State v. Mark A. Miller, 2010AP352-CR, District 4, 12/9/10
court of appeals decision (1-judge, not for publication); for Miller: Bill Ginsberg; Miller BiC; State Resp.
The court concludes that Miller voluntarily consented to police entreaties over an 11-minute period to enter his home so that they could perform field sobriety testing, notwithstanding his refusals during that time to allow entry:
¶7 The circuit court found that the officer spoke with Miller for approximately eleven minutes and, during that time, “probably asked several times if they could come into the home.” One of these instances was apparently unrelated to Miller’s intoxication—it occurred at the outset of the conversation, when the officer sought to “go into the residence to deal with the paperwork relative to the dog complaint.” Miller declined. Subsequently, the officer expressed his concern that Miller had been driving in an “impaired state,” and Miller responded by claiming that a “friend had driven him home and was currently upstairs sleeping.” The officer then asked if he could come inside to find that person, and Miller declined. At some point, Miller also stated to the officer, “I’m going to bed”; however, Miller did not in fact move from the front door. Finally, the officer asked Miller if he would submit to a field sobriety test, and Miller agreed. The officer then asked Miller if he wanted to do the test inside or outside the house, and Miller chose inside.
¶11 Miller, focusing on his initial refusal to consent, asserts that it must follow that his subsequent consent was mere “acquiescence to [the officer’s] persistent assertion of authority.” In support, he relies on State v. Bermudez, 221 Wis. 2d 338, 585 N.W.2d 628 (Ct. App. 1998). But the relevant language in Bermudez refers to an “unlawful assertion of authority.” See id. at 348. No such assertion of authority to enter Miller’s house was made here.
¶12 I also observe that the conversation between Miller and the officer did not, as Miller suggests, involve persistent badgering. Rather, the requests appear to have evolved with the subjects being discussed—first the dog, then the possible other driver, and finally the officer’s desire to conduct a field sobriety test on Miller. This shifting focus does not support Miller’s suggestion that the officer created the impression that he would not take “no” for an answer. Rather, so far as the record discloses, each time Miller said “no” the officer accepted that answer.
The officer accepted “no” each time? Sure. That’s why he hung around Miller’s portal for 11 minutes, because after all, Madison cops have nothing else to do but endlessly shoot the breeze with homeowners about dog complaints. Not like they have any crimes to solve or anything like that. Elephant on Miller’s porch: Welsh v. Wisconsin, 466 U.S. 740 (1984) (exigent circumstances doctrine doesn’t justify warrantless entry to investigate nonjailable OWI offense), which, curiously, just happens to be a Dane County case. Persistence pays. Meta-message: better to stiff-arm the police than to be a nice guy.