On Point

State v. Michael M. Longcore II, 2001 WI App 15, on appeal after remand of State v. Longcore I, 226 Wis. 2d 1, 594 N.W.2d 412 (Ct. App. 1999)
For Longcore: William E. Schmaal, SPD, Madison Appellate

Issue: Whether replacing a vehicle’s glass window with a plastic sheet violates the safety glass statute, § 347.43(1), so as to provide probable cause to arrest.

Holding:

¶11 We do not perceive any ambiguity in WIS. STAT. § 374.43(1). It mandates that wherever glass is used on the particular vehicle being operated, it must be safety glass. It is undisputed that glass is used in the windows of Longcore’s vehicle. He therefore was required to replace a broken window with safety glass.

…

¶14 The attorney general put it succinctly sixty-three years ago when he said that the safety glass statute “makes it unlawful for any person to operate an automobile … unless it is equipped with safety glass.” See 26 Wis. Op. Att’y Gen., supra, at 138. Longcore violated the statute. Therefore, the officer had probable cause to stop the vehicle at which time he determined that Longcore was operating after revocation. Longcore’s conviction for operating after revocation is affirmed.

State v. Robert F. Hart, 2001 WI App 283
For Hart: John Deitrich

Issue: Whether a person voluntarily abandons property when throwing it to the ground during an illegal pat-down.

Holding:

¶24. Our own research has uncovered cases that are fatal to the district attorney’s contention. In Lawrence v. Henderson, 478 F. 2d 705, 708 (5th Cir. 1973), the court held that drug evidence found in a police car after an unlawful arrest could not have been voluntarily abandoned because the ‘abandonment’ was compelled by the police misconduct. Two Indiana cases have concluded that where an improper frisk forced the defendant to abandon drugs, the evidence was not admissible. See Swanson v. State, 730 N.E.2d 205, 210 (Ind. Ct. App. 2000), transfer denied by 741 N.E. 2d 1253 (Ind. Sept. 5, 2000); State v. Pease, 531 N.E.2d 1207, 1210-12 (Ind. Ct. App. 1988); cf. In re Welfare of M.D.B., 601 N.W.2d 214, 218 (Minn. Ct. App. 1999) (where during course of illegal frisk defendant’s gun fell to the ground, such evidence was suppressed), review denied (Jan. 18, 200).¶25. We conclude that Hart acted in response to the illegal pat-down. There was no distinct, separate crime or intervening illegal activity which attenuated the link between the discovery of the marijuana pipe and the illegal search. Therefore, the district attorney’s abandonment theory cannot stand under these facts.

However, a chemical test for blood is upheld, even though conducted after the illegal pat-down, because the police already had probable cause to believe the person was drunk; the test, that is, was based on evidence not connected to the pat-down. ¶27.)For additional authority re: property not considered abandoned when left in squad by someone illegally seized, see, State v. Askerooth, MN SCt No. C6-02-318, 6/17/04:

The record is silent as to exactly when Askerooth placed the methamphetamine under the seat of the squad car. But we do know from the complaint and from the district court’s findings of fact in the bench trial that Askerooth abandoned it because he was scared that the police would find it and thus the abandonment was not accidental. There appears to be no feasible way the methamphetamine would have been discovered but for the illegal seizure. Because Askerooth’s abandoning of the methamphetamine is the result of an illegal seizure, we conclude that the methamphetamine must be suppressed. Therefore, we hold that the district court erred when it denied Askerooth’s motion to suppress the methamphetamine discovered in the back seat of Schmidt’s squad car.

There is, to be sure, contrary authority, e.g., State v. Knox, 160 Or App 668, 676, 984 P2d 294 (1999), but the rationale (“His transportation to the police station during which his alleged deposit occurred was an event that intervened between the illegal search and seizure and the seizure at issue here”) is unconvincing: transport is a continuation of the illegal seizure. The larger principle may be efficiently expressed this way: “An abandonment that results from police misconduct is not valid,” U.S. v. McDonald, 100 F.3d 1320, 1328 (7th Cir. 1996); and: “abandonment … is considered involuntary if it results from a violation of the Fourth Amendment,” U.S. v. Flynn, 309 F.3d 736, 738 (10th Cir 2002). Thus, immediately tossing contraband “en route to the officer” who without cause ordered him to “come here” wasn’t mediated by anything that would remove the taint of the illegal order,State v. Crandall, Or App No A119207, 2/16/05. It should also be kept in mind that abandonment occurring before the person has been “seized” by the police (which in turn means that the person must have submitted to assertion of police authority) is not subject to suppression.

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.

Holding:

¶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.

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

Issue: Whether Munroe’s acquiescence, under false pretenses, to police entry of his motel room vitiated any consent for their subsequent search of that room, where Munroe refused their initial request to search.

Holding:

¶11 The officers entered Munroe’s room for, ostensibly, one purpose: to check his identification. This stated purpose was not true (the officer admitted that they were on a drug, gun, and prostitution interdiction; certainly two armed officers were not dispatched to see who was either paying cash without showing a photo identification or registering under an alias), but it was the reason Munroe acquiesced to their entry and cooperated with them. They checked his identification and determined that he did not violate the Glendale ordinance that prohibits someone from registering in a motel under an assumed name. Once the officers were assured that Munroe had not violated the ordinance — again, this was the proffered but false reason for their having knocked on his door at 7 a.m. — their ‘license’ granted by Munroe’s acquiescence to their presence in his room vanished, because the lawfulness of an officer’s actions turns on the officer’s role or function at the time. State v. Dull, 211 Wis. 2d 652, 659, 663, 565 N.W.2d 575, 578-579, 580 (Ct. App. 1997) (officer’s shift from community-caretaker function to that of law-enforcement). Thus, they had no authority to use their continued presence in his room to conduct a general search, and Munroe denied their first request to do so. Their continued questioning and their renewed request to search made Munroe’s ‘consent’ not voluntary. See Bermudez, 221 Wis. 2d at 348, 585 N.W.2d at 633 (consent granted only in acquiescence to unlawful assertion of authority is invalid).

See also Hadley v. Williams, 368 F. 3d 747 (7th Cir. No. 03-1530, 5/14/04) (where police misrepresented existence of warrant, consent to enter residence “was procured by an outright and material lie, and was therefore ineffectual”). This acquiescence-under-false-pretenses principle isn’t limited to entry of residence — see, e.g., U.S.v. Escobar, 8th Cir. No. 03-4046, 11/18/04 (officer’s lie that drug-sniffing dog alerted to luggage amounted to “false claim of legal authority” to search by communicating that there was probable cause to, and no right to resist a, search; ensuing “consent” was but acquiescence).

State v. Jennifer K. Matejka, 2001 WI 5, 621 N.W.2d 891, affirming unpublished decision of court of appeals.
For Matejka: James B. Connell

Issue: “(W)hether, under the consent exception to the Fourth Amendment’s warrant requirement, a driver’s consent to a police officer’s search of a vehicle extends to a passenger’s jacket left in the vehicle at the time of the search.”

Holding:

¶35 Here, the state trooper received consent to search the van from Miller, who, as the owner and driver of the vehicle, had obvious possessory authority over the vehicle and therefore the capacity to consent to its search. This authority extended in common to the jacket that Matejka brought on board and then left behind in the van, by virtue of the joint access and mutual use of the interior of the van shared by the driver and his passengers. Under Matlock, and by implication Schneckloth, Miller’s consent to search the van encompassed Matejka’s jacket, found inside it.

As usual in 4th amendment cases, this one is fact-intensive. Read it closely. This was a routine traffic stop (no front plate). After to-ing and fro-ing (nonproductive frisks of the driver and a backpack), the trooper said he was going to issue a warning for the plate violation. ¶7. The issue wasn’t raised, but from that moment on the detention at least arguably was prolonged unnecessarily and the ensuing “consent” coerced as the product of that unlawful detention. See, e.g., State v. Christopher Gammons, 2001 WI App 36.Arguably so, neither more nor less: again, the issue simply wasn’t raised. This is merely a reminder that prolonged detention is one of the most vexing (and, not coincidentally, most-litigated) facets of routine traffic stop cases — cases are collected here. But does one occupant have “standing” to challenge another’s consent as the product of an unnecessarily prolonged stop? Yes, see State v. Kothe, TX Crim App No. 1738-03, 10/20/04 (footnotes omitted):

Both Mr. Kothe and Ms. Brantley had a reasonable expectation of privacy in not being detained beyond the time necessary for Officer Forslund to complete his investigation. Thus, Mr. Kothe has standing to complain about any illegally prolonged detention. If Officer Forslund’s conduct in awaiting the results of the computer license and warrant check was “unreasonable” under the Fourth Amendment, Mr. Kothe has standing to complain about the subsequent search of Ms. Brantley. That search is “fruit of the poisonous tree” if it constituted an exploitation of the illegal detention.”

To avoid possible confusion on the matter of “standing”: “A third party may give consent to search a place in which both she and the defendant have legitimate expectations of privacy, and the defendant can challenge the validity of the consent given by the third party,” U.S. v. Cellitti, 7th Cir. No. 03-3777, 10/19/04. Voluntariness of 3rd-party consent can be challenged; it’s just that Kothe presents a somewhat interesting factual variant of this principle, namely prolonged detention during routine traffic stop. But even so, that is merely a subset of the larger idea (again, from Cellitti), “Consent given during an illegal detention is presumptively invalid.” Note, too, that this approach is but a slight extension of and therefore wholly consistent with the settled principle “that when police stop a vehicle, all of the occupants of that vehicle are seized and thus have standing to object to the seizure,”State v. Anthony Harris, 206 Wis. 2d 243, 557 N.W.2d 245 (1996) (Harris, as passenger, had standing to challenge illegal stop of car in which he was riding and thus to obtain suppression of evidence seized from him): once the seizure of the vehicle and its passengers is prolonged beyond lawful limits, the passengers’ prolonged seizure is necessarily unlawful; and if they have standing to challenge 3rd party consent obtained after an illegal stop, then they should also have standing to challenge it on the basis of an illegally prolonged stop. But see, U.S. v. Pulliam, 9th Cir No. 03-50550, 4/21/05 (where “nothing in the record to suggest that the continued detention of the vehicle would have prevented [passenger] Pulliam from leaving if he was permitted to do so,” nor possessory interest by Pulliam in vehicle, he had no standing to challenge post-stop detention of vehicle; court notes that standing might be shown if some connection between his detention and evidence recovered from car).Returning to Matejka: Keep in mind that the issue reached by the court — driver’s authority to consent to a search of a passenger’s belongings — has led to a significant split of authority. See ¶18 n. 3, and cases cited.

State v. Matthew J. Trecroci, Ryan J. Frayer, Ronnie J. Frayer, Scott E. Oberst, Amy L. Wicks, 2001 WI App 126
For defendants: Robert R. Henak

Issue: Whether an apartment owner’s consent to search his apartment, given in response to police threat to obtain a search warrant even though no probable cause existed, was involuntary.

Holding::

¶54 The police may not threaten to obtain a search warrant when there are no grounds for a valid warrant. State v. Kiekhefer, 212 Wis. 2d 460, 473, 569 N.W.2d 316 (Ct. App. 1997). The trial court’s findings establish that when the police threatened Trecroci with a search warrant, they did not, as yet, have probable cause. Therefore, under Kiekhefer, Trecroci’s consent was not voluntary.

State v. Bill Paul Marquardt , 2001 WI App 219, PFR filed 9/20/01
For Marquardt: James B. Connell

Issue: Whether the automobile exception allowed the warrantless search of defendant’s car.

Holding: A warrantless search of a vehicle requires two showings: probable cause; and “ready” mobility of vehicle. ¶¶31-32. Because the defendant did not contest probable cause until his reply brief, that issue is taken as conceded. ¶39. Because the car was indisputably in working order, its mobility is established. (That defendant was under arrest affected only the car’s accessibility to him, and not its mobility.) ¶¶40-43. Nor does it matter that the car was in a private driveway: the Wisconsin Constitution doesn’t limit the automobile exception to public places. ¶¶43-49.