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Consent — Acquiescence — Request Itself Unlawful Assertion of Authority

State v. David L. Munroe, 2001 WI App 104
For Munroe: Peter Koneazny, SPD, Milwaukee Appellate

Issue: Whether Munroe’s acquiescence, under false pretenses, to police entry of his motel room vitiated any consent for their subsequent search of that room, where Munroe refused their initial request to search.

Holding:

¶11 The officers entered Munroe’s room for, ostensibly, one purpose: to check his identification. This stated purpose was not true (the officer admitted that they were on a drug, gun, and prostitution interdiction; certainly two armed officers were not dispatched to see who was either paying cash without showing a photo identification or registering under an alias), but it was the reason Munroe acquiesced to their entry and cooperated with them. They checked his identification and determined that he did not violate the Glendale ordinance that prohibits someone from registering in a motel under an assumed name. Once the officers were assured that Munroe had not violated the ordinance — again, this was the proffered but false reason for their having knocked on his door at 7 a.m. — their ‘license’ granted by Munroe’s acquiescence to their presence in his room vanished, because the lawfulness of an officer’s actions turns on the officer’s role or function at the time. State v. Dull, 211 Wis. 2d 652, 659, 663, 565 N.W.2d 575, 578-579, 580 (Ct. App. 1997) (officer’s shift from community-caretaker function to that of law-enforcement). Thus, they had no authority to use their continued presence in his room to conduct a general search, and Munroe denied their first request to do so. Their continued questioning and their renewed request to search made Munroe’s ‘consent’ not voluntary. See Bermudez, 221 Wis. 2d at 348, 585 N.W.2d at 633 (consent granted only in acquiescence to unlawful assertion of authority is invalid).

See also Hadley v. Williams, 368 F. 3d 747 (7th Cir. No. 03-1530, 5/14/04) (where police misrepresented existence of warrant, consent to enter residence “was procured by an outright and material lie, and was therefore ineffectual”). This acquiescence-under-false-pretenses principle isn’t limited to entry of residence — see, e.g., U.S.v. Escobar, 8th Cir. No. 03-4046, 11/18/04 (officer’s lie that drug-sniffing dog alerted to luggage amounted to “false claim of legal authority” to search by communicating that there was probable cause to, and no right to resist a, search; ensuing “consent” was but acquiescence).

 

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