On Point: 1. Consent

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State v. Antoine Lamont Massey, 2012AP1124-CR, District 1, 3/5/13; court of appeals decision (not recommended for publication); case activity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State v. Daniel Cervantes, 2011AP1858-CR, District 1, 2/12/13; court of appeals decision (not recommended for publication); case activity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.

State v. Robert Edwin Burkhardt, 2009AP2174-CR, District 1/4, 12/6/12

court of appeals decision (not recommended for publication); case activity

Search & Seizure – Consent 

Consent to search isn’t vitiated by nonpretextual threat to obtain a search warrant:

¶16      … (I)t is well established that, “[t]hreatening to obtain a search warrant does not vitiate consent if ‘the expressed intention to obtain a warrant is genuine … and not merely a pretext to induce submission.’”  Artic,

Village of Menomonee Falls v. Timothy E. Rotruck, 2012AP1024-FT, District 2, 9/1, District 2, 9/19/12

court of appeals decision (1-judge, ineligible for publication); case activity

Concededly proper traffic stop; after citations issued, officer sought and obtained consent to search vehicle, resulting in seizure of contraband – court concludes that, under the circumstances, traffic stop had clearly ended thus consent wasn’t product of an unnecessarily prolonged (therefore illegal) detention.

State v. Jason M. Jacobs, 2012 WI App 104 (recommended for publication); case activity

Search & Seizure – Consent – Blood Draw

Following a fatal traffic accident, Jacobs performed field sobriety tests well enough that he wasn’t placed under arrest, but he was asked to submit to a blood draw. Jacobs called his attorney, who advised him not to consent to the draw, but Jacobs nonetheless agreed to go to the hospital with an officer to have a blood test.