WisBar News: Appeals Court: Warrant Not Necessary, Police Had Consent from Ex-Wife:

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  • WisBar News
    April
    02
    2018

    Appeals Court: Warrant Not Necessary, Police Had Consent from Ex-Wife

    Joe Forward

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    Kay and Lock

    April 2, 2018 – A defendant convicted of murdering his father at the age of 17 recently lost an appeal. A state appeals court rejected Dorian Torres’s argument that police violated the constitution when they entered his father’s home without a warrant.

    Dorian lived with his father, Emilio Torres. Emilio and Dorian’s mother Shelly, were divorced in 2009 but co-parented Dorian, maintained regular communication, and Shelly visited many times. Emilio also gave Shelly a key to his apartment to check on Dorian.

    In 2014, when Dorian was 17 years old, Emilio did not respond to Shelly’s phone calls over the course of several days. She called Emilio’s employer, who said he had been absent. And she asked Dorian, who said he had gone to Texas.

    Dorian said his father gave Dorian a bank card and access to the money in the account. Shelly found this to be highly unusual and filed a missing person report.

    Police accompanied Shelly to Emilio’s apartment. She did not knock and used the key to get inside. Dorian was sitting on the coach. They found Emilio’s body in the bedroom.

    Dorian was charged with first-degree murder and he was convicted after an unsuccessful motion to suppress evidence on the basis of an illegal search.

    The circuit court denied the suppression motion, concluding the “community caretaker” exception applied and the officers had Shelly’s consent to enter the apartment. Thus, police did not need to secure a warrant to enter, even though Shelly did not live there.

    Ultimately, Dorian admitted that he repeatedly hit his father in the head with a mallet after Emilio smacked him and pushed him for smoking marijuana. He was sentenced to life in prison with eligibility for release after 28 years, with extended supervision.

    In State v. Torres, 2016AP1398-CR (March 28, 2018), a three-judge panel for the District II Court of Appeals affirmed, concluding “the officers reasonably relied on Shelly’s apparent authority to consent to the officers’ entry into the apartment.”

    The panel noted that warrants are not necessary if someone with apparent or actual authority consents to police entry inside the residence. In this case, the police knew that Emilio was Shelly’s ex-husband and they co-parented Dorian together, and Shelly had a key to Emilio’s apartment. Thus, the panel said it was reasonable for police to believe that she had authority over the premises, including authority to let them inside.

    Dorian argued that his mother was merely a guest and Emilio never gave her permission to be there alone, if Dorian or Emilio were not there. The panel disagreed.

    “The purpose of the key was to allow Shelly to enter the apartment when Emilio was at work or elsewhere; here, the key constitutes permission to be in the apartment alone,” wrote Chief Appeals Court Judge Lisa Neubauer for the three-judge panel.

    “We believe society would expect a mother, granted permission to be alone in a home and given unrestricted access to the home in order to care for her son’s needs and welfare, enjoys the authority to invite guests into the apartment.”

    The panel noted that Dorian did not object when police entered the premises. Since the issue was decided on the grounds of consent, the panel did not address the community caretaker exception to the warrant requirement, which may apply when police enter a home without a warrant if the health or welfare of an occupant is in question.




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