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Consent Case Analysis

As a practical matter, it is difficult to see how the decision in this case will not develop into a bright-line rule that an encounter initiated by a lawful traffic stop is not consensual unless the motorist’s driver’s license is returned.

Not surprisingly, the court did not make so broad a holding. In Wisconsin, almost all Fourth Amendment questions are decided on a totality of the circumstances test. The Supreme Court eschews bright-line tests, and the court of appeals is wise to follow suit.

Instead, the court relied on several different factors in finding that a reasonable motorist in Luebeck’s position would not have felt free to leave: his driver’s license was not returned; the detention lasted more than 20 minutes; no citation had yet been issued; he passed all of the field sobriety tests; his preliminary breath test indicated a BAC well below the legal limit; and he was being questioned about his passenger’s ability to drive in his stead.

The court would only go so far as to say that the fact that the driver’s license was still being retained by the officer was a “key factor” in deciding that Luebeck was “seized”; therefore, his consent was involuntary.

As a result, in future cases in which an officer obtains consent to search while still retaining the driver’s license, the State will likely seek to distinguish this case, citing the absence of some combination of the other enumerated factors.

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Nevertheless, such attempts should be unsuccessful for one obvious reason: no reasonable person would ever drive away from a traffic stop, while the police officer is still holding on to that person’s driver’s license.

It is not even legal; driving without a driver’s license on your person is against the law, and the officer would be justified in immediately stopping the motorist all over again, to issue a citation for that. See sec. 343.18(1).

Accordingly, notwithstanding the reluctance on the part of Wisconsin courts to create bright-line rules in the Fourth Amendment context, the court’s decision should inevitably lead to a de facto rule that is the de jure rule in the Tenth Circuit: an encounter initiated by a lawful traffic stop is not consensual unless the motorist’s driver’s license is returned. U.S. v. Lee, 73 F.3d 1034, 1040 (10th Cir. 1996), overruled on other grounds, United States v. Holt, 264 F.3d 1215 (10th Cir. 2001).

– David Ziemer

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David Ziemer can be reached by email.

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