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Attenuation of Taint – Consent Following Illegal Entry

State v. Patrick E. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, reversing 224 Wis. 2d 814, 592 N.W.2d 310 (Ct. App. 1999)
For Richter: Susan Alesia, SPD, Madison Appellate

Issue: Whether consent to search, immediately following warrantless entry of the home, sufficiently attentuated any taint from that entry.

Holding: Consent was freely given and therefore sufficiently attenuated from the entry to purge any taint of illegality.

Having ruled that the entry was legal, the court nonetheless discusses attenuation. This discussion is clearly dicta, but the court treats it as binding. ¶¶44-55. (The three attenuation factors are temporal proximity, intervening circumstances, flagrancy of misconduct. ¶45.) Though the discussion is somewhat involved, the most important factor seems to be that “Richter was not the target of the officer’s investigation and search. … This is not the sort of ‘purposefulness’ that defeats attenuation.” ¶54. (Note: the dissent says that this discussion “risks making a mockery of the attenuation doctrine,” and laments that this is “just one more in a line of recent cases in which the court has not been sufficiently protective of the privacy of the home.” ¶65.

 

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