A four-justice majority of the supreme court holds that a police officer lawfully searched a briefcase found in a vehicle during a traffic stop because the driver consented to a search of the car and the passenger did not unequivocally withdraw the consent given by the driver. Three dissenting judges take a very different view, concluding that under the totality of the circumstances, a reasonable officer should have realized that Wantland was withdrawing consent to a search of the briefcase.
Wantland was a passenger in a car driven by his brother. The car was stopped for equipment violations. (¶6). After giving the driver a written warning and telling him he was free to leave, the officer asked if there was “anything in the vehicle that wasn’t supposed to be in the vehicle.” The driver said he didn’t believe there was. The officer then asked if he could search the car, and the driver responded “Um, I don’t see why not. We gotta get our tools and stuff out anyway.” (¶7). During the search the officer located a briefcase; when he asked what was in it Wantland said “a laptop” and then said “Got a warrant for that?” (¶9). The officer said he could open the briefcase and proceeded to search it. He found morphine pills. (¶¶9-10).
Applying State v. Matejka, 2001 WI 5, 241 Wis. 2d 52, 621 N.W.2d 891, the majority says that because of the driver’s authority over the vehicle, his or her consent to a search of the car generally extends to all objects inside:
¶27 Third-party consent to a search may be valid, so long as “‘permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.'” Matejka, 241 Wis. 2d 52, ¶32 (emphasis in Matejka) (quoting [United States v.] Matlock, 415 U.S. [164,] 171 [(1974)]). In the context of an automobile, this court has held that the common authority inquiry “focuses not necessarily on the third-party’s authority over the specific object in question, but the third-party’s authority over the premises in which that object is located.” Id., ¶36.
Under this rule, and on the strength of Wantland’s concession that the driver gave valid consent to search the vehicle, the court holds the driver had apparent authority over the containers in the car at the time he consented to the search. (¶30). Wantland’s subsequent statement asking if the officer had a warrant doesn’t affect the scope of the original grant of consent. (¶¶31-32). Instead, Wantland’s question raises only the issue of whether he unequivocally withdrew the consent to search previously granted by the driver. (¶32). The majority answers “no,” applying this standard:
¶33 “‘Withdrawal of consent need not be effectuated through particular “magic words,” but an intent to withdraw consent must be made by unequivocal act or statement.'” United States v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005) (quoting United States v. Gray, 369 F.3d 1024, 1026 (8th Cir. 2004)); see also … Payton v. Commonwealth, 327 S.W.3d 468, 478 (Ky. 2010). “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” [Florida v.] Jimeno, 500 U.S. [248,] 251 [(1991)] ….
Comparing this case to scenarios where there was unequivocal withdrawal of consent, the court concludes the question “Got a warrant for that?” is ambiguous. For example, Wantland didn’t ask the officer to stop the search, United States v. Fuentes, 105 F.3d 487, 489 (9th Cir. 1997) (vehicle owner shouted “no, wait” before search could be completed), nor take action to prevent access to the briefcase, like slam shut the back hatch of the car during the search, United States v. Flores, 48 F.3d 467, 468 (10th Cir. 1995), or grab the briefcase, United States v. Ho, 94 F.3d 932, 934 (5th Cir. 1996). (¶¶34-35).
¶39 … Additionally, unlike the defendant in Payton, who responded as soon as he became aware of the consent to search, Wantland was present at the time the original consent was given and did not object to that consent. Instead, Wantland stayed quiet throughout the search of the passenger compartment of the vehicle and did not ask any question or make any comment until [the officer] reached for the briefcase. Even then it was far from clear that Wantland was telling the officer that he could no longer search the briefcase. Given these facts, under the totality of the circumstances, a reasonable person would not understand Wantland’s question to be an unequivocal withdrawal of an otherwise valid consent to search the briefcase.
The court also holds the officer had no duty to clarify the meaning of Wantland’s ambiguous question, given that he had received consent to search the entire car from a person with apparent authority. “Once valid consent for a search has been secured, law enforcement officers are not required to halt their search and question whether consent is still valid every time a person makes an ambiguous statement regarding the ownership of an item that is otherwise within the scope of that consent. … Such a rule would place an onerous and unreasonable burden on law enforcement, particularly given that the true owner of the property may or may not be present.” (¶47).
Chief Justice Abrahamson and Justice Prosser each write a dissent, both of which are joined by Justice Bradley. To the dissenters the issue is whether the driver’s consent to the search everything in the car was valid after it became clear during the search that the driver didn’t own the briefcase. They stress that the circumstances relevant to ascertaining whether a person has authority to consent to a search must include information that comes to light during the search, otherwise police can ignore new information that would cause a reasonable person to doubt his earlier conclusion that the consenting person had authority to allow the ongoing search. (¶¶66, 122). Indeed, the consideration of information learned during the search was the approach adopted in State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998), and subsequent cases. (¶¶67-77).
The dissenters also point out that there’s more to this case than Wantland’s “Got a warrant for that?” question. In particular: The driver didn’t own the car; he told the officer that some of the property belonged to Wantland; and only Wantland answered the question of what was in the briefcase. Given all the facts, an objectively reasonable police officer would have realized the driver did not have authority to consent to the search of the defendant’s briefcase. (¶¶61-73, 101, 114-21). Finally, the Chief Justice rejects the requirement that the withdrawal of consent be “unambiguous” because it adds unnecessary complexity and, even more problematically, “bends a defendant’s statement that a reasonable person would construe as an objection into mere equivocation and erroneously places the burden on the defendant to prove the unreasonableness of the search.” (¶91).
The majority’s opinion is explicitly premised on the existence of valid consent by the driver to search the car, so much so that it stresses the parties’ agreement on this point right from the start of its opinion (¶2 & n.2) as well as during its legal analysis (¶¶24-25). Thus, the majority says, “this opinion addresses not whether the officer had the driver’s general consent in the first instance, but rather, … whether Wantland’s question limited that consent.” (¶2). There won’t be a need for an unambiguous statement limiting or withdrawing consent if there’s a problem with the validity or scope of the driver’s initial general consent. So if you’re litigating this issue and can argue the facts show the initial general consent is limited (or invalid) instead of making the concession Wantland made, then you can also argue the holding in this case doesn’t apply.
Also, note that a driver shouldn’t be able to consent to the search of a locked container that belongs to someone else. Matejka, 241 Wis. 2d 52, ¶36 (suggesting a “locked” suitcase or briefcase might limit the driver’s authority to consent). That question didn’t come into play here, as Wantland’s briefcase wasn’t locked or otherwise secured. (¶30 n.12).