the
couch was incredible.   The trial court also concluded that once the officers saw
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No. 97-2473-CR
and  spoke  to  Dreyfus, they had  probable  cause  to place  her  under  arrest for
operating a motor vehicle while under the influence of an intoxicant and also a
“potential hit and run.”2
DISCUSSION
The  Fourth  Amendment  to  the  United  States  Constitution,  made
applicable  to  the  states  through  the  Fourteenth  Amendment,  prohibits  police
officers  from  making  a  warrantless  entry  into  a  person’s  home,  without  the
person’s consent, in the absence of probable cause and exigent circumstances.
Payton v. New York, 445 U.S. 573, 590 (1980).   The burden is on the State to
show  by clear  and  positive  evidence  that  the  consent  was  the  result  of  free,
intelligent, unequivocal and specific consent without duress or coercion, actual or
implied.   State v. Johnson, 177 Wis.2d 224, 233, 501 N.W.2d 876, 879 (Ct. App.
1993).   The proper test for the voluntariness of the consent is whether under the
totality of the circumstances it was coerced.   Id.   Voluntary consent need not be
given by the defendant but may be given by a third person who has common
authority over or other sufficient relationship to the premises.   United States v.
Matlock, 415 U.S. 164, 171 (1974).
In reviewing the trial court’s decision that there was consent meeting
the constitutional standard, we accept the court’s findings of historical fact unless
they are clearly erroneous.   State v. Murdock, 155 Wis.2d 217, 225, 455 N.W.2d
618, 621 (1990).   However, whether the facts as found by the trial court satisfy the
2    The court also made findings and conclusions on other issues that we do not address
on this appeal.
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No. 97-2473-CR
constitutional standard is a question of law, which we review de novo.   Id. at 226,
455 N.W.2d at 621.   See also Johnson, 177 Wis.2d at 233, 501 N.W.2d at 879-80.
Dreyfus argues that the trial court erred in determining that Camacho
consented to the officers’ entry into the trailer and into the bedroom because he
was not asked for permission and did not expressly give consent, and it was
reasonable to infer that Camacho was  “under at least an implied duress” and
subject to “at least an implied coercion” when he allowed the officers to enter.   We
observe initially that there is no requirement that there be an express request and
response; rather, we are to consider the totality of the circumstances.   One of the
factors that is appropriate to consider is whether the person giving consent assisted
the officers in locating the person or items sought.   See State v. Nehls, 111 Wis.2d
594,  599,  331 N.W.2d  603,  605  (Ct. App.  1983).    Camacho’s response to the
officers’ statement that they wanted to speak with Dreyfus—opening the door into
the trailer and pointing to the bedroom—gives rise to a reasonable inference that
Camacho  was  consenting  to  the  officers’  entry  into  the  trailer  and  into  the
bedroom, and the trial court so found.
There  is  nothing  in the  officers’  conduct that suggests coercion.
Camacho did testify that he felt he might get into trouble if he refused.   However,
he did not explain that further and there is nothing in the record that suggests an
objective basis for this feeling.   To the extent that Camacho’s testimony on this
point conflicts with that of the officers, it is evident that the court chose to believe
the officers rather than Camacho, and that is not a basis for reversal.   See Nehls,
111  Wis.2d  at                                                                            599,   331  N.W.2d  at   605.   However,  even  if  one  accepted
Camacho’s testimony as a true account of his feelings, that is not a sufficient basis
for a finding of coercion.   See id. at 599, 331 N.W.2d at 606 (fact that person
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No. 97-2473-CR
giving consent was upset by presence of officers in her home and feared disruption
does not make consent the product of coercion).
Camacho also contends that he did not have the apparent authority
necessary to give consent to the officers to enter the bedroom because it was
Dreyfus’s “private bedroom.”   The trial court found Camacho’s testimony that he
slept on the couch to be incredible.    We understand this to be a finding that
Camacho had the actual authority to give consent to the officers to enter the
bedroom where Dreyfus was because both Dreyfus and Camacho had common
authority over the bedroom.   Making credibility determinations such as this is the
role of the trial court, not this court.   See State v. Flynn, 92 Wis.2d 427, 437, 285
N.W.2d  710,  714  (1979).    The trial court’s finding on Camacho’s authority is
supported by the record because Camacho testified he lived there and the officers
testified  that  they  knew  from  prior  contacts  that  Camacho  was  Dreyfus’s
boyfriend.
However, even if Camacho did not have common authority over the
bedroom, we nevertheless affirm the trial court’s ruling.   The consent of a third
party to  a  warrantless  entry is  valid  when  the  officers,  at  the  time  of  entry,
reasonably believed the person to possess common authority over the premises,
even if the person does not have that authority.   Illinois v. Rodriguez, 497 U.S.
177, 188-89 (1990).   The trial court found that the officers reasonably believed
that Camacho had authority to give consent, and those findings are supported by
the record.    Because  the officers knew that Camacho and Dreyfus were in a
relationship and lived together, it was reasonable for them to believe that, when
Camacho pointed the way into the bedroom where Dreyfus was, he had common
authority with her over the bedroom.
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No. 97-2473-CR
We conclude that the trial court properly determined that the officers
entered  the  bedroom  with  voluntary  consent  and  therefore  did  not  violate
Dreyfus’s rights under the Fourth Amendment.3
By the Court.—Judgment affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)4, STATS.
3    Dreyfus also argues that the officers did not give Dreyfus her Miranda rights after she
was arrested and therefore any statement she made after her arrest must be suppressed.   Dreyfus
does not tell us what these statements are.  She does not argue that there was no probable cause to
arrest,  assuming  a  valid  entry  into  the  bedroom.    We  do  not  address  arguments  that  are
inadequately developed.  See State v. Petit, 171 Wis.2d 627, 646, 492 N.W.2d 633, 642 (Ct. App.
1992).
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