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State v. Sheehan12/29/2000
vitation merely defined the extent of the search and negated the defendant's claim that the officer's concealment of her true identity made the consent involuntary.
The cases relied on by defendant are inapposite. Consent was not at issue in Welsh v. Wisconsin, 466 U.S. 740 (1984). The defendant's stepdaughter, not defendant himself, granted entry to the residence. Because the consent issue was never resolved below, the high court assumed there was no consent and proceeded to its exigency analysis. Id. at 743 n.1. Because there was no consent and no exigency, the court held that the nighttime entry into the petitioner's home to arrest him for a civil traffic offense was prohibited by the Fourth Amendment.
The decision in McCall v. People, 623 P.2d 397 (Colo. 1981), is also unavailing. In McCall, the police, with the input of the district attorney's office, devised a plan to arrest defendant and his two co-conspirators separately and without an arrest warrant in their respective homes. The court held that " here, as here, entry into the home is gained by a preconceived deception as to purpose, consent in the constitutional sense is lacking." Id. at 403. As discussed above, there was no preconceived deception here.
Defendant's reliance on State v. Bailey, 417 A.2d 915 (R.I. 1980), is also misplaced. In Bailey, the defendant admitted police for the limited purpose of using his telephone. After making their call, the police arrested defendant. From this limited invitation, the court refused to "extrapolate . . . a general consent that would legitimize any subsequent police conduct." Id. at 919. Here, the scope of defendant's consent was sufficiently broad to encompass inquiry into his activities during the evening and whether and how much he had been drinking. The officers did not enter defendant's home to conduct an arrest, but rather to talk with defendant. We find defendant freely and voluntarily allowed officers into his home.
Once lawfully across defendant's threshold, the police observed signs of defendant's intoxication warranting an arrest of defendant therein. V.R.Cr.P. 3(a)(5). That the arrest occurred within defendant's home does not make it unlawful.
Affirmed.
Jeffrey L. Amestoy, Chief Justice
John A. Dooley, Associate Justice
James L. Morse, Associate Justice
Denise R. Johnson, Associate Justice
Marilyn S. Skoglund, Associate Justice
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