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BENCH BLOG: State justices divide on determining consent

By: Jean DiMotto//August 8, 2014//

BENCH BLOG: State justices divide on determining consent

By: Jean DiMotto//August 8, 2014//

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Prosser offers colorful dissent in State v. Wantland

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler & Condon SC.

What can an ordinary passenger do to stop police from searching the passenger’s property when it’s in a vehicle being searched with the driver’s consent?

Does asking, “Got a warrant for that?” signal the objection? A divided state Supreme Court has answered “no.”

The search

According to the detailed facts laid out in Justice David Prosser’s colorful dissent in State v. Wantland, filed July 11, a car was stopped in Random Lake in front of the home of the car’s occupants. The driver and passenger were brothers. The reason for the stop was a defective brake lamp and a cracked windshield. The brothers each produced their licenses upon request and the law enforcement officer ran an identity check, learning that the passenger, Derik Wantland, was a convicted felon with a history of drug abuse.

The officer then asked the driver to step out of the car, and in an avuncular fashion conversed with him about the danger of a cracked windshield and where he could purchase a new brake lamp for roughly the cost of getting it fixed. He issued a written warning and told the driver he was free to leave. The officer returned to his squad.

“Then, in a tactic reminiscent of Lieutenant Columbo, he suddenly turned around and asked the driver if there was anything in the vehicle that shouldn’t be there,” according to Prosser’s dissent. The driver answered “No,” and when asked if the vehicle could be searched, replied, “Um, I don’t see why not. We have to get our tools and stuff out anyway.” The officer declined to let them remove anything and conducted a “very thorough” search of the car’s interior. As Prosser noted, “the officer [dug] through the car like a police dog on assignment.”

When the officer opened the hatchback he observed tools and toolboxes along with a briefcase. He asked, “What’s in the briefcase?” For the first time Wantland spoke up: “A laptop. Uh. Got a warrant for that?” The officer responded, “I can open up the, uh, laptop.” He took the briefcase out of the car and began to open it. After a nervous laugh, the passenger said, “Yeah, it’s, uh, laptop, Visine, acid reflux.”

There was indeed an opaque, labeled pill bottle in the briefcase. The officer opened the bottle and noted that the capsules said 30 milligrams but the label said 40 milligrams. A narcotics-trained officer was called to the scene and identified the substance in the capsules as morphine.

Trial court

Sheboygan County Circuit Judge Timothy Van Akkeren presided over the case after Wantland was charged with possession of narcotic drugs as a repeater.

Wantland filed a motion to suppress the morphine. He argued that his specific question, “Got a warrant for that?” was enough to withdraw the general consent his brother had given.

Van Akkenen disagreed and denied the motion. Wantland then pleaded no contest to the charge and was sentenced to probation. On appeal, Van Akkeren was affirmed.

State justices divide

In deciding the case, Justices Patrick Crooks, Patience Roggensack, Annette Ziegler and Michael Gableman constituted the majority. Ziegler wrote their opinion. She noted that the parties agreed that the driver gave voluntary consent for the vehicle’s search and had actual authority to do so. The consent was valid and the search up to the point of Wantland’s question was constitutionally permissible.

The issue, then, was whether Wantland’s question, “Got a warrant for that?” withdrew or limited the driver’s general consent. Relying exclusively on federal law, the court declared that while no “magic words” are required, “intent to withdraw consent must be made by unequivocal act or statement.”

Examples from federal case law included: slamming shut the car’s trunk, shouting, “No, wait!” and grabbing back the item from the officer. In comparison, the court regarded Wantland’s question as equivocal.

Wantland also had argued that where ownership of a closed container is unclear, police have a duty to further inquire to resolve the ambiguity before continuing the search. The court cited a rule from a federal case that was just off point from Wantland’s argument. Nonetheless, the court declared the rule that when there is an ambiguous claim of ownership, consent still obtains.

Agreement in the dissents

In separate dissents Prosser and Chief Justice Shirley Abrahamson converged on one point: the officer’s response to Wantland’s question. Prosser wrote that “his answer was an assertion of authority that shut down discussion.” It was non-responsive to the question and “effectively precluded dialogue.”

Abrahamson wrote that the officer’s response “cut off [Wantland’s] opportunity to refuse to give his consent.”

Commentary

Despite the cogent point of the dissents, the court’s majority opinion rules. In the face of less-than-clear claim of a container’s ownership, law enforcement is allowed to continue searching it.

I observe that this is one of the more collegially respectful cases the court has issued despite the sharp split between the majority and the dissents. All three writers abstain from accusations which bodes well for the court and is appreciated by the entire bench and bar.

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