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Attenuation of Taint — Consent — Following Illegal Entry

State v. Jason Phillips, 209 Wis.2d 559, 563 N.W.2d 573 (1997), reversing 209 Wis. 2d 559, 563 N.W.2d 573
For Phillips: Arthur B. Nathan

Issue/Holding: Entry into defendant’s bedroom was preceded by a concededly illegal entry into defendant’s living area, in basement of house. The court holds that any taint was dissipated by the time consent was given, though “only a few minutes [had] elapsed.” The court emphasizes “the non-threatening, non-custodial conditions surrounding the search.” The court also relies on “intervening circumstances,” namely defendant’s brief conversation with an agent, during which he learned that the agents had no warrant.

For a 7th Circuit holding, that “temporal poximity” between unlawful entry and putative consent weighs heavily in favor of taint, see U.S. v. Robeles-Ortega,348 F. 3d 679 (02-3365, 11/7/03):

That, however, is not the proper application of that factor. The question is whether the causal connection between the illegality and the consent was broken, and the government has the burden of persuasion on that issue. Kaupp v. Texas, 123 S. Ct. 1843, 1847 (2003); United States v. Liss, 103 F.3d 617, 623 (7 th Cir. 1997) (Ripple, J. concurring) (quoting Brown, noting that the taint analysis applies whether the antecedent Fourth Amendment violation is an illegal seizure or an illegal search). The temporal proximity is relevant because a consent obtained immediately after an illegal entry is less likely to be unconnected to that entry. In this case, the court found that the consent was obtained within a few minutes of the illegal entry. It is difficult to imagine a shorter time frame between the unconstitutional action and consent. Therefore, as a matter of law this factor weighs against a determination that the causal connection was broken. The court’s reliance of evidence of the voluntariness of the consent is misplaced in considering this factor. As Valencia held, the voluntariness of the consent is only the first step, and the next inquiry is whether the consent was tainted by the entry, in other words, whether it was the product of that illegal entry. In considering that issue, the temporal proximity in this case strongly favors the defendant and the district court erred as a matter of law in applying this factor.

Robeless-Ortega found that consent was tainted by the illegal entry, but the use of force was coercive, making the case distinguishable from Phillips on that basis. For authority that span of 15 minutes between unconstitutional seizure and consent “weighs heavily in favor of suppressing,” along with suggestion that even a lapse of several hours isn’t weighed against the defendant, see U.S. v. Washington, 387 F. 3d 1060 (9th Cir. No. 02-10526, 11/2/04).

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