Consent
involuntary if officer has driver's ID
By
David Ziemer
Wisconsin Law Journal
April
26, 2006
| What
the court held Case:
State v. Luebeck, No. 2005AP1013-CR. Issue:
Was a motorist's consent to search his car voluntary, where the officer was still
holding on to his driver's license? Holding:
No. The motorist would not feel free to leave under those circumstances, so the
consent was not valid. Counsel:
Williams, Sandy A., Port Washington; Larson, Sarah K., Madison, for appellant;
Flynn, Alex, Milwaukee; Stephens, Adam B., Milwaukee; Lawnicki, Rebecca Robin,
Milwaukee, for respondent. |
Where
an officer took possession of a motorist’s driver’s license during a
stop, and did not return it before requesting permission to search the car, the
driver’s consent to search was involuntary.
The
Wisconsin Court of Appeals on April 19 concluded that the officer’s retention
of the driver’s license was a “key factor” in deciding that the
motorist would not feel free to leave, and suppressed the fruits of the search.
On
May 29, 2004, Mequon Police Officer Darren Selk observed a vehicle that deviated
from its lane several times. Selk stopped the vehicle and identified the driver
as Joseph R. Luebeck.
Selk
detected an odor of intoxicants, and Luebeck stated that he was coming from a
tavern. Selk asked for identification from Luebeck and his passenger, and both
produced their driver’s licenses. Both were valid to drive and neither had
outstanding warrants.
Luebeck
also satisfactorily performed a variety of field sobriety tests. Nevertheless,
Selk performed a preliminary breath test, which produced a result of .02 percent,
well below the legal limit.
Selk
then decided not to arrest Luebeck, but decided that he would issue him a warning
for the lane deviations, and release him.
First,
however, Selk asked to do a preliminary breath test on the passenger, because
he preferred that someone with less or no alcohol in his system drive the vehicle.
Selk
also asked if Luebeck had anything illegal on him, and whether he could search
Luebeck. Luebeck said he did not have anything illegal, and Selk frisked him,
finding nothing.
Selk
then asked if he could search the vehicle, and Luebeck consented. That search
uncovered marijuana.
Luebeck
was charged with possession of marijuana, second offense. Luebeck moved to suppress
the evidence, and Ozaukee County Circuit Court Judge Thomas R. Wolfgram granted
the motion.
The
state appealed, but the court of appeals affirmed in a decision by Judge Harry
G. Snyder.
Relying
on State v. Williams, 2002 WI 94, 255 Wis.2d 1, 646 N.W.2d 834, and State v. Jones,
2005 WI App 26, 278 Wis.2d 774, 693 N.W.2d 104, the court concluded that, under
the totality of the circumstances, Luebeck would not believe he was free to leave.
Because the court found the seizure of Luebeck unlawful, it held his consent involuntary,
and ineffective to authorize the search.
It
was undisputed that the initial traffic stop was lawful. However, the court found
that, by the time the officer requested consent to search, Luebeck had become
unlawfully seized.
The
court noted the following factors: Luebeck had been detained for over 20 minutes;
his driver’s license was still being held by the police officer; no citation
or warning for lane deviation had yet been issued; he had passed all of the field
sobriety tests and a preliminary breath test; and he was being questioned about
his passenger’s ability to drive in his place.
The
court found Williams distinguishable. There, the officer had issued a warning,
returned Williams’ identification to him, shook hands with Williams, and
said, “We’ll let you get on your way then.”
Only at
that point did the officer ask for consent to search the vehicle (the procedure
was formerly known as a “Badger stop”). The Supreme Court concluded
in Williams that a reasonable driver would have felt free to leave at that point,
and the consent was therefore voluntary.
In
the case at bar, however, the court held, “under the totality of the circumstances
presented here, we conclude that Luebeck, or any reasonable person in Luebeck’s
position, would have believed that he or she was not free to leave or terminate
the encounter with the officers. Consequently, Luebeck’s consent to search
was tainted by the illegal seizure.”
Before
concluding, however, the court discussed the Tenth Circuit’s jurisprudence
on the issue, which holds that a motorist’s consent to search his vehicle
is invalid if the police officer has not returned the driver’s documents,
such as driver’s license.
The
Wisconsin court did not go as far as the Tenth Circuit, but did state, “We
are persuaded that, in a traffic stop context, where the test is whether a reasonable
person would feel free to ‘disregard the police and go about his [or her]
business,’ the fact that the person’s driver’s license or other
official documents are retained by the officer is a key factor in assessing whether
the person is ‘seized’ and, therefore, whether consent is voluntary.”
Click
here for Case Analysis.
David
Ziemer can be reached by email.
