00-3524 State v. Wallace

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“The record before us contains no evidence that police created a coercive atmosphere in order to obtain Wallace’s consent, nor is there any evidence that they misrepresented their purpose or authority in making the request to search. …

“Finally, in considering Wallace’s personal characteristics, we are not persuaded that his age (twenty) and his having a ‘minimal prior record’ rendered Wallace particularly vulnerable to police intimidation, and therefore susceptible to consenting against his will, as he argues. Wallace presented no evidence that he lacked education or was cognitively deficient. Neither does it appear that Wallace was particularly anxious or frightened by his circumstances. Wallace did not testify at the suppression hearing, but the police noted Wallace’s demeanor as being ‘calm’ in the arrest report following his strip search.”

However, because we cannot determine if defendant’s consent to a strip search extended to a more intrusive search of his body cavity, his rectum, we remand for further fact-finding.

“We therefore remand this case to the circuit court for a factual determination regarding whether Wallace, at some point during the consensual strip search, gave his further consent to the more intrusive search which ensued. In making this determination, the court should consider both the wording of the officers’ requests and Wallace’s responses to them in order to determine whether what transpired was the giving of consent or acquiescence to police orders. We leave it to the court’s discretion to make the necessary determination on the present record if it can do so, or to take additional testimony on the issue if it deems that to be advisable. If the court determines that Wallace consented to the visual search of his anal cavity, it must then determine whether he did so voluntarily.”

Reversed and remanded with directions.

Recommended for publication in the official reports.

Dist IV, Rock County, Roethe, J., Deininger, J.

Attorneys:

For Appellant: Martha K. Askins, Madison

For Respondent: Michael R. Klos, Madison; Mark M. Jahnke, Janesville