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Consent — Acquiescence — Assertion of Subpoena

State v. Jed A. Giebel, 2006 WI App 239
For Giebel: Robert E. Bellin, Jr.

Issue: Whether Giebel’s “consent” to a search of his computer, in response to a police claim of a subpoena and accompanied by an expression that Giebel assumed he had no choice, was voluntary or mere acquiescence to asserted police authority.

Holding:

¶17   Three considerations weigh heavily in our decision. First, Giebel, whom the circuit court found to be of average intelligence, was unlikely to know that a subpoena is significantly different from a search warrant. Second, the officers lent legal significance to the subpoena by telling Giebel that it was “a subpoena from Judge Carver.” Finally, Giebel’s response to the subpoena indicated that he believed resistance was futile.

¶18   Consent must be more than mere acquiescence to a claim of lawful authority. See Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968). In State v. Kiekhefer, 212 Wis. 2d 460, 471-74, 569 N.W. 2d 316 (Ct. App. 1997), we held that where the police represented that they could obtain a search warrant when in fact they could not, that misleading statement of authority led to consent that was not the product of free and unconstrained choice. Orderly submission to law enforcement officers who, in effect, incorrectly represent that they have the authority to search and seize property, is not knowing, intelligent and voluntary consent under the Fourth Amendment. See United States v. Elliott, 210 F.Supp. 357, 360 (D. Mass 1962).

¶19   Subtle suggestions, strategically made, may amount to deception or trickery where the intent is a misrepresentation of authority. Here, we cannot fathom any other reason for Lewis’ display of the subpoena. The subpoena simply showed Giebel’s address as the one associated with an email account. Had Giebel asked Lewis how the investigation led to his home, perhaps the subpoena would have been relevant. Here, the subpoena simply had no application to the conversation as it occurred.

¶20   Like the circuit court, we ascertain no outright deceit or blatant misrepresentation by Lewis or Mack; however, we believe that a reasonable police officer would understand, appreciate, and anticipate that a person of average intelligence would not grasp the distinction between a subpoena and a warrant. We are convinced that when the officers offered Giebel a fleeting glimpse of the subpoena signed by a judge, they suggested authority they did not possess. It was this suggestion of authority that led Giebel to believe he could not refuse consent for the officers to search his room and seize his computer.

Though it should be obvious anyway, keep in mind that threat to obtain warrant for which probable cause does exist doesn’t vitiate consent, U.S. v. Hicks, 539 F. 3d 566 (7th Cir No. 07-3613, 8/20/08).

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