THE SUPREME COURT, STATE OF WYOMING

2023 WY 127

 OCTOBER TERM, A.D. 2023

December 28, 2023

DARRELL LEONARDO ALEXANDER,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-23-0034

Appeal from the District Court of Laramie County

The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:

Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk 

A. Morgan, Chief Appellate Counsel; Sean H. Barrett, Senior Assistant Appellate 

Counsel. Argument by Mr. Barrett.

Representing Appellee:

Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General;

Kristen R. Jones, Senior Assistant Attorney General; Donovan Burton, Assistant 

Attorney General. Argument by Mr. Burton.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are 

requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of 

any typographical or other formal errors so that correction may be made before final publication in the 

permanent volume.
1

FENN, Justice.

[¶1] Darrell Alexander entered a conditional guilty plea to possession of cocaine. On 

appeal, he claims the district court erred in denying his motion to suppress evidence law 

enforcement obtained after they entered his apartment without a warrant or his consent. 

We affirm.

ISSUES

[¶2] Mr. Alexander presents a single issue, which we rephrase as:

Did the district court err when it denied Mr. Alexander’s 

motion to suppress the evidence against him based on a finding 

that his girlfriend had apparent authority to consent and gave 

implied consent for law enforcement to enter Mr. Alexander’s 

apartment?

FACTS

[¶3] On March 13, 2022, patrol officers with the Cheyenne Police Department were 

dispatched to Darrell Alexander’s apartment for a report of physical domestic violence. 

Three patrol officers responded to the call: Officer Cole Tompkins, Officer J. Miles, and 

Officer Brockton Hayden. When the officers arrived, they entered the stairwell leading to 

Mr. Alexander’s apartment and found two women sitting on the stairs directly outside of 

the apartment. One was the alleged victim, E.B., and the other, an upstairs neighbor, 

identified herself as “just support.”

[¶4] Officer Miles asked E.B. what happened, and she motioned to an injury on her face 

and stated Mr. Alexander was intoxicated and kept hitting her. The officers observed an 

injury on the left side of E.B.’s face near her eye. While E.B. was explaining what 

happened, Officer Hayden pointed to the apartment door and asked if Mr. Alexander was 

in the apartment. E.B. responded by opening the door to the apartment and calling Mr. 

Alexander’s name. E.B. stepped further into the apartment and, while holding the door 

open, she said to Mr. Alexander, who was lying on the couch, “here you go, the police are 

here for you.”

[¶5] Officer Miles stepped inside the apartment and positioned himself between Mr. 

Alexander and E.B.; Officer Hayden asked E.B. to step outside the apartment. E.B. moved 

back to the stairwell while Officers Hayden and Miles spoke with Mr. Alexander inside 

the apartment. Officer Tompkins questioned E.B. and the neighbor in the stairwell.

[¶6] Throughout the interview, Mr. Alexander denied any wrongdoing. At first, he 

claimed he did not have an argument with E.B., but then later admitted they had argued. 
2

Officers observed blood on Mr. Alexander’s nose, but when officers questioned Mr. 

Alexander about the blood he declined to answer. Instead, Mr. Alexander said to the 

officers “this is my house” and “y’all come into my house [and] try[] to arrest me in my 

house.” When officers asked if Mr. Alexander “live[d] with [his] girl,” he responded “no, 

this is my house. She doesn’t live with me.” Initially, Mr. Alexander told officers he had 

not been with E.B., but then stated he and E.B. were hanging out here “for a half an hour.” 

Mr. Alexander told officers that E.B. has been his “girlfriend forever.”

[¶7] Outside the apartment, E.B. and the neighbor gave their version of events to Officer 

Tompkins. Officer Tompkins learned E.B. and Mr. Alexander were in an on-again offagain relationship for 12 years. He further learned E.B. did not reside at the residence.

[¶8] The officers arrested Mr. Alexander and transported him to the Laramie County 

Detention Center. At the detention center, officers found “approximately 39 grams of 

suspected cocaine-based ‘crack’ cocaine” and “approximately 26 grams of cocaine” in 

powder form in Mr. Alexander’s underwear. The State charged Mr. Alexander with 

domestic battery, strangulation of a household member, and two separate counts of 

possession of a controlled substance for each form of cocaine found in his possession.

[¶9] Mr. Alexander filed a motion to suppress “any evidence that flowed from” the 

search and seizure. He argued the officers violated the Fourth Amendment to the United 

States Constitution and Article 1, Section 4 of the Wyoming Constitution when they 

entered his apartment without a warrant, his consent, or exigent circumstances. The State 

argued the officers did not violate Mr. Alexander’s constitutional rights because they 

entered Mr. Alexander’s apartment based on E.B.’s apparent authority and her implied 

consent to their entry when she opened the door to let them speak to Mr. Alexander. The 

district court denied the motion to suppress. The district court found the officers reasonably 

believed E.B. had authority to allow them into the residence, based on the facts known to 

them at the time they entered Mr. Alexander’s apartment, and E.B.’s “behavior clearly 

indicated consent to enter the residence.” Mr. Alexander entered a conditional guilty plea 

to one count of possession of a controlled substance and stipulated to a sentence of 12 to 

14 months. The State dismissed the remaining charges. The district court sentenced Mr. 

Alexander to 12 to 14 months to run concurrent with a separate federal sentence he was 

serving. Mr. Alexander timely appealed.

STANDARD OF REVIEW

[¶10] Mr. Alexander challenges the district court’s denial of his motion to suppress under 

the Fourth Amendment to the United States Constitution and Article 1, § 4 of the Wyoming 

Constitution.1

1 Although Mr. Alexander cited Article 1, Section 4 of the Wyoming Constitution, he did not adequately
3

In reviewing a denial of a motion to suppress evidence, we 

adopt the district court’s factual findings unless those findings 

are clearly erroneous. We view the evidence in the light most 

favorable to the district court’s decision because the court 

conducted the hearing and had the opportunity to assess the 

witnesses’ credibility, weigh the evidence and make the 

necessary inferences, deductions and conclusions. On those 

issues where the district court has not made specific findings 

of fact, this Court will uphold the general ruling of the court 

below if supported by any reasonable view of the evidence. 

However, the underlying question of whether the search and 

seizure was constitutional is a question of law, which we 

review de novo.

Hawken v. State, 2022 WY 77, ¶ 12, 511 P.3d 176, 180–81 (Wyo. 2022) (internal citations 

and quotation marks omitted).

DISCUSSION

[¶11] Mr. Alexander argues the warrantless entry into his apartment violated the Fourth 

Amendment. He argues the district court erred “when it found the officers had a reasonable 

belief [E.B.] had the requisite authority to consent to the . . . warrantless entry into his 

home[.]” Mr. Alexander also argues E.B. never consented to the officers’ entry into his 

apartment.

[¶12] The Fourth Amendment protects “[t]he right of the people to be secure in their 

persons, houses, papers, and effects, against unreasonable searches and seizures. . . .” U.S.

Const. amend. IV. Physical entry into a person’s “home is the chief evil against which the 

wording of the Fourth Amendment is directed.” Hawken, 2022 WY 77, ¶¶ 14–15, 511 P.3d 

at 181 (quoting Lange v. California, 594 U.S. ––––, ––––, 141 S. Ct. 2011, 2018, 210 L. 

Ed. 2d 486 (2021)); (Fuller v. State, 2021 WY 36, ¶ 9, 481 P.3d 1131, 1133–34 (Wyo. 

2021). “Entry into a home, no matter how limited, constitutes a search.” Id. at ¶ 15, 511 

raise or develop the Wyoming constitutional argument below or before this Court. See Phippen v. State, 

2013 WY 30, ¶ 12, 297 P.3d 104, 108 (Wyo. 2013) (citing Flood v. State, 2007 WY 167, ¶ 12, 169 P.3d 

538, 543 (Wyo. 2007) (“An appellant does not preserve a Wyoming constitutional argument for appeal by 

merely citing to the Wyoming Constitution in his motion to suppress without independent supporting 

analysis of why or how that constitution provides different or more extensive protections.”)). Our review 

of the issue is confined to the Fourth Amendment. See Woods v. State, 2023 WY 32, ¶ 14 n.2, 527 P.3d 

264, 267 n.2 (Wyo. 2023); Ramirez v. State, 2023 WY 70, ¶ 15, 532 P.3d 230, 234 (Wyo. 2023) (quoting 

Morgan v. State, 2004 WY 95, ¶ 20, 95 P.3d 802, 808 (Wyo. 2004)) (“[T]o invoke an independent Wyoming 

constitutional analysis, ‘the appellant must use a precise and analytically sound approach and provide the 

Court with proper arguments and briefs to ensure the future growth of this important area of law.’”).
4

P.3d at 182 (citing United States v. Jones, 701 F.3d 1300, 1317 (10th Cir. 2012)). “The 

[Fourth] Amendment thus ‘draws a firm line at the entrance to the house.’” Id. at ¶ 14, 511 

P.3d at 181 (quoting Lange, 594 U.S. at ––––, 141 S. Ct. at 2018).

[¶13] “Warrantless searches and seizures are per se unreasonable unless they are justified 

by probable cause and established exceptions.” Id. at ¶ 16, 511 P.3d at 182 (quoting Fuller, 

2021 WY 36, ¶ 9, 481 P.3d at 1134). A search conducted pursuant to a valid consent is a 

recognized exception to the warrant requirement. Id. To prove valid consent, the 

government must show: “(1) the officers received either express or implied consent and (2) 

that consent was freely and voluntarily given.” Id. (quoting United States v. Guillen, 995 

F.3d 1095, 1103 (10th Cir. 2021), cert. denied, 142 S. Ct. 785, 211 L. Ed. 2d 489 (2022)). 

Mr. Alexander limits his argument to the district court’s factual findings regarding the 

officers’ reasonable reliance on E.B.’s apparent authority to give consent and E.B.’s 

nonverbal gestures sufficiently implying consent. Thus, only the first prong of the consent 

analysis is at issue. See generally id. at ¶ 17, 511 P.3d at 182 (finding the second prong of 

the consent analysis was not at issue when there was no claim the police coerced a thirdparty to give consent).

I. Did the district court err when it found the officers reasonably relied on E.B.’s 

apparent authority to consent to their entry into Mr. Alexander’s apartment?

[¶14] “It has been well established since Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 

2793, 111 L. Ed. 2d 148 (1990), that no Fourth Amendment violation occurs when police 

reasonably believe that a person who consents to a warrantless search has authority over 

the place or thing to be searched.” Lemley v. State, 2016 WY 65, ¶ 15, 375 P.3d 760, 764–

65 (Wyo. 2016). “[T]here is apparent authority to give a valid consent if the facts available 

to an officer at the time of the search permit an objectively reasonable, even if perhaps 

erroneous, belief that the consenting party has sufficient interest in or power over the thing 

to be searched to grant such consent.” Id. at ¶ 16, 375 P.3d at 765 (citations omitted); see 

also Rodriguez, 497 U.S. at 186, 110 S. Ct. at 2800 (holding the Constitution is not violated 

“when officers enter without a warrant because they reasonably (though erroneously) 

believe that the person who consented to their entry is a resident of the premises”). 

However, “[a]pparent authority does not exist when the police clearly know that the 

consenting party has no such authority.” Lemley, ¶ 15, 375 P.3d at 765 (citing 4 Wayne R. 

LaFave, Search and Seizure § 8.3(g) (5th ed. updated Oct. 2015)). The question is whether 

the facts available to the officers at the time they entered Mr. Alexander’s apartment would 

warrant a man of reasonable caution to believe E.B. had apparent authority over the 

apartment and consented to that entry. If the answer is yes, then the search is valid. See 

Rodriguez, 497 U.S. at 188–89, 110 S. Ct. at 2801 (citing Terry v. Ohio, 392 U.S. 1, 21–

22, 88 S. Ct. 1868, 1880, 20 L. Ed.2d 889 (1968)).

[¶15] The district court found the officers reasonably believed E.B. had the authority to 

consent to their entry into Mr. Alexander’s apartment. It found:
5

[The] responding officers, Officer Tompkins, Officer Hayden 

and Officer Miles all testified, in some manner, that they 

believed the alleged victim had the requisite authority to allow 

officers into the residence. That belief was reasonable. The 

alleged victim called from that location. The officers received 

the report of a domestic violence call. The alleged victim was 

at the residence, immediately reported a crime of violence, had 

come from inside the apartment and freely reentered the 

apartment. These facts reasonably indicate to the officers 

responding to a domestic violence call that the alleged victim 

had authority to allow officers into the residence.

Mr. Alexander challenges three of the district court’s factual findings. He argues the 

district court clearly erred when it found: (1) E.B. called from Mr. Alexander’s residence,

(2) E.B. came from inside Mr. Alexander’s apartment and freely reentered the apartment,

and (3) E.B. immediately reported a crime of violence.

[¶16] We cannot find the district court clearly erred in its factual findings regarding the 

information available to officers upon their entry into Mr. Alexander’s apartment. The 

officers testified they were dispatched to Mr. Alexander’s apartment for a physical 

domestic dispute. Officer Miles was the first officer to respond to the scene of the reported 

incident, Mr. Alexander’s apartment, followed by Officers Hayden and Tompkins. Officer 

Miles testified he understood the altercation took place in the living room of Mr. 

Alexander’s apartment, and he was aware Mr. Alexander and E.B. had been in a dating 

relationship, current or former, which qualified her as a household member.2 Officer 

Tompkins testified it was his understanding E.B. called 911 to report the domestic dispute.

[¶17] When the officers arrived at Mr. Alexander’s apartment, they found E.B. sitting in 

the stairwell directly outside of Mr. Alexander’s apartment. When Officer Miles first came 

into contact with E.B., she stood up from where she was sitting outside of Mr. Alexander’s 

apartment and began to open the door to the apartment. Officer Miles distracted E.B. from 

opening the door and asked her “what’s going on tonight.” E.B. responded by stating 

“look” and pointed to a visible injury on her face. E.B. rubbed her face and cried while 

explaining the incident. She said: “he was drunk, f**ked up, so I was making sure he got 

home, and I don’t have my car because I’m not drinking and driving. My car is at my 

2 A peace officer who has probable cause to believe that a domestic assault occurred within the preceding 

twenty-four hours between persons who are in, or have been in, a dating relationship “may arrest the violator 

without a warrant for that violation, regardless of whether the violation was committed in the presence of 

the peace officer.” Wyo. Stat. Ann. § 7-20-102(a) (LexisNexis 2021); see also Woods v. State, 2023 WY 

32, 527 P.3d 264 (Wyo. 2023) (discussing officers still need a warrant or an exception to the warrant 

requirement under the Fourth Amendment to enter a suspect’s home to effectuate an arrest).
6

auntie’s. He kept hitting on me, [inaudible] I said yeah I don’t have nowhere to go can I 

have my phone.”

[¶18] Officer Hayden pointed to the door of the apartment and asked if the individual who 

assaulted her was in the apartment. Instead of verbally responding, E.B. grabbed the 

doorknob, opened the door to the apartment, and stepped inside the apartment. Officer 

Miles testified he followed E.B. into the apartment because of safety concerns3 and because 

he believed E.B. had the authority to allow the officers into the apartment. He stated:

[Prosecutor:] And why did you take that step into the apartment 

when you didn’t have a warrant?

[Officer Miles:] . . . I believe[d] that [E.B.] had the authority to 

allow us into that apartment, and then when she stepped in it 

became exigent. I was concerned for the safety of everybody 

involved, including officer safety. I had no idea what was in 

that apartment or who. So I stepped in toward - - I believe there 

was exigency, and I believe she had the authority to allow us 

in there.

* * *

[Prosecutor:] Okay. Within the first, let’s say 60 to 90 seconds 

of your arrival in the stairwell, you’re talking with [E.B.] and 

the neighbor, and you get some initial information from [E.B.] 

at that point in time before she opened the door. Whose 

apartment did you believe you were standing outside of?

[Officer Miles:] I believed it was hers.

[Prosecutor:] Okay. And when she opened the door whose 

3 The district court held “[t]he State did not make cogent argument as to exigent circumstances, though the 

officers testified about the inherent dangers in domestic violence situations, even noting that it was the 

reason several officers responded.” The district court declined to address exigent circumstances because 

the State did not argue or brief the issue. It held, given its finding on consent, there was no need to analyze 

whether exigent circumstances existed. Although the State discusses exigent circumstances in its’ appellate 

brief, we decline to address any implications exigent circumstances may have had under the Fourth 

Amendment analysis because the State did not raise and develop its argument below. See Borja v. State, 

2023 WY 12, ¶¶ 24–25, 523 P.3d 1212, 1218 (Wyo. 2023); Harrison v. State, 2021 WY 40, ¶ 15, 482 P.3d 

353, 358 (Wyo. 2021) (“This Court strongly adheres to the rule that it will not address issues that were not 

properly raised before the district court.”) (quoting Four B Properties, LLC v. Nature Conservancy, 2020 

WY 24, ¶ 69, 458 P.3d 832, 849 (Wyo. 2020)); Crofts v. State ex rel. Dep’t of Game & Fish, 2016 WY 4, 

¶ 24, 367 P.3d 619, 625 (Wyo. 2016) (newly raised constitutional questions do not necessarily compel 

review).
7

apartment did you believe it was?

[Officer Miles:] I still believed that she at least had authority 

to go in there, come and go as she pleased, so I believed it was 

hers.

[Prosecutor:] And when she walked into the apartment and 

started yelling or talking, whose apartment did you believe it 

was at that point in time?

[Officer Miles:] I believed it was still hers.

[Prosecutor:] And when you a few seconds later followed 

[E.B.] into the apartment whose apartment did you believe it to 

be?

[Officer Miles:] Hers.

[¶19] Officer Tompkins testified at the time the officers entered the apartment he “didn’t 

know . . . that [it] was not [E.B.’s] primary residence.” He testified he believed the officers 

could enter the apartment “[d]ue to the fact that they were in a relationship, and that she 

had access to the building, and opened the door and walked in and allowed officers in. . . .” 

Officer Hayden testified when he arrived at Mr. Alexander’s apartment, another officer 

asked E.B. where the suspect was, and “she entered the . . . apartment . . . as if she had 

residency there.” He stated E.B. “opened [the door] and straight up walked in.” Officer 

Hayden testified based on E.B.’s demeanor and actions, he believed the apartment was 

hers.

[¶20] “[I]t is a vital function of trial courts to make findings of fact based on evidence it 

believes credible.” Mills v. State, 2022 WY 156, ¶ 84, 521 P.3d 335, 358 (Wyo. 2022)

(quoting Johnson v. State, 2009 WY 104, ¶ 22, 214 P.3d 983, 989 (Wyo. 2009)). We will 

not interfere with the trial court’s factual findings if they are supported by a reasonable 

view of the evidence. See id.; Beckwith v. State, 2023 WY 39, ¶ 8, 527 P.3d 1270, 1272 

(Wyo. 2023); Byerly v. State, 2019 WY 130, ¶ 31, 455 P.3d 232, 244 (Wyo. 2019). The 

district court’s findings are supported by a reasonable view of the officers’ testimony and 

E.B.’s statements to the officers upon their immediate arrival to Mr. Alexander’s 

apartment: 1) E.B. called from Mr. Alexander’s apartment, 2) she immediately reported a 

crime of violence, and 3) she had come from inside Mr. Alexander’s apartment and freely 

reentered the apartment. We cannot conclude the district court clearly erred in its factual 

findings.

[¶21] Similarly, we agree with the district court’s ultimate determination. Given the 

totality of the circumstances, the officers’ reliance on E.B.’s apparent authority to consent 
8

to their entry into Mr. Alexander’s apartment was reasonable. See generally Hawken, 2022 

WY 77, ¶ 32, 511 P.3d at 186 (looking at the totality of the circumstances to determine if

a reasonable officer would have believed a third-party consented to the entry). Here, E.B.’s 

actions and the facts known to the officers at the time they entered Mr. Alexander’s 

apartment would “warrant a man of reasonable caution in the belief” that EB lived in or at 

the very least had authority over the apartment. See Rodriguez, 497 U.S. at 188–89, 110 S. 

Ct. at 2801 (citing Terry, 392 U.S. at 21–22, 88 S. Ct. at 1880). As a matter of law, the 

district court’s factual findings establish the officers’ reliance on E.B.’s apparent authority 

to consent to their entry did not violate the Fourth Amendment. See generally Baker v. 

State, 2010 WY 6, ¶¶ 10–13, 223 P.3d 542, 547–48 (Wyo. 2010) (holding officers could 

reasonably believe a live-in girlfriend had authority to consent to a search because the 

domestic disturbance was reported from the home and at the hands of her live-in boyfriend,

and she unlocked the door with her own key from a personal key chain).

II. Did the district court err when it found E.B. consented to the officers’ entry into 

Mr. Alexander’s apartment based on E.B.’s nonverbal gestures and actions?

[¶22] Mr. Alexander argues the district court erred when it found E.B. consented to their 

entry into his apartment with her nonverbal gestures. The district court held:

In the present matter, the officers responded to a call regarding 

a domestic battery. Upon contact with the alleged victim, she 

immediately stands up and approaches the door; however, the 

officers engage her in conversation and temporarily distract her 

from entrance into the residence. After inquiry on the location 

of her boyfriend, she immediately enters the residence, walks 

inside, leaving the door open allowing officers entry behind 

her. Clearly, the alleged victim’s actions were an invitation of 

entry, not resistance, as the officers had not asked to enter the 

residence and she responded to their questioning by walking 

into the home, leaving the door wide open, and continuing to 

speak inside the residence. Such behavior clearly indicated 

consent to enter the residence.

[¶23] “Implied consent may be found where a reasonable officer would believe a person 

consented to entry based on the totality of the circumstances.” Hawken, 2022 WY 77, ¶ 17, 

511 P.3d at 182 (citing United States v. Castellanos, 518 F.3d 965, 969–70 (8th Cir. 2008)). 

Consent must be clear, but it does not need to be verbal. Id. (quoting United States v. LopezCarillo, 536 F. App’x 762, 768 (10th Cir. 2013)). “Consent may . . . be granted through 

gestures or other indications of acquiescence, so long as they are sufficiently 

comprehensible to a reasonable officer.” Id. (quoting Lopez-Carillo, 536 F. App’x at 768).
9

[¶24] Mr. Alexander relies on our holding in Hawken, where we found the State failed to 

meet its burden of proving the defendant’s husband gave implied consent to the officer’s 

entry into his home. Hawken, 2022 WY 77, ¶¶ 23–33, 511 P.3d at 184–86. In Hawken, the 

husband told the trooper he would go get the defendant, and then walked toward the house. 

Id. at ¶ 23, 511 P.3d at 184. We found a reasonable person would interpret this as a signal 

to wait for the husband’s return. Id. Instead of waiting, the trooper followed the husband

and, without being invited, entered into the home’s mudroom after the husband opened the 

door. Id. After the trooper stepped inside, the husband told the trooper to “wait right here” 

and stated he would be right back. Id. The State’s burden is to prove consent by “clear and 

positive testimony.” Id. We found under the specific facts of Hawken, the husband’s 

statement to “wait right here” was not implied or express consent but was “more reasonably 

interpreted as either a rebuke of the trooper’s uninvited presence, or at best, acquiescence.” 

Id. at ¶ 31, 511 P.3d at 186. The husband’s actions and statements did not allow us to infer

implied consent. Id. at ¶¶ 17–33, 511 P.3d at 182–86. We held the entry into the home 

violated the Fourth Amendment. Id.

[¶25] Mr. Alexander argues the situation here is similar to that in Hawken because the 

officers did not ask E.B. for permission to enter the apartment and E.B. did not expressly 

invite the officers into the apartment. Mr. Alexander argues E.B.’s actions were not an 

invitation for the officers to enter his apartment, and instead he claims E.B. “was simply 

getting [him] for the officers while they waited outside.” Mr. Alexander claims E.B.’s 

actions that allowed officers to follow her into the apartment are insufficient to demonstrate 

implied consent.

[¶26] The facts in this case are distinguishable from those in Hawken. Here, officers were 

dispatched to Mr. Alexander’s apartment for a report of domestic violence that occurred in 

the living room of his apartment. When the officers arrived, they made initial contact with 

E.B. sitting in the stairwell of the apartment complex directly outside of Mr. Alexander’s 

apartment. E.B. had a visible injury to her face, so Officer Hayden pointed to the door of 

the apartment and asked if the individual who assaulted her was in the apartment. Instead 

of verbally responding, E.B. grabbed the doorknob, opened the door to the apartment, 

stepped into the apartment, and confronted Mr. Alexander. While holding the door open, 

E.B. said to Mr. Alexander “police are here for you.”

[¶27] In response to E.B.’s conduct, Officer Miles stepped over the threshold of the 

apartment. Officers testified they entered the apartment because they believed “[E.B.] was 

letting [the officers] in the house.” Officer Tompkins testified:

[Officer Tompkins:] I believe when one of the officers asked 

where the suspect was or if he was in the apartment, I can’t 

remember which one it was, and she then just opened the door 

and walked into the apartment without saying anything.
10

[¶28] The facts in this case are more like those found in United States v. Faler, where 

implied consent was found when an apartment resident opened the door wider in response 

to officers asking where a suspect was located. United States v. Faler, 832 F.3d 849, 852–

53 (8th Cir. 2016). In Faler, the co-tenant testified: “[Officers] knocked on the door. I 

answered. They asked if I knew [the suspect]. I said, ‘yes.’ They asked if [the suspect] 

was [t]here. I said, ‘yes,’ and started pointing to the room. By that time [the suspect] had 

come out to meet them.” Id. at 851. The officers testified that when the suspect exited a 

room in the apartment and came into their view, the co-tenant motioned towards the suspect 

and stepped aside so that the officers could enter the apartment. Id. at 853. The Eighth 

Circuit upheld the constitutionality of the officers’ entry into the apartment and found the 

co-tenant’s gestures and actions constituted implied consent. Id.

[¶29] Similarly, in United States v. White, the Tenth Circuit found implied consent when 

an individual at the scene led officers into the home. United States v. White, 508 F. App’x 

837, 839–841 (10th Cir. 2013). In White, officers were dispatched to a home after a report 

of a male attempting to commit suicide. Id. at 839. When officers arrived, they encountered 

the male’s mother on the front lawn of the home. Id. The mother led the officers into the 

home. Id. Upon entry, the officers arrested the male, and he was later indicted on three 

charges. Id. The court found the mother gave implied consent to the officers’ entry because 

she “responded to the officer’s question, made at the front door, by ‘taking [the officers]’” 

inside the home. Id. at 841. The defendant argued his mother never invited the officers 

into the home and instead they just came inside. Id. The court rejected the argument and 

found the affirmative action of leading the officers into the home “would lead a reasonable 

officer responding to a reported suicide attempt in the home to believe that [the mother] 

consented to entry into the home.” Id.

[¶30] We have said “[c]ertain gestures by their very nature will provide clear evidence of 

consent.” Hawken, 2022 WY 77, ¶ 21, 511 P.3d at 183 (citing White, 508 F. App’x at 841). 

In this case, the district court found E.B.’s conduct—opening the door and leaving it open 

to allow the officers entry into the apartment after they inquired as to the location of her 

boyfriend—would lead a reasonable officer to believe she consented to their entry into the 

apartment. See White, 508 F. App’x at 841; Faler, 832 F.3d at 853; United States v. Smith, 

973 F.2d 1374, 1376 (8th Cir. 1992) (finding consent when the defendant’s wife stepped 

aside and motioned for officers to enter); United States v. Turbyfill, 525 F.2d 57, 59 (8th 

Cir. 1975) (finding an implied invitation to enter when a third party opened the door and 

stepped back). The district court’s factual findings of implied consent are supported by the 

record. Similar to the facts in Faler and White, when officers asked where the individual 

that assaulted E.B. was, E.B. led officers into the apartment. E.B.’s nonverbal conduct 

clearly indicates she invited the officers into the apartment. We affirm the district court’s 

decision and hold the officers’ entry into the apartment based on E.B.’s implied consent 

did not violate the Fourth Amendment. See Rodriguez, 497 U.S. at 188–89, 110 S. Ct. at 

2801.
11

CONCLUSION

[¶31] The district court did not err in concluding E.B. had apparent authority to consent 

to the officers’ entry into Mr. Alexander’s apartment, and she impliedly consented to that 

entry based on her nonverbal gestures. The officers did not violate Mr. Alexander’s Fourth 

Amendment rights. Affirmed.