State v. John J. Hartwig, 2007 WI App 160, PFR filed 5/22/07
For Hartwig: Wright C. Laufenberg
Issue/Holding: The trial court misread State v. Reginald Jones, 2005 WI App 26, to hold that consent to search is invalid whenever the person has been seized; rather, that case holds only that consent may be invalid when made following illegal seizure of the person. Consent following lawful seizure must be measured by the settled totality-of-circumstances test for voluntariness:
¶13 Here, the court concluded Hartwig had been seized, even suggesting that an arrest had been effectuated, but that the seizure was lawful.  Thus, the holding of Jones is inapplicable. Rather, the court should have applied the totality of the circumstances test. See Wallace, 251 Wis. 2d 625, ¶17. Under that test, “custody is one factor to be considered in determining voluntariness, [but] it is not in itself dispositive.” Id., ¶18.
¶14 The trial court concluded as a factual matter that Hartwig gave consent. The remaining question, a question of law, is whether that consent was voluntary. See id., ¶16. The undisputed facts of record indicate that it was. The wardens made no misrepresentations of their purpose or authority. … Hartwig’s consent was “given in the absence of duress or coercion, either express or implied.”  See Phillips, 218 Wis. 2d at 197. Evidence from the truck should not have been suppressed.