Consent involuntary if officer has driver's ID

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Where an officer took possession of a motorist’s driver’s license during a stop, and did not return it before requesting permission to search the car, the driver’s consent to search was involuntary.

The Wisconsin Court of Appeals on April 19 concluded that the officer’s retention of the driver’s license was a “key factor” in deciding that the motorist would not feel free to leave, and suppressed the fruits of the search.

On May 29, 2004, Mequon Police Officer Darren Selk observed a vehicle that deviated from its lane several times. Selk stopped the vehicle and identified the driver as Joseph R. Luebeck.

Selk detected an odor of intoxicants, and Luebeck stated that he was coming from a tavern. Selk asked for identification from Luebeck and his passenger, and both produced their driver’s licenses. Both were valid to drive and neither had outstanding warrants.

Luebeck also satisfactorily performed a variety of field sobriety tests. Nevertheless, Selk performed a preliminary breath test, which produced a result of .02 percent, well below the legal limit.

Selk then decided not to arrest Luebeck, but decided that he would issue him a warning for the lane deviations, and release him.

First, however, Selk asked to do a preliminary breath test on the passenger, because he preferred that someone with less or no alcohol in his system drive the vehicle.

Selk also asked if Luebeck had anything illegal on him, and whether he could search Luebeck. Luebeck said he did not have anything illegal, and Selk frisked him, finding nothing.

Selk then asked if he could search the vehicle, and Luebeck consented. That search uncovered marijuana.

Luebeck was charged with possession of marijuana, second offense. Luebeck moved to suppress the evidence, and Ozaukee County Circuit Court Judge Thomas R. Wolfgram granted the motion.

The state appealed, but the court of appeals affirmed in a decision by Judge Harry G. Snyder.

Relying on State v. Williams, 2002 WI 94, 255 Wis.2d 1, 646 N.W.2d 834, and State v. Jones, 2005 WI App 26, 278 Wis.2d 774, 693 N.W.2d 104, the court concluded that, under the totality of the circumstances, Luebeck would not believe he was free to leave. Because the court found the seizure of Luebeck unlawful, it held his consent involuntary, and ineffective to authorize the search.

It was undisputed that the initial traffic stop was lawful. However, the court found that, by the time the officer requested consent to search, Luebeck had become unlawfully seized.

The court noted the following factors: Luebeck had been detained for over 20 minutes; his driver’s license was still being held by the police officer; no citation or warning for lane deviation had yet been issued; he had passed all of the field sobriety tests and a preliminary breath test; and he was being questioned about his passenger’s ability to drive in his place.

The court found Williams distinguishable. There, the officer had issued a warning, returned Williams’ identification to him, shook hands with Williams, and said, “We’ll let you get on your way then.”

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Only at that point did the officer ask for consent to search the vehicle (the procedure was formerly known as a “Badger stop”). The Supreme Court concluded in Williams that a reasonable driver would have felt free to leave at that point, and the consent was therefore voluntary.

In the case at bar, however, the court held, “under the totality of the circumstances presented here, we conclude that Luebeck, or any reasonable person in Luebeck’s position, would have believed that he or she was not free to leave or terminate the encounter with the officers. Consequently, Luebeck’s consent to search was tainted by the illegal seizure.”

Before concluding, however, the court discussed the Tenth Circuit’s jurisprudence on the issue, which holds that a motorist’s consent to search his vehicle is invalid if the police officer has not returned the
driver’s documents, such as driver’s license.

The Wisconsin court did not go as far as the Tenth Circuit, but did state, “We are persuaded that, in a traffic stop context, where the test is whether a reasonable person would feel free to ‘disregard the police and go about his [or her] business,’ the fact that the person’s driver’s license or other official documents are retained by the officer is a key factor in assessing whether the person is ‘seized’ and, therefore, whether consent is voluntary.”

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David Ziemer can be reached by email.