On Point: 1. Consent

State v. Derik J. Wantland, 2014 WI 58, 7/11/14, affirming a published court of appeals decision; majority opinion by Justice Ziegler; case activity

A four-justice majority of the supreme court holds that a police officer lawfully searched a briefcase found in a vehicle during a traffic stop because the driver consented to a search of the car and the passenger did not unequivocally withdraw the consent given by the driver. Three dissenting judges take a very different view, concluding that under the totality of the circumstances, a reasonable officer should have realized that Wantland was withdrawing consent to a search of the briefcase.

State v. Megan A. Padley, 2014 WI App 65; case activity

The implied consent statute that allows an officer to ask for a driver for a blood sample when the officer lacks probable cause to arrest for OWI but has “reason to believe” the driver committed a traffic violation, § 343.305(3)(ar)2., is not facially unconstitutional. In addition, Padley’s consent to the blood draw in this case was voluntary. Finally, the police had the requisite “reason to believe” that Padley had committed a traffic violation and, thus, the deputy could rely on § 343.305(3)(ar)2. to put to her the choice of consent to a blood draw or automatic penalties.

Fernandez v. California, USSC 12-7822, 2/25/14, affirming People v. Fernandez, 145 Cal Rptr.3rd 51 (Cal Ct. App. 2012).

Docket here; SCOTUSblog analysis of decision here; Orin Kerr’s “Five Thoughts on Fernandez” here; On Point analysis of cert grant here

Police officers may, without a warrant, search a jointly occupied premises if one of the occupants consents to the search. 

Review of published court of appeals decision; case activity

Issue (composed by On Point)

When the passenger of a car asks a police officer searching the car if he has “got a warrant for that?” before the officer opens a briefcase found in the hatchback of the car, has the driver’s general consent to search the car been limited?

For more factual background about this an interesting and novel issue in Wisconsin,

State v. Kenneth M. Sobczak, 2013 WI 52, affirming published court of appeals decision; case activity; majority opinion by Justice Gableman; Chief Justice Abrahamson and Justice Bradley dissent.

In a significant expansion of the third-party consent doctrine, the supreme court holds that a weekend guest may grant consent to police to enter her host’s home and conduct a search. The court concludes the rule governing third-party consent articulated in United States v.

Question presented:

Proper interpretation of Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), specifically whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously-stated objection, while physically present, to a warrantless search is a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant.

State v. Royce Markel Wheeler, 2013 WI App 53; case activity

Police went to a duplex in response to domestic abuse complaint from what they believed was the lower unit, with the caller saying she had been assaulted and was bleeding. (¶¶2, 4-6). After officers spent some 20 minutes knocking on the duplex’s common front door and yelling, a woman named Bates opened the door, saying she lived in the upper unit.

State v. Antoine Lamont Massey, 2012AP1124-CR, District 1, 3/5/13; court of appeals decision (not recommended for publication); case activity

A daughter of the leaseholder had both actual and apparent authority to consent to a search of the apartment, including the back bedroom in which drugs were found, applying, among other cases, State v. Tomlinson, 2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367,

State v. Daniel Cervantes, 2011AP1858-CR, District 1, 2/12/13; court of appeals decision (not recommended for publication); case activity

The police lacked probable cause to arrest Cervantes when he opened the door of his apartment (¶¶10-16); there were neither exigent circumstances nor community caretaker grounds for the police to enter Cervantes’s apartment following his arrest to do a protective sweep (¶¶14-23); and his subsequent “consent” to search the apartment was not sufficiently attenuated from the illegal arrest and entries (¶¶24-30). 

State v. Derik J. Wantland, 2013 WI App 36, petition for review granted 11/21/13; case activity

It was not unreasonable for the police to search a briefcase found in a vehicle during a traffic stop after the driver consented to a search of the car and the passenger did not unequivocally assert ownership of the briefcase and withhold consent to its search.