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Consent — Scope — Body Cavity Search

State v. Charles A. Wallace, 2002 WI App 61
For Wallace: Martha K. Askins, SPD, Madison Appellate

Issue: Whether Wallace’s consent for a strip search encompassed the more intrusive body cavity search that ensued (Wallace bent over and spread his buttocks).

Holding:

¶29. We have concluded that Wallace voluntarily consented to a strip search, and the parties agree that a visual body cavity search was ultimately conducted. Given the conceded distinction between the two types of searches, as well as the heightened level of scrutiny with which we are to view police conduct involving highly intrusive body cavity searches, we are unwilling to hold that a valid consent to the former always suffices as a consent to the latter. Thus, two inquiries remain: First, did the scope of Wallace’s initial consent to be strip-searched include consent to the visual body cavity search that was actually conducted? If not, did Wallace subsequently consent to the visual body cavity search during the process of being strip-searched? We conclude that we must answer no to the first question, and that we cannot answer the second without further factual findings by the circuit court.

¶34. Given the degree of the invasion of Wallace’s privacy, if the officers intended to have Wallace bend over and spread his buttocks as a part of their search, they should have asked him to specifically consent to that level of intrusiveness. Put another way, it was not ‘objectively reasonable’ for police to conclude that the consent they obtained from Wallace for a strip search included anything beyond the removal of Wallace’s clothes in order to inspect his naked body, but ‘without any scrutiny of his body cavities.’ See Hughes, 524 S.E.2d at 159, 161 (holding that a defendant who consented to a pat-down search and a search of his underwear to ‘check further,’ did not thereby consent to a visual inspection of his anus).

Because the trial court’s findings are equivocal, ¶¶35-36, remand is necessary, ¶37:

for a factual determination regarding whether Wallace, at some point during the consensual strip search, gave his further consent to the more intrusive search which ensued. In making this determination, the court should consider both the wording of the officers’ requests and Wallace’s responses to them in order to determine whether what transpired was the giving of consent or acquiescence to police orders. We leave it to the court’s discretion to make the necessary determination on the present record if it can do so, or to take additional testimony on the issue if it deems that to be advisable.

 

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