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Officer’s statement about authority to search car didn’t taint driver’s consent to search of his person

State v. David M. Wagner, 2014AP842-CR, District 2, 2/25/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Wagner voluntarily consented to a search of his person, and was not merely “[a]cquiesc[ing] to an unlawful assertion of police authority,” State v. Johnson, 2007 WI 32, 16, 299 Wis. 2d 675, 729 N.W.2d 182, when he agreed to the search on the heels of the officer’s assertion of authority to search Wagner’s car.

Because of Wagner’s “jittery” behavior and furtive movements during a traffic stop, the police had Wagner get out of the car so they could do a protective search of it. (¶¶2-5). The police also asked for, and received, permission to search Wagner himself. The protective search of the car was justified under the totality of the circumstances (¶11), but it turned up nothing; so the real dispute is whether Wagner consented to the search of his person.

After Wagner got out of the car, the officer told him “I have permission to search this car. I’m also going to ask you what do you have on you that you shouldn’t have?” When Wagner responded “[n]othing,” the officer said, “[s]o, you don’t mind if I search you, right?” Wagner: “Go ahead.” (¶6). Did the officer’s misstatement that he had “permission” to search the car, not to mention the irresistibly persuasive phrasing of the request to search Wagner himself, taint Wagner’s consent to the search by making it seem like he had no choice but to consent to the officer’s demands? (¶9).

Based on the totality of the circumstances, State v. Bermudez, 221 Wis. 2d 338, 348, 585 N.W.2d 628 (Ct. App. 1998), the court of appeals decides Wagner voluntarily consented:

¶12      …. The detaining officer unusually phrased his request to search Wagner, by saying he had “permission” to search the car and then tacking on, “So you don’t mind if I search you, right?” Obviously, from the record, nobody gave the officer “permission” to search. So, the question is whether the word “permission” is such a loaded word that a person in Wagner’s position would think that a judge, or a magistrate, or a higher ranking officer gave that permission and that is what caused him to acquiesce. We can only guess. And guessing is not going to help Wagner. The bottom line is, whether the police had “permission” or had justification to do a protective search of the vehicle, the message was the same. The officers were telling him that they had the right to search his car. What happened after that message was told to him in the form of a question: “So you don’t mind if I search you, right?,” which was, we agree, temporally tied to the message that the police had the authority to search the car. But, it was still in the form of a question. It did not convey the impression that he had no real choice in the matter. Quite the opposite. Wagner had to know that, despite the knowledge that the officers had the right to search his car, they were nonetheless asking him for permission to search his person. In that light, we are convinced that Wagner could have refused if he had wanted. …

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