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Consent to search apartment voluntary

State v. Damion L. Brown, 2015AP2029-CR, 1/4/2017, District 1 (not recommended for publication); case activity (including briefs)

Damion Brown’s roommate consented to a search of their apartment after being arrested on suspicion of dealing heroin. Brown raises three challenges to the voluntariness and validity of that consent.

Police saw Brown and his roommate apparently making drug transactions in a parking lot; an arrest of one of the buyers turned up illegal drugs. The following day, the buyer and the police collaborated to arrange another drug buy from Brown and the roommate; when they showed up, they were arrested. The roommate was questioned by a police officer and consented to a search of the apartment, where heroin was found. (¶¶2-5).

Brown first argues that the roommate’s consent was coerced because the questioning officer threatened to call his probation officer. This argument is done in by the circuit court’s credibility findings; it believed the testimony of the officer and another law enforcement official on scene that no such threats were made. (¶¶18-20).

He next claims that the consent was not voluntary because the officer threatened to try to obtain a warrant if consent was not given. But the court notes that where an officer arguably has probable cause to get a warrant and genuinely intends to do so, he may inform a suspect of this without vitiating consent. State v. Kiekhefer, 212 Wis. 2d 460, 473, 569 N.W.2d 316 (1997). Once again, the trial court credited the officer’s testimony about his intent, and there was ample reason to believe the apartment might contain evidence of drug dealing. (¶¶21-25).

Brown also argues, for the first time on appeal, that the police lacked probable cause to arrest Williams, making his consent the fruit of the poisonous tree. The court chooses to address the argument and finds probable cause for the arrest. (¶¶27-30).

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