State v. Derik J. Wantland

2014 WI 58

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP3007-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Derik J. Wantland,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
346 Wis. 2d 680, 828 N.W.2d 885
(Ct. App. 2013 – Published)
PDC No: 2013 WI App 36

OPINION FILED: July 11, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 20, 2014

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Sheboygan
JUDGE: Timothy Van Akkeren

JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
filed.)
PROSSER, J., ABRAHAMSON, C.J., BRADLEY, J.,
dissent. (Opinion filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-appellant-petitioner, the cause was
argued by Tristan S. Breedlove, assistant state public defender,
with whom on the briefs was Susan E. Alesia, assistant state
public defender.

For the plaintiff-respondent, the cause was argued by Sarah
K. Larson, assistant attorney general, with whom on the brief
was J.B. Van Hollen, attorney general.
 2014 WI 58
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP3007-CR
(L.C. No. 2011CF56)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED
v. JUL 11, 2014
Derik J. Wantland, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a

decision of the court of appeals, State v. Wantland, 2013 WI App

36, 346 Wis. 2d 680, 828 N.W.2d 885, that affirmed the judgment
and order of the Sheboygan County Circuit Court,1 which convicted

Derik J. Wantland ("Wantland") of possession of a narcotic and

denied his motion to suppress evidence.

¶2 Both the State and Wantland concede that the driver

consented to the search of the vehicle in which the briefcase

was located, and concede that the driver's consent was not

1
The Honorable Timothy M. Van Akkeren presided.
 No. 2011AP3007-CR

limited in a way that would have excluded the briefcase from the

search.2 Wantland's petition for review and argument assume that

the driver's general consent to search was not limited until

Wantland, the passenger, asked the officer whether he had a

warrant for the briefcase. Thus, this opinion addresses not

whether the officer had the driver's general consent in the

first instance, but rather, we address whether Wantland's

question limited that consent.3

¶3 Wantland argues that the warrantless search of his

briefcase, which led to the discovery of the narcotics, was

unreasonable and therefore violated his rights under the Fourth

2
Indeed, Wantland's petition for review framed the issue as
whether "[w]hen the passenger asks 'got a warrant for that?'
before the officer opens a briefcase found in the hatchback of
the car, has the driver's general consent to search the car been
limited?" This statement of the issue clearly assumes that the
driver's initial consent to search was valid and extended to the
briefcase. Wantland framed his argument almost identically in
his brief, arguing that his question "effectively limited the
driver's general consent to search the car." The State noted
the concession, stating "[t]his case is not about the validity
of the original consent to search the entire vehicle . . . [a]s
Wantland concedes . . . the valid, unambiguous, unlimited,
general consent to search the vehicle was given by someone with
authority to consent——the brother." Wantland did not object to
this characterization of his position in his reply brief or at
oral argument.
3
Chief Justice Abrahamson's dissent chooses to address an
issue that is not relevant to why we accepted the petition for
review. In fact, the issue of whether the driver's initial
consent to search was valid is the subject of long settled law,
see State v. Matejka, 2001 WI 5, ¶19, 241 Wis. 2d 52, 621
N.W.2d 891, and therefore would constitute mere error correction
inappropriate for our review. See Wis. Stat. § 809.62(1r)(a)
(2013-14).

2
 No. 2011AP3007-CR

Amendment. Wantland contends that he asserted ownership of the

briefcase and withdrew the driver's consent by asking "Got a

warrant for that?" of the police officer who was conducting the

search. He further argues that the police officer had a duty to

ask follow-up questions to clarify any ambiguity once Wantland

asked his question.

¶4 The State argues that Wantland's question "Got a

warrant for that? was too ambiguous to constitute a withdrawal

of the driver's consent. The State further contends that the

officer was under no duty to clarify Wantland's question.

¶5 We conclude that Wantland did not effectively withdraw

the driver's consent when he asked "Got a warrant for that?"

Further, we conclude that police officers confronted with

ambiguous statements, such as Wantland's, are not under a duty

to ask follow-up questions to clarify the ambiguity. As a

result, we conclude that the search of the briefcase was

reasonable under the circumstances, and we affirm the decision

of the court of appeals.
I. FACTUAL BACKGROUND

¶6 On August 26, 2010, Sheboygan County Sheriff's Deputy

Jason Brockway ("Deputy Brockway") stopped a vehicle in Random

Lake, Wisconsin, for driving with a cracked windshield and a

defective brake light. The vehicle was being driven by

3
 No. 2011AP3007-CR

Wantland's brother, Dennis Wantland ("the driver").4 Wantland

was riding in the front passenger seat of the vehicle.

¶7 After issuing a written warning, Deputy Brockway asked

the driver to step out of the car so that he could show him the

brake light and explain why driving with a cracked windshield

was dangerous. Deputy Brockway then informed the driver that he

was free to leave. After walking back to his squad car, Deputy

Brockway turned and asked the driver if there was "anything in

the vehicle that wasn't supposed to be in the vehicle."5 When

the driver responded that he did not believe there was, Deputy

Brockway asked if he could search the car.6 The driver responded

"Um, I don't see why not. We gotta get our tools and stuff out

anyway." Deputy Brockway then asked both men to step out of the

vehicle and wait by the curb while he performed the search.

4
During the course of the search, Dennis Wantland informed
Deputy Brockway that the vehicle was actually registered to his
sister-in-law.
5
An officer making this this type of statement is seeking
general consent to search, rather than requesting permission to
search for a certain item or items. United States v. Canipe,
569 F.3d 597, 605 (6th Cir. 2009).
6
The police procedure whereby "a police officer attempts to
obtain a person's consent to a search even though the officer
has no legal basis to further detain the person" has been deemed
acceptable. State v. Kolk, 2006 WI App 261, ¶23 n.7, 298
Wis. 2d 99, 726 N.W.2d 337. This court has held that, so long
as "a reasonable person would have felt free to decline the
officer's questions and leave the scene, or otherwise terminate
the encounter," such consent is a valid exception to the warrant
requirement. State v. Williams, 2002 WI 94, ¶35, 255 Wis. 2d 1,
646 N.W.2d 834; see also State v. Jones, 2005 WI App 26, ¶¶9-10,
278 Wis. 2d 774, 693 N.W.2d 104.

4
 No. 2011AP3007-CR

¶8 During Deputy Brockway's search of the passenger

compartment of the vehicle, he noted some razor blades and asked

what they were for. The driver replied, "we got these little,

um, utility knives that we use they're for-- painting the

windows and stuff, [it's] easier to just paint over the trim

then come back."

¶9 After searching the passenger compartment, Deputy

Brockway opened the back hatch of the vehicle and observed a

variety of tools and toolboxes, along with a briefcase. Deputy

Brockway asked what was in the briefcase. Wantland responded,

"A laptop. Uh. Got a warrant for that?" Deputy Brockway

responded, "I can open up the, uh, laptop" and proceeded to

remove the briefcase from the vehicle. Wantland then recounted

the contents of the briefcase, stating "Yeah, it's uh, laptop,

Visine, acid reflux."

¶10 During his search of the briefcase, Deputy Brockway

discovered pills that appeared to be inconsistent with the

bottle in which they were found.7 A second officer, called in by
Deputy Brockway for his expertise in identifying narcotics,

verified that the pills were morphine. The briefcase also

contained letters and personal papers with Wantland's name on

them. At that point, Deputy Brockway arrested Wantland and

informed him of his Miranda rights. See Miranda v. Arizona, 384

U.S. 436 (1966). A search incident to Wantland's arrest

7
The label indicated that the pill bottle should contain
40mg antacid pills, but the pills Deputy Brockway discovered
were marked "30mg."

5
 No. 2011AP3007-CR

revealed two additional morphine pills concealed in some loose

tobacco in Wantland's pocket.

II. PROCEDURAL POSTURE

¶11 On January 27, 2011, the State filed a complaint

charging Wantland with possession of narcotic drugs without a

prescription, as a repeater, contrary to Wis. Stat.

§§ 961.41(3g)(am) and 939.62(1)(b) (2011-12).8 On February 14,

2011, Wantland made his initial appearance, waived a reading of

the complaint, and requested a preliminary hearing. The court

set Wantland's signature bond at $5,000. On February 23, 2011,

the court held a preliminary hearing, found probable cause to

bind Wantland over for trial, and the State filed an information

which alleged the same charge against Wantland. On March 25,

2011, Wantland was arraigned on the information and pled not

guilty.

¶12 On April 5, 2011, Wantland filed a motion to suppress

the evidence uncovered during Deputy Brockway's search of the

briefcase.9 On April 12, 2011, the circuit court held a hearing

8
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
9
Wantland also filed motions to suppress the fruits of his
detention and to suppress any statements he made following his
arrest. Wantland admitted before the circuit court that these
additional motions were "all connected to the search of the
vehicle." Because we conclude that the search in this case was
reasonable, and because Wantland did not raise these issues in
his petition for review, we need not address these arguments.

6
 No. 2011AP3007-CR

on Wantland's motion.10 At the hearing, Wantland argued that

there was no valid consent to search the vehicle because the

circumstances of the stop were coercive. Alternatively,

Wantland argued that his question "Got a warrant for that?" was

sufficient to withdraw any consent that may have been given.

The State argued that the driver's consent to search the vehicle

was valid and was not limited in any way, and that Wantland's

question was not sufficient to withdraw the original consent.

¶13 On May 2, 2011, the circuit court denied Wantland's

motion to suppress. The court concluded that the initial

consent was voluntary and was not the result of any coercion or

show of force on the part of Deputy Brockway. The court further

concluded Wantland's question did not withdraw the driver's

original consent.

¶14 On May 3, 2011, Wantland pled no contest to the charge

pursuant to a plea agreement. In exchange for his plea, the

State agreed to recommend 18 months probation. The circuit

court accepted Wantland's plea, found him guilty, and accepted
the State's recommendation with regard to sentencing.

¶15 On December 21, 2011, Wantland appealed. Before the

court of appeals, Wantland narrowed the issue and argued that

the circuit court erred in denying his motion to suppress

because his question "Got a warrant for that?" effectively

10
Due to scheduling conflicts, the motion hearing had to be
continued twice. Additional testimony was taken on April 20,
2011, and counsel presented brief arguments before the court's
ruling on May 2, 2011.

7
 No. 2011AP3007-CR

withdrew the general consent his brother had given Deputy

Brockway. The State again contended that, as the driver of the

vehicle, the driver had apparent authority to consent to a

search, and that Wantland's subsequent question did not withdraw

that consent.

¶16 On February 20, 2013, the court of appeals affirmed

the circuit court. Wantland, 346 Wis. 2d 680, ¶1. The court of

appeals determined that, under the totality of the

circumstances, a reasonable person would not have understood

Wantland's question to be a withdrawal of his brother's general

consent to search the vehicle. Id., ¶¶8-9. As a result, the

court of appeals concluded that the search was legal and upheld

the circuit court's denial of Wantland's motion to suppress.

Id., ¶12.

¶17 On March 22, 2013, Wantland petitioned this court for

review, which we granted on November 21, 2013.

III. STANDARD OF REVIEW

¶18 "Our review of an order granting or denying a motion
to suppress evidence presents a question of constitutional

fact." State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786

N.W.2d 463 (citing State v. Hughes, 2000 WI 24, ¶15, 233

Wis. 2d 280, 607 N.W.2d 621).

¶19 "When presented with a question of constitutional

fact, this court engages in a two-step inquiry." Id. (citations

omitted); see also State v. Popke, 2009 WI 37, ¶10, 317

Wis. 2d 118, 765 N.W.2d 569. "First, we review the circuit
court's findings of historical fact under a deferential
8
 No. 2011AP3007-CR

standard, upholding them unless they are clearly erroneous.

Second, we independently apply constitutional principles to

those facts." Id. (citations omitted).11

IV. ANALYSIS

¶20 "The Fourth Amendment does not proscribe all state-

initiated searches and seizures; it merely proscribes those

which are unreasonable." Florida v. Jimeno, 500 U.S. 248, 250

(1991) (citing Illinois v. Rodriguez, 497 U.S. 177 (1990)). The

United States Supreme Court has "long approved consensual

searches because it is no doubt reasonable for the police to

conduct a search once they have been permitted to do so." Id.

at 250-51 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973)). Thus, "a search conducted pursuant to a valid consent

is constitutionally permissible." Schneckloth, 412 U.S. at 222;

see also Wis. Stat. § 968.10(2).

¶21 "The scope of a search is generally defined by its

expressed object." Jimeno, 500 U.S. at 251 (citing United

States v. Ross, 456 U.S. 798 (1982)). "One who consents to a
search 'may of course delimit as he chooses the scope of the

search to which he consents.'" State v. Matejka, 2001 WI 5,

¶37, 241 Wis. 2d 52, 621 N.W.2d 891 (quoting Jimeno, 500 U.S. at

252). "But if his consent would reasonably be understood to

extend to a particular container, the Fourth Amendment provides

11
In the case at issue the historical facts are undisputed.
Therefore, this opinion focuses on the second step of the
analysis: applying the undisputed facts to the constitutional
standard.

9
 No. 2011AP3007-CR

no grounds for requiring a more explicit authorization."

Jimeno, 500 U.S. at 252.

¶22 Further, "[t]he Supreme Court long ago held that

officers may conduct warrantless searches based upon a third-

party's consent, where the third party has common authority over

the premises to be searched." Matejka, 241 Wis. 2d 52, ¶19

(citing United States v. Matlock, 415 U.S. 164, 169-71 (1974)).

¶23 Before consent may operate as a valid exception to the

warrant requirement, two conditions must be met. First, the

consent must have been "freely and voluntarily given." Bumper

v. North Carolina, 391 U.S. 543, 548 (1968). Second, the

consent must be given by an individual having either actual or

apparent authority over the place to be searched. See

Rodriguez, 497 U.S. at 181 (citing Matlock, 415 U.S. at 171).

¶24 In the case at issue, the parties agree that the

driver voluntarily consented to a search of the vehicle. It is

thus undisputed that the consent was neither mere acquiescence

to a claim of lawful authority nor obtained through coercion.
See, e.g., United States v. Mendenhall, 446 U.S. 544, 558

(1980); State v. Johnson, 2007 WI 32, ¶17, 299 Wis. 2d 675, 729

N.W.2d 182. The parties also agree that the driver had actual

authority over the vehicle, and thus his consent to search the

vehicle was valid. Schneckloth, 412 U.S. at 222. Further,

Wantland concedes that the driver did not limit the scope of the

initial consent. In other words, he concedes that a reasonable

person would have understood the initial consent given by the

10
 No. 2011AP3007-CR

driver to extend to all containers within the vehicle, including

the briefcase.

¶25 In sum, Wantland and the State agree that, absent

Wantland's question, Deputy Brockway's search of the briefcase

would have been constitutionally permissible. Thus, the focus

of our attention rests upon whether Wantland's question "Got a

warrant for that?" effectively withdrew the driver's consent.

¶26 Wantland argues that once he asked his question "Got a

warrant for that?" the officer's search of his briefcase was

unreasonable. Wantland contends that his question undermined

the driver's apparent authority and constituted a withdrawal of

the driver's original consent to search the briefcase.

Alternatively, Wantland argues that Deputy Brockway had a duty

to ask follow-up questions to resolve any ambiguity. We reject

these arguments and affirm the court of appeals.

A. Wantland Did Not Withdraw Consent

¶27 Third-party consent to a search may be valid, so long

as "'permission to search was obtained from a third party who
possessed common authority over or other sufficient relationship

to the premises or effects sought to be inspected.'" Matejka,

241 Wis. 2d 52, ¶32 (emphasis in Matejka) (quoting Matlock, 415

U.S. at 171). In the context of an automobile, this court has

held that the common authority inquiry "focuses not necessarily

on the third-party's authority over the specific object in

question, but the third-party's authority over the premises in

which that object is located." Id., ¶36.

11
 No. 2011AP3007-CR

¶28 The driver of a vehicle has "obvious possessory

authority over the vehicle and therefore the capacity to consent

to its search." Id., ¶35. Further, "by virtue of the joint

access and mutual use of the interior" of the vehicle, the

driver has apparent authority to consent to a search of the

belongings of any passengers in the vehicle. Id. This accords

with the general proposition that "consent to search a space

includes consent to search containers within that space where a

reasonable officer would construe the consent to extend to the

container." United States v. Melgar, 227 F.3d 1038, 1041 (7th

Cir. 2000) (citing Jimeno, 500 U.S. at 251).

¶29 In the case at issue, it is undisputed that Deputy

Brockway obtained consent to search for "anything in the vehicle

that wasn't supposed to be in the vehicle." A reasonable

officer would construe this as a general consent that extends to

containers. See, e.g., United States v. Canipe, 569 F.3d 597,

600 (6th Cir. 2009) (determining that a request to look for

"'anything' in [a] vehicle that might be unlawful or about which
[the officer] needed to know" was a request for general consent

to search); United States v. Crain, 33 F.3d 480, 483-84 (5th

Cir. 1994) (determining that a request to "look inside" a

vehicle, without any further explanation, was a request for

general consent to search). "It is self-evident that a police

officer seeking general permission to search a vehicle is

looking for evidence of illegal activity. It is just as obvious

that such evidence might be hidden in closed containers."

12
 No. 2011AP3007-CR

Canipe, 569 F.3d at 605 (quoting United States v. Snow, 44 F.3d

133, 135 (2d Cir. 1995)); see also Crain, 33 F.3d at 484.

¶30 The driver gave Deputy Brockway valid consent to

search containers in the vehicle, and the driver had apparent

authority over those containers at the time consent was given.12

¶31 Wantland argues, however, that his question "Got a

warrant for that?" undermined the driver's apparent authority

over the briefcase, and should have led Deputy Brockway to

conclude that he had withdrawn the driver's consent to its

search.

¶32 Wantland points to a number of cases where the

apparent authority of a driver did not extend to items in the

vehicle that belonged to passengers. See United States v.

Munoz, 590 F.3d 916, 922-23 (8th Cir. 2010); United States v.

Welch, 4 F.3d 761, 765 (9th Cir. 1993) modified, United States

v. Kim, 105 F.3d 1579, 1580-81 (9th Cir. 1997); State v. Suazo,

627 A.2d 1074 (N.J. 1993); State v. Williams, 616 P.2d 1178 (Or.

Ct. App. 1980). Munoz, Welch, and Williams, however, address
whether initial consent was valid, not whether consent was later

withdrawn. These cases do not support Wantland's claim that the

officer, who had consent to search, should have known that

Wantland's later question, "Got a warrant for that?" was a

sufficiently clear assertion of ownership so to inform Deputy

12
The parties do not dispute that the briefcase was not
locked or otherwise secured. As we noted in State v. Matejka,
another fact scenario "might give rise to a different focus for
the common authority analysis." 241 Wis. 2d 52, ¶36.

13
 No. 2011AP3007-CR

Brockway that the consent to search the briefcase was

withdrawn.13 In addition, Suazo is factually distinct from the

case at issue because in that case the passenger unequivocally

stated that the item at issue belonged to him and not the

driver.14 In fact, mere assertion of ownership of an item may be

insufficient to constitute withdrawal of consent. See, e.g.,

United States v. West, 321 F.3d 649, 652 (7th Cir. 2003)

(holding that the lawfulness of the search turned not on whether

the defendant owned the item searched, but rather turned on

whether he withdrew consent). Because Wantland concedes that

the initial consent was valid, the issue before this court turns

on whether Wantland's question "Got a warrant for that?" served

to unequivocally withdraw that consent.

13
For example, in United States v. Welch officers obtained
consent from a male suspect to search a rental vehicle he shared
with a female suspect but did not obtain consent to search the
female suspect's purse. 4 F.3d 761, 762 (9th Cir. 1993). On
appeal, the Ninth Circuit concluded that, while the suspect had
authority to consent to the search of the car, "there is simply
nothing in the record demonstrating that [the male suspect] had
use of, let alone joint access to or shared control over, [the
defendant's] purse." Id. at 764. By contrast, in the case at
issue, Deputy Brockway's belief that the briefcase was at least
subject to joint access or shared control is amply supported by
the record.
14
The driver of the vehicle in State v. Suazo consented to
the initial search, but when the non-consenting passenger's bag
was removed from the trunk, the passenger clearly stated that it
belonged to him and not the driver. 627 A.2d 1074, 1075. Such
a clear statement of ownership is lacking in the case at issue.
A reasonable person would not understand the statement "Got a
warrant for that?" to mean "that belongs to me."

14
 No. 2011AP3007-CR

¶33 "'Withdrawal of consent need not be effectuated

through particular "magic words," but an intent to withdraw

consent must be made by unequivocal act or statement.'" United

States v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005) (quoting

United States v. Gray, 369 F.3d 1024, 1026 (8th Cir. 2004)); see

also United States v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991);

Payton v. Commonwealth, 327 S.W.3d 468, 478 (Ky. 2010). "The

standard for measuring the scope of a suspect's consent under

the Fourth Amendment is that of 'objective' reasonableness——what

would the typical reasonable person have understood by the

exchange between the officer and the suspect?" Jimeno, 500 U.S.

at 251 (citing Rodriguez, 497 U.S. at 183-89; Florida v. Royer,

460 U.S. 491, 501-02 (1983)).

¶34 Unequivocal acts or statements sufficient to

constitute withdrawal of consent may include slamming shut the

trunk of a car during a search, see United States v. Flores, 48

F.3d 467, 468 (10th Cir. 1995), grabbing back the item to be

searched from the officer, see United States v. Ho, 94 F.3d 932,
934 (5th Cir. 1996), and shouting "No wait" before a search

could be completed, see United States v. Fuentes, 105 F.3d 487,

489 (9th Cir. 1997).

¶35 By contrast, Wantland's inquiry "Got a warrant for

that?" was equivocal, such that it did not clearly withdraw the

otherwise valid consent of his brother, the driver. Wantland

did not ask the officer to stop the search as the vehicle owner

did in Fuentes. He did not take action to prevent the officer
from accessing the briefcase, as the item's owners did in Flores
15
 No. 2011AP3007-CR

and Ho. Rather, Wantland did little to indicate that he owned

the briefcase and that the officer was not free to search the

briefcase. In fact, case law does not support the notion that

Wantland's question, "Got a warrant for that?" was sufficient to

constitute a withdrawal of consent.

¶36 Payton v. Commonwealth illustrates why Wantland's

question did not constitute a withdrawal of consent. In Payton

police officers received valid consent to search a residence

from the suspect's wife. 327 S.W.3d at 470. When officers

entered the bedroom in which the defendant was sitting, Payton

immediately asked, "where's your warrant?" Id. at 476. When

the officers informed the defendant that his wife had consented

to the search, he responded, "'Fine' or 'Well, okay.'" Id. at

470. The officers subsequently discovered methamphetamine

hidden in the bedroom. Id. at 471.

¶37 At trial Payton sought to suppress the

methamphetamine, arguing that when he asked "where's your

warrant?" he withdrew his wife's consent to search the house.
Id. The court denied his motion and the defendant appealed.

Id.

¶38 The Supreme Court of Kentucky affirmed the trial

court's denial of the motion to suppress. Id. at 470. The

Kentucky Supreme Court concluded that the defendant "cannot be

said to have 'unequivocally refused' consent by his asking

'where's your warrant' and then saying 'fine' or 'well, okay'

after being told his wife had already consented to a search."
Id. at 478. The court distinguished the facts before it from
16
 No. 2011AP3007-CR

other cases in which a defendant "unequivocally refuse[s]" to

consent to a search. Id. (citing Georgia v. Randolph, 547 U.S.

103, 107 (2006)).

¶39 Notably, Wantland's warrant question was almost

identical to the question asked by the suspect in Payton. Also

similar to the conversation in Payton, Wantland's question was

immediately followed by statements that were conversational

rather than an unequivocal indication that the officer should

cease the search. Instead of denying access to the briefcase,

Wantland explained what the officer would find inside the

briefcase. Additionally, unlike the defendant in Payton, who

responded as soon as he became aware of the consent to search,

Wantland was present at the time the original consent was given

and did not object to that consent. Instead, Wantland stayed

quiet throughout the search of the passenger compartment of the

vehicle and did not ask any question or make any comment until

Deputy Brockway reached for the briefcase. Even then it was far

from clear that Wantland was telling the officer that he could
no longer search the briefcase. Given these facts, under the

totality of the circumstances, a reasonable person would not

understand Wantland's question to be an unequivocal withdrawal

of an otherwise valid consent to search the briefcase.

¶40 Similarly, in United States v. Gray, the Eighth

Circuit concluded that a defendant's expression of frustration

with the length of time the search was taking and a stated

desire to leave was not sufficient to constitute a withdrawal of
his previous consent to search. 369 F.3d at 1026. The court
17
 No. 2011AP3007-CR

held that that "intent to withdraw consent must be made by

unequivocal act or statement." Gray's statement that the length

of the search was "ridiculous" and that he and his companion

were "ready to go now" "amounted to an expression of impatience,

which is not sufficient to terminate consent." Id. (citing

United States v. Ross, 263 F.3d 844, 846 (8th Cir. 2001)).

Wantland's remarks were even more equivocal than those made by

Gray, in that Gray at least referenced a desire to depart the

scene.

¶41 Similar ambiguous statements were deemed insufficient

to constitute a withdrawal of a previous consent to search in

United States v. Gregoire, 425 F.3d 872, 881 (10th Cir. 2005).

In Gregoire the driver had consented to a search of his vehicle

but later stated, "I [was] planning to be home" and "[i]sn't

that illegal" as the search progressed. Id. The Tenth Circuit

concluded that these statements were too ambiguous to constitute

withdrawal of the driver's original consent to search. Id.

Unlike Gregoire Wantland did not imply that he wanted to leave,
and he did not clearly indicate that he believed the search was

illegal.

¶42 Under the analysis of these cases, Wantland's question

"Got a warrant for that?" must be deemed ambiguous. Such a

question may constitute an inquiry regarding the officer's

lawful authority to search the briefcase, but it is far from an

unequivocal withdrawal of consent. Deputy Brockway's response,

"I can, uh, open the laptop," was responsive to Wantland as
Deputy Brockway already had legal authority for the search from
18
 No. 2011AP3007-CR

the driver. Moreover, Wantland's listing out the contents of

the briefcase failed to clearly indicate that Deputy Brockway no

longer had consent to search the briefcase.

¶43 Further, the driver initially made numerous statements

to Deputy Brockway clarifying which items in the vehicle

belonged to the occupants jointly. For example, the driver

stated, "We gotta get our tools and stuff out anyway" in

responding to the initial request for consent. (Emphasis added).

Further, in response to a question from Deputy Brockway about

the razor blades in the vehicle, the driver replied, "we got

these little, um, utility knives that we use." (Emphasis

added). Wantland said nothing to indicate that other items may

belong to him alone. Thus, to the extent that a reasonable

officer would conclude that some of the items in the vehicle did

not belong solely to the driver, that indication related, at

most, to the tools and knives and not the briefcase.15 Notably,

Wantland never made any statement to the effect that the

briefcase was not to be searched. In fact, prior to asking "Got
a warrant for that?" Wantland had said nothing at all about the

briefcase or any other item in the vehicle. Nothing in the

plain question "Got a warrant for that?" would have

15
We are not confronted with whether the officer's search
of the tools or knives was inappropriate. Thus, we need not
address whether the driver's consent was somehow limited with
respect to these items. In addition, we do not conclude that an
officer has a duty to put items such as these, which are
potential weapons, into the hands of the requester, especially
while the officer is conducting a search and such items could be
used to harm the officer.

19
 No. 2011AP3007-CR

unequivocally indicated to a reasonable person that consent to

search the briefcase had been withdrawn.

¶44 Hence, a reasonable person considering the totality of

the circumstances would not understand Wantland's inquiry to be

an unequivocal withdrawal of consent. See Jimeno, 500 U.S. at

251; Sanders, 424 F.3d at 774. Thus, Deputy Brockway's search

of the briefcase was reasonable.

B. Officer's Duty To Inquire

¶45 Finally, Wantland argues that where ownership or

authority over a closed container is unclear, police officers

are under a duty to make further inquiry to resolve the

ambiguity before proceeding with a search. We conclude that law

enforcement is not under such a duty to further inquire.

¶46 The Seventh Circuit has held that once police have

received consent to search the premises from a person with

apparent authority, they may rely on that authority to search

closed containers without further inquiry, unless they encounter

an item which they "have reliable information . . . is not under
the authorizer's control." United States v. Melgar, 227 F.3d

1038, 1041 (7th Cir. 2000) (emphasis in original). The court

noted that "[a] contrary rule would impose an impossible burden

on the police." Id. at 1042.

¶47 We agree. Once valid consent for a search has been

secured, law enforcement officers are not required to halt their

search and question whether consent is still valid every time a

person makes an ambiguous statement regarding the ownership of

20
 No. 2011AP3007-CR

an item that is otherwise within the scope of that consent.16

See Frazier v. Cupp, 394 U.S. 731, 740 (1969) (holding that the

court would not engage in "metaphysical subtleties" in

determining the efficacy of a third party's consent). Such a

rule would place an onerous and unreasonable burden on law

enforcement, particularly given that the true owner of the

property may or may not be present. See, e.g., Matlock, 415

U.S. at 166-67. Thus, an officer need not clarify whether an

ambiguous statement is meant to withdraw otherwise valid consent

to search. Melgar, 227 F.3d at 1041; see also Matejka, 241

Wis. 2d 52, ¶32 (quoting Matlock, 415 U.S. at 171).

V. CONCLUSION

¶48 We conclude that Wantland did not effectively withdraw

the driver's consent when he asked, "Got a warrant for that?"

Further, we conclude that police officers confronted with

ambiguous statements, such as Wantland's, are not under a duty

to ask follow-up questions to clarify the ambiguity. As a

result, we conclude that the search of the briefcase was
reasonable under the circumstances, and we affirm the decision

of the court of appeals.

16
In fact, this court has declined the opportunity to
require law enforcement to inquire further in other settings.
See, e.g., State v. Edler, 2013 WI 73, ¶¶86-87, 350 Wis. 2d 1,
833 N.W.2d 564 (Ziegler, J., concurring in part, dissenting in
part); State v. Jennings, 2002 WI 44, ¶¶31-36, 252 Wis. 2d 228,
647 N.W.2d 142 (indicating that while clarifying questions are
"good police practice," such questions are not required).

21
 No. 2011AP3007-CR

By the Court.—The decision of the court of appeals is

affirmed.

22
 No. 2011AP3007-CR.ssa

¶49 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). The

majority opinion repeatedly proclaims that the driver of the car

(the defendant's brother) validly consented to the law

enforcement officer's search of the motor vehicle and all

containers in the vehicle, including the defendant's briefcase.1

¶49 The majority opinion maintains that the instant case is

not one addressing "whether initial consent was valid."

Majority op., ¶32. Rather, the majority opinion addresses

whether the defendant effectively revoked the driver's valid

consent to search the briefcase.2

¶50 The State, the defendant, Justice Prosser, and I

disagree with the majority opinion's view of the issue

presented. I join Justice Prosser's dissent.

¶51 We understand the issue to be whether the driver's

consent to the search of the vehicle, including a consent to

search the containers and briefcase therein, was valid after it

became clear to law enforcement that the driver did not own the

briefcase. The driver's initial consent to search the vehicle
may have appeared as valid consent to search any container or

briefcase in the vehicle. But the issue in the instant case is

whether facts coming to light during the search should have

caused a reasonable person to doubt the validity of the consent

to a search of the briefcase, that is, should have caused a

1
Majority op., ¶¶24, 30, 33, 35-36, 39, 47.
2
See majority op., ¶25.

1
 No. 2011AP3007-CR.ssa

reasonable person to have doubted the authority of the driver to

consent to a search of the briefcase.3

¶52 The warrant requirement of the United States and

Wisconsin Constitutions does not apply when a party consents to

a search,4 when a third party with common control over the

searched premises consents,5 or when an individual with apparent

authority to consent does so.6

¶53 "When police are relying upon consent as the basis for

their warrantless search, they have no more authority than they

have apparently been given by the consent. . . . But, the

question is not to be determined on the basis of the subjective

intentions of the consenting party or the subjective

interpretation of the searching officer. . . . [T]he standard is

'that of "objective" reasonableness . . . .'"7

¶54 Although the driver in the present case appeared to

have the authority to consent to a search of the vehicle and its

contents, the defendant's claim of ownership of the briefcase

put the officer on notice that someone other than the driver
might have authority over the briefcase. When circumstances

suggest that the property to be searched belongs to someone

3
See 4 Wayne R. LaFave, Search and Seizure: A Treatise on
the Fourth Amendment § 8.3(g), at 245 (5th ed. 2012).
4
Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
5
Florida v. Jimeno, 500 U.S. 248 (1991).
6
Illinois v. Rodriguez, 497 U.S. 177 (1990).
7
4 LaFave, supra note 3, § 8.1(c), at 22-23 (quoted source
omitted, emphasis in original).

2
 No. 2011AP3007-CR.ssa

other than the consenting person, the validity of the consenting

person's consent becomes questionable, even if the consent was

voluntarily given.

¶55 As the State's brief correctly explains, "it is the

sufficiency of the consenting individual's relationship to the

premises to be searched[ ] that the State must establish."8 The

test is whether a reasonable officer would believe under the

totality of the circumstances that the consenter had authority

to consent to the search:

The crux of this case is what a reasonable [law
enforcement officer] would believe, under the totality
of the circumstances, about who had apparent authority
over the briefcase at the time [the defendant] made
his warrant remark. Consent (and by extension,
revocation or limitation of that consent) requires
authority to consent in the first instance.9
¶56 The State has the burden in the present case to prove

by clear and convincing evidence that a reasonable law

enforcement officer would believe, under the totality of the

circumstances, that the driver had authority to consent to the

search of the briefcase.10
¶57 I address three issues:

8
State v. Kieffer, 217 Wis. 2d 531, 542, 577 N.W.2d 352
(1998).
9
Brief of the Plaintiff-Respondent at 5 (second emphasis
added). See also Justice Prosser's dissent, ¶114 ("The question
is whether his consent to search the vehicle not only covered a
closed container within the vehicle, but also remained valid
after his non-ownership of the closed container became
clear . . . .").
10
Illinois v. Rodriguez, 497 U.S. 177, 181 (1990).

3
 No. 2011AP3007-CR.ssa

• First, whether a reasonable law enforcement officer

would believe, under the totality of the

circumstances, that the driver had authority to

consent to the search of the briefcase;

• Second, whether the law enforcement officer's

erroneous assertion of authority to search the laptop

in the briefcase undermined the defendant's authority

to withdraw or limit the driver's consent;

• Third, what the standard is for determining whether a

person withdraws, limits, or revokes consent.

¶58 I conclude that the State did not meet its burden to

prove that a reasonable law enforcement officer would believe,

under the totality of the circumstances of the instant case,

that the driver had authority to consent to the search of the

briefcase. Accordingly, I dissent.

I

¶59 The validity of the driver's consent to the law

enforcement officer's search of the briefcase turns on whether
the driver had apparent authority to consent to the search of

the briefcase, as I have previously stated. Neither party

claims that the driver had actual authority to consent to the

search of the briefcase.

¶60 I conclude that under the totality of the

circumstances in the present case, a law enforcement officer

could not reasonably believe that the driver had apparent

authority to consent to a search of the briefcase. Gauging the

4
 No. 2011AP3007-CR.ssa

objective reasonableness of a law enforcement officer's actions

is a particularly fact-sensitive inquiry.11

¶61 The majority opinion limits its inquiry to the

statement, "Got a warrant for that?" but the totality of the

circumstances is more than this statement

¶62 The defendant asserted his claim of ownership over the

briefcase as follows:

DEPUTY: What's in the briefcase?

DEFENDANT: A laptop. Uh, got a warrant for that?

[At this point, the deputy has unlatched and begun
opening the briefcase.]

DEPUTY: I can open up the, uh, laptop.

DEFENDANT: Yeah, it's a laptop, Visine, acid
reflux . . . .
¶63 The facts available to the officer at the time of the

search of the briefcase include the following:

• The consenting driver did not own the vehicle;

• The consenting driver advised the officer that some

property in the vehicle (such as tools) belonged to
the defendant;

• When the officer asked what was in the briefcase, the

defendant answered, not the driver;

• When the officer asked what was in the briefcase, the

defendant correctly identified the contents, while the

driver was silent about the contents of the briefcase;

11
See Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552,
1564 (2013) (describing "totality of the circumstances" tests as
"fact-intensive").

5
 No. 2011AP3007-CR.ssa

• When the officer asked what was in the briefcase, the

defendant asked if the officer had a warrant;

• The officer cut off any further inquiry by opening the

briefcase and erroneously declared: "I can open the

laptop."

¶64 The communications between the law enforcement officer

and the defendant revealed that the briefcase was the

defendant's, not the driver's. The totality of the

circumstances demonstrates that the defendant signaled his

ownership of the briefcase. Consequently, the validity of the

driver's authority to consent to the search of the defendant's

briefcase was questionable. The officer's reliance on the

driver's authority over the briefcase was not objectively

reasonable.

¶65 A law enforcement officer can assume that an officer

has authority to perform a search only if "the facts available

to the officer . . . warrant a [person] of reasonable caution in

the belief that the consenting party had authority over the
premises."12 If a reasonable person would doubt that the

consenting person had authority over the property, the officer

must make further inquiry to determine whether the person has

authority to consent to the search.13 The officer "may not

always take [a person's] consent to a search at face value, but

12
Rodriguez, 497 U.S. at 188 (internal quotation marks and
citation omitted).
13
See Kieffer, 217 Wis. 2d at 548.
6
 No. 2011AP3007-CR.ssa

must consider the surrounding circumstances. That consideration

often demands further inquiry."14

¶66 Professor LaFave explains that a contrary rule would

undermine the purposes of the objective test of the totality of

the circumstances to determine authority. It would, according

to Professor LaFave, "make no sense whatsoever" to ignore facts

discovered during a search to affect the authority of a

consenter; doing so would "permit police simply to ignore all

facts coming to light during the search that should cause a

reasonable person to doubt the soundness of the previous

conclusion that the consenting person has authority to allow the

ongoing search."15

¶67 We have explicitly adopted this approach in State v.

Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998). In Kieffer,

law enforcement officers obtained the consent of a homeowner who

appeared to have shared authority over a lofted garage

apartment. During their investigation, however, the officers

learned facts that led them to doubt that the homeowner had
authority to consent to a search of the lofted garage space.

¶68 The Kieffer court held that once a reasonable person

would have reason to doubt the authority of the consenting

party, the officers could not rely on the consenting party's

14
Id. at 549.
15
4 LaFave, supra note 3, § 8.3(g), at 245.

7
 No. 2011AP3007-CR.ssa

apparent authority; the officers were obligated to ask

additional clarifying questions.16

¶69 The majority opinion does not cite Kieffer. Instead,

the majority opinion relies on United States v. Melgar, 227

F.3d 1038 (7th Cir. 2000), to support its assertion that law

enforcement officers need not ask any clarifying questions when

confronted with a non-consenting defendant claiming ownership or

asking for a warrant.

¶70 Melgar is inapposite. Unlike the defendant in Melgar,

the defendant in the instant case demonstrated his ownership of

the property contemporaneously with the search and challenged

the officer's search.

¶71 In Melgar, law enforcement officers had consent to

search a hotel room from the renter of the room and all the

occupants of the room. After all of the people had left the

hotel room, the officers searched the room and found a purse in

the bed, between the mattress and box spring. The purse had no

personalized markings on the outside. The officers had no
explicit permission from anyone to search the purse. They had

no clue about who owned the purse.17

¶72 In Melgar, the police lacked "reliable information

that the container [was] not under the authorizer's control."

16
"[T]he surrounding circumstances could conceivably be
such that a reasonable person would doubt [the] truth [of the
consent] and not act upon it without further inquiry."
Rodriguez, 497 U.S. at 188.
17
United States v. Melgar, 227 F.3d 1038, 1039-40 (7th Cir.
2000).

8
 No. 2011AP3007-CR.ssa

Melgar, 227 F.3d at 1041 (cited by majority op., ¶46). The

Seventh Circuit Court of Appeals reasoned in Melgar that "if the

police do not have reliable information that the container is

not under the authorizer's control," the police do not need to

ascertain the identity of a container's owner prior to searching

it.18

¶73 In the instant case, unlike in Melgar, the totality of

the circumstances exposed reliable information that the

briefcase was not under the consenting driver's (the

authorizer's) control.

¶74 According to the majority opinion, however, "[o]nce

valid consent for a search has been secured, law enforcement

officers are not required to halt their search and question

whether consent is still valid every time a person makes an

ambiguous statement regarding the ownership of an item that is

otherwise within the scope of that consent." Majority op., ¶47.

¶75 The majority opinion asserts that requiring inquiry

into the scope of the consenter's authority "would place an
onerous and unreasonable burden on law enforcement, particularly

given that the true owner of the property may or may not be

present." Majority op., ¶47.

¶76 That is not what our court stated in Kieffer. Indeed,

requiring law enforcement officers to evaluate evolving

circumstances is inherent in many search and seizure contexts.

¶77 As part of the objective analysis of a consenter's

authority, courts regularly require law enforcement to evaluate

18
Id. at 1041 (emphasis added).

9
 No. 2011AP3007-CR.ssa

and inquire into the consenter's authority in kaleidoscopic

circumstances. For example, the court asks that officers

determine whether a minor answering a door has authority under

the circumstances to consent to a search of a house when the

owner is not present;19 whether a houseguest has authority under

the circumstances to consent to a search of the contents of a

computer without the owner being present;20 and whether a

landlord has authority under the circumstances to consent to a

search of a tenant's bedroom.21

¶78 The totality of the circumstances in the present case

should have indicated to an objective police officer that the

driver did not have authority to consent to the search of the

defendant's briefcase. Thus, the officer could not rely on the

driver's consent to the search of the car or containers therein

to be a valid consent to the search of the briefcase.

II

¶79 The majority opinion ignores the officer's erroneous

assertion of authority that he could "open up the laptop,"
meaning he could open the briefcase including the laptop. Yet

"one factor very likely to produce a finding of no

consent . . . is an express or implied false claim by the police

19
State v. Tomlinson, 2002 WI 91, 254 Wis. 2d 502, 648
N.W.2d 367.
20
State v. Sobczak, 2013 WI 52, 347 Wis. 2d 724, 833
N.W.2d 59.
21
State v. St. Germaine, 2007 WI App 214, 305 Wis. 2d 511,
740 N.W.2d 148.

10
 No. 2011AP3007-CR.ssa

that they can immediately proceed to make the search in any

event."22

¶80 The officer, upon being confronted by the defendant's

challenge, "Got a warrant for that?" falsely invoked the power

of the law to justify opening of the briefcase. See Justice

Prosser's dissent, ¶¶120-121.

¶81 By asserting his authority during the defendant's

objection to the search, the officer made the driver's consent

appear irrevocable. The officer cut off the defendant's

opportunity to refuse to give his consent. "When a law

enforcement officer claims authority to search . . . , he

announces in effect that the occupant has no right to resist the

search."23 The officer undermined the principle that a person

can refuse, revoke, withdraw, or limit consent.

¶82 The majority opinion ignores the officer's false claim

of legal authority entirely and permits the law enforcement

officer under false claim of legal authority to cut off any

possibility of the defendant's objection to a search. This
result cannot be correct when the law requires consent to be

freely and voluntarily given to a warrantless search. State v.

Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786 N.W.2d 430.

III

¶83 Because the totality of the circumstances is such that

a reasonable officer was not entitled to believe that the driver

22
4 LaFave, supra note 3, § 8.2(a), at 71 (citations and
footnotes omitted).
23
Bumper v. North Carolina, 391 U.S. 543, 550 (1968).

11
 No. 2011AP3007-CR.ssa

had authority to consent to the search of the briefcase, the

question of how consent is to be revoked, withdrawn, or limited

need not be addressed.

¶84 I write on this issue, however, to make clear that I

do not agree with the majority opinion's requirement that a

defendant must make an "unequivocal" statement to revoke,

withdraw, or limit consent.

¶85 As the majority opinion rightly notes, "[w]ithdrawal

of consent need not be effectuated through particular 'magic

words, . . . ."24

¶86 Nevertheless, the majority opinion adopts a rule

similar to that used in determining an accused's invocation

during interrogation of the right to an attorney or the right to

remain silent. See Davis v. United States, 512 U.S. 452 (1994).

¶87 The Davis "unequivocal" or "unambiguous" rule has been

heavily criticized on a number of grounds, including that the

"unequivocal" test invites equivocation on the part of courts——

identical statements may appear "unequivocal" to one court may
be "equivocal" to another.25
24
Majority op., ¶33 (quoting United States v. Sanders, 424
F.3d 768, 774 (8th Cir. 2005)).
25
Compare United States v. Martin, 664 F.3d 684 (7th Cir.
2011) (invocation was unequivocal when defendant said "I'd
rather talk to an attorney first before I do that") with
Delashmit v. State, 991 So. 2d 1215 (Miss. 2008) (invocation was
equivocal when defendant said "I prefer a lawyer"). Compare
also Wood v. Ercole, 644 F.3d 83 (2d Cir. 2011) (invocation was
unequivocal when defendant said "I think I should get a lawyer")
with Commonwealth v. Morganti, 917 N.E.2d 191 (Mass. 2009)
(invocation was equivocal when defendant said he was "thinking I
might need a lawyer and want to talk to him before talking to
you").
12
 No. 2011AP3007-CR.ssa

¶88 As Justice Sotomayor noted in her dissent in Berghuis

v. Thompkins, 560 U.S. 370, 408-12 (2010), the "unequivocal" or

"unambiguous" test has limited practical value and erodes the

protections that defendants receive under Miranda. The dissent

explains that "ample evidence has accrued that criminal suspects

often use equivocal or colloquial language in attempting to

invoke their right to silence" and that courts imposing a clear-

statement requirement "have rejected as ambiguous an array of

statements whose meaning might otherwise be thought plain."26

¶89 I acknowledge that courts in other jurisdictions have

adopted this "unequivocal" test in the context of revocation,

withdrawal, or limitation of consent.27 I am not persuaded that

different tests should be applied to whether consent was granted

and whether consent was revoked, withdrawn, or limited. I

conclude that the same test should apply to both instances.

¶90 The "unequivocal" test results in an additional and

unnecessary layer of complexity to an area of law requiring

clarity.28
¶91 By using its flawed "unequivocal" test, the majority

opinion bends a defendant's statement that a reasonable person

would construe as an objection into mere equivocation and

26
Thompkins, 560 U.S. at 410-11 (Sotomayor, J.,
dissenting).
27
See, e.g., United States v. Stabile, 633 F.3d 219 (3d
Cir. 2011); United States v. Sanders, 424 F.3d 768 (8th Cir.
2005); State v. Smith, 782 N.W.2d 913 (Neb. 2010); State v.
Watson, 864 A.2d 1095 (N.H. 2004).
28
State v. Williams, 2012 WI 59, ¶25, 341 Wis. 2d 191, 814
N.W.2d 460.

13
 No. 2011AP3007-CR.ssa

erroneously places the burden on the defendant to prove the

unreasonableness of the search.

¶92 For the reasons set forth, I would reverse the

decision of the court of appeals and hold that the circuit court

erred in denying the defendant's motion to suppress.

¶93 I am authorized to state that Justice ANN WALSH

BRADLEY joins this dissent.

14
 No. 2011AP3007-CR.dtp

¶94 DAVID T. PROSSER, J. (dissenting). Several of the

techniques employed by the law enforcement officer in this case

are common in Wisconsin. The officer stopped a vehicle for

minor traffic violations. He quickly learned that a passenger

in the vehicle was a convicted felon with a history of drug

abuse. With consummate skill, the officer embarked on a plan to

elicit consent to search the vehicle so that he could determine

whether it contained controlled substances. Most of the

techniques the officer employed have been approved by this and

other courts. The question presented here is whether the

officer crossed the line of reasonableness by disregarding an

apparent objection to a consent search and thereby violated the

Fourth Amendment. I believe he did. Because the majority

concludes otherwise, I respectfully dissent.

FACTS SURROUNDING THE SEARCH

¶95 On August 26, 2010, a Sheboygan County deputy sheriff

stopped a vehicle driven by Dennis Wantland (the driver) on

Butler Street in Random Lake. The vehicle had a cracked

windshield and a defective brake light. The officer asked the

driver for his license. He also asked the passenger, the

driver's brother, for his license. The officer then took the

licenses and returned to his squad car, with its red and blue

lights flashing, to run an identity check on the two men.

Before he returned to the vehicle, the officer knew the driver

had a minor record but that the passenger, Derik Wantland

("Wantland" or "the defendant"), was a repeat offender who had
used drugs.

1
 No. 2011AP3007-CR.dtp

¶96 When he returned to the vehicle with a warning

citation, the officer asked the driver to step out of the car

and accompany him behind the vehicle to examine the defective

"third brake lamp."

¶97 The officer later explained to the court that he made

it a practice to ask a driver to leave his vehicle to show him

"exactly what I'm talking about."

Some people don't know what I mean by "third brake
lamp," so I'll take them out of the vehicle, point out
the brake lamp. And I've had the experience myself of
trying to replace things, so I'll try to explain to
them, you know, where you can get a light bulb, or
how much, roughly, it would cost to get it fixed, and
I kind of explain it to them, and then explain the
written warning to them, tell them about the
windshield, the safety of it, you know, that it's
there to prevent anything from coming through the
windshield, and if they would hit something that would
hit the windshield, with it already being cracked,
it's not as safe as it would be, you know, completely
basically not broken, and kind of explain to them the
reason for it.
¶98 The officer described his "conversational tone, trying

to explain to [the driver] the reason for the stop and why he

should get the things fixed." Then he went on:

At that point, I asked if [the driver] had any
questions, which I do on every traffic stop. If they
have any questions, I'll be more than happy to answer
them. He advised no, and I advised him he was free to
leave, at which point I started walking back to my
car, and he was walking back to the driver's door.1
(Emphasis added.)

1
The officer advised the driver that he was free to leave.
It is not clear whether the driver had someplace else to go.
Wantland was on Butler Street in front of his house.

2
 No. 2011AP3007-CR.dtp

¶99 The officer walked toward the door of his squad car.

Then, in a tactic reminiscent of Lieutenant Columbo, he suddenly

turned around and asked the driver if there was anything in the

vehicle that wasn't supposed to be there. When the driver

answered no, the officer immediately asked him "if he would mind

if I did a consent search of the vehicle." "The driver said

'yes, go ahead,'" the officer testified. On this point, the

majority quotes the driver as saying: "Um, I don't see why not.

We gotta get our tools and stuff out anyway." Majority op., ¶7.

¶100 In his police report, the officer wrote: "They asked

if they could remove their items out of the rear of the vehicle

and put them in the house at which point, I asked them to stand

alongside the roadway and when I was done searching the car,

they could remove their items."2

¶101 The officer obtained the driver's consent to search

the vehicle, but the above-quoted passage from the police report

reveals tension between the driver's consent and the brothers'

expressed desire to remove their property from the vehicle.

¶102 Given the driver's consent to search, the officer

asked Wantland to get out of the car and directed him to join

his brother at the curb. For the next six and a half minutes,

2
The following exchange took place at the suppression
hearing:

DEFENSE ATTORNEY: And at one point, Derik Wantland
actually asked if he could obtain his items out of the
vehicle.

OFFICER: Yes, they'd asked if they could get their
tools out of the vehicle. This was after the search
had begun on the vehicle. And again I told them no.

3
 No. 2011AP3007-CR.dtp

the officer conducted a very thorough search of the interior of

the vehicle using a flashlight and his hands. The officer

opened both the driver's door and the passenger's door. He

climbed into the vehicle from each side, opened the glove

compartment, looked under the seats, checked the shelf near the

back window, and ran his fingers through tight, concealed areas

next to the seats. Finding nothing but some razor blades, which

the driver explained were used in painting, the officer moved to

the trunk area.

¶103 After searching the passenger compartment, the officer

"opened the back hatch of the vehicle and observed a variety of

tools and toolboxes, along with a briefcase." Majority op., ¶9.

With his back to the squad car camera, the officer asked:

"What's in the briefcase?"

¶104 For the first time, Derik Wantland spoke up: "A

laptop. Uh. Got a warrant for that?"3

¶105 The officer replied, "I can open up the, uh, laptop,"

and he proceeded to remove the briefcase from the vehicle and

3
The transcript of the suppression hearing reads in part as
follows:

DEFENSE ATTORNEY: And as you were searching the back
portion of the vehicle, you asked a question of, I
guess, Derik Wantland and Dennis Wantland about what
was in the briefcase; is that correct?

OFFICER: I may have asked what was inside the
briefcase, yes.

DEFENSE ATTORNEY: And at that point, Derik Wantland
asked you if you had a search warrant.

OFFICER: Yes, he did.

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 No. 2011AP3007-CR.dtp

open it up. The sound track of the video records nervous

laughter from Wantland who says, in response to the officer,

"Yeah, it's uh, laptop, Visine, acid reflux."

¶106 According to the record, there were documents in the

briefcase with Wantland's name. There was also a pair of

scissors, a jackknife, coins, a bottle of Visine, and two opaque

plastic pill bottles, at least one of which was for Benicar 40

mg.

¶107 The officer opened one of the plastic bottles and

found two purple capsule-type pills that turned out to be

morphine, a controlled substance. Later, at the Sheboygan

County Jail, officers discovered two more pills in Wantland's

pocket. These four pills constitute the evidence that the

defendant sought to suppress.

DISCUSSION

¶108 The majority opinion takes the view that the driver of

the car gave the officer consent to search the vehicle. Consent

to search the vehicle included consent to search containers in

the vehicle. The majority concludes that neither the driver nor

the passenger ever effectively withdrew the driver's consent,

and that the officer had no duty to ask any follow-up questions

when Derik Wantland asked, "Got a warrant for that?" See

majority op., ¶5

¶109 We are concerned here with application of the Fourth

Amendment, which provides:

The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
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 No. 2011AP3007-CR.dtp

probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.
U.S. Const. amend. IV.

¶110 Article I, Section 11 of the Wisconsin Constitution is

nearly identical, and historically, it has been interpreted to

be consistent with United States Supreme Court interpretation of

the Fourth Amendment. See State v. Dearborn, 2010 WI 84, ¶14,

327 Wis. 2d 252, 786 N.W.2d 97.

¶111 In Coolidge v. New Hampshire, 403 U.S. 443, 454-55

(1971), the Supreme Court summarized the law on warrantless

searches:

[T]he most basic constitutional rule . . . is that
"searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per
se unreasonable under the Fourth Amendment——subject
only to a few specifically established and well-
delineated exceptions." The exceptions are "jealously
and carefully drawn," and there must be "a showing by
those who seek exemption . . . that the exigencies of
the situation made that course imperative." "[T]he
burden is on those seeking the exemption to show the
need for it."
Id. (second ellipsis and second brackets in original) (footnotes
omitted). These passages have been repeatedly quoted or

paraphrased in Wisconsin decisions.4

4
State v. Sobczak, 2013 WI 52, ¶11, 347 Wis. 2d 724, 833
N.W.2d 59, cert. denied, 134 S. Ct. 626 (2013); State v. Artic,
2010 WI 83, ¶29, 327 Wis. 2d 392, 786 N.W.2d 430; State v.
Pinkard, 2010 WI 81, ¶13, 327 Wis. 2d 346, 785 N.W.2d 592; State
v. Faust, 2004 WI 99, ¶11, 274 Wis. 2d 183, 682 N.W.2d 371;
State v. Williams, 2002 WI 94, ¶18, 255 Wis. 2d 1, 646
N.W.2d 834; State v. Matejka, 2001 WI 5, ¶17, 241 Wis. 2d 52,
621 N.W.2d 891; State v. Pallone, 2000 WI 77, ¶29, 236
Wis. 2d 162, 613 N.W.2d 568; State v. Phillips, 218 Wis. 2d 180,
196, 577 N.W.2d 794 (1998).

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¶112 One well-established exception to the warrant

requirement is consent. State v. Phillips, 218 Wis. 2d 180,

196, 577 N.W.2d 794 (1998); State v. Artic, 2010 WI 83, ¶29, 327

Wis. 2d 392, 786 N.W.2d 430; State v. Williams, 2002 WI 94, ¶18,

255 Wis. 2d 1, 646 N.W.2d 834; State v. Matejka, 2001 WI 5, ¶17,

241 Wis. 2d 52, 621 N.W.2d 891. Voluntary third-party consent

is an established form of consent. Matejka, 241 Wis. 2d 52,

¶17.

¶113 The fact that "consent" is an established exception

and that third-party consent can be acceptable does not mean

that the consent exception does not present issues such as

authority to give consent, scope of the consent, and the

voluntariness of the consent.

¶114 There is no dispute here that the driver voluntarily

consented to the officer's search of the vehicle. He was surely

authorized to consent to the search of anything in the vehicle

that he owned or lawfully controlled or shared with his brother.

The question is whether his consent to search the vehicle not

only covered a closed container within the vehicle, but also

remained valid after his non-ownership of the closed container

became clear by virtue of the fact that Wantland answered the

officer's question with intimate knowledge of the contents of

the briefcase and Wantland appeared to object to the search.

¶115 In Florida v. Jimeno, 500 U.S. 248, 249 (1991), the

Supreme Court was asked to decide "whether a criminal suspect's

Fourth Amendment right to be free from unreasonable searches is
violated when, after he gives a police officer permission to

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search his automobile, the officer opens a closed container

found within the car that might reasonably hold the object of

the search." The Court concluded that the Fourth Amendment was

not violated: "The Fourth Amendment is satisfied when, under the

circumstances, it is objectively reasonable for the officer to

believe that the scope of the suspect's consent permitted him to

open a particular container within the automobile." Id.

¶116 The facts in Jimeno are materially different from the

facts in this case. First, in Jimeno, the defendant was the

person who gave consent to search the vehicle. Id. at 249-50.

Second, the arresting police officer told the defendant before

he gave consent that the officer "had reason to believe that

Jimeno was carrying narcotics in his car." Id. at 249. Third,

the officer "explained that Jimeno did not have to consent to a

search of the car." Id. Fourth, the officer saw and then

opened a brown paper bag on the floor of the car and found a

kilogram of cocaine inside. Id. at 250. Fifth, the defendant

never said anything that limited or withdrew his consent.

¶117 Here, the defendant's brother, whose guard was down

and who presumably had nothing in the vehicle to be concerned

about, was the person who gave consent——not the defendant. The

officer gave the defendant no warning about his search objective

and no counsel that the defendant could refuse consent to a

search of his property. The officer's search went into an

opaque closed bottle in a closed briefcase in a closed trunk,

and the defendant, after demonstrating ownership of the
briefcase, asked the officer: "Got a warrant for that?"

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¶118 Was it objectively reasonable for the officer to

believe that the driver had given him consent to open up a pill

bottle in his brother's briefcase? If so, was it still

objectively reasonable for the officer to continue the search of

the briefcase after Wantland asked his question?

¶119 The defendant's question may not have been perfect but

it should have alerted the officer that the defendant was

challenging a "consent" search of his briefcase. It would be

difficult to articulate what other objective the defendant might

have had when he asked about a warrant. The defendant had just

witnessed the officer dig through the car like a police dog on

assignment. He knew that his briefcase was the next target.

"Got a warrant for that?" he asked.

¶120 The officer did not ask a follow-up question.

Instead, his answer was an assertion of authority that shut down

discussion. It effectively precluded dialogue. "I can open up

the, uh, laptop" is not a responsive answer to the question.

¶121 The officer's "conversational tone" was now gone. His

professed willingness to answer "any questions" had ended. His

helpful hints on where to buy brake lights evolved into a series

of orders. The officer was on a mission. If there were any

doubt about the officer's new persona, it was put to rest when

Derik Wantland walked to his house to go to the bathroom. The

officer quickly pursued him, following him to the bathroom,

ordering him not to flush the toilet, and threatening that if he

did, the officer "could shut the water off and take the toilet

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 No. 2011AP3007-CR.dtp

off and go into the trap and find anything that had been stuck

in the trap."

¶122 This is a consent case. The officer had no probable

cause or reasonable suspicion to conduct a search. The

continuing validity of the consent to search must be assessed in

light of the totality of the circumstances, which moved from the

broad consent given by one brother to the pointed question posed

by the other brother as the officer began to handle the property

of the other brother.

¶123 I acknowledge that conscientious judges may assess

these circumstances differently. In my view, the defendant

withdrew any "consent" to search his briefcase, and the officer

simply disregarded him. Because the majority's assessment is

different from mine, I respectfully dissent.

¶124 I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.

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