Consent – Acquiescence – Generally

State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15For Johnson: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding:

¶16 When the purported legality of a warrantless search is based on the consent of the defendant, that consent must be freely and voluntarily given. State v. Phillips, 218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998) (citations omitted). “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548 (1968). “Acquiescence to an unlawful assertion of police authority is not equivalent to consent.” State v. Wilson, 229 Wis. 2d 256, 269, 600 N.W.2d 14 (Ct. App. 1999) (citing Bumper, 391 U.S. at 548-49). This includes when the police incorrectly assert that they have a right to conduct a warrantless search, or indicate that they are going to search absent legal authority to do so, as opposed to asking for permission to search. [6]

[6]See Johnson v. United States, 333 U.S. 10, 12-13 (1948) (officer did not gain defendant’s consent to enter defendant’s home when the officer knocked on the door, asserted that he wanted to talk to the defendant, the defendant stepped back from the door and the officer walked in, as entry was granted in submission to authority as opposed to an understanding and intentional waiver of a constitutional right); See also United States v. Morales, 171 F.3d 978, 982-83 (5th Cir. 1999) (suspects’ opening door upon an order of officers did not constitute consent to search premises); United States v. Pena-Saiz, 161 F.3d 1175, 1177 (8th Cir. 1998) (where suspect believed that she was under arrest, her submission to a request to conduct a pat-down search was not consent);United States v. Baro, 15 F.3d 563, 566-67 (6th Cir. 1994); (suspect did not consent to seizure of his person and of suspected drug money when officer, who lacked probable cause to execute a seizure, informed suspect that he was being taken to a DEA office and suspect acquiesced to the seizure); State v. Wuest, 190 Wis. 251, 255, 208 N.W. 899 (1926) (an otherwise illegal search of a suspect was not authorized when suspect failed to object to an officer’s assertion of authority); State v. Johnson, 177 Wis. 2d 224, 228, 234, 501 N.W.2d 876 (Ct. App. 1993) (defendant’s failure to object to officer’s entry into home did not constitute consent to search, noting that “consent cannot be found by a showing of mere acquiescence”) (citation omitted); 4 Wayne R. LaFave, Search and Seizure § 8.2(a), at 58-59 (4th ed. 2004).