Search and Seizure – consent — revocation

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Wisconsin Court of Appeals

Criminal

Search and Seizure – consent — revocation

A defendant failed to revoke his consent to search by asking, “Got a warrant for that?”

“To effectively limit the consent to search previously given by the driver, Wantland needed to clearly and unequivocally assert that he, not the driver, was the owner of the briefcase and that he was objecting to the search of it. See United States v. Sanders, 424 F.3d 768, 774-75 (8th Cir. 2005) (‘Withdrawal of consent need not be effectuated through particular “magic words,” but an intent to withdraw consent must be made by unequivocal act or statement.’ (Citation omitted.)); United States v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991); Payton, 327 S.W.3d at 477-78 (revocation of a third party’s consent to a search must be clear). Wantland’s exchange with the deputy did not amount to such an assertion. A reasonable person would not expect a clear and unequivocal (and serious) identification of one’s self as the owner of personal property about to be searched and objection to the search of the property to be made with a question such as ‘Got a warrant for that?’ accompanied by laughter and a continued identification of items the deputy could expect to find in searching the briefcase. See Payton, 327 S.W.3d at 478 (concluding that, considering the totality of the circumstances, the defendant’s exchange with officers, which included the question ‘Where’s your warrant?’ did not constitute revocation of his wife’s consent to search their home). The circuit court correctly found that Wantland did not limit the driver’s consent to search the vehicle.”

Affirmed.

Recommended for publication in the official reports.

2011AP3007-CR State v. Wantland

Dist. II, Sheboygan County, Van Akkeren, J., Gundrum, J.

Attorneys: For Appellant: Alesia, Susan E., Madison; For Respondent: DeCecco, Joseph R., Sheboygan; Larson, Sarah K., Madison