 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Richter6/20/2000
is apparent that in order to satisfy the "reasonableness" requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government-whether the magistrate issuing a warrant, the police officer executing a warrant, or the police officer conducting a search or seizure under one of the exceptions to the warrant requirement-is not that they always be correct, but that they always be reasonable.
Illinois v. Rodriguez, 497 U.S. 177, 185 (1990).
. Because we have concluded that Berlin's entry into Richter's home was reasonable and justified by exigent circumstances, we need not address the attenuation theory advanced by the State as an alternate basis upon which to uphold this search. However, we agree with the State that the court of appeals misapplied the attenuation doctrine and so for purposes of clarification briefly address it.
. Illegal conduct by law enforcement may taint a homeowner's subsequent consent to search. Brown v. Illinois, 422 U.S. 590, 603 (1975); State v. Phillips, 218 Wis. 2d at 205; State v. Anderson, 165 Wis. 2d 441, 448, 477 N.W.2d 277 (1991). In Phillips, we applied the test established in Brown for determining whether consent to search obtained after an illegal entry is sufficiently attenuated from an illegal entry in order to purge the taint. Phillips, 218 Wis. 2d at 205-12. The test requires the evaluation of three factors: 1) the temporal proximity of the official misconduct and seizure of evidence, 2) the presence of intervening circumstances, and 3) the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 603-04; Phillips, 218 Wis. 2d at 205; Anderson, 165 Wis. 2d at 448.
. The court of appeals found the first of the attenuation factors-the temporal proximity of the entry and the seizure of the evidence-to weigh against attenuation, since Berlin's entry into the trailer was followed almost immediately by Richter's consent and the search. Richter, 224 Wis. 2d at 824. We do not disagree with this part of the analysis. But in Phillips we held that the evaluation of the timing of the search vis-a-vis the entry must also consider the conditions existing at the time of the consent. Phillips, 218 Wis. 2d at 206. In that case, we held that even when temporal proximity is very close, "the non-threatening, non-custodial conditions surrounding the search . . . lean toward a finding that any taint created by the agents' unlawful entry . . . dissipated when the defendant consented to the search." Id. at 207.
. Here, the court of appeals concluded that the following conditions aggravated an otherwise concededly non-threatening, non-custodial situation: 1) Berlin was armed (even though he did not draw his gun), and 2) Richter was awakened from a deep sleep. Richter, 224 Wis. 2d at 825. We disagree that these particular conditions are sufficiently aggravating to transform this non-threatening, non-custodial situation into one which weighs against attenuation.
. More importantly, however, the court of appeals' evaluation of the second and third factors in the attenuation analysis suggests certain doctrinal requirements that do not actually exist. In its analysis of the second factor-the presence of intervening circumstances between the initial entry and the defendant's consent-the court of appeals seemed to suggest, based upon Phillips and Bermudez, that intervening circumstances for purposes of attenuation cannot be found to exist where the officer fails to inform the subject of the search that he does not have a warrant and that consent to search need not be given. Richter, 224 Wis. 2d at 825-26. This is incorrect.
.
Page 1 2 3 4 5 6 7 8 9 10 11 12 Wisconsin DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|