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Search & Seizure – Consent

Village of Menomonee Falls v. Timothy E. Rotruck, 2012AP1024-FT, District 2, 9/1, District 2, 9/19/12

court of appeals decision (1-judge, ineligible for publication); case activity

Concededly proper traffic stop; after citations issued, officer sought and obtained consent to search vehicle, resulting in seizure of contraband – court concludes that, under the circumstances, traffic stop had clearly ended thus consent wasn’t product of an unnecessarily prolonged (therefore illegal) detention. State v. Williams, 2002 WI 94, 255 Wis. 2d 1, 646 N.W.2d 834, followed; State v. Jones, 2005 WI App 26, 278 Wis. 2d 774, 693 N.W.2d 104, distinguished.

¶11      This case is similar to Williams.  The vehicle was stopped for an equipment violation.  The officer issued the citations, returned the occupants’ driver’s licenses, and told Petersen to “drive safe.”  The officer then turned and took a few steps toward his squad car.  As inWilliams, the traffic stop had ended before the officer asked the driver if he would consent to a search of his vehicle.  Further, the stop occurred in a parking lot of a fast-food restaurant just before midnight, arguably less intimidating circumstances than those in Williams, where the stop occurred on an interstate at 2:30 a.m.  Under the totality of the circumstances, a reasonable person in Petersen’s position would have felt free to leave the scene or otherwise terminate the encounter.  Consequently, Petersen was not seized when he consented to the search, and his consent was valid.  See id., ¶35.

¶13      … Williams does not require specific words or phrases.  Rather, Williams requires “some verbal or physical demonstration by the officer, or some other equivalent facts, which clearly convey to the person that the traffic matter is concluded and that the person should be on his or her way.”  Jones, 278 Wis. 2d 774, ¶17.  We are satisfied that the officer’s statement of “drive safe” is such a clear conveyance, especially when made after the issuance of citations and return of driver’s licenses and followed by the officer’s turn back toward his squad car.

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