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Consent Case Analysis

Although the Supreme Court found that, “All four Courts of Appeals to have considered this question have concluded that consent remain effective in the face of an express objection (cite omitted),” the Court’s decision is actually in accord with dicta from both the Seventh Circuit and the Wisconsin Court of Appeals.

In U.S. v. Robinson, 479 F.2d 300, 303 (7th Cir. 1993), the court wrote, “evidence obtained in a search is inadmissible against a person having equal rights in the premises if he is present at the time of the search and does not consent (citing Lucero v. Donovan, 354 F.2d 16 (9th Cir. 1968).”

Subsequently, the Wisconsin Court of Appeals stated in State v. Kieffer, 207 Wis.2d 462, 558 N.W.2d 664, 668 (Ct.App.1996), aff’d on other grounds, 217 Wis.2d 531, 577 N.W.2d 352 (1998), as follows: “if two persons have equal rights in the premises and both are present at the time of the search, any evidence obtained is inadmissible against a nonconsenting party.”

Nevertheless, the Court’s decision may change the law in Wisconsin.

Consider the following hypothetical:

Police investigate suspected drug dealing by husband; police are confident husband won’t consent to a search; police think it is more likely the wife will consent if they talk to her alone, rather than in the presence of husband; police talk to the two separately; they do not ask husband for consent; they do ask wife for consent; wife gives consent; search leads to prosecution of husband.

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Prior to the decision in this case, this would likely be considered good police work. Now, however, such a practice may be viewed as an end-run around the husband’s Fourth Amendment rights.

If police employed this practice, the defendant would move to suppress, citing the following language by the Supreme Court:

“So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant’s contrary indication when he expresses it.”

The defendant will argue that he was separated from his wife “for the sake of avoiding a possible objection.” Presumably, the state will presumably argue that the officers separated the two because they believed they were more likely to get truthful answers from the wife if her husband (who may also be a drug-dealing, gun-owning thug) is not standing next to her.

Deciding motions may be difficult; in many cases, both arguments will likely have some truth to them.

– David Ziemer

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David Ziemer can be reached by email.

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