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Attenuation of Taint — Consent – Following Illegal Entry

State v. Luis E. Bermudez, 221 Wis. 2d 338, 585 N.W.2d 628 (Ct. App. 1998)
For Bermudez: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: Consent given following illegal entry was, though, voluntary, the fruit of the illegality:

When applying the attenuation theory, the following must be considered: (1) the temporal proximity of the misconduct and the subsequent consent to search, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. See id. We conclude that the instant case fails to provide sufficient indicia of attenuation, and the trial court’s determination that the evidence seized during the search of the motel room was admissible must fail.

… In the span of a few minutes, Lisa had emerged from the bathroom only to be confronted by five or six officers in her motel room. She was then informed that her husband had been arrested and that “drug paraphernalia” had been found in her husband’s vehicle. On the heels of receiving this information, she was asked to consent to a search of the motel room.

… The passage of a few minutes cannot be said to remove the taint of the warrantless entry. …

Intervening factors were “aggravating,” not attenuating; flagrancy of the misconduct (pretextual traffic stop and apparently “ulterior motive”) is also emphasized. State v. Phillips, 218 Wis.2d 180, 577 N.W.2d 794 (1998) distinguished, largely on basis that officer informed Phillips he had no warrant, did not surprise or mislead him, and gave him enough information to decide whether to consent.

 

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