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Consent Case Analysis

Although the officers’ conduct in this case appears to be sound police work under the circumstances known to them at the time, and the reasoning appears to be common sense, the decision may pave the way for abusive police conduct if used in the war against drugs.

Police are allowed to engage in a practice formerly called a “Badger stop” — an officer pulls over a vehicle for a minor traffic violation; if the officer becomes suspicious of drug trafficking, he tells the driver that he is free to leave, without issuing a ticket; however, before the driver actually leaves, the officer asks for consent to search the car. State of Wisconsin v. Williams, 2002 WI 94, 255 Wis.2d 1, 646 N.W.2d 834, 836-837; U.S. v. Price, 54 F.3d 342, 344-345.

In Williams, the Wisconsin Supreme Court held the practice lawful.

The decision in the case at bar allows police to go much further. Although it may not happen frequently, if ever, as it would be an extremely inefficient process, technically, officers may arrest drivers for something as minor as speeding, and search the vehicle incident to the arrest.

In the wake of this case, officers could use the threat of arrest for speeding to obtain “consent” to search a car, and it would not be considered coercive, although such a holding would defy common sense. The motorist is given two choices: consent to search; or get arrested, and have the car searched anyway. Presumably, no reasonable person would call such consent “voluntary,” and yet, the court’s reasoning necessarily leads to that conclusion.

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Also problematic is that the court upheld not merely the search of the vehicle, but Davis’ home, as well.

Indisputably, the officers could have impounded and searched Davis’ vehicle pursuant to state law if they wanted to; if one accepts the court’s reasoning, the search of the truck was lawful.

However, it could not plausibly be maintained that the officers could have searched Davis’ home merely because he was driving without auto insurance on his vehicle; not surprisingly, the court did not attempt to do so.

The court made no attempt to distinguish between the search of the truck and the home. After finding the search of the truck lawful — because the officer could have searched it, with or without consent — the analysis simply stops, without any explanation of how the consent to search of the home was voluntarily given.

– David Ziemer

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David Ziemer can be reached by email.

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