Consent
Case Analysis
March
29, 2006
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.
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
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