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Search and seizure – limitation on scope of consent to search; no duty for police to clarify ambiguous assertions of ownership or nonconsent

State v. Derik J. Wantland, 2013 WI App 36, petition for review granted 11/21/13; case activity

It was not unreasonable for the police to search a briefcase found in a vehicle during a traffic stop after the driver consented to a search of the car and the passenger did not unequivocally assert ownership of the briefcase and withhold consent to its search.

Wantland was a passenger in a car stopped by police. The driver (Wantland’s brother) consented to a search of the car. (¶3). When the officer located a briefcase, he asked the men what was in it; Wantland said “a laptop” and then “Got a warrant for that?” (¶3). When the officer responded he could open the briefcase, Wantland laughed and said the briefcase also contained Visine and antacid pills. (¶3). The officer opened the briefcase and found an antacid bottle containing two pills later identified as morphine. (¶3).

The court concludes the search of the briefcase was reasonable. The driver had authority to consent to the search of the car and, by implication, objects in the car. State v. Matejka, 2001 WI 5, ¶¶38-40, 241 Wis. 2d 52, 621 N.W.2d 891; Florida v. Jimeno, 500 U.S. 248 (1991). The briefcase was not locked or secured and was not distinctively marked as belonging to the passenger rather than the consenting driver, which might have rendered the search of it unreasonable. Cf. Matejka, 241 Wis. 2d 52, ¶36 (suggesting a “locked” suitcase or briefcase might limit the driver’s authority to consent). To limit the consent to search given by the driver, Wantland needed to clearly and unequivocally assert that he, not the driver, was the owner of the briefcase and that he was objecting to any search of it. (¶9). The court concludes Wantland’s exchange with the deputy did not amount to such an assertion:

¶8        ….[W]hen the deputy got to and inquired about the briefcase, Wantland did not respond with words of greater clarity such as “That’s mine, please don’t open it,” but instead responded with “Got a warrant for that?” While this question could be interpreted as an objection to searching the briefcase, it also could be interpreted by a reasonable person as inquiring whether the deputy in fact had a warrant or, more likely under the circumstances here, as a more general inquiry into whether the deputy had lawful authority to search the briefcase. By itself, this question was not an unambiguous declaration of ownership of the briefcase or objection to the search of it. When accompanied by laughter and a continued identification of items the deputy could expect to find in searching the briefcase, the meaning of Wantland’s warrant question became even less clear.

The court also holds the police did not have to stop and clarify whether Wantland owned the briefcase and was objecting to it being searched. That requirement is too burdensome because the “numerous challenges and dangers” of doing a roadside vehicle search mean the police need to be able to perform a search as expeditiously as possible to minimize risks and delay. (¶11). Thus, where the owner of individual property located in a vehicle is present during a consensual search and fails to clearly and unequivocally assert his or her ownership of the property and objection to the search of it, it is not unreasonable for the searching officer to continue the search, including of the individual item, without seeking clarification. (Id.).

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