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Attenuation of Taint — Consent

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

Issue: Whether consent to search was valid notwithstanding illegal police activity.


¶13. The three factors that help to determine whether the taint of earlier illegal police activity has been attenuated by the time a consent to search is granted are: “(1) the temporal proximity of the official misconduct and seizure of evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.” Phillips, 218 Wis. 2d at 205, 577 N.W.2d at 805. Applying them here, we see that, first, the officers’ search of Munroe’s room was contemporaneous with their unlawful continued presence in his room. There was thus ‘temporal proximity.’ Second, unlike the situation in Phillips, where the officers honestly “explained that [suspected drug dealing was] the purpose of the visit,” and thus provided Phillips “with sufficient information with which he could decide whether to freely consent to the search of his bedroom,” 218 Wis. 2d at 208-209, 577 N.W.2d at 807, the officers here continued to mislead Munroe about their real reason for being in his room right up to the time that he finally agreed to let them search. Third, persons in our society have a right founded in deep and abiding constitutional principles ‘to dwell in reasonable security and freedom from surveillance.’ Johnson, 333 U.S. at 14… Sadly, the officers here used their ruse about wanting to check Munroe’s identification to mimic those myrmidons of King George who bedeviled the colonists with their General Warrants and Writs of Assistance, which gave the king’s agents license to search everywhere and everyone. Unlike the situation in Phillips, 218 Wis. 2d at 185, 577 N.W.2d at 797, the officers here were not investigating information that the object of their search was involved in any illegal activity; they were doing a general sweep. Their violation of Munroe’s constitutional rights was purposeful and flagrant.

Mentioned but in passing by the court (¶3), “Shortly before knocking on Munroe’s door, the officers checked the motel’s register of guests and ascertained that Munroe had paid cash for his room and did not show a photo identification when he registered.” For authority that a “random check of [a] motel registry revealing [a guest’s] whereabouts constitutes a violation of his privacy rights” under the state constitution, see State v. Jorden, Wash SCt No. 76800-5, 4/26/07.


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