State v. Vorburger

Plaintiff-Respondent- Wisconsin, State Petitioner, v.

Bradley Defendant-Appellant. J. Vorburger,

Suрreme Court argument No. 00-0971-CR. Oral November 2001.—Decided July

2002 WI 105 (Also 829.) reported 648 N.W.2d For the plaintiff-respondent-petitioner cause was argued by Kleinmaier, Stephen W. assistant attor- ney general, with whom on the briefs was James E. Doyle, attorney general.

For the there defendant-appellant brief and Cook, oral argument David by D. Monroe. 1. DAVID T. PROSSER, J. This is a review of a

published decision of the court of appeals reversed the conviction of J. Bradley Vorburger on a charge possession of cocaine with deliver, intent to and directed the circuit court to grant Vorhurger's motion to sup- Vorburger

press co-defendant, and a Amerie evidence.1 by police stopped in Becker, and detained a motel conducting investigation. During questioning by drug Vorburger police, to a of his car consented search apartment in Becker consented to a search of the which Vorburger she and resided. Vorburger suppress

¶ 2. moved to the evidence by police apartment. car and in He discovered illegally that he and Becker were seized and claimed and that their consents to the searches were arrested involuntary illegal the fruit of seizures. both Vorburger's suppress by ¶ 3. motion to was denied County, Ebert, Dane D. the Circuit Court for Judge. Steven Vorburger pled no to one count of then contest party possession of cocaine intent deliver as 961.41(lm)(cni)2 §§ contrary crime, to Wis. Stat. (1995-96).2 appealed conviction, He his and 939.05 denying alleging the circuit court erred his suрpression appeals reversed, The court motion. of determining Vorburger and were that Becker unlaw- fully Vorburger's arrested. The court concluded that consent to search his car and Becker's consent search apartment given their as a result of unlawful were and, therefore, arrests were invalid. petitioned The State this court for review of appeals of

the court decision as it relates to Becker's detention and consent to search. now determine We properly lawfully stopped and that Becker was and part investigation as a law and detained enforcement her did not an that detention constitute unlawful 1 481, 43, Vorburger, App v. 2001 WI 241 Wis. 2d State N.W.2d 398. subsequent All to the references Wisconsin Statutes are to

the 1995-96 version unless otherwise indicated. voluntarily arrest. further that Becker We determine apartment. Accordingly, consented search of her to the appeals. we reverse the decision of the court of

I. BACKGROUND gleaned ¶ 5. The facts of are from this case testi- mony hearing April 3, at a on 1998, motion held and and from documents the record. The salient events during July evening occurred the afternoon and 2, early July 1997, and the hours of 4:00 Between and July manager 4:30 in the afternoon of aof Motel inspecting 6 east of near Madison Interstate 90 was they properly rooms to ensure had been cleaned. manager strong As he entered room a detected marijuana. suspected smell that he He also noted unzipped bag bag diaper an about the of a on size conditioning picked up floor air next to the unit. He sample bag, placed substance he saw the it in plastic bag, plastic bag took office, to the motel police.3 and called the County Deputy Jeffrey

¶ 6. Dane Sheriffs Thiel Lurquin dispatched and motel, Robert to the and separately approximately Deputy arrived 4:30. Thiel manager met with the and examined the substance that had been removed from room 230. The substance marijuana. appeared manager Deputy to be showed slip. Thiel a check-in It revealed that room 230 had been rented to Corin Cramer listed the driver's (RZY-670) plate license number license number gave Deputy that Cramer when he checked in. Thiel plate checked the license number and learned manager hearing testified at motion he could not recall he personally whether called the he whether had an call employee them. registered and were asso-

plates Kokoros to Peter Buick. a four-door ciated with Lurquin their Deputies Thiel contacted ¶ and Sergeant Ser- supervisor, Ritter, who contacted David supervisor the Dane geant Gaber,4 Randall Force). (Task Gangs County Force Task and Narcotics Sergeant Alix Olson of Detective then contacted Gaber Department her to and instructed Police the Madison begin prepare affidavit. warrant search to Lurquin positioned Deputies then Thiel and to for a warrant room 230 to wait outside themselves vantage point, the officers their the room. From search through parking a window. At lot the motel could see approximately with license four-door vehicle 5:45, a parking plate lot. The entered the RZY-670 number parked entered the motel. When the car and driver attempted approached room 230 and the door to driver by approached key he lock, into the was insert a to Deputy Thiel. as Peter Koko- driver identified himself 9. The registered acknowledged that room 230 and

ros Cory had been that Cramer Kokoros stated Cramer. key day had left the motel room car that Kokoros' key that he found the claimed the car. Kokoros stopped bathroom. the motel to use the 6:00, a number of other about 5:45 or 10. At After arrived at motel. from the Task Force officers Deputy leaving Montie, Michael Kokoros with Officer plastic hag given the contents Thiel field-tested hearing, Sergeant had motion Gaber By the time of the by opinion refers to Gaber Lieutenant. This promoted to been incident. the time of the his rank at by manager. posi- him the motel substance tested tetrahydrocannabinols (THC), ingre- for tive the active marijuana. dient

¶ 11. Officer Montie told Kokoros that he was not being under arrest was but detained. He asked him to go questioning. outside for Kokoros told Officer Montie that he had traveled to previous day from Madison La Crosse the stayed

and had in room 215 of motel night. that He that he had said checked out around Cory 10:00 a.m. had met with Cramer and another friend. told Officer Montie was on Kokoros that he his way key back to La Crosse when he motel noticed the saying his car and remembered Cramer that he was staying in room Kokoros claimed that he intended drop key girl- off to at the of Cramer's residence friend, but first went to the motel to use the bathroom. subsequently Detective Olson checked Kokoros war- probation drug on rants learned that he was for a offense. Meanwhile, Officer Kevin Linsmeier learned

from the front desk clerk that room 215 had not been got key out, rented since Kokoros had he a checked so for the room. he entered room he When smelled marijuana particles marijuana, and observed mari- juana marijuana seeds, and other remnants. Officer employee Cory Montie from learned a motel approximately Cramer had arrived at the motel at 2:30 plate in a that afternoon car with license number RZY-670, and had checked into room 230. Mon- Officer question continued him tie Kokoros5 who told likely driving by was Prix owned Cramer a Grand squad Officer Montie drove his car in he which was questioning "early across the street to act as an Kokoros and perhaps "stop" depending observation" vehicle vehicle on transpired in the lot. parking what motel girlfriend. the State Montie called Officer

Cramer's registered Cramer's the car and learned that Patrol girlfriend had Prix, and that Cramer awas Grand address. Madison questioning Koko- Montie 13. While Officer Sergeant Deputy Lins- Gaber, and Officers Thiel,

ros, entered Linda Kosovac Paulson, and meier, Christian for the warrant. 229 to wait room in- ¶ Montie was 9:20, Officer 14. At around Prix, had arrived vehicles, a two one Grand formed that squad parking Montie drove his lot. Officer in the motel parking one of Kokoros identified lot and car into the had Prix that Cramer been as the Grand the vehicles driving. he exited the Cramer as Kokoros also identified office, told the the motel Prix. Cramer entered Grand key room, in the he had left his desk clerk that front key. given and a new just ¶ 9:20, after the later, A minutes few 15. people, later iden- three in room 229 observed officers Vorburger, approach Becker, room Cramer, and tified as key begin they into to insert saw Cramer 230. When identified room 229 and lock, the officers exited Sergeant hand- officers. Gaber as themselves Deputy Kosovac Thiel and Officer Cramer, and cuffed Vorburger. handcuffed Officer Linsmeier handcuffed safety telling and for officer her that it was for Becker, safety. performed pat-down on searches her Officers weapons. Vorburger, found no Cramer, and Becker but Vorburger, ¶ Cramer, and Becker were de- 16. hallway, separated each from in the motel tained Vorburger in chairs. and Cramer were seated others. Becker declined to sit. being told Becker she was Officer Linsmeier the officers free to leave while and was not

detained investigation, an was not conducted but she under apрeared upset. arrest. Becker cried to be She told Linsmeier identified herself and Officer that Vor- burger boyfriend. explained was her She that she was going to room 230 use the bathroom. 9:40, 18. At around about 15 minutes after her,

officers first detained Becker asked to use the Officer Linsmeier officer, bathroom. asked female Kosovac, Linda for assistance. Kosovac Officer told accompany Becker that she bathroom, would her long it, she could use so as Officer Kosovac was present. Becker not to use chose the bathroom.6 completed Olson Detective search war- approximately rant affidavit at drove 8:45 and it to the County Judge Angela Bartell, home Dane Circuit signed who reviewed the affidavit and a warrant at brought signed 9:34. Detective Olson warrant di- rectly arriving motel, 10:17, to the 10:05. At around Sergeant Olson, Detective three Gaber, and other offic- ers entered room 230 to execute the warrant.

6 Becker and Officer about Kosovac differed Becker's re to quest acknowledged use the bathroom. Becker that Officer bathroom, offered her but Kosovac to let use the claimed that Officer Kosovac told her that her handcuffs could not be using to Becker removed facilitate bathroom. asserted that recently told undergone she Office Kosovac that she had a personal procedure anyone medical and did not help want to pants. lower her Officer Kosovac Becker testified that never told surgical procedure, about never her her that she told Becker removed, her not be and that that handcuffs could handcuffs routinely from are removed females to allow them to use the bathroom. bag found the 230, the officers Inside room manager It contained had described. the motel

that marijuana digital pounds and a scale. about containing plastic bags. a box also found officers Olson and Ser- 10:30, after Detective 21. Just question geant to Kosovac directed Officer Gaber into room 229 and took Becker Becker. Officer Kosovac Approximately 70 minutes had handcuffs. removed her According initially passed Becker detained. since an I it was about hours, like but think Becker, "It felt told Becker Kosovac half, and a two hours." Officer hour slightly the door the bathroom with that she could use got ajar. of water. a drink Becker used the bathroom read the Miranda7 10:39, Officer Kosovac 22. At f warnings then told Becker to Becker. She investigation, "drug" investigation and that offic- was a marijuana large quantity room ers had found Becker if she smoked mari- asked 230. Officer Kosovac Vorburger juana. replied both were she Becker marijuana and had shared smokers occasional apartment. Officer afternoon at their "blunt"8 that any drugs drug Becker had Kosovac asked whether paraphernalia purse, if consent to in her and she would warning agreed purse. and after of her Becker a search and had a that she was a diabetic Officer Kosovac dump purse, in her allowed Officer Kosovac needle purse Kosovac onto the bed. Officer the contents of her nothing illegal. Kosovac then asked Officer found any drugs apartment. Becker at her Becker if she had (1966). Arizona, v. 384 U.S. 436 Miranda marijuana. See cigar filled with A "blunt" is a hollowed-out 8, 233 Wis. 2d 607 N.W.2d Hughes, v. 2000 WI State might quantity stated that there be a small of mari- juana rolling papers.9 and some

¶ 23. Officer Kosovac Becker if she asked could marijuana rolling papers remove the and from Becker's apartment. agreed. Becker Officer Kosovac testified anything that she Becker if asked officers would find quantity marijuana they more than small if the apartment replied they searched the Becker and go then if would not. She asked Becker could officers apartment, confiscate the small of mari- amount juana paraphernalia, apartment search drugs drug paraphernalia. other items of Officer replied Kosovac testified that Becker to the with words problem."10 "Sure, effect of no ¶ 24. Officer Kosovac testified that around 11:15 Sergeant she told Gaber and Detective Olson that given apartment. Becker had consent to search the again Officer Kosovac asked Becker if she consented to responded a search, and Becker did. that she Two transported uniformed officers then Becker to her apartment, squad Officer in her while Kosovac followed they arrived, car. When two uniformed officers 9 Becker testified that Officer Kosovac told her that Vor- burger marijuana had an informed officer that stems and seeds likely present apartment. testimony significantly Becker's differed from that of only Officer She claimed that Officer asked Kosovac's. Kosovac quantity marijuana, if officers remove the could small but did they not ask if could She apartment. search the entire further implied claimed if did that Officer Kosovac Becker not search, aget consent to the she would search warrant to remove marijuana. agreed Becker testified that she Officer allow marijuana apartment Kosovac to remove the from the because her apartment she did not want to be "trashed" a search pursuant to a warrant. request, them in

waited, at for Becker to let Becker's neighbors that door that would be unaware the back so apartment. in the Officer Kosovac officers were began the to search the that before officers testified again apartment, Becker consent to she asked could look search, and Becker said the officers that they wherever wanted.11 apartment, In search of the officers their marijuana, hallucinogenic powder cocaine, mush-

found rooms, pager, postal scale,

a small a and remains of the agree- marijuana, as well as lease and rental smoked They Vorburger. in ments the names of Becker and also hanging pocket of a in cash shirt found $1968 baggies found two of the bedroom closet. powder officers belonged jewelry in a holder cocaine to Kosovac that she asked Becker Becker. Officer testified replied hers, cocaine and Becker that it if the was a not. Officer Kosovac further testified that she found receipt Vorburger" name it in with the "Brad on place the officer found the cocaine. When the same as completed drugs the search and confiscated the officers drug paraphernalia, they allowing left, Becker to and apartment. remain at her charged Vorburger

¶ and Becker were each possession grams of 15 to 40 of with intent cocaine contrary zone, deliver, within 1000 feet of a school to 961.41(lm)(cm)3, §§ knowingly 302.11; Stat. Wis. maintaining keeping place used for controlled sub- knowingly pos- § contrary stances, 961.42; to Wis. Stat. Becker that after Officer Kosovac saw mari testified find, juana that had told her would Officer Kosovac Becker she apartment. the rest of the Becker asserted wanted search did Officer ask for to search that she not hear Kosovac consent give apartment entire and that did not consent to such she a search. §

sessing psilocin, contrary 961.41(3g)(d); to Wis. Stat. knowingly possessing contrary ‍‌‌​​​​‌​​​​‌​‌‌‌‌​‌‌‌​​​​​‌‌‌​​​‌‌​​​​​‌‌‌‌‌​​‌‌‍THC, two counts § 96l.4l(3g)(e).12 to Wis. Stat. Vorburger suppress

¶ 27. moved to "all evidence directly indirectly stop, obtained as result July detention and arrest... on or 2-3, about 1997 . . .." claimed he and He Becker were both stopped, detained, and arrested without a and warrant suspicion without reasonable that he or hаd com- she mitted or about to were commit crime. He further gave claimed that the consent he to the search of his car gave and the that Becker to consent the search of their apartment the of and, were result unlawful arrests therefore, invalid.

¶ hearing, 28. the After circuit court denied Vorburger's finding motion, that of detentions Vorburger Becker and were not unlawful. It determined by police gaining that the in tactics used consent to Vorburger's Becker/Vorburger apart- search car and the improper, designed "coercive, ment were not to overcome the court defendant's resistance." The con- cluded that the of voluntariness Becker's consent was proven convincing by and clear evidence. Vorburger agreed plead trial, 29. Before to to possession

one more count of of than 5 but not more grams contrary than cocaine, 15 to Wis. Stat. 961.41(lm)(cm)2, §§ exchange 939.05, in for a charge possession reduction in the cocaine from of more grams possession than 15 but not more than 40 to grams, more but than than 5 not more and for against Vorburger All charges filed and Becker were as crime, party pursuant § Stat. to Wis. 939.05. charges and enhancers. Vor-

dismissal other prison burger in on sentenced to 30 months Octo- was 4, 1999.13 ber ap Vorburger appealed, and the court of 30. concluding Vorburger

peals reversed, that and Becker unlawfully arrested, and that their consent to resulted from the unlawful arrests. State v. search Vorburger, App 2001WI 2d 624 N.W.2d Wis. determining The court cited numerous factors 398. Vorburger at the motel. that Becker and were arrested Mirandized, It that two were handcuffed noted they leave, and that Becker were not free questioned ¶¶ The in a room. Id. at 17-18. closed court Vorburger and Becker consented to the determined apartment, respectively, searches of the car and after probable rendering cause, arrests without consents ¶¶ 22, Id. at and searches invalid. petitioned review, The this court for State

solely validity apartment,14 on the of the search of the granted petition. primary issue in and we this apartment whether the search of the which case is Vorburger complied Becker and resided with the Fourth 13 pled guilty possession Becker to two of of THC counts posses contrary 961.41(3g)(e) § to Wis. Stat. and one count of 961.41(3g)(d). § Stat. psilocin contrary sion of to Wis. All the charges remaining and enhancers were dismissed. Becker was 1, on probation sentenced to 30 months March 14 appeals The State not contest court of determi does marijuana Vorburger's of in car nation evidence was an unlawful properly obtained as result of arrest and was only It suppressed. contests the reversal of the conviction that gathered during on the search of the was based evidence Therefore, although appeal, is apartment. Vorburger's this our on Becker's detention and her to search the focus is consent apartment Vorburger. she shаred with Amendment to the United States Constitution. To issue, decide this we must determine whether Becker's detention at the motel constituted an arrest, unlawful voluntarily gave and whether Becker officers her con- apartment. sent to search her

II. THE STOP AND DETENTION

A. Standard of Review validity 32. The constitutional of a search and question

seizure raises a of constitutional fact. State v. Griffith, 72, 23, 2000 WI 48, 236 Wis. 2d 613 N.W.2d suppress 72. When a defendant moves to evidence, the findings circuit court "considers the evidence, makes evidentiary or historical fact, and then resolves the by applying principles issue constitutional to those (citing historical facts." Id. Martwick, State v. 2000 WI 552). ¶¶5, 16-17, 231 Wis. 2d 801, 604 N.W.2d We suppress review a circuit court's denial of a motion to steps. two findings We examine the circuit court's clearly historical fact under the erroneous standard, application and then de review novo the of constitu principles tional to those Eason, facts. State v. 2001 WI 98, 9, 206, Wis. 2d 625; N.W.2d State v. Matejka, ¶ 2001 WI 16, 241 2d Wis. 621 N.W.2d Findings B. The Circuit Court's and Conclusions ¶ 33. The circuit court determined that Becker merely arrested, was not but detained "to freeze the quo awaiting status while a search warrant, and to engage Terry-style inquiries in the meanwhile."15 The court reached its conclusion after it made numer- Ohio, Terry v. (1968). 392 U.S. investigative findings regarding the deten- of fact

ous detained for Becker.16It found that "Becker was tion of approximately one hour before search warrant was one-quarter hours executed, and least two before degree "[t]he being found of rеleased." The court that noting modest," while the officers restraint was that they guns any use handcuffs, did not draw their or used repeat- police "the additional restraints. It found that edly they that were not under stressed defendants (to police questioning arrest, . . . the limited their Terry befitting stop scope than a more custodial police interrogation), the detention and the maintained necessary only long purpose as to effectuate its as was (until warrant)." they executed the search received and Finally, court Becker not moved noted that out questioned police motel, and in a of the was not vehicle. specifically note the 34. The court did not num- present motel, officers at the but it determined ber of appropriate "the number officers involved was The for the number of defendants involved." court totality of the and circumstances considered facts and concluded that "the officers' actions and reasonably would have communicated to the words they go, [] were not free to but that defendants they not under arrest." above, As noted we review the circuit court's "clearly findings of fact under the erroneous" standard. Vorburger disputes none of the circuit court's factual findings, and our finds that each review record supported testimony finding by preliminary is at the hearing. hearing motion cannot We therefore con- suppression circuit denying court's order mo Kokoros, all applied people tions four detained аt the motel— Cramer, Vorburger, this purposes opin and Becker. For the ion, only findings we focus on the related to Becker. any findings by elude that of the factual made clearly circuit court was erroneous.

¶ 36. The circuit court determined that under these facts and circumstances, Becker's detention did illegal appeals not constitute an arrest. The court of disagreed. It noted that Becker was read Miranda warnings Although in a closed-off room. her handcuffs any had removed, been Becker had "little if indication of long [she] might [she] how would be detained or what [she was] go." Vorburger, have to do before free to 2001 App ¶¶ appeals 43, WI 17-18. The court of concluded interrogated, that Becker was confined and thus, and arrested. Id. at 18. We de review novo the circuit court's determination that Becker was not arrested, benefiting analysis from the of the circuit court and the appeals. court of

C. Detention or Arrest

¶ 37. The critical issue in case this is whether the detention of Amerie Becker was constitutional at the apartment. time she consented to the search of her A gave second issue is whether the consent she voluntary. constitutionality 38. The of Becker's detention governed by protects

is Amendment, the Fourth which "right people persons, to be secure in their papers, ágainst houses, effects, and unreasonable (em . searches seizures . . ." U.S. Const. amend. IV added). phasis Reasonableness is the "ultimate stan dard" embodied in the Fourth Amendment. Seе Michi (1981). gan Summers, v. 692, 452 U.S. 699 It is "the inquiry," Terry (1968), Ohio, central v. 392 U.S. 19 key principle." Summers, n.12 452 U.S. at 700 "the Dunaway (quoting York, U.S. v. New (1979) (White, concurring)). J., investigative stop and detention of Fourth Amendment constituted seizure Becker purposes. (concluding Terry, U.S. at 19 n.16 See by person officer, means of is seized "when that physical way authority, has in some force or show ."). liberty [the] . Conse- citizen. . the restrained quently, question this seizure was rea- is whether the it circumstances, or whether under all the sonable Fourth Amendment. violated the Vorburger, Cory and Amerie Cramer, Brad 40. f County by Dane officers of the Becker were detained Gangs Force at 9:20 on a Wednes- and Task Narcotics day evening. already were enforcement officers Lav/ obtaining process room 230 to search warrant the a search of "said The authorized of the motel. warrant premises." persons premises unknown within said stopped Vorburger, and Becker not been Cramer, Had they might "within room still have been the door of premises" was executed. when the warrant said working police the had been on warrant completed than four hours. Detective Olson for more paperwork part 8:45, 35 minutes before about her began. conferring an assistant After with the detention lengthy attorney, the warrant and she drove district Judge supporting of Circuit An- to the home affidavit signed gela at 9:34. it and the warrant Bartell, who read of the deten- 14 minutes after commencement This was directly and headed then left tion. Detective Olson Shortly obtaining warrant, she after the motel. the warrant on its the Task Force that informed way. Vorburger, Hence, Cramer, at the time detained, Becker were Task Force officers knew that nearly ready. They probable a warrant was had cause to probable search room 230 and cause to believe that a they crime committed, had been as had tested the They already substance taken from the room. detaining appeared unexpect- Kokoros, Peter who had edly key They with a to the room several hours earlier. probation drug knew Kokoros was on for a offense, that stayed night he had in room before, 215 the and that marijuana physical room 215 smelled of and contained marijuana. They evidence of knew Kokoros had been Cory day Cramer earlier and that Cramer using had been Kokoros's car he when checked into the Finally, they motel at 2:30 that afternoon. knew that during given his detention, Kokoros had explanations several of his activities made them wary of his truthfulness.17 Stop

1. The and Initial Detention stop ¶ 43. We first address the and initial deten- § "temporary tion. Wisconsin Stat. 968.24 authorizes questioning provides: without arrest." It having

After identified himself or herself as a law officer, may stop enforcement a law enforcement officer person public a in a place period for a reasonable of reasonably time when the officer suspects that such person committing, is is about to commit or has com- crime, may a mitted and demand the name and address why, Officer Montiе if he asked Kokoros had come to the specifically motel at 5:45 stopped to use the bathroom —but was before he could do so—he had not by asked to use the bathroom 7:45. Officer Montie later testified: "I did not believe that he had to use the bathroom at all." person's con- explanation an of person and temporary questioning shall detention and

duct. Such person was vicinity where the in the be conducted stopped. § 968.24.

Wis. Stat. Vorburger dispute that the Task does not suspicion Cramer had reasonable Force officers Vorburger and Becker and that a crime had committed committing, commit, or had com- were about were suspicion clearly was reasonable a crime. There mitted Vorburger to commit Becker were about and evening they Wednesday on a was 9:20 crime—it strongly smelled of a motel room that at the door were marijuana, accompanying person had rented who room several hours earlier. the motel stop and initial deten- conclude that the 45. We suspicion and therefore reasonable tion were based on names entitled to demand the were lawful. persons explanation and an of the three and addresses pat They entitled to down also were of their conduct. they suspects not armed. to assure that the three ¶¶ 2d McGill, 20, 32, 234 Wis. 2000 WI See State v. 609 N.W.2d During Execution of War- 2. Detention Before rant of Amerie next address the detention 46. We during pending execution of the arrival and

Bеcker Rawlings Kentucky, 98, 110 In v. 448 U.S. the warrant. (1980), legality Supreme that "the Court stated detaining person temporarily the scene of sus- may activity pected drug be to secure a search warrant Rawlings open question." was a The defendant an 560 police at a visitor house where smelled and observed marijuana. The Court more or less assumed that when police Rawlings they the detained while obtained a they violating warrant, search the Fourth Amend- upheld Nonetheless, ment. Id. at 106. the Court Rawl- ings' conviction. Id. 111. years In the since there has been a Summers,

clear evolution in the law. In the Court reviewed the case of a man who was detained as he was leaving police his home and then held while the ex- Summers, ecuted search warrant of his house. U.S. at 693. Thereafter the man was arrested and "[F]or searched. The Court said: Fourth Amendment purposes, we hold that a warrant to search for contra- probable implicitly band founded on cause carries with authority occupants it the limited premises to detain the proper awhile search is conducted." Id. at 705. explained The Court that: "The connection of an occu- pant gives easily to that home officer an determining identifiable and certain basis that sus- justifies picion activity of criminal a detention of that occupant." Id. at 703-04. Applying

¶ 48. it case, Summers to this seems validly clear that law enforcement officers could have person Cramer, detained whom room was registered, while thе search warrant for contraband Vorburger attempts However, was executed. to distin- guish applied to Becker. He Summers case as contends that Becker nor occu- was neither resident pant argument of the room. The answer to this is found Pace, cases, two federal United States v. 898 F.2d (7th 1990), Fountain, Cir. United States v. (6th 1993). F.3d 656 Cir. Ap- Pace, In Circuit Court of Seventh

peals applied Summers to a situation in which officers warrant for to execute search to a condominium

went money gambling and found the owner records and The Pace, F.2d at 1223. officers three non-residents. patted they them while men and detained down all four nonresidents Id. Two of the the condominium. searched unlawfully they had detained that been later claimed during Id. at therefore, were arrested. and, the search apply argued They did not because that Summers 1238. they occupants the condo- or residents of not were that The determined Sum- minium. Id. at 1239. court apply did because: mers men] were not [the it turned out that two

While condominium, significant it still of is [the] residents that a neutral they present that in condominium were to believe con- magistrate probable had found cause gambling The illegal of activities. tained evidence [the men] not two could not be sure whether or officers they nor even be gambling, involved in the could were of "occupants" men] or not two were [the sure whether Summers, in the connection the condominium. Thus as gave the officers to the condominium [the men] two detaining easily and certain basis" for "an identifiable during the men] two search. [the Id. Similarly, Fountain, Circuit the Sixth

applied to a in which law enforce Summers situation looking drugs executed a search war ment officers for people the owner and three other rant at a house where present. Fountain, 2 F.3d at 659. The officers gathered people they house, in the the four found on the them, and had them lie face down handcuffed executing warrant, the officers found Id. In floor. illegal They questioned drugs. each of then Id. at separately. the non Id. One of the four detainees suppress moved to the evidence resident defendants against claiming him, that the could not officers have him under he detained Summers because was not a resident ‍‌‌​​​​‌​​​​‌​‌‌‌‌​‌‌‌​​​​​‌‌‌​​​‌‌​​​​​‌‌‌‌‌​​‌‌‍of the house and was therefore not an occu pant. Id. at 663. Fountain court determined that reasonably detaining the officers acted the defendant voluntary "apparently because his connection with the provided agents easily home 'an identifiable determining suspicion and certain basis activity justifie[d] criminal detention.1" Id. The court rejected argument Supreme Court in apply only tended Summers to to residents. Id. agree ¶ 51. We with the Pace and Fountain inter- pretations of Summers. The Task Force officers acted reasonably detaining Vorburger in Becker and even though they persons were not the to whom room 230 registered. Vorburger voluntarily was Becker and con- occupant. nected themselves to the room and motel its investigation, they Without could not be dismissed as bystanders. suspicion innocent There was reasonable they present were room for the motel criminal activity. Vorburger points

¶ 52. out that Becker was not in stopped the room at the time the officers her. Under the meaningless. circumstances, we find this distinction standing person Becker was outside the room with the registered. registrant the room was The whom was key putting away in his the lock. Becker was seconds entering from the room later admitted that she intended to enter the room. The fact that Becker and Vorburger standing immediately were outside the room they stopped destroy required when does not their voluntary connection to room. A53. third distinction between this case and already in

Summers is that the officers Summers had they Here, detained the defendant. their warrant when had arrived detained before the warrant Becker was signed. it was and before substantially allayed in 54. This concern was 1994). (10th Ritchie, F.3d 1477 Cir. v.

United States traveling agent to the defendant's home FBI An began to when the defendant a search warrant with Agents premises in an automobile. on leave ten minutes until the detained him for about scene Tenth Circuit determined of the warrant. The arrival justified stopping agents on scene were that the they detaining "knew that a the defendant because [the] party had issued a search warrant neutral premises, suspicion giving them reasonable thus him." Id. at 1483. detain Supreme principle affirmed Court this McArthur, v. 531 U.S. 326

on different facts Illinois (2001). probable McArthur, a officer cause In marijuana had in his to believe that the defendant entering prevented him from the home home, trailer accompanied him inside. Id. at 329. unless the officers meantime, another officer left to obtain a search In the reversed an Illinois court's warrant. Id. The Court suppression drug found in the trailer. evidence Writing Breyer explained: Court, for the Justice needs, special faced law enforcement dimin-

When intrusions, expectations privacy, of minimal or ished like, general, has found that certain or Court individual, may render a circumstances warrantless reasonable.... search seizure to recon- police [T]he . . . made reasonable efforts cile their enforcement needs with the demands of law privacy. They neither searched the trailer nor personal obtaining Rather, McArthur a arrested before warrant. they imposed significantly restraint, a less restrictive preventing only entering McArthur from the trailer unaccompanied.. . . limited police imposed [T]he

. . . the restraint for a period time, namely, two hours.... As far as the reveals, period record this time longer was no than reasonably necessary police, acting for the with dili- gence, to obtain the warrant.

Id. at 330-32. The rationale for detentions involving Summers

search warrants is in the fully explained The opinion. Court noted the difference between the detention of Summers and the detention of a on suspect á la Terry: street,

A magistrate probable neutral and detached had found being cause to believe that the law was violated in that house and had authorized a substantial invasion privacy persons who resided there. The detention of one of the premises residents while the searched, although admittedly significant restraint on liberty, surely his less intrusive than the search itself.

Summers, 452 U.S. at 701. of a involvement neutral and detached

magistrate impressed also Justice Souter in the McArthur case. Justice "the legiti- Souter wrote that of the decision to macy impound dwelling [McArthur's] follows from the strong preference law's war- rants .... The law can incentives hardly raise to obtain a warrant without chance giving fair to take their cause to a one." probable magistrate get McArthur, (Souter, J., U.S. concurring).

¶ en- court evaluated the law The Summers 58. in the detention Summers interests forcement (1) significant: law enforcement interest found incriminating flight "preventing evi- in the event that (2) enforcement interest found"; the law dence is "minimizing (3) officers";and of harm to the the risk orderly completion of in "the enforcement interest law Id. at 702-03. the search." point, expanded

¶ on the second 59. The Court greater impor- stating: obvious, but sometimes "Less minimizing the risk of harm to the interest in tance, is [T]he to search . . execution of warrant the officers. . may give is the kind of transaction for narcotics or frantic efforts to rise to sudden violence conceal destroy evidence." Id. at 702. provides the frame- The Summers decision 60. pending evaluating detention for Becker's

work during the execution of the warrant arrival and contraband. approximately 9:20. Becker was detained companions were told that the officers and her

She conducting investigation, that the three were an they being leave, free but that and were not to detained patted down, under arrest. The three were were not corridor of a handcuffed, and held in the second floor All chairs. Becker declined motel. three were offered go point to the bathroom. down. At one she asked sit dispute said and what Officer There is a about what she go not to the said, Kosovac but Becker did bathroom purse executed. Her until the search warrant was her later, until consent. not searched Vorburger complains elements that several during period this were unreasonable of the detention He ar- the detention into an arrest. and transformed period gues for a exceed- that Becker's detention lasted ing two she hours, that was handcuffed with her hands hallway behind her back and directed to sit in the with continually police present, one or more officers and that privately. was not she allowed use the bathroom ¶ 63. The circuit court found that Becker "was approximately detained for one hour before the search According record, warrant was executed." to the her began at-9:20; detention 10:05; the warrant arrived 10:15; the warrant was read to Cramer at and the Shortly executed 10:30, warrant was at 10:17. after period Becker was taken into room 229. Thus, the of procurement to the detention related and execution of roughly the search one warrant hour ten period minutes. of This detention was not unreаsonable given day separating police the time and the distance of headquarters, judge's residence, motel, Blooming is in the Grove, which located Town of east of Breyer's period Monona. In words, Justice "this time longer reasonably necessary police, nowas than for the acting diligence, [and execute] to obtain the war- McArthur, rant." 531 U.S. at 332.

¶ 64. The officers handcuffed the three detainees. analyzing quoted fact, In this the circuit court State v. (1991): Swanson, 448, 2d 437, 164 475 148 Wis. N.W.2d "Many jurisdictions recognized have use necessarily investiga handcuffs not an does transform stop Many tive into an arrest." federal have made courts pronouncements. e.g., similar See United States v. (9th Currency, $109,179 in U.S. 228 F.3d 1080, 1085 Cir. 2000) (9th (citing Baird, 680, Halvorsen v. 146 F.3d 685 1998); County Angeles, Cir. Alexander v. Los 64 F.3d (9th 1995)); Fountain, Cir. 656; 1320 2 F.3d

567 (7th Cir. Glenna, F.2d v. States United (9th Taylor, 1989); 701, 716 F.2d States v. United 1983). Cir. Supreme in Summers that Court stated 65. The give drugs "may premises for rise

a warrant to search The risk of harm to both .... to sudden violence occupants if the officers is minimized and the routinely unquestioned of the situa- command exercise (citing Wayne Summers, R. 452 U.S. at 702-03 tion." (1978)). § 4.9 LaFave, Search and Seizure ¶ for their case, the officers' concern In this safety grounded safety in the is and the of others well They detainees at the motel. record. There were three Cory stopped Cramer, in floor corridor. a second weighed 195 inches tall and 22, then was 5 feet 10 pounds. in not then but later discovered Police did know girl- weapon, an electric which Cramer's Cramer's car "Cory's gun." Vorburger, also friend as stun described pounds. One of the 22, tall, 6 feet 10 inches was having recоgnized him worked the motel as officers at nightclub. the conclude that as a bouncer at a local We unreasonably in their efforts to not act officers did "preserve protect themselves, site, secure quo." Segura States, United 468 U.S. status See v. (1984). no merit to conclude that there is 67. We also Vorburger's complaint of the bath- about Becker's use testimony disputed, room. The on this issue police had acted did not find that the the circuit court unreasonably. agree. We recognize Swanson, in 68. We this court objective assessing we an test,

stated that use totality circumstances, to determine whether seizure has escalated into an arrest: the, generally

The used standard to determine moment of in a is arrest constitutional sense whether person position reasonable the defendant's would have considered himself "in custody," or herself to be given the degree of restraint under the circumstances. including The circumstances the situation has what by officers, by been communicated either actions, controlling their words or shall be under the objective test. (citations omitted).18

Swanson, 164 Wis. 2d at 446-47 appeals language court utilized the as Swanson Vorburger, App. basis its decision. 2001 WI ¶¶ 14, 18. it 69. We find difficult reconcile this Swanson

language precedent Summers, the clear McArthur, Pace, Fountain, and Ritchie. The critical distinguishes factor in this from case—the factor it presence Swanson —is the of a valid search warrant for contraband. The search warrant is central tо this case analysis injects objective and to it an our because justification, upon based the determination of a de- magistrate, totality tached into of the the circum- Supreme Summers, In Court, effect, stances. the recognized concept the the of detention incident to of a execution valid search warrant. limited deten- This 18 person" by is a contemplated The "reasonable the test position. See person reasonable innocent in the defendant's (5th Corral-Franco, United v. 848 541 Cir. States F.2d 5.1(a) 1988); LaFave, § also 3 R. Wayne see Search and Seizure (3d 1996). ed. upon for the is the same factors —concern tion based safety possible of and the destruction officers incident to arrest. See evidence—that underlie searches Summers, Chimel v. 702; California, 452 U.S. (1969). concept applies to Wethink such U.S. initial to the this case from the moment of detention completion search, a search was because warrant and imminent, in the and its execution was works police suspicion articulable, the had reasonable because they people each of Becker and Vor the detained. burger propinquity cannot claim that their to room 230 pure coincidence. was result Detention Execution of the 3. Continued After Warrant quo" 10:30, the Task 70. After the "status that sought preserve, changed. Force Amerie Becker was into 229. Her taken room handcuffs were removed she used the bathroom. she indicated she was When thirsty, given plastic cup she was of water. Several throughout evening, Becker times was advised arrest. the officer she was not under She testified that again being detained, told her and over I "over that was Objectively, I was but not under arrest." she never was police "arrested" in the sense was that she taken to the jail, any charged station and she never was involving Cory offense Cramer or room 230. executed, had After warrant been warnings given Becker if Miranda and asked she questions. would answer She was told that drug investigation present at on a the motel they drugs. agreed ques- had found Becker answer sharing day's about activities, tions which included Vorburger, spoke a "blunt" with and she about their During apartment. drug occasional use at the this purse. discussion, Becker consented to a search of her police Vorburger After advised Becker that had told marijuana them there were stems and buds at the apartment, apartment. she consented ato search of the Becker calculated whether consent to a search would be preferable police probably to a search warrant, which upon could have obtained based her own admissions, and she made a choice.

¶ questions, 72. Becker never refused to answer attorney, never asked for an never withdrew her con- sent. Fitchburg by When she was driven to her home in officers, she instructed them what door to enter so as neighbors. not to attract the attention of gave 73. The record indicates that Becker her apartment consent to search the within 40 minutes being taken into room 229 and within 20 to 30 minutes questioning. after the onset of police stop briefly 74. A officer can detain a

person investigative purposes for if the officer has a suspicion supported by reasonable articulable facts that activity "may criminal afoot," be even if the officer lacks United, probable Terry, cause. 30; U.S. at States v. (1989). Sokolow, 490 U.S. length investigative 75. The of an detention is weigh determining

one of the factors whether a lawful detention has escalated into an arrest. In Florida Royer, (1983), v. stopped 460 U.S. two officers Royer airport profile drug in an he because fit the of a They courier. asked him for identification and his gave airline ticket, and when he them his driver's they license and ticket, took him into a interro- gation away questioning. room 40 feet Id. at 494. luggage

They consent, without then retrieved his drugs. consent and found his suitcases with searched Royer's approximately 15 minutes. Id. detention lasted at 495: Id. Royer's Supreme motion 76. The Court affirmed drug concluding suppress evidence, that, "What

to the public begun inquiry place in a had a consensual had as investigatory procedure police an in a escalated into interrogation police, room, where the unsatisfied with suspi- sought previous explanations, to confirm their Id. The officers had cions." at 503. ‍‌‌​​​​‌​​​​‌​‌‌‌‌​‌‌‌​​​​​‌‌‌​​​‌‌​​​​​‌‌‌‌‌​​‌‌‍court noted the Royer's luggage, they identification, and and that ticket, him he free to Id. It con- never informed was leave. practical Royer matter, under that, cluded "As a Royer up Id. law arrest." The court summed the as follows: permitting suspicion

The seizures on predicate probable of cause law enforcement inter- short is personal a limited on the ests warrant intrusion secu- rity suspect. permitted of The the scope the of intrusion vary particular will to extent with the facts some however, much, circumstances of each case. This is investigative temporary clear: an must detention be longer necessary and last than to no is effectuate stop. Similarly, investigative meth- purpose of the employed least means ods should be the intrusive verify dispel reasonably available the officer's suspicion period in a short time. of (citations omitted). Id. at 500 by Royer ¶ 77. The decision was followed two airport cases, Place, other United States v. 462 U.S. 696 (1983), appears Sokolow, U.S. Sokolow Royer's impact plurality of have neutralized some opinion suspicion. as to what constitutes reasonable Sokolow, 490 U.S. distinguishable '78. All three cases are from the airport First,

facts here. unlike the three cases that only suspicion involved drug that the defendants were unquestionable couriers, this case involved evidence felony. that someone had committed a When the war- approximately executed, rant was pounds marijuana found together room, Cramer's with a digital plastic bags, scale and evidence with all the majоr drug dealing. hallmarks of Second, unlike the airport three cases, this case involves a search warrant. purpose of Becker's detention, continued after execution of warrant, was to determine what she major felony knew about across the hall.

¶ 79. On the one hand, Becker could have been a party felony,present major to the at the motel to make a drug purchase. On the hand, other she could have been explain presence a mere witness who could her and tell Cory authorities what she knew about Cramer. Peter may marijuana Kokoros have intended to remove all stopped by from the room when he the motel at If 5:45. Vorburger he had so, done and Becker would have had drugs. no known connection with the Police were en- try, follow-up titled to in a reasonable to the search, verify dispel suspicions their about Becker's involve- ultimately any knowledge ment. Becker disavowed marijuana charged the in room 230 and was never any offense in connection with that room.

4. Duration of the Detention Supreme

¶ 80. While the Court determined in Royer impermissible, that a 15-minute detention was and in impermis Place that a 90-minute detention was sible, it did not establish an absolute time limitation on investigative Royer. detentions. See 460 494, U.S. at

573 In v. Place, U.S. at United States 503; 462 698-99. (1985), Supreme Sharpe, ex- the Court 470 U.S. primarily Royer plained in on facts focus was that the duration of the defendant's detention— other than the particularly the defen- the fact the confined airport quеstioning. The in a room for court dant small investigative is transformed held that an detention not solely length the of the into an because of arrest Id. at 688.19 detention. length The court determined that the minutes) (approximately 40 in case was

detention any delay impermissible not because it did "not involve legitimate investigation unnecessary of the law officers." Id. at 687. We reach the same enforcement in this case.20 conclusion Vorburger

¶ 82. that even if Becker's de- asserts permissible ex- the warrant was tention were before ecuted, arrest her detention became an when she being questioned, taken into 229 and room instead Vorburger released. contends that officers found nothing linking drugs in room 230 Becker to the consequently they longer no reasonable room had activity. suspicion that she was involved criminal McArthur, (2001), In U.S. Illinois v. of a Supreme observed that the two-hour detention Court trailer an officer awaited a search warrant was resident while constitutionally impermissible lasted not because detention only period a "limited of time."

20 argues The after execu dissent that Becker's detention fifty Dissent at tion search warrant lasted minutes. up, The fails to that after Becker freshened ¶ 116. dissent note began answering questions immediately. her she She admitted drug questioning. minutes the start of There own use within of cooperation is that she with Officer Koso- no evidence refused vac.

574 suggestion unpersuasive. find this We Con neatly traband is seldom invoiced labeled for a buyer.21 We find more realistic Seventh Circuit's Perry, comments in United States v. 1165, 1169 F.2d (7th 1984), [a Cir. that "it strikes us as incredible that drug dealer] person accompany would have a him to a drug person [the dealer’s] deal where that did not have implying utmost trust and confidence," that trust likely person's and confidence was most based on the Pace, involvement in the deal. See 898 F.2d at 1240. escorting Vorburger Here, Cramer was Becker and into containing marijuana pounds pungent a room in open view. Police were entitled to draw reasonable inferences these from facts. agree

¶ 84. with the State We that officers suspicion continued to have reasonable Becker about after the warrant had been executed and it was that not question light in unreasonable to her of their discover- ies room 230. hearing

¶ 85. Becker testified motion that "prob- she Officer Kosovac in room 229 for talked ably ten She minutes." stated that Officer Kosovac preceded her asked "about the events that had us coming if room," to the hotel and Becker drank or "ever marijuana any type drugs." used used After other Becker told about Officer Kosovac how she and Vor- marijuana burger day apart- had smoked in their ment, Officer Kosovac asked if officers search the could apartment. argues The warrant dissent execution of the search marijuana to

yielded no evidence connect Becker to the Ms. explain the motel room. Dissent at not ¶ 108. dissent does expected the kind of evidence the have been find would Vorburger purchase if Becker and had to the come motel marijuana. correctly Vorburger points out that when 86. 229, did

Becker taken into room Officer Kosovac was again she not under arrest. We not inform her that was person in believe, however, that a reasonable do not position she been Becker's placed would have believed that had been when her handcuffs had under arrest the For and she was allowed to use bathroom. removed deescalating her Becker, the conditions of detention. Upon thorough record, we review of the

I did, court in determine, as circuit the officers reasonably detaining stopping this case acted questions Becker and that the detention did not escalate into an arrest. THE

III. TO SEARCH APARTMENT CONSENT Having not determined that Becker was gave under arrest when she Officer Kosovac consent apartment, her search her we must next decide whether given voluntarily. consent was Voluntariness of consent question search raises a mixed of fact and law. This court reviews a circuit court's determination as to the steps, voluntariness of to search two exam consent ining findings the circuit court's of fact under clearly applying standard, erroneous but constitutional Phillips, v. 218 standards to those facts de novo. State (1998) (citing 2d 180, 194-95, Wis. 794 State N.W.2d (1987)). 344, Turner, v. 136 Wis. 2d 401 N.W.2d827 given 89. To determine consent whether was voluntarily, reviewing determine, court must under totality circumstances, consent not result duress coercion. Schneckloth v. Bustamonte, (1973); U.S. 218 Wis. Phillips, at A reviewing 2d 197-98. court circum- considers "the the the surrounding stances consent and characteristics defendant," and determines whether the State has proven by clear and evidence convincing the consent Wis. voluntary. Phillips, was 2d at 197-98. the Vorburger

¶ raised issue the voluntari- ness of Becker's consent before the circuit The court. circuit court summarized his argument: argue[s] "[he] that her consent tainted the by was coercive nature of detention; her the if police because indicated that she search, didn't consent to a search they'd obtain a and search warrant because her blood anyway; sugar fluctuating; was and because she had under- recently and on gone surgical procedural Tylenol was rejected codeine." circuit court this argument, concluding: police [T]he tactic in their will- question explaining —

ingness pursue warrant, to while suggesting search the less-intrusive alternative of a consent search —is coercive, improper, designed not to the overcome I Finally, defendant's resistance.... do not find health be of quality Becker's issues to such as to render unduly susceptible her to intimidation. on Based testimony presented hearing, the I the conclude that proven by the has State voluntariness clear and con- vincing evidence.22 appeals The court of did not reach issue voluntari

ness of it consent because concluded that Becker had been by gave Vorburger, arrested the time she her consent. 2001 WI App 12 n.2. The of appeals court further concluded that sufficiently consent not was attenuated from the arrest render pursuant admissible evidence obtained to the search. Id. at 29. Because we determine arrested that Becker was not Vorburger Becker's consent now asserts that (1) involuntary police knew she was

was because: physical condition" a "vulnerable and emotional because (2) recently surgery; she had had she was a diabetic who (3) upset crying handcuffed; while she was she was time and was was for the first believed she handcuffed (4) jail; going her not taken to she was (5) advised of to be right present consent; refuse officers did not form. her with a written consent unavailing Vorburger's ¶ 92. We find assertion involuntary that Becker's because consent physical and knew of her "vulnerable emotional officers specifically "I First, condition." the circuit court stated: quality do not find Becker's health issues to be such unduly susceptible to her to intimida- as render Vorburger's Second, Koso- tion." assertion Officer alleged physical vac of Becker's "vulnerable and knew supported in the record. emotional condition" is not apart- gave search 93. Becker consent to Kosovac, ment Officer who testified that when she to appear motel, did interviewed Becker Becker not injured, drugged, intoxicated, to be or disoriented. cry, Officer Kosovac that she did not see Becker testified emotionally distraught appear that Becker did not to be visibly upset. provided and not Becker that she was responsive, chronologically-ordered clear, to answers questions. Officer Kosovac's Officer Kosovac also stated in room Becker told her 229 that she was a while search, voluntarily to at the motel and that she consented issue we need not reach the of attenuation. operation.

diabetic,23 she not talk did about her recent appeared Officer Kosovac asserted that: "She to to me generally good health, be in at and no time did she tell feeling doing me she was not or well was not well." "appeared [be] did "Becker not look sick or and weak" generally good health." testimony ¶ 94. Becker's own does not contradict any significant Officer Kosovac's version of events in Becker testified that she cried four or five times fashion. while she was thirsty

detained, and that she felt high sugar her However, disoriented due to level. blood testimony suppression hearing puts Becker's any implication rest that Officer Kosovac knew alleged should have known Becker's "vulnerable physical and emotional Under condition." cross- acknowledged may examination Becker that she not have cried while in room with Officer Kosovac: you

DISTRICT when ATTORNEY: And testified that you during had cried to five four times the course of the evening, you when crying initially other than Officer Linsmeier when the cocaine found in apartment]? [of the bedroom her I guess BECKER: I don't remember another time specifically. you really just

DISTRICT ATTORNEY: So could have twice? cried

BECKER: Yes. acknowledged

¶ 95. Becker аlso she that never any problems told Officer Kosovac about health judgment: would affect her

23Becker told Officer Kosovac she a diabetic to was so as alert to the she if her needle would find she searched Becker's purse. you Did tell her whether or ATTORNEY:

DISTRICT you needed you her medicine? not —Did tell No. BECKER: you any you Did need ATTORNEY:

DISTRICT —Did Tylenol III? just recently I I taken it. think had BECKER: you any pain- need ATTORNEY: So didn't DISTRICT killer, you, this time? did I so. BECKER: don’t believe you Did tell Office Ko- DISTRICT ATTORNEY: ever any sugar problems blood anything regarding sovac may having? you be No. BECKER: Vorburger's argu- Similarly unavailing is being upset crying regarding while

ment Becker going to handcuffed and her belief that she was she was go jail. considering totality circum- In gave stances, note that Becker consent while we first being interviewed in room after she had she was given water, and been a drink used the bathroom her Vor- after had removed handcuffs. Officer Kosovac burger explain state does ‍‌‌​​​​‌​​​​‌​‌‌‌‌​‌‌‌​​​​​‌‌‌​​​‌‌​​​​​‌‌‌‌‌​​‌‌‍not how Becker's emotional her handcuffs were removed is relevant before voluntariness of her the handcuffs were consent after why explain he Becker would have removed. Nor does jail going she to when she disavowed all been afraid marijuana knowledge in room 230. Finally, Vorburger contends that Becker's involuntary because Officer Kosovac did

consent was provide her form or advise not with written consent Vorburger her that she was free to refuse consent. points authority providing to no that a law enforcement supply person officer's fаilure to a consent form to a gives who consent to a search renders the consent involuntary. dispute The State does not that Officer Kosovac neither informed Becker that she could refuse apartment supplied to consent to the search of her nor her with a written consent form. It instead asserts, finding just involuntary "there is no basis for a consent suspect because do not offer the a consent form." Supreme

¶ 98. The Court addressed the issue of whether officers must inform a defendant go" defendant Robinette, is "free to in Ohio v. 519 U.S. (1996). 33, 34 The court held that "The Fourth Amend- require lawfully ment does not that a seized defendant go' be advised that he is 'free to before his consent to recognized voluntary." Similarly, search will be as Phillips, 218 Wis. 2d at this stated court that the failure of law enforcement officers to inform a defen- "weighs dant that he could refuse to consent to a search against, voluntary but to, is not fatal a determination of consent." acknowledged 99. Officer Kosovac in her testi-

mony "probably" that she did not inform Becker that supply she could refuse to consent and did not her with testimony a written consent form. clear, Becker's made however, that she understood that she could refuse to thought consent. Becker stated that she she did not appealing implication have "an choice." The of Becker's statement is that she understood that she had two give choices—consent to the search or refuse to con- nothing indicating in the rеcord There is sent.24 if have consented to the search Becker would not she refuse to had told her that could Officer Kosovac supplied give a form. More her with consent consent or indicating importantly, nothing in the record there is actually could did not understand that she Becker cooperated to note that Becker refuse consent. We warnings. receiving after Miranda Officer Kosovac ¶ inform Officer Kosovac's failure to While to a search Becker that she could refuse consent to voluntary against... "weighs a determination of con- sent," id., cannot conclude under the circum- see we that renders of this case it Becker's consent stances involuntary. reasons, these we affirm the circuit For proven that has voluntari-

court's conclusion "the State by convincing clear evidence." ness and

IV CONCLUSION above, 102. For the stated we conclude reasons validly that Amerie Becker was detained in the motel initially upon stopped and was not arrested. She was suspicion drug in a reasonable that she was involved constitutionally during procure- deal and detained the ment and execution of a search warrant for valid hearing in the to suppression Becker testified motion her consent, give that refused the officers would belief had she to sought apartment, they a the have search warrant to search apartment her in the executing would "trashed" warrant. have question— The circuit concluded "the in cоurt tactic warrant, willingness a explaining pursue their to search while suggesting the alternative of consent search —is less-intrusive coercive, designed or to the improper, not overcome defendant's resistance." executed, After the search warrant was-

contraband. for Becker was detained time under reasonable rea- questioning verify dispel sonable conditions suspicion in an about her involvement established felony. voluntarily We further conclude that Becker apartment to the search of the consented which she Bradley Vorburger conclude, therefore, resided. We properly Vorburger's circuit court mo- denied suppress. Accordingly, tion we reverse the decision reversing appeals the court of court's order. circuit By appeals the Court.—The decision of court of is reversed. ABRAHAMSON, 103. SHIRLEY S. CHIEF JUS- (dissenting). present

TICE issue case is following whether Ms. Becker's detention the execution search warrant an I unlawful seizure. Therefore, it to conclude was. Ms. Becker's consent Vorburger apartment given the she shared, search during and detention, her was invalid. majority

¶ involve, as This case does not the you opinion legality would Ms. believe, have the of waiting Becker's detention while for the search warrant majority opinion emphasizes its at and execution. length period the of detention that occurred before of execution the search warrant. It buries within the body depths opinion of the whole of law thаt governs unlawful detentions that are not connected execution of search warrant.

¶ 105. before Ms. Becker's treatment the search warrant was executed does color whether Ms. Becker's detention after the search warrant was executed be- an came unlawful arrest. But Ms. Becker's detention before her detention after the search warrant was majority reluctantly recog- opinion are, executed as the

583 purposes separate our for the nizes, two- events analysis. majority op. ¶¶ 70-72, at 84-87. See agree purposes 106. Let me this p.m. stop that the initial of Ms. Becker at 9:20 dissent although suspicion lawful, on was based reasonable probable that no cause existed to the State concedes Ms. arrest Becker. majority Michigan opinion relies on v. 107. The (1981),

Summers, hold Becker U.S. 692 that Ms. 452 lawfully the search warrant for could be detained while purposes dissent, contraband was executed. For of this willing agree I am with this conclusion.1 Once the however, executed, warrant was Summers and search ap- progeny2 irrelevant, its become because Summers only plies to a a search warrant detention until is majority op. ¶¶ 47-60, executed.3 at See 108. The execution of search warrant yielded no to connect Ms. Becker to the evidence Any marijuana suspi- in the motel room.4 reasonable closely Becker more linked to the cion Ms. presence than motel room and its contents other her at dispelled Nevertheless, the door was at that time. to detain Becker after the search continued Ms. warrant had been executed. 1 Majority op. ¶¶ 45-69. 2 McArthur, Illinois States v. United v. (2001); U.S.

Fountain, Pace, (6th United v. States 1993); Cir. F.3d 656 (7th 1990). F.2d 1218 Cir. 3 Summers, Michigan v. (1981). 692, 452 U.S. 705 4 testimony at suppression hearing, See Officer Gaber's 59:62; suppression hearing, Record at Officer Olsen at Record at 59:73.

584 opinion majority explains, ¶ 109. As the the sta- quo changed after tus the warrant was executed.5 At began this time the law enforcement "a officers second investigative detention," an detention. One of the offic- ers moved Ms. Becker different room into a motel began interrogating her. investigative An 110. detention be must based suspicion activity supported

on criminal reasonable by record, facts.6 I articulable On review the could any police any not find that of the officers articulated detaining questioning reason for or Ms. Becker. The majority opinion claims that Ms. Becker was detained questioning potential for However, as a witness.7 there support no is this claim in record. "[A]n investigative

¶ 111. detention must he tem- porary longer necessary no is and last than effectuate purpose stop."8 The detention should be no longer necessary dispel verify than or the officer's suspicion, longer necessary is, than no to deter- any knowledge about, mine whether Ms. Becker had drugs with, the connection in motel room.9 Unless a person questioned provides iswho detained and an- give police probable swers that cause to arrest that person, must she be released.10 The concedes it State

5 Majority op. at 6 (1989). Sokolow, v. 1, United States 490 U.S. 7 7 op. at Majority 8 (1983). Royer, Terry Florida v. also 491, See 460 500 U.S. Ohio, McArthur, v. Illinois v. 1, (1968); 392 U.S. 30-31 531 U.S. (2001). 326, 330-32

9 marijuana knew there the motel room at the time of Becker's initial detention. Fountain, (1993) v. United States F.3d 664-65 (1984)). McCarty, Berkemer v.

(citing U.S. 439-40 probable Becker either never cause to arrest Ms. had executing the search warrant. before or after following legal apply ¶ I now the standard majority opinion ¶at 86 and the State use the present in consti- facts case determine whether the illegal an arrest a or seizure or tute lawful detention person "[A] was executed: after the search warrant meaning of has the Fourth been 'seized' within only of all of the circumstances if, in view Amendment person surrounding a would incident, reasonable that he not free to leave."11 have believed was present person in case, In the a reasonable position considered herself Ms. Becker's would have Ms. after the warrant was executed. arrested search p.m., at room Becker arrived the motel at 9:20 at which intercepted by companions time she and her were police placed officers, handcuffs, least seven weapons patted presence contraband, for the down waiting separated for a from each other. While executed, to arrive and to be Ms. Becker search warrant permitted super- wаs not to use bathroom without by police a officer and remained handcuffed for vision repeatedly Ms. Becker was before about an hour. told that she not the search warrant was executed merely being arrest, under but detained. police warrant, 114. After the execution of the into

officer escorted Ms. Becker a different motel room interrogating purpose After for the her. the search police longer no warrant was executed officer told Indeed, Ms. Becker that she was not arrest. under shortly escorting after her into the motel room for Mendenhall, 544, (1980), United v. States 446 U.S. Williams, quoted approval applied State v. 2002 WI v. 646 N.W.2d 834. See also State 23, 1, 255 Wis. 2d Swanson, (1991). 446-47, 164 Wis. 2d 475 N.W.2d 148 interrogation, officer read Ms. Becker the warnings. Miranda We can assume that a reasonable person familiarity has at least a casual with television (a programs aspect crime critical of our national cul- ture) warnings and would conclude from the Miranda that he or she was under arrest.12 Immediately

¶ upon questioning, 115. Ms. Becker any knowledge drugs. denied about the She was not any charged any then or at time with in offense marijuana connection with the in the motel. After she any being investigated, denied involvement the crime police the officer did not release her, but broadened the scope interrogation subjects of the include other than to. marijuana the in the hotel.

¶ 116. The detention after the execution of the fifty length search warrant lasted minutes. of the investigative weigh detention is one fаctor to in deter- mining whether a lawful detention has escalated into example, Royer, arrest. For in Florida v. 460 U.S. (1983), Supreme the U.S. Court held that a fifteen- investigative airport imper- minute detention at an was missible. length investiga- In 117. addition to the

tion, we must examine how Ms. Becker was treated. Ms. clearly police Becker was treated as if she were in custody. Before the search warrant was executed, Ms. kept repeatedly Becker was in handcuffs but was told Shortly she was not under arrest. after execution of police warrant, search officer removed her hand- cuffs, but did not tell her she was not under arrest.

12"A example classic of the law bite in operation reports are of motorists by arrested Canadian police repeatedly who in sisted that rights Balkin, the Miranda be read to them." J.M. ?, What Is a Post Modem Constitutionalism 90 Mich. L. Rev. (1992).

1966, 1981 warrant, officer After execution of the search an Becker use the without allowed Ms. to bathroom officer that the bath- officer but the present, required not tell ajar. door left The officer did slightly room be free leave. The officer Ms. Becker she was Becker after custody believed Ms. was apparently gave search warrant was executed because officer Ms. Becker Miranda warnings. is a fiction only by using legal It

f face that reasonable say straight can anyone not under the circumstances of this case would person have she under arrest.13 thought forth, ‍‌‌​​​​‌​​​​‌​‌‌‌‌​‌‌‌​​​​​‌‌‌​​​‌‌​​​​​‌‌‌‌‌​​‌‌‍I 119. For the reasons set dissent. I am authorized state that Justices WIL- A. join LIAM BABLITCH and ANN BRADLEY WALSH opinion. this

13 Williams, See State v. 41-44, WI Wis. 255 2d ¶¶ (Abrahamson, C.J., dissenting). N.W.2d

Case Details

Case Name: State v. Vorburger

Court Name: Wisconsin Supreme Court

Date Published: Jul 16, 2002

Citation: 648 N.W.2d 829

Docket Number: 00-0971-CR

Court Abbreviation: Wis.