*1 Wisconsin, Plaintiff-Appellant-Petitioner, State Rodgers, Defendant-Respondent. Paul Michael
Supreme Court Argued June No. 82-1930-CR. March 1984. 1984.—Decided (Also 453.) reported in 349 N.W.2d *2 plaintiff-appellant-petitioner was the cause For the argued by attorney Stephen assistant Kleinmaier, W. general, on the Fol- with whom brief was Bronson La C. general. attorney lette, defendant-respondent by
For the there was brief Jerold W. Breitenbach and Breitenbach & Keno- Zievers, argument by sha, and oral Jerold Breitenbach. W. STEINMETZ, whether the J. The issue in this case is entry voluntarily to the defendant’s mother into The consented by deputies her home her son. sheriff’s who arrested deputies the asked the defendant’s mother whether they him. defendant was home and whether talk to could entering, they placed After the defendant under arrest questioning Although deputies without him. did have warrant to defendant, arrest the have did probable cause for the arrest. charged Rodgers, defendant, The Michael Paul was imprisonment one with of sec. count of false violation 940.30,Stats. preliminary hearing, bound was
At the defendant trial, thereafter, filed over for an information was charging imprisonment. the defendant with false ground on the a motion to dismiss filed
The defendant arrest was jurisdiction since the trial court lacked probable illegal. stipulated there parties rely exigent arrest the state did not cause for the entry justify home. The into the circumstances to testimony parties at the stipulated taken also hearing preliminary be used trial court could county court, the the motion. The trial Kenosha decide court, granted Fisher, circuit Michael S. Honorable finding motion to arrest dismiss warrantless the defendant his home was unconstitutional. The trial court that: into de- concluded “[T]he fendant’s home was not obtained consent that could free, intelligent, unequivocal specific be considered a appealed waiver.” The state the trial order. court’s *3 appeals, published decision, court of ain affirmed holding the trial court’s order that the consent to enter the home was invalid because it was obtained from the deception by defendant’s mother deputies since the did not tell her they intended to arrest the defendant. State v. Rodgers, 115 Wis. 2d (Ct. N.W.2d 605 App. 1983). Detective Mielke testified 10,1982, that on June he was
assigned follow-up investigation in reference to as sault imprisonment and false charges involving the de fendant. Detective shortly Mielke said that after noon on 11, 1982, June he and Detective Vena went to the defendant’s home where the defendant’s mother met them át the door. they Mielke said that themselves, identified they told her wanted to talk to son, her and asked whether he was home. deputy Neither told the mother that he was there to arrest the defendant. The mother (the said he defendant) was seated living in the room on a couch and let them home; into the the detectives could see the defendant from the outside.1 The detec 1 The explain record does not what deputy meant “see ing the defendant outside,” i.e., from the whether an was they talk to him wanted defendant told the tives say some got up and started the defendant when esti arrest. Mielke under thing, him was told he Mielke two minutes before in one or the house that he was mated they defendant told the arresting Mielke the defendant. involving Car an incident in with were there connection fight complained 9, 1982, of a who on June men Karau hurt and forced and that she had been the defendant with approximately point to a ride with him from Kenosha Bay Kenosha. Mielke and back to 45 miles from Green battery for he under told the arrest defendant imprisonment. arrested false After the defendant was rights. squad he was taken to the car and his advised department gave Enroute defendant to the sheriff’s statement, they a verbal and after arrived at the sheriff’s department, gave the defendant a written statement.
The defendant moved to dismiss the action on the ground that his warrantless arrest his home was in 968.07, Stats.,2 violation I, of sec. Art. secs. 8 and 11 of Constitution,3 Wisconsin fourth, and the fifth and open observation as stood door or whether it was a previous through view a window. 968.07(1), provides: Sec. Stats., “968.07 Arrest (1) enforcement officer. law A law en- may person forcement officer arrest a when: “(a) He commanding has a person warrant that such be ar- rested; or “(b) believes, grounds, He reasonable warrant for person’s state; arrest has been issued *4 “(c) believes, grounds, felony He reasonable warrant person’s state; for the arrest has been issued in another or “(d) grounds person are There reasonable to believe that committing or has committed a crime. . . .” provides as I, Art. 8 of the Constitution Sec. Wisconsin follows: self-incrimination; bail; habeas “Prosecutions; jeopardy; double corpus. may for (1) person held answer be 8. Section No for law, person process and no of without due criminal offense punishment, nor may jeopardy of put in be twice the same offense of the United States Constitu- fourteenth amendments tion.4 against
may compelled any be criminal case to be witness himself or herself. .. I, provides Art. sec. 11 of the follows: Wisconsin Constitution as right “Searches and people seizures. Section 11. of the persons, houses, against papers, to be secure in their and effects violated; be unreasonable searches and seizures shall not and no cause, upon probable supported warrant shall issue but oath affirmation, particularly describing place or and searched be things persons and the or to be seized.” pro- The fourth amendment of the United States Constitution vides as follows: people houses, persons, “The secure in their be against papers, seizures, effects, and unreasonable searches and violated, issue, upon prob- shall be and no Warrants shall but cause, supported by affirmation, particularly able Oath or describing place searched, persons things to be and the or to be seized.” provides The fifth amendment of the United States Constitution as follows: person capital, “No shall held be to answer for a or otherwise crime, presentment infamous Jury, except unless on a or indictment a Grand of arising forces, in cases in the land naval or in or Militia, public when in actual service in of time War or danger; any person subject nor shall for the same to be offence put jeopardy limb; twice compelled of life or nor shall be any against himself, deprived criminal case to be a witness nor be life, liberty, property, of process law; or without due nor shall private property use, public just compen- be taken for without sation.” amendment, The fourteenth of1, sec. Consti- United States provides tution as follows: persons States, “All or born naturalized in the United subject jurisdiction thereof, to the are citizens of the United States wherein make State No State shall reside. any abridge privileges or enforce law which shall immu- or States; any deprive nities of citizens of the United nor shall State any person life, liberty, property, process without due law; deny any person equal jurisdiction nor within its protection of the laws.”
107 person’s ain arrests governing warrantless The law York, 445 U.S. Payton Newv. in forth home has been set State, 2d v. 84 Wis. Laasch 576, 573, (1980), police make (1978). can The 596, 587, 267 N.W.2d if the person’s home arrest warrantless valid exigent circumstances possess probable cause consent entry have the home or justify into exist Payton Laasch dealt di nor Neither home. to enter the Laasch did with consent.5 entry into a home rectly with excep an recognize to enter the home was that consent requirement. exigent tion to the circumstances probable cause parties stipulated there The rely on for the warrantless arrest and state does exigent entry justify home. into the circumstances to Therefore, mother whether the defendant’s issue is gave entry deputies home consent into the probable so that cause the warrantless arrest based was constitutional.
Laasch held at 592:
inferred,
lightly
“Consent to an
is not
but
to be
Kelly
convincing
must be shown
clear and
evidence.
State,
v.
75 Wis. 2d
N.W.2d 800
free,
intelligent,
The burden is on the state to show a
unequivocal
specific
v. State,
waiver. Gautreaux
489, 190
Wis. 2d
(1971).”
N.W.2d 542
present
legal significance
case concerns what
is to
be attached to the
dispute.
facts over which there is no
5 The dissent also
v. Wiscon
cites the recent decision of Welsh
-
-
sin,
(No.
15, 1984),
May
82-5466,
U.S.
filed
it
rulings
Payton
affirmed the
States
and United States
United
Court,
(1972). However,
District
There is no police deputy that the sheriffs Laasch, obtain a warrant to make an arrest. In we held at 591: rejected “This argument court has that whenever so, there is time to do a warrant must be obtained before making felony arrest. In supra, Rinehart v. State, at 766, 767, adopted this court the rationale of United States (E.D. v. Millen 1972), Wis. Supp. 338 Fed. 750, 751, that: ‘“ long probable exists, . as as cause for an arrest unnecessary,
arrest warrants are even where there 89, time Ohio, obtain them. See Beck v. U.S. S. Ct. 223, 13 (1964) L. Ed. 2d 142 deputies The trial court also said “the did not tell visit, purpose defendant’s mother the real for their being to appeared arrest her son.” This to the trial deception. court have been a The trial court also said consent was valid because it could not be free, intelligent, unequivocal considered “a specific waiver.” These statements demonstrate that the trial applied court a waiver standard to determine whether voluntary. the consent was The court appeals also applied by deception and was obtained found a waiver standard. determining of con the voluntariness for
The standard forth was set amendment the fourth sent under 218, 225-26 (1973), Bustamonte, 412 U.S. Schneckloth voluntary for the test Court used where the of consent the voluntariness confessions determine Schneckloth, which a car in amendment fourth cases. police stopped passenger the defendant was light plate were headlight because a license police A if car could be out. officer asked burned passengers one searched and consented. for
officer did not advise the defendant of reason *7 found, any contraband, if or that or the search evidence searching trunk, would the a be seized. While car which passenger unlocked, had three checks were found stolen up the the wadded under left rear seat. In that case Court stated: “ the ‘The that which has been ultimate test remains
only clearly Anglo-American courts test established years: for two Is the hundred the test of voluntariness. product essentially confession uncon- the an free and of by is, strained willed choice its If it if he has maker? may to confess, against not, if it him. If his be used it capacity use will has been overborne and his for self-determi- critically nation impaired, the of confession of- his process.’ Connecticut, supra, fends due at Culombe v. [Culombe, 602.” (1961)] 367 U.S. approach Schneckloth, taken the Court criticized the Appeals the follows: Court of for Ninth Circuit as Appeals the Ninth for approach “The Court that support any of decisions no our Circuit finds meaning attempted ‘voluntariness.’ have to define affirmatively prove that ruling, must Its that the State right subject that he had a of the knew search would, consent, practice, serious doubt refuse create conducted. whether consent continue be searches could proved from might it could be rare cases where There be affirmatively his knew of person a in fact that the record commonly right where there . . . But more to refuse— explicit implicit, the any coercion, was no evidence of to demonstrate prosecution that would nevertheless unable his subject in fact had known of search right to refuse consent. " go proving would “One alternative that far toward subject right did know he had search him of refuse consent would be to advise be- eliciting That, however, suggestion fore his consent. is a repudiated universally that has been almost eral and state both fed- and, rightly courts, think, we so. it For thoroughly impractical impose would be normal requirements consent search the detailed of an effective warning. part Consent searches are of the standard investigatory techniques of agencies.” law enforcement Id. (Footnotes at 229-32. omitted.)
There is a difference between consent for searches and seizures and rights. waiver of trial In Schneckloth, distinguished Court between them as follows: “There is a vast rights difference between those protect a fair rights criminal trial guaranteed and the under the Fourth Nothing, Amendment. either in the purposes requiring behind ‘knowing’ ‘intelligent’ waiver rights, of trial or in practical application of requirement such a suggests ought that it to be extended to the guarantee against constitutional unreasonable searches and seizures.” Id. at 241. *8 person
A must be in informed right; order to waive a however, a consent must voluntary be only, in other words, free of coercion, which is determined from the totality of the 242-43, circumstances. Schneckloth at the Court stated: “While the Fourth and Fourteenth Amendments limit
the circumstances under which the can conduct a search, nothing there is constitutionally suspect in a person’s voluntarily allowing a search. . .. We have
Ill policy part under- only is no recently stated: ‘[I]t to discour- Amendments lying Fourteenth Fourth and the ability of their age aiding to the utmost citizens from Coolidge v. New criminals.’ apprehension of in the U.S., 488.” Hampshire, at Schneckloth, held: the Court At 246 of application of nothing purposes or in the is “[T]here justi- Zerbst that requirements of waiver Johnson the fies, knowing equation compels, easy the of a much less . . with a . waiver consent search. disposes already “Much of what has been said argument requires refuse The considerations in the Miranda case that the Court’s decision knowledge right of a the conclusion that indispensable an a is element of valid consent. holding that in informed the Court’s simply inapplicable present Miranda are case.” Schneckloth, 248-49, Finally, stated: at Court only today a one. hold “Our narrow We decision custody and subject that when the search is not attempts justify State of his search the basis consent, re- Amendments Fourth Fourteenth quire fact it demonstrate that the consent was in voluntarily given, or co- and not the result of duress implied. express ercion, question Voluntariness ais circumstances, of while the fact to be all the determined from knowledge subject’s of a is a to refuse account, prosecution factor to taken into required to knowledge prerequisite to demonstrate such as a establishing voluntary consent.” testimony shows Deputy uncontradicted Mielke’s they home, deputies the defendant’s arrived at when mother, advised defendant’s identified themselves to the he and asked whether to talk to her son her wanted deputies used home. is no evidence There they relied of force or that force or threatened the use authority to enter on an untruthful claim lawful no evidence home in order to obtain consent. There is *9 invol- the consent that would render coercion untary. deputies the home led the into The mother entry into permit their choice to her free she exercised deputies gave all the informa- the mother her home. The by telling entry her tion to their she needed they talk to son. dissent stresses wanted to her The However, alleged deception perpetrated mother. on the deception and, in there was the state does concede fact, upon de- the officers did start to talk got say up fendant and he when started some- thing, they told him he was under arrest. Anthony F.,
In In
re
(1982),
Md.
A.2d 975
case,
facts almost identical to
in
those
the instant
Maryland
Appeals
Court of
found the arrest was valid.
argument
court found no merit
in the
vol-
untary
permission
character of the
to enter was de-
stroyed
police only
they
because the
told the sister that
wanted to talk to her brother. That court stated:
“Regarding
question
policeman’s
op-
of a
modus
obtaining
erandi
consent,
Court
Schneckloth
be
untary”
that,
competing
observed
‘two
must
concerns
determining
meaning
accommodated in
of a “vol-
legitimate
consent —the
[police
need for such
entry]
equally important
requirement
and the
of assur-
ing the
absence
coercion.’
Bustamonte,
Schneckloth v.
supra,
The trial court being' waiver, wheth- (1938) for as standard relinquishment intentional “an er the state demonstrated privilege.” right This or of a known abandonment appeals. applied by The John- the court same test was is not son test for the waiver of a constitutional applicable consensual home to a search or consent Schneckloth, 412 at under fourth U.S. amendment. 241, 242, proper volun- 243-44 n. test for 246. tariness of under fourth amendment *11 totality whether under it was circumstances coerced. State, 492-93,
In Gautreaux v. 52 Wis. 2d (1971), N.W.2d 542 which was one and one-half decided years before the decision, Schneckloth this court stated: “Although proving by the state has the burden of clear positive and free, evidence the search was the result of a intelligent, unequivocal duress or specific any consent without coercion, implied, actual or . . . no there is presumption given by a person consent to a search a under law.” involuntary arrest is and coerced as a matter of
The defendant in Gautreaux was under arrest and the owner car, refusing after twice search, to allow a consented to allow the search. The words in used Gautreaux do not meaning differ voluntary from a consent as defined in Schneckloth. nothing There is 968.07, Stats., sec. I, nor Art. secs. 8 and requires 11 that the definition of consent for into the home to be any different than the definition for consent under the fourth amendment of the United States Constitution as stated in Schneckloth. case, this since upon the state relied consent for
entry, it had the
proving
burden of
that the consent was
freely and voluntarily given. Schneckloth, 412
at
U.S.
222. In
Mazur,
State v.
293, 302,
2dWis.
280 N.W.2d
prosecutor seeks
“When
court stated:
(1979), justify
of a
the lawfulness
search
rely upon
freely
proving
that consent
he has the burden
given.”
met its burden.
voluntarily
The state has
knowledge
to refuse
mother’s
The defendant’s
prerequisite to
the home
not a
establish
entrance into
ing
voluntary consent;
only
it
one factor to be con
totality
under the
of the circumstances. Schneck
sidered
loth,
The dissent cites Wisconsin
11;
Constitution,
I,
Art.
sec.
applying the Wisconsin
years
however,
many
predate
these cases
Wolf
Colorado,
(1949),
that the fourth
which held
Applying proper standard of consent to this i.e., whether under the it vol- total circumstances 116 the defendant’s mother’s
untarily given, hold we voluntary. consent was appeals
By the Court. —The decision the court reversed. ABRAHAMSON, (dissenting). J.
SHIRLEY S. circuit court found that officers “told the de- they mother that . fendant’s . . wanted to talk to her son. She invited them into the home. ... It is clear deputies from the record that the went to the defendant’s speak home not to with him but to arrest him. . . . testimony deputies he shows that the did not [T] tell purpose defendant’s mother the real visit, for their being to deputies by arrest her . appeared son. . . The their actions have made a deliberate decision arrest the defendant before (Memo- arrived at his home.” pp. 1, 3.) randum decision, findings
The circuit court’s challenged of fact are not by the state. Indeed disputed the facts by are not parties.
If this case, were a contract or tort the officers’ con governed duct general would by per rule that a question son’s fact, generally intent is a one to be de fact, termined the trier of and that a misstatement of misrepresentation intent can be a which will render contract voidable or speaker which will render the liable for a tort. See Lossman, State v. 526, 118 Wis. 2d 348 (1984) ; N.W.2d 159 In re Lecic, Estate 2dWis. 592, 604 n. (1981); N.W.2d 773 3 Restatement (Second) of Torts (1977). sec. principle governing
The fundamental this case a warrantless “pre search seizure inside a home is sumptively unreasonable.” Wisconsin, Welsh v.
- U.S. -, - (1984) opinion (slip p. Payton 8) ; v. New York, U.S. eloquently Justice Jackson explained why a judicial warrant issued officer is required for a search of a home: *13 is Amendment, often which the Fourth point “The law it denies not that officers, by zealous grasped not enforcement which inferences support the usual protection con- Its evidence. men draw from
reasonable sists by a be drawn requiring inferences those being judged magistrate instead neutral detached and enterprise competitive engaged by of in the often officer right to of officers ferreting . . . The out crime. concern, grave a a is ... thrust themselves into home society which chooses only to a not to the individual but from sur- security and freedom to dwell reasonable reasonably right privacy must veillance. When yield a right is, rule, to decided to the of search be as officer, government en- judicial policeman or agent.” States, forcement Johnson v. United U.S. (1948). 13-14 The federal and state constitutions a law enforce- bar entry ment officer’s into a home unless there warrantless exigent are circumstances there or valid enter.1 In this case there was neither a warrant nor an exigent Therefore the into the home circumstance. subsequent and the only arrest are valid if the officers had obtained a valid consent. 1 Payton State, York, (1980) ; New Laasch v. U.S.
I deception misrepresentation intent constitutes their in this case. consent which vitiates argues police not to state the did have state that The seeking entry purpose into the home of their the they to police that wanted the officers’ statement really to speak they to intended the defendant —when vitiating deception The consent. arrest him —was not appeals accepted part position court of of state’s the rejected part, saying: police “We do not hold that must purpose state the their to visit to a home order enter, only may to they valid not obtain gain entry through deception.” 118, 2d at n. 3. Wis. police
This is not a in which case the officers entered intending home to the talk to the defendant and then police decided to arrest him. When the officers entered case, home they the in this did not wish to and did in fact “talk” to the defendant in the home. ma- The opinion jority correctly sets forth Officer Mielke’s testi- mony slip op., supra: at p. 105, “The the detectives told they defendant wanted to talk to him and when de- got up fendant say and started to something, Mielke told him he was Compare under arrest.” majority’s re- testimony statement of the when it intimates that de- “ tectives did in fact talk to the n defendant: fact the [I] upon officers entry did start talk to the defendant and got up when he say something, and started they told Slip 112, supra. him he op., p. was under arrest.” they obviously The were officers concerned that gain entry would not consent to if stated their true intent, purpose agree true their I mission. with appeals court observed, ap- which “If we were to prove type [police] permit conduct... we would important an state and federal constitutional [of people be secure their from houses unreasonable searches to be guile seizures] vitiated of those rights.” v. protect State depend our whom we (Ct. App. 118, 2d 339 N.W.2d Rodgers, 115 Wis. 1983).2 despite the offi majority apparently holds mother exercised of their intent
cers’ misstatement permit into her home and that free choice to her validly To the home was obtained. the consent to enter majority relies on Schneckloth reach this conclusion Bustamonte, (1973), 225-26 U.S. which *15 Supreme decided that the stan the United States Court dard under the fourth and fourteenth to amendments validity determine consent search a car is “voluntariness”. majority’s
The
misplaced.
reliance on Schneekloth is
majority mistakenly
The
broadly
reads Schneekloth
expansively
case,
though
to cover this
even
the Schneck-
explained
loth
one,”
court
that its decision was “a narrow
quoted passage
slip op., p.
supra.
Ill,
see
at
The Schneck-
loth
directly
decision does
presented
not address
the issue
In
this case.
Schneekloth
the United States
only
Court held
that state law enforcement officers were
required
not
person
to inform the
whose consent was
sought
right
of his or her federal constitutional
to refuse
to consent to a warrantless
search
seizure.3
case
This
2
party questioned
authority
Neither
of the defendant’s
grant
mother to
consent to enter the home.
3
Schneekloth
criticized
has been
various
2
commentators.
Seizure,
LaFave,
8.2, p.
Search
Dix,
(1978);
sec.
636-7
Analysis,
Waiver Criminal Procedure: A
More
Brief for
Careful
Court,
Burger
The
193,
(1977); Chase,
224-29
Tex.
Rev.
L.
Individual,
and the Criminal Process: Directions and Misdi
rections,
(1977); Note,
Consent to
Valid
N.Y.U.L. Rev.
Search Determined
Standard
“Voluntariness —Schneckloth
Bustamonte,”
(1974).
12 Am. Cr. L. Rev. 231
Jersey Supreme
followed Schneekloth
Court
not
New
has
interpreting
Jersey
See State v. John-
the New
Constitution.
son,
349,
68 N.J.
Schneckloth ato right to refuse suspect of a constitutional sought con- the officer when of a car search warrantless contrast, an case involves car. to search a sent purpose in their intentional misstatement officer’s entry home. There of a seeking consent to warrantless bright failure to inform line an officer’s between is a right legal suspect to refuse consent to warrantless of a misrepresentation of intentional search and an officer’s arrest. consent to a warrantless a fact obtain stopped officers of a car Schneckloth involved search involves highway This case for a traffic violation. on the suspect’s going home intentionally to the officers bright line in fourth amend- arrest. is a make an There law into a car where ment between privacy protected entry into where a home least Welsh, privacy protected. 2d State v. 108 Wis. most (1982) (Abrahamson, J., dis- 321 N.W.2d Furthermore, senting) . in Schneckloth the Court stressed Taylor, reporter and seizure sec- for the search Professor *16 Procedure, Pre-Arraignment com- tions of the Model Code of unlikely that there “It seems mented on Schneckloth as follows: right than any greater knowledge a search to refuse is of one’s right goes explain that a choice based on to the to silence.” He may wholly of the result on a erroneous factual belief understanding overborne, neither is it an will that has been but choice. knowledge the that police searches, have full the “In consent obliga- seeking no is under consent person are from whom crucially pertinent fact give refuse is a it. The tion slightest doubt and, understanding is the if there consent to an right, no such question of his person is not aware that the eliciting the on him, given are is information conduct such It hard to describe is basis of withheld information. Schneckloth] deceptive, [in Court’s decision or the as other than 240.2, pp. Commentary, 536-537 retrograde.” sec. other than as 1975). Draft, April (Proposed Official requiring the officers to ad- practical difficulties stopped suspect after the officers vise and warn the practical highway. such dif- on the There are car no reported The ficulties in case. crime was suspect day officers made identified the before arrest. The officers could have obtained search war- rant. Or the officers could have obtained consent misstating purpose. enter the home without their saying majority apparently The reads Schneckloth as amounting only deceptive that to coercion conduct rend- involuntary deception ers the consent and that this case cannot be characterized as render- coercive as ing involuntary. majority’s the mother’s consent only view voluntariness turns whether a de- fendant’s will indefensibly is overborne narrow. the context of situation, the Schneckloth fact the Court perceived stressed volition and a reduced need for “awareness.” But Schneckloth is limited to fact its sit- uation : a consent to search a car on the road. The cir- cumstances in very this case are different.
It recognized is well the voluntariness test set forth in Schneckloth anis elusive standard. The Schneck- recognized loth court itself there is “no talismanic defini- tion of mechanically applicable ‘voluntariness’ to the host question situations where the arisen. ‘The has notion ” amphibian.’ ... “voluntariness” itself an Bustamonte, Schneckloth v. at 224. Indeed the U.S. United States Court has been criticized for not providing principle guide a firm judicial decisions as to what deprive factors consent of 2 La voluntariness. Fave, Search and Seizure 8.2, p. sec.
Although intermingles Schneckloth the issue of the suspect’s awareness of her or situation with the issue his pressures acceptable upon person who makes choice, it generally accepted concepts cognitive voluntariness and consent have as well as voli- *17 LaFave, Seizure Search and components. See tional Voluntariness, Grano, Free (1978); pp. 8.2, 636-688 sec. 859, 860 Confessions, 65 Va. L. Rev. Law and the Will of of law, party’s manifestation if a (1979). In contract misrepre- material fraudulent or induced a assent is relying, justified in party upon which sentation (Second) Restatement may be withdrawn. the consent why a 164(a) see no reason (1979). I sec. Contracts of lower standard applied case in a contract than that a to enter applied when the issue consent should be a when search home without warrant make an arrest exigent are no warrant could be obtained and there circumstances. decision it the SchnecJcloth
While is clear from product must not be consent to a search warrantless predicated on not and that need of coercion consent consent, specific knowledge of the to refuse provided Supreme not a firm has United States Court deciding varying principle circumstances whether “for ignorance highly deprives consent of a relevant fact Fourth Weinreb, voluntariness.” Generalities of Amendment, 42 Univ. L. Rev. Chi. though Supreme has Court States
Even United guiding principle, States set forth United phrases recognized in SchnecJcloth that Court has coercion,” and “voluntariness,” “freedom from fear or expres “free and choice” are shorthand unconstrained the law complex values which sions indicative of the Schneckloth, 412 U.S. considers and seeks maximize. Court, According for volun- at to the the criteria 224. competing reflect an values. tariness accommodation validity depends A determination of the balancing way process. stating on a Another legitimate concept excep is that consent searches are requirement tion to the warrant because consensual inherently searches are cri- reasonable. The ultimate
123 validity determining of consent is therefore terion for of have been crossed. whether the bounds reasonableness balancing process in is the constitu value One entry “physical privacy tional in home. The against wording the home is which the of the chief evil v. of the Fourth Amendment is directed.” United States Court, (1972); United District States 313 407 U.S. - quoted approval Wisconsin, with v. Welsh U.S. - -, (1984) (slip op. p. 107, supra). at also See State, Laasch 587, 597, v. 84 Wis. 2d 278 N.W.2d (1978) concurring (Abrahamson, toas Wisconsin Con J. stitution) . public deviate from
Another value is that officials not high misrepre- Deception conduct. standards of Any sentations are such deviation fosters deviations. cynicism public in the officials and callousness which is then difficult to contain within the of bounds special justify needs which the deviation. law enforce-
A third value the need for effective of ment. enforcement Undue restriction effective recog- security. it is criminal law diminishes our Thus may, in nized that under certain circumstances officials combatting dealing persons and in who are crime with suspected having depart statutes, of violated the criminal high from usual of standards conduct to which we hold government investigation officials. kinds some cases, necessary strategy criminal “stealth and are weapons in a officer’s arsenal.” Sherman v. United States, (1958). 356 U.S. may community
A fourth value that “the has real encouraging interest consent” in order facilitate legitimate law enforcement activities. Schneckloth Bustamonte, 412 at 243. Effective law enforcement U.S. depends cooperation on the assistance citizenry. “society’s deeply that crimi-
A
felt belief
final value is
nal
an
of unfairness.”
law cannot be used as
instrument
Bustamonte, 412 U.S. at
In the
Schneckloth v.
223-27.
then,
analysis,
in each “consent” case there is an
final
Schneckloth,
“fairness.”
may actually police hinder in the efforts future dis- couraging cooperation citizen with law enforcement offi- cers. opinion the majority provides Since no assurance police that the not purpose will misstate the for which they entry seek into home, majority’s the the decision may lead citizens to police be distrustful of officers and to be reluctant to police consent to entry into a home. As a result of the majority opinion, likely citizens are to conclude that should exercise their constitutional to refuse consent to a request officer’s to enter a home when the officer does not have warrant. If citizens cannot trust law enforcement officers, the officers expect cannot be treated the citizens as trustworthy. case, society’s this sanctity in interest the high
home and in government standards of conduct for outweighs substantially limited incon- the officials requiring enforcement venience law officers seeking the intent in to enter misstate their get requiring law enforcement home officers seeking entry into home. I warrants therefore before assessing assessing fairness, conclude reason- ableness, police deception this court should that the hold in this case vitiated consent. amendment
I refer Schneekloth and the fourteenth majority on Schneekloth in this case relies because under the four- and decides the search and seizure issue entry I teenth amendment. conclude into home and arrest violate the fourteenth amendment. validity of
Furthermore, I have considered the I, Article section and arrest under apart Constitution, from the fourteenth Wisconsin conclude, separate, amendment, I on bona fide ade Michigan independent grounds, quate, law state Long, - U.S. -, -, (1983), U.S.L.W. this violate the Wisconsin search arrest Con opinion Any federal cases referred to stitution. *20 interpreting binding precedent Article are not in cited as I, Constitution, 11, séction but for Wisconsin guidance.
Although majority I, that Article section concludes amendment, substantially as the II, the same fourth analyzing state issue under the it errs in Supreme by guessing what United State constitution might fourth amendment. Deci- Court hold under the Supreme and other sions United States Court language substantially interpreting courts constitutional may that of the similar to Wisconsin Constitution helpful interpreting persuasive the Wisconsin Con- stitution, jurisdictions these are but decisions other binding interpretation on this court our of our constitution.
126 I, 11, copied had been from the
Even if Article section Constitution, rather than from federal another constitu- infra, document, note tion see 5 our court is not bound by placed by the construction on the fourth amendment subsequent adop- the United States Court to the 1848, tion of our constitution unless we find the con- reasoning persuasive. struction sound and the Ditsch v. Finn, 308, 309, 305, (1934); Wis. N.W. 562 B.F. Comm., Sturtevant Co. v. Industrial 10, 186 Wis. 17, ; (1925) 2A Sands, N.W. 324 Sutherland Status tory (1973). Construction sec. 52.02
Although
willing
our court has
been
fed
consider
precedents
eral
which accord with the Wisconsin Con
stitution,
State,
323, 329,
Allen v.
183 Wis.
N.W.
(1924),
by
this court has refused to be bound
federal
contrary
decisions which are
to our state constitutional
clearly
values. This court
stated this view in Nunnemacher
State,
190,
v.
129 Wis.
(1906),
Justice urging Smith’s statement in 1855 the court to look to the Wisconsin constitution should by be followed the court: people “The then constitution, made this adopted it as primary their people law. The of other made states
for themselves respectively, constitutions which are con- strued appropriate their own functionaries. Let them construe theirs —let us construe, and stand ours.” At- torney Barstow, General ex rel. 4 Wis. Bashford [*758] This court long has a history of recognizing vitality *21 of the Rights Declaration of of the Wisconsin Constitu-
127 I, section interpreting Article I) of (Article tion approach of ex- traditional our continue should 11. We precedents. own and our amining our own constitution the Wisconsin Constitu- Sundquist, Construction See of Marq. Principles, 62 Fundamental tion —Recurrence to Independent Appli- Comment, ; The (1979) L. Rev. 531 Questions Provisions Constitutional cation State of of ; (1979) Procedure, Marq. Rev. 596 Com- 62 L. Criminal Presen- Rediscovering the Wisconsin ment, Constitution: Questions Courts, 1983 in State tation Constitutional of L. Rev. 483. Wis. long recognized home en- that
Our court has dignity special sanctity our state con- titled to under 407, Royer State, 417, See, e.g., v. 193 180 Wis. stitution. ;4 State, 163, (1923) v. 160, 89 Jokosh 181 193 N.W. Wis. Long (1923) N.W. .5 it before was constrained 4 Writing court, im for the Justice Esehweiler described the portance I, of Article section of the Wisconsin Constitution people of the state as to the follows: supra, I, pledge of Const., of the faith is a art. Wis. “Sec. (with government people all alike state, state of good express possible it is for mental reservation no houses, papers, persons, only), be secure in their innocent shall against This secu- search and seizure. and effects rity unreasonable by pledge violated the state has vanished and the acting guarantees state, color of under when officers it unlawfully. pledge state-given authority, search and seize provision use is violated when and that of sec. 8 are each its other of made of evidence in one of its own courts such really is, proper one officers. That a result —that a conviction guilty may excuse is neither an of an be thus reached offense — is so for nor a the state of that which condonation the use the result of Hoyer of its own fundamental charter.” its own violation State, 407, 417, Wis. N.W. guarantee Vinje constitutional Chief Justice viewed state part against unreasonable and seizure as fundamental search organic law of this state: that, “. . cannot be . It is also said if searches such as this may made, prohibition true law cannot be enforced. This *22 128 the to amendments fourteenth the fourth and
do so Constitution, relied the Wis- this court States United right of enforce the consin Constitution to sustain and papers, persons, houses, people in their the to secure be against and searches seizures. and effects unreasonable State, 587, 598, 278 Laasch v. 84 2d 267 N.W.2d Wis. J., (1978) concurring). (Abrahamson, light frequent justify to non- of the use of consent compliance diluting requirement, with the warrant meaning impact of con- consent dilutes the of the state guarantee sanctity stitutional of the of the This home. facilitating court should avoid of the state erosion guarantee privacy. constitutional The solution to problem presented by this case is not to the re- reduce quirements prevent problem for consent but to from arising by encouraging officers to obtain warrants.
Characterizing the conduct of the mother defendant’s evincing voluntary in this case as free and to compromises integrity enter the home of the state guarantee sanctity constitutional of the home and English mockery language. makes of the I Since conclude that arrest in the warrantless illegal, home was I would hold that the circuit did court acquire personal jurisdiction not of the defendant. State Monje, v. 138, 109 2d 147, (1982). Wis. N.W.2d I would therefore affirm the order of the circuit court part may or it be true in whole. The answer is that an article having origin of the spirit constitution its in the if not in the Magna letter of prevents it, duty Carta and it is the the court entirety, sustain and enforce the constitution in its permit may presently what seem be a desirable procedure mode of portions to annul such fundamental our organic law as the freedom from unlawful searches. im- portance provision may of such a sight lost of in times of peace well-organized in a state, well-administered but times of great stress or dissensions its value is as as those who inserted it in State, the constitution it conceived Jokosh be.” Wis. N.W. 976 appeals dismissing the court of decision I dissent. action. Nathan Justice
I am to state that Chief authorized joins Heffernan dissent. S. *23 Plaintiff-Respondent-Petitioner, Bruce Lobermeier, Telephone Company Wisconsin, a domes General corporation, tic and American Motorists Insurance foreign corporation, Defenda Company, insurance nts-Appellants.†
Supreme Court February 28, Argued No. 198 June 1984. 4.—Decided 82-240. (Also reported 466.) in 349 N.W.2d August 14, for reconsideration dismissed Motion 1984. †