Thursday, March 22, 2007

Louis Butler, Shirley's Court, and Consent

Jessica has pointed out a recent Screechin'Shirley decision.

This is a close call, and it seems to me that the real question was whether or not there was "consent" to search the vehicle:

Stillman [ Racine police officer] asked Johnson [the detainee] if there was anything illegal in the car. According to Dummer, "Stillman advised Mr. Johnson due to his movements that we were going to search the vehicle," and Johnson responded, "'I don't have a problem with that.'" Both officers indicated that they intended to search the vehicle with or without Johnson's assent.

...The [Racine Circuit] court did not address whether the officers were justified in conducting a protective search of Johnson's car and person, stating that Stillman had "obtained Johnson's consent to search the vehicle."

Here's the key:

On appeal, the State conceded that Johnson did not consent to the protective search of his vehicle.

[Supreme Court Justice Butler wrote:] The testimony of Officers Dummer and Stillman shows that Johnson merely acquiesced to the search. Johnson did not freely and voluntarily give his consent.

[In dissent, Justice Roggensack:] She also argued that Johnson gave consent. The United States Supreme Court has held that there is "no ready test for determining reasonableness [of a search] other than by balancing the need to search against the invasion which the search entails."


No question that the suspect was a dirtbag--he was carrying crack and had a stash of marijuana under his seat. There were signs that he was hiding something in the car (or possibly arming himself.)

So what's a "reasonable search"? This decision will make it harder for police, no doubt. But either there was (or there was NOT) 'consent' to the search.

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