Petition for Writ of Certiorari — Jaison L. Coleman, Petitioner v. United States

No.

SUPREME COURT OF THE UNITED STATES

JAISON L. COLEMAN,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Robert T. Ruth

Law Offices S.C.

By: Robert T. Ruth

CJA appointed counsel

Robert T. Ruth

Law Offices S.C.

7 N. Pinckney St., Suite 240

Madison, WI 53703

(608)257-2540

ii

QUESTIONS PRESENTED

I. Having already expressly denied consent for police to enter the

residence, does the occupant’s “okay” in response to the officer’s statement that

police “almost need” to enter the residence amount to voluntary consent for

police to enter the residence?

II. | Having already expressly denied general consent for police to enter

the residence, does the occupant’s “okay” in response to the officer’s statement

that police “almost need” to enter the residence to check on the welfare of the

children limit the scope of consent to checking on the welfare of the children?

iii

PARTIES TO THE PROCEEDING

The parties to these proceedings are Jaison L. Coleman and the United

States.

1v

TABLE OF CONTENTS

QUESTIONS PRESENTED.......scssssssssssscssecssecsccssecseessccssesscecsesasecsessecsneesesesenees i

PARTIES TO THE PROCEEDING.....ccsssssssssssssssssscsssssssessssssecssssssesscensesssesscenees ii

TABLE OF AUTHORITIES .....cccsssssssssssssesseececcssecsessssssesscesscsaserseessesasensvenseesees vi

OPINIONS BELOW .....csesssssescssececscscsecessccasecssessesssecacesuscasecusessesavesesensecnvesecenees 1

BASIS OF JURISDICTION ....ssesscsssssssssscsssesscscscsssscscssussssessccssssavessccnsesasesscenees 2

CONSTITUTIONAL PROVISION INVOLVED......c.ssscssscsescsscssecsseceesssessesseesees 3

STATEMENT OF THE CASE...ccsessssssscsssscssecssecsssssececessscasecseessesaseserensecsvesseenees 4

REASONS FOR GRANTING THE WRIT .....sscsssssssscscscssssscsseceessseceressessesesen 12

I. The court of appeals decision failed to fairly address the clear

error in the istrict COUTT’S OPINION. .....s.cccccsssserscccceessserscecesssssees 12

a. The district court and court of appeals left out

important facts that are revealed in the body

CATMETA TECOTAING,. .....ssccssessessseccessscesscccessecesssscesseees 13

b. Finding that Lisa’s words and actions

qualify as consent to enter the house

greatly expands the consent exception

to the WATTANE TEQUITEMENE ......1csseccessrscesseccsseceeess 15

c. Lisa’s alleged nod when she said,

“Okay” is a far cry from unequivocal

consent to enter the TeSidence. ........ccssceccceccssesereees 19

d. At most, Lisa acquiesced to the officer’s

Claim of lawful QUENOTTILY ........::cs0ccccsseeeseeseesseeessees 20

e. The officers exceeded the scope of any

CONSENE CO SCANCHA., ......sssccsseseceseccccssccesseccecsccescsccesseees 21

CONCLUSION...........ccccsssssccesceeeessesssssscceneeeeeesescssssscceneeseeseeesesssssccoeseeeeesoeseees 25

APPENDIX-TABLE OF CONTENTS ...............cccssccncsccesscccescesscccsssessecesesecsees A-1

APPENDIX-decision of the court of appealls .............cccccsssssccccessesseeececesesseees A-2

APPENDIX-decision of the Cistrict COULE ...........c.ccccsssnsssssceccccscceneescescececeees A-3

APPENDIX-Affidavit Of SErviCe .........:cccscssscsnssssssssscecccecceceseeeseesensessessssseesecs A-4

vi

TABLE OF AUTHORITIES

Cases

Anderson v. City of Bessemer City,

470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985) ..........sccscssssceccceesennes 24

Bumper v. North Carolina,

391 U.S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1960) .........cccccsessseseeeeeeeesees 20

Florida v. Jimeno,

500 U.S. 248, 111 S. Ct. 1801 (1991) .........cccccsscesscscsssssssssesssscesececerseceeeeees 21, 24

Lietzow v. Vill. Of Huntely,

No. 17 CV 05291, 2023 WL 2954989 (N.D. of Ill. April 14, 2023) ............. 17

Michael C. v. Gresbach,

526 F.3d 1008 (7'2 Cir. 2008) .........csscsssssssssessessscsccnsccsccsssccceccccecesceeeescesseseses 21

United States v. Coleman,

154 F.4th 558 (7'5 Cir. 2025) .........ccccccccsssssssssvecsecscccssecescssvsccescceeeenccscsssecccsseeeees 1

United States v. Gonzalez-Ruiz,

794 F.3d 832 (7th Cir. 2015) .....ccsscsscessssssssesscssssscensnscsssensscccececesceeseeceseesssenenss 17

United States v. Jackson,

598 F.3d 340 (7 Cir. 2010) ........ccccsssssssscsccccccececssssccsccccesceecnscsvsssscscseseneeaseess 21

United States v. Long,

A25 F.3d 482 (712 Cir. ZOOS) ...ccccccccsssssssscssscccssssssscssecsscscssceseesececessecececsesensaces 21

United States v. Queen,

847 F.2d 346 (7) Cir. 1988) uu.......ccccccsssssssssssscscceccceeeccssscsscceeeceesenscssscscscesesens 15

United States v. Sabo,

724 F.3d 891 (7b Cir. 2013) .....ccccccccccecececcccccecccccscssscssscssssssssscecsseecesseceeaees 15-16

United States v. Turner,

169 F.3d 84 (15t Cir. 19QQ) .........cssccsscscesscsscsssscecsccesceseceeessssenssesscsessesssssesnscseeas 22

Vil

Other Authority

4th Amendment, United States Constitution ............ccccccsssssssssesccccccccecssssssececees

Title 18, U.S.C. § 922(G) .......ssscccccccccssssssssscceccccccessssssesssceeecceceessessessceeeesecceseeees

Title 28, U.S.C. § 1254 (1) .....ccccccccssssssssssssssssccscscscsccececsecscsceescesescccsccsssssssssssessees

No.

SUPREME COURT OF THE UNITED STATES

JAISON L. COLEMAN,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Jaison L. Coleman, respectfully prays that a writ of certiorari

issue to review the decision of the United States Court of Appeals for the

Seventh Circuit entered in this action on October 7, 2025.

OPINIONS BELOW

The decision of the district court is not published. The decision of the

court of appeals is published at re

United States v. Coleman, 154 F.4th 558 (7 Cir. 2025). The decisions of the

court of appeals and district court are reproduced in the appendix to this

petition.

2

BASIS FOR JURISDICTION

The final judgment of the court of appeals was entered October 7, 2025,

when the court of appeals issued its order affirming the district court’s denial

of Coleman’s motion to suppress. This Court has jurisdiction to review this

judgment pursuant to Title 28, U.S.C. § 1254(1).

3

CONSTITUTIONAL PROVISION INVOLVED

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

4 Amendment, United States Constitution.

4

STATEMENT OF THE CASE

The grand jury charged Jaison L. Coleman with being a prohibited

person in possession of a firearm in violation of Title 18, U.S.C. § 922(g). The

firearm in question was found during a warrant search of Coleman’s residence

on April 20, 2023, but the evidence that supported probable cause for the

warrant was discovered during a warrantless search of the house earlier in the

day.

Coleman moved to suppress the results of the warrantless search and

the warrant search. The district court found that the search was justified

under the consent exception to the warrant requirement. The parties

eventually entered into a plea agreement wherein Coleman agreed to plead

guilty to the one count indictment but reserved the right to appeal the denial

of the motion to suppress. Coleman pleaded guilty to the indictment on

August 13, 2024, and on October 30, 2024, the district judge sentenced him to

102 months prison and three years of supervised release. The court of appeals

affirmed, finding that the district court did not commit clear error. The order

denying the motion to suppress and the appellate decision to affirm were

based on the following facts.

Lisa and Jaison Coleman lived at 307 W. McMillian Street, Marshfield,

Wisconsin. On April 20, 2023, Wood County Dispatch received a 911 call from

5

a female later identified as Lisa’s daughter who said that her stepfather had

threatened to kill her mother. Officers Jamie Kizer, Libby Abel (now Libby

Maxson) and various other officers were dispatched to the Coleman residence.

According to Kizer, a threat to kill could potentially amount to the

misdemeanor crimes of disorderly conduct or harassment. Officer Kizer

testified that he arrived at the house to investigate whether the alleged threat

had been made and whether these misdemeanor crimes were committed.

Officer Kizer knocked on the door and announced, “Marshfield Police,

open the door.” About 20 seconds after the first knock, Lisa came to the door.

With dogs barking behind her, Lisa opened the door partially and stood

between the door and the jamb. Officer Kizer asked Lisa if she was okay, but

Lisa did not respond. Kizer then said, “Come on out.” Lisa stepped out of the

house and closed the door behind her.

The following exchange occurred between Lisa and Kizer outside the

house:

Kizer: Ok. Who else is inside?

Lisa: My daughter...my son and my daughter.

[Lisa folds arms across chest]

Kizer: Ok. Are they ok?

Lisa: They are in my room right now.

Kizer: Are they gonna be ok?

Lisa: I hope so.

Kizer: Where is he at?

Lisa: I don’t know.

Kizer: Can I come in?

Lisa: I prefer that you not [emphasis on the

word “not” ].

The district court described the initial exchange between Kizer and Lisa

as follows:

...L1Isa Coleman, came to the door, opening it Officer

Kizer then inquired about her children’s wellbeing,

her husband’s whereabouts, and whether he could

come into the house. Lisa responded that she

“hope[d]” her kids, who were in her bedroom, would

“be okay,” but she “would prefer [Kizer] not” come

into her home. (id. at 1:50-2:10.) She then reentered

the house to retrieve a pair of shoes.

The district court found that after this initial exchange between Lisa and

Kizer, Lisa reentered the house to retrieve a pair of shoes. This is a correct

statement, but it leaves out the fact that Lisa asked Kizer if she could get her

shoes and she did not reenter the house until she had Kizer’s permission.

Specifically, Lisa turned toward the door and said, “I need to get some shoes.”

Then she asked, “Can I get some shoes?” and Kizer responded, “Yeah. I’m just

gonna...ok. Get some shoes and come out.” At that point Officer Kizer

permitted Lisa to reenter the residence.

7

Lisa left to get the shoes at about 2:25 on the Kizer video recording and

returned at about 4:20, so she was gone for almost two minutes. After about

4o seconds Kizer cracked the door open and asked if everything was okay. He

claims that he heard the sound of “mild arguing,” but no such conversation is

apparent in the recording.

While Lisa was gone Officer Kizer told one of the other officers on the

scene that it appears that the situation has calmed down. Kizer also told an

officer on scene that, “She didn’t want me to come in.” The district court

makes no mention of these statements by Kizer in the findings, but the

statements clearly appear on the recording. Officer Kizer explained in his

testimony that he permitted Lisa to return to the residence because at that

time, “things were not at the point where we necessarily need to, I guess, barge

into the house or get in there quickly.”

Lisa returned to the front door, exited the house, and closed the door

behind her. The following exchange occurred between Lisa and Kizer on the

front stoop:

Kizer: Alright. How’s everything going in there?

[Lisa folds her arms across her chest]

Lisa: (Shrugs her shoulders and shakes head

side to side)

Kizer: What’s your name?

Lisa: Lisa Coleman

Kizer: Lisa?

Lisa: Ah huh

Kizer: Okay. My name’s Jamie. So, we just want

to help if we can. Ok. Obviously, what got our

attention is... umm... somebody said that he was

threatening to harm you.

Lisa: [No verbal response. Nods head up and down. |

Kizer: Ok. What’s his name?

Lisa: Jaison Coleman

Kizer: Okay. So Lisa and Jaison. Okay. Is

Jaison more calm right now? And are your kids okay?

Lisa: I ves I.... They're okay right

now...(inaudible).

Kizer: Okay. I’m sensing that we almost need to

come inside to make sure of that.

Lisa: Okay.

Kizer: Okay.

Lisa: Theyre in my bedroom.

The district court made multiple factual findings on Lisa’s body

language at the moment where Lisa said “okay” after Kizer said that “we

99

almost need to come inside...”. In one section of the Order the court asserts

999

that Lisa “Nods her head in a ‘yes’ motion” when she said “Okay.” Elsewhere,

9

however, the district court describes Lisa’s head movement as a “slight upand-down head nod” and that Lisa “appears to nod her consent.”

There were several dogs in the residence. Lisa and Kizer discussed

whether the dogs were dangerous. Another officer on the scene asked, “Does

he have any weapons?” Lisa responded, “Not that I know of.” Lisa then Lisa

entered the residence and the officers followed her in. As far as what

happened after the police entered the residence, the district court found that:

Lisa then led the officers down the hallway to the

back, right bedroom and gestured to where her minor

children were sitting on the bed. Officer Kizer then

noticed Jaison sitting in the dark in the corner of the

back, left bedroom and made contact with him, while

Officer Abel spoke with Lisa’s minor children, who

reported that Jaison may have hit Lisa, pointed a gun

at her, and threatened to shoot her. The children, who

officers later testified looked as if they had “just been

through a traumatic incident,” also confirmed seeing

the gun. Jaison was then arrested and taken to a

police station.

The district court ultimately denied the motion to suppress based on its

conclusion that Lisa voluntarily consented to the law enforcement entry into

the residence and to the subsequent search of it that led to the evidence that

gave rise to the warrant. The court also considered it important that “Lisa

voluntarily came back to her doorstep” after she retrieved her shoes. The fact

that Lisa’s arms were crossed in a defensive manner did not make much

difference to the court. The court said that even though “Lisa’s physical

10

posture, with arms crossed” could present as “unwelcoming,” “it just as easily

could reflect a wide range of emotional states to a reasonable police officer.”

The district judge noted that Officer Kizer did not ask for consent to enter

after he was denied the first time, but that issue did not weigh heavily in the

decision. The court addressed Ivory!, where the defendant’s response of

“okay” to the officers’ “directive to submit to a pat-down” did not constitute

voluntary consent. Ultimately, however, the court was not persuaded by Ivory

because the court concluded that “whether an officer’s ‘need’ to do something

constitutes a command or a request is highly contextual.” Finally, the court

reasoned that Lisa not only “appears to nod her consent,” her “additional

actions” support the “officer’s reasonable basis to believe that he was acting

with her permission.”

The district court found that officers kept within the scope of Lisa’s

consent. According to the district judge, Lisa gave officers permission to enter

the home and speak to others present. The court considered the fact that Lisa

“provided officers with information as to where the defendant might be found”

and that Lisa did not “limit her initial general consent to enter, as was her

right.”

1 United States v. Ivory, 56 F. Supp. 3d 953, 955 (E.D. Wis. 2014).

11

The court of appeals affirmed without addressing most of the flaws in

the district court’s review of the case. Rather than address the flaws in the

district court’s opinion, the court of appeals focused on the fact that “Officer

Kizer’s tone and demeanor throughout was that of someone concerned, not

someone coercing.” The court also found that “Lisa showed that she had the

ability to deny consent to entry” but “chose to let Officer Kizer enter after he

asked again.”

12

REASONS FOR GRANTING THE WRIT

I. The court of appeals decision failed to fairly address the clear error in

the district court’s opinion.

With her arms folded across her chest, Lisa Coleman stood outside her

residence with Marshfield police officer Jamie Kizer. When Officer Kizer

asked for consent to enter the house Lisa said, “I prefer that you not” with

emphasis on the word “not.” A few minutes later, rather than asking again,

Kizer asserted that police “almost need to come inside” to check on the welfare

of the children. Still with her arms folded across her chest, Lisa merely said,

“Okay” and thereafter opened the door and permitted officers into the

residence. Multiple officers entered the residence and spent about 90 minutes

rummaging about the place and questioning the occupants.

In the context of Lisa’s unequivocal denial of consent for police to enter

her residence, the fact that Lisa said, “Okay” when Officer Kizer said that

officers “almost need” to check on the children does not amount to voluntary

consent for officers to enter the residence. Simply put, it takes more than an

ambiguous word like “okay” in response to the officer’s assertion about what

officers “almost need” to do to undo the previous denial of consent. Even

assuming arguendo that Lisa’s words and actions amount to consent for

police to enter the residence, any consent is necessarily limited to the officer’s

stated purpose of the entry, 1.e., to check on the welfare of the children. The

13

officers exceeded the scope of Lisa alleged “consent” almost immediately as

they commenced an investigation into what happened that evening and where

they might find evidence of a crime rather than inquire into the welfare of the

children.

Coleman concedes that he faces an uphill battle under Supreme Court

Rule 10. The rule provides that a petition “is rarely granted when the asserted

error consists of [...] the misapplication of a properly stated rule of law.” In

this case, however, where the court of appeals declined to squarely address the

facts that matter the most, the order affirming the district court’s order

effectively denies Coleman meaningful appellate review. That is why this

Court must step in.

a. The district court and court of appeals left out

important facts that are revealed in the body camera

recording.

First, the officers looked around the house for about two minutes before

they made contact with the children. As soon as officers walked into the

bedroom where the children were located it was clear that they were safe and

unharmed.

Second, the officer who spoke to the children did not inquire about their

welfare. Instead, she questioned the children about the details of what

happened that evening, their relationship with Coleman, and where officers

14

might find evidence of a crime. The first mention of a firearm occurred at

about 10:36 on the Abel video — about four minutes after police entered the

residence and about one and a half minutes after Officer Abel first asked the

children what happened that evening. At one point, Lisa’s daughter explained

that during the incident Lisa fired a “warning shot” into the ceiling. Lisa’s son

pointed out the hole in the ceiling.

Third, Officer Kizer admitted at the evidentiary hearing that his main

reason for entering the residence that evening was to investigate potential

crimes, not to check on the welfare of the children.

Fourth, within about one minute of entry into the residence, Officer

Kizer found Jaison in a bedroom. After Kizer patted down Jaison, his first

question to Jaison was “...so what happened?” From here, Kizer questioned

Jaison for almost fifteen minutes about what happened that evening and

eventually arrested him.

The court of appeals ignored all of the above and concluded that the

lack of coercive tone by the officers essentially shifted the burden to the

homeowner the more forcefully deny consent for the search the way that

she did the first time that they asked.

15

b. Finding that Lisa’s words and actions qualify

as consent to enter the house greatly expands the

consent exception to the warrant requirement.

Any exception to the warrant requirement must be “narrowly drawn”

and “carefully delineated to accommodate only those interests it was

created to serve." United States v. Queen, 847 F.2d 346, 352 (7 Cir. 1988).

As such, if police want to rely on voluntary consent instead of the warrant,

the consent must be specific and unequivocal. It is worth noting, however,

that neither the government, nor the district or appellate court, cited to any

precedent that holds that once a request to search is unequivocally denied,

the government can prove voluntary consent by a vague statement like,

9

“okay” in response to the officer’s claim that he needs to enter the

residence.

Consent may be given by actions, but not subtle or equivocal actions,

only actions that clearly and unequivocally convey voluntary consent. For

example, stepping back and to the side in response to a request to enter in

some contexts may show consent. See United States v. Sabo, 724 F.3d 891

(7h Cir. 2013). Sabo’s actions, however, occurred in the context of a police

request to enter, not in the context of the officer expressing a need to enter.

In Sabo, United States Marshals questioned Sabo on his doorstep and Sabo

16

responded, "Get the fuck out of here" and slammed the door shut. Id. at

892. The marshals contacted the local sheriffs department, and a deputy

who knew Sabo arrived. Id. at 893. The sheriffs deputy knocked on the

door and said, "Terry, it's the Sheriff's Department. Open the door." Id.

Sabo opened the door and stood in the doorway, physically preventing the

officer’s entry. The sheriff's deputy then asked, "Terry, do you mind if I

step inside and talk with you?" Id. Sabo said nothing. Instead, he stepped

back and to the side and let the door open. Jd. Sabo then engaged in a

casual conversation with the officer inside the house. The Sabo Court

emphasized that “Sabo's actions came in direct response to [the officers’ |

request to enter. In other words, [the officer] asked and Sabo answered,

albeit nonverbally.” Id. at 894.

Sabo and the present case are similar insofar as both cases involve the

denial of consent and subsequent nonverbal actions that may imply

consent. The difference is that Sabo’s nonverbal actions consistent with

consent occurred in response to the officer’s specific request to enter the

residence. Lisa’s actions that may imply consent occurred in response to

Officer’s Kizer assertion that police “almost need” to enter the residence. A

response to the officer’s assertion of a need (particularly after a denial of

consent), whether verbal or nonverbal, is acquiescence to the officer’s

17

claimed need, not voluntary consent.

Statements like, “I guess” and “sure” may show consent in the context

of a request to search. See United States v. Gonzalez-Ruiz, 794 F.3d 832,

834 (78 Cir. 2015). In Gonzalez-Ruiz, no one ever denied consent. Also,

the officer in Gonzalez-Ruiz asked three times for consent to search. In

response to the first request to search the defendant said, "You can, you can

... yeah." Id. In response to the second request the defendant said, "I

guess," then raised his right hand and nodded in affirmation. Jd. In

response to the third request the defendant said nothing, but neither did he

object when he saw the officer start the search. Id. In the present case the

officer only asked for consent once, and Lisa expressly denied the request.

She said, “Okay” when the officer expressed a need to check on the welfare

of the children. In this context, the statement “okay” is far too vague and

uncertain to qualify as “unequivocal” consent to search the house after

consent to enter was expressly denied.

Responses like “yeah” or “okay,” plus opening the garage door, may

amount to voluntary consent when they occur in the context of the officer

asking the homeowner to open the garage door so officers could speak to

her husband inside the residence. Lietzow v. Vill. Of Huntely, No. 17 CV

05291, 2023 WL 2954989 (N.D. of Ill. April 14, 2023)). Like Gonzalez-

18

Ruiz, Lietzow addresses whether words or actions in a particular context

may qualify as consent. In Lietzow, it was undisputed that officers told the

occupant of the home that they wanted to speak to her husband and they

asked her to try to open the garage door so that they could do so. Id. at 17.

In other words, the officers did not say that they needed the home occupant

to open the garage door; they asked her to try to open the garage door so

that they could speak to her husband. Once the garage door was open, the

officers told the home occupant that they were going to speak to her

husband. Id. That is when the home occupant responded "yeah" or "okay."

Id. The court found that “when a person agrees to open a garage door and

agrees to allow an officer to speak with another individual who is inside a

home, that person is consenting to the officer entering the home itself

through the garage to have that conversation.” Jd. at 26. In other words,

the consent occurred when the home occupant agreed (in response to a

request, not a statement of need) to open the garage door and agreed to

allow the officer to speak to her husband, not when she said, “yeah” or

“okay.” In the present case, Lisa did not agree to officer entry when it was

presented to her as a question. In fact, she expressly denied the consent to

enter. She only “agreed,” or at least did not put up a fight, when the officer

informed her that he needed to enter the house to check on the children.

19

c. _ Lisa’s alleged nod when she said, “Okay” ts a

far cry from unequivocal consent to enter the

residence.

At one point the district court notes that when Kizer said, “we almost

need to come inside to make sure of that” and Lisa responded, “Okay,” that

Lisa “Nods her head in a ‘yes’ motion.” The court backs off this claim

elsewhere, however, describing Lisa’s head movement as a “slight up-anddown head nod” and that Lisa “appears to nod her consent.”

It is a serious exaggeration of Lisa’s response to say that Lisa “Nods

her head in a ‘yes’ motion” when she stated, “Okay.” Lisa never nodded her

head in a “yes” motion. She moved her head up slightly one time and back

to its original position, but the movement is so tiny that it cannot fairly be

described as anything close to a “yes” motion.” So, it is entirely unfair to

suggest that Lisa said “yes” to Officer Kizer’s statement through her body

language. When Officer Kizer said, “I’m sensing that we almost need to

come inside to make sure of that” Lisa, still with her arms folded across her

chest, merely responded, “Okay.” That is the entire exchange. In the light

of her previous denial and the fact that Kizer now stated entry into the

residence as a need rather than a request, Lisa’s “okay” is really nothing

more than Lisa saying, “I guess you are going to do it whether I like it or

not.” There is no “yes” via body language or otherwise. There is certainly

20

no “yes” that could possibly override her express denial of consent and

qualify as specific and unequivocal consent to enter the house for a fullblown investigation.

It is also worth noting that the alleged head nod by Lisa occurred in

response to Officer Kizer’s statement about what he needed to do, not in

response to a question. If Kizer would have asked to enter the house and

Lisa would have said, “okay” and nodded her head, it might be fair to take

that as a “yes.” But, in this case, when Kizer asked to enter the house Lisa

gave a flat denial. In the context of this express denial of consent, Lisa’s

tiny head movement in response to Kizer’s assertion that he needs to enter

the residence, cannot qualify as unequivocal consent to enter.

d. At most, Lisa acquiesced to the officer’s claim

of lawful authority.

Acquiescence to a claim of lawful authority is not voluntary consent.

See, e.g., Bumper v. North Carolina, 391 U.S. 543, 548-49, 20 L. Ed. 2d

797, 88 S. Ct. 1788 (1969). In Bumper, the police approached the occupant

of a residence claiming that they had a warrant to search the house. The

occupant said, “[Glo ahead.” This Court held that what appeared to be

consent was mere acquiescence to the officer’s claim of lawful authority, not

voluntary consent. At most, after expressly denying consent, Lisa’s “Okay”

21

in the face of the officer’s statement about what he needed to do, amounts

to acquiescence to the claim of lawful authority, not voluntary consent.

e. The officers exceeded the scope of any consent

to search provided by Lisa.

A consensual search is reasonable under the Fourth Amendment so

long as it remains within the scope of consent. United States v. Jackson,

598 F.3d 340, 348 (7 Cir. 2010), citing Michael C. v. Gresbach, 526 F.3d

1008, 1015 (78 Cir. 2008). "The scope of consent is ‘limited by the breadth

of actual consent, and whether the search remained within the boundaries

of the consent is a question of fact to be determined from the totality of all

the circumstances." Id. , (quoting United States v. Long, 425 F.3d 482, 486

(7th Cir. 2005)).

The standard for measuring the scope of a suspect's consent under

the Fourth Amendment is that of "objective" reasonableness -- what would

the typical reasonable person have understood by the exchange between the

officer and the suspect? See Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct.

1801, 1803-04 (1991). When the officer names an object of the search,

however, the scope of consent is limited to that object. Jd. The same

limitation on scope applies when the officer states a purpose of the search.

See United States v. Turner, 169 F.3d 84, 88 (4% Cir. 1999), citing 3 Wayne

22

R. LaFave, Search and Seizure § 8.1(c), at 620 (3d ed. 1996)("When a

purpose is included in the [officer's] request, then the consent should be

construed as authorizing only that intensity of police activity necessary to

accomplish the stated purpose.").

Assuming arguendo that Lisa voluntarily consented for officers to

enter her house, any such consent was limited to the officer’s stated

purpose, i.e., checking on the welfare of the children. That is all that Kizer

said that he needed to do. Plus, it is essential to note that Kizer said that he

needed to check on the children after Lisa denied him general consent to

enter. In the context of a denial for general consent to enter, when the

officer subsequently limits his purpose to checking on the children, it

should be abundantly clear that the entry is limited to that purpose. See

Jimeno, 500 U.S. at 251 (scope of consent is limited to the object of the

search).

The officers in this case, however, did not limit themselves to their

stated purpose of checking on the children. They were in the house about

two minutes before they even looked in on the children. When Officer Abel

stepped into the room where the two children were located it was obvious

within seconds that both children were safe and unharmed. At that point,

about two minutes after entry into the house and before any incriminating

23

evidence was found, officers commenced an investigation into what

happened that night.

It is noteworthy that Kizer now admits that the criminal investigation

was the main reason why he wanted to enter the house. When Lisa denied

consent for officers to enter, Kizer decided that to conduct his desired

Investigation he had to change his approach. Rather than asking again or

telling Lisa his main reason for wanting to get inside the house, Kizer said

that he needed to check on the children. That half-truth worked at least

enough to get Lisa to let him in the house, but when officers obtain access

based on a half-truth, they have to face the fact that their entry is limited by

that half-truth.

The district court and the court of appeals ignored the fact that the

scope of consent is limited to the object or purpose of the search. Thus,

without addressing the object or purpose of the search the court found that

the scope of Lisa’s consent included permission to enter the home and

speak to others present. This is clearly erroneous. Officer Kizer did not say

that he needed to enter the residence to speak to the people inside, he said

that he needed to enter the residence to check on the welfare of the

children. Checking to see if the children are safe and unharmed may

include speaking to them, but it does not reasonably include speaking to

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