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COA: Officers had consent to enter home

State v. Kathryn M. Cooper, 2018AP1154, 11/21/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Cooper’s vehicle was involved in an accident and was found, damaged, in her driveway. An officer saw a light on near the back door of her home and went around back and knocked. Cooper waved him in. The officer told her he was investigating an accident.

A few minutes later, a second officer arrived at the door, and the first officer waved that officer in. Cooper did not object to the entry. Cooper was eventually arrested for OWI, and her blood test showed a prohibited alcohol concentration.

Cooper argues that she didn’t consent to the first police officer entering her home because he didn’t identify himself as such. The court says there’s no evidence one way or another about whether the officer was in uniform, but given that that he said he was investigating an accident, it would have been obvious to anybody that he was a cop. Regarding the second officer, the court says Cooper consented because she did not “protest or object” to his entry.

This second conclusion is a little shaky; unlike the Fifth Amendment right to silence, Fourth Amendment rights need not be invoked to be effective. So “consent” here properly means more than “failure to object.” See, e.g.State v. Johnson, 177 Wis. 2d 224, 233, 501 N.W.2d 876 (Ct. App. 1993). But, as the court points out, it’s not clear what, if any, evidence was generated by the second officer’s entry, so it may not matter in this case.

Cooper also argues she didn’t consent to the blood draw, but the court of appeals sees no factual support for that claim. (¶¶18-19).

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