¶ 107. (dissenting). The majority acknowledges that the following occurred in this case:
• Milwaukee police contemplated obtaining a search warrant for Artie's home but specifically chose not to do so, instead proceeding without one. Majority op., ¶ 8.
• Several officers approached the home. One unlawfully entered the curtilage of Artie's property behind the house while others aggressively knocked and yelled at the front door. Majority op., ¶¶ 9-10.
• When no response was forthcoming, the officers forcibly kicked in one door and broke out a window in a second to make a forced, warrantless entry. Majority op., ¶ 11.
• Police searched the downstairs portions of defendant's house before confronting him in his upstairs rooms. Police had weapons drawn during this encounter. Majority op., ¶ 12-13.
• Still without seeking a warrant, police had a conversation with the defendant for which there are con*444flicting accounts but following which police searched the upstairs rooms.
¶ 108. Given this undisputed sequence of events, given that the State bears the burden of establishing why the fruits of this warrantless and unconstitutional entry should be admitted, and given the spotty factual record on which the majority's analysis relies, it is remarkable that the majority determines that the evidence obtained following a concededly unconstitutional forced entry to the home was nevertheless properly used in court.
¶ 109. I cannot agree with the majority's analysis of either of the two key inquiries: the voluntariness of consent and its attenuation from the unlawful police conduct. I discuss each in turn.
I
¶ 110. The majority's conclusion that consent was voluntarily given in this case does not, in my view, faithfully apply the governing law. The majority begins its analysis by reciting the established principles governing voluntary consent,1 but then walks away from these principles when it applies the law to the facts of this case.2 In particular, the majority does not take *445seriously either the evaluation of the totality of the circumstances or the applicable burden of proof, which is placed on the State.
A
¶ 111. Although the majority recites that determining voluntariness turns on the totality of the circumstances,3 the majority's analysis then ignores a key, overarching circumstance in this case, namely that the encounter between Artie and the police was precipitated by a forcible, unlawful, and warrantless entry into Artie's home. In my view the majority's analysis thereby ignores the obvious. In the context of the coercive effect of the forced entry, the majority also significantly understates the legal significance of the fact that police confronted Artie with weapons drawn.
¶ 112. The real question, as the majority acknowledges, is whether a statement of consent was the result of express or implied duress or coercion, majority op., ¶ 34. Mere "acquiescence to a claim of lawful authority" does not provide for a statement of consent that the law considers voluntary.4
¶ 113. Viewing the totality of the circumstances more candidly than the majority has done, I conclude that any consent given by Artie was an "acquiescence" to the assertion of police authority, rather than a statement of consent that the law treats as willing and voluntary.
¶ 114. The majority analyzes the six voluntariness factors focused only on events transpiring in the upstairs of Artie's residence, as if the encounter be*446tween Wagner and Artie began at the time Artie opened the upstairs door.5 Of course that is not what happened. The police knocked and yelled very loudly at the outside door for between 30 to 60 seconds.6 When there was no answer within that time, police made a forced entry. Police therefore reached Artie's upstairs rooms only after they kicked down one locked door and broke a window to force entry through a second, then passed through and searched the downstairs portions of the house with guns drawn. See majority op., ¶ ll.7
¶ 115. The State has conceded, and the majority concludes, that the forced entry into the home was unconstitutional. Majority op., ¶ 26. But the majority treats the encounter upstairs as unrelated to the forced entry that precipitated it. The majority therefore does not candidly address the true totality of the circumstances.
*447¶ 116. Wouldn't Artie expect that the police approach to the upstairs would be the same as their approach downstairs? By their actions downstairs, police had indicated their intent to conduct a search and their readiness to do so forcefully and without either consent or a warrant. As the majority elsewhere points out, Artie himself watched police kick down the front door on closed-circuit video.8 Given how the upstairs encounter came to pass, any consent given by Artie amounted to no more than an acquiescence to a robust display of police authority.
¶ 117. The majority also downplays the coercive effect of the officers' being armed and the fact that Detective Wagner has his weapon drawn when Artie opened the upstairs door. "The 'display of weapons is a coercive factor that sharply reduces the likelihood of freely given consent.' "9
¶ 118. In distinguishing the cases cited by Artie in which a display of weapons demonstrated that consent was an acquiescence rather than a voluntary choice, the majority continues to be in denial about the fact that an unlawful entry to the house had already taken place.
¶ 119. Of course no two cases present identical facts, but the cases suggest that a display of weapons inside the home after police had already made one forced entry should weigh heavily against a determination of voluntary consent here. The majority cites no case that combines these elements.10
*448¶ 120. By arbitrarily limiting its factual analysis to events that happened upstairs and by downplaying the display of weapons, the majority departs from what it has promised to do and what the law requires: to evaluate the totality of the circumstances.
¶ 121. When Artie, aware that several officers had already forced entry into his house, opened an inside door to meet a police officer who had a guh drawn and who informed Artie that he had done all this without a warrant, it hardly stands to reason that Artie believed that refusing further search would be a realistic option. Artie's consent was therefore more what the law considers an acquiescence to authority than a freely given consent. Police had by then already amply demonstrated their willingness and intent to exercise just that authority.
B
¶ 122. Furthermore, the majority misapplies the burden of proof on key facts in its analysis of consent. The majority acknowledges that a warrantless search of the home is "per se unreasonable" and that the state bears the burden of proving voluntary consent by clear and convincing evidence. The majority thus recites but does not take seriously the State's burden to prove voluntary consent by clear and convincing evidence.
*449¶ 123. In a move critical to its analysis, the majority asserts that the "upstairs unit was separate from the downstairs unit," and that the upstairs was where Artie lived.11 The record is far from clear and convincing in support of the majority's conclusion.12 Detective Wagner testified that when he was knocking on the upstairs door he "wasn't sure" whether the building was one residence or two, and that "[i]t was kind of confusing all at once." Evidence that is not sure and is "kind of confusing" is not clear and convincing. The majority thus misapplies the burden of proof to improperly reach a critical conclusion, which it then construes against the defendant.
¶ 124. The majority also' resolves vagaries about the role of weapons in the encounter in favor of the State. The majority concedes that the record is "unclear" about the role of weapons in the encounter but nevertheless concludes that the unclear role of weapons did not undermine voluntary consent. Majority op., ¶¶ 45, 46-53. "Unclear" evidence is, obviously, not clear; it is also not convincing. The majority brushes past the lack of clarity about key factual disputes and resolves uncertainties against the defendant. This analysis does not hold the State to its burden.
*450¶ 125. Although the majority concedes that there is "no evidence in the record" that police informed Artie he could withhold consent, the majority nevertheless infers that Artie was aware of this because of his refusal to sign a written consent. This appears to be a factual determination of Artie's subjective knowledge, which is not supported by fact finding from the circuit court. The more realistic inference from the record, in light of the totality of the circumstances, is that whether or not Artie believed that he could refuse consent, he had little reason to believe such a refusal would actually deter police from completing the search of his house that they had already begun.13 Again, the majority infers facts not in the record about the defendant's subjective knowledge and construes them against the defendant, misallocating the burden.
¶ 126. Because the majority fails to candidly assess the totality of the circumstances, and particularly the bearing of the illegal entry on the encounter in which the circuit court found that consent was given, and because in my view the majority has misapplied the *451burden of proof by resolving key factual uncertainties in favor of the State, I cannot join the majority's conclusion that consent was voluntarily given in this case.
¶ 127. The State has not met its burden. Artie "consented to the choice at time when he had no real choice, and he had no real choice because of police misconduct." United States v. Collins, 510 F.3d 697, 701 (7th Cir. 2007).
II
¶ 128. Having concluded that any consent given in this case does not meet the constitutional requirement for being voluntarily given, I might dissent on that ground alone. I write further, however, to respond to the majority's application of the attenuation doctrine, which, in my opinion, continues to be out of sync with the controlling federal interpretations of the Fourth Amendment and risks further "making a mockery of the attenuation doctrine."14
¶ 129. In applying the three-part analysis of attenuation from Brown v. Illinois, 422 U.S. 590 (1975), the majority acknowledges that the passage of time (the "temporal proximity") between the illegal entry and the request for consent in this case was "relatively brief," "not more than about five minutes." Majority op., ¶¶ 75, 76. The majority understates the case when it determines that this short timeframe "weighs against a finding of attenuation."
¶ 130. The only federal case to which the majority cites is Rawlings v. Kentucky, 448 U.S. 98, 100-01 (1980). There, the Court considered a 45-minute period *452of time to be "a short lapse," and indicated that in custodial circumstances it would in fact be too short. See majority op., ¶ 73.
¶ 131. In the present case, the circumstances were custodial (a reasonable person in Artie's position would not have felt free to leave), and the time was much shorter. Inexplicably, the majority determines that this short time is mitigated by the "congenial and non-threatening conditions" which the majority has determined existed just minutes after police kicked down Artie's front door while he watched on a video monitor.
¶ 132. The majority's analysis of timing is not consistent with other cases. In Dunaway v. New York, 442 U.S. 200, 218 (1979), one and one-half hours was too short. Likewise, in Taylor v. Alabama, 457 U.S. 687, 691 (1982), a confession obtained approximately six hours after an illegal arrest was determined not sufficiently attenuated. To the extent that the analysis of "temporal proximity" in this case is consistent with Wisconsin case law, it indicates how far this court's attenuation analysis has strayed from the controlling interpretations of Fourth Amendment doctrine from the United States Supreme Court.
¶ 133. It is in its analysis of "intervening circumstances" that the majority opinion works a novel misapplication of Fourth Amendment law. The majority asserts that there were "meaningful intervening circumstances following the illegal entry on the ground floor." But rather than identify a factual discontinuity of the kind previously recognized in the case law, the majority focuses on the defendant's conduct and apparently on his state of mind. See majority op., ¶¶ 80, 85-87.
*453¶ 134. The majority recognizes that a proper intervening circumstance "must show a 'discontinuity between the illegal [entry] and the consent." Majority op., ¶ 85 (quoting United States v. Gregory, 79 F.3d 973, 980 (10th Cir. 1996)).
¶ 135. Here there was no discontinuity in light of the question underlying the three Brown v. Illinois factors: "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality . ..." Wong Sun v. United States, 371 U.S. 471, 488 (1963); majority op., ¶ 64. The majority treats the encounter in Artie's upstairs kitchen as if the encounter itself provides the intervening circumstance that makes the subsequent search attenuated. In my view, it is the upstairs encounter itself and the consent given therein which were plainly "come at by exploitation of' the unlawful entry into the house in the first place.15
¶ 136. The problem is that the majority then fails to identify a factual discontinuity or intervening circumstance that occurred in this case. The facts in this case show a continuous course of action over "not more than five minutes" from when police forced entry *454through the outside door, swept through the lower rooms of the house, moved upstairs, knocked and entered Artie's upstairs door and searched the upstairs premises. The majority fails to identify any intervening facts or circumstances in the course of the police actions initiated by that illegality and culminating in the search.
¶ 137. Perhaps because it cannot identify a meaningful discontinuity in the circumstances, the majority instead oddly focuses on Artie's behavior and subjective state of mind, noting his "cool sangfroid," his "presence of mind," his "strategic decision[s]" and the fact that he was not surprised, frightened, or confused.16 An inquiry into the mind of the defendant is unrelated to the question whether an intervening circumstance created sufficient discontinuity or attenuation to break the connection between the unlawful police conduct and the evidence thereby obtained. "Consent alone does not necessarily purge the taint of the illegal action." Robeles-Ortega, 348 F.3d at 684.
¶ 138. Whether Artie kept his "presence of mind" or merely was resigned to the search is not relevant to the determination of the circumstances that reveal *455attenuation. The same evidence that would be suppressed against a panicky defendant is not admissible simply because the suspect remained calm.
¶ 139. The United States Supreme Court has rejected just the type of argument on which the majority relies. In Taylor v. Alabama, 457 U.S. 687 (1982), the petitioner was unlawfully arrested and detained. He was fingerprinted and put in a lineup and though he spent most of the time during which he was detained by himself, he eventually visited with two friends. Following this visit he executed a waiver of rights and a written confession. The State argued, much as the majority insinuates here, that the defendant "had every opportunity to consider his situation, to organize his thoughts, to contemplate his constitutional rights, and to exercise his free will."
¶ 140. The Supreme Court rejected the State's characterization and determined that the confession was insufficiently attenuated from the illegal arrest and that the defendant's statement was therefore inadmissible. This result was reached even when the defendant there had several hours' time to consider his decision; he had time out of the presence of police, as Artie did not; his location changed, as Artie's did not; he visited with friends who were not in custody, as Artie did not; and he executed two written documents waiving his rights and entering a statement, as Artie did not. Yet none of those arguably intervening circumstances in Taylor was sufficient for the United States Supreme Court to determine that the confession was sufficiently attenuated from the unlawful arrest.
¶ 141. The United States Supreme Court analysis thus teaches that the consent and search of the upstairs rooms here was not sufficiently attenuated from the initial unlawful entry to render the evidence admissible.
*456¶ 142. The third Brown v. Illinois factor, as analyzed by the majority, is the "purposefulness and flagrancy of the police conduct." Majority op., ¶¶ 91-105. The majority concludes that the police conduct was not "purposeful" or "flagrant."
¶ 143. The majority is misguided when it concludes that the police conduct was not "purposeful." See majority op., ¶ 97. In State v. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, this court analyzed the police "purpose" in attenuation analysis by noting that "Richter was not the target of the officer's investigation or search." Richter, 235 Wis. 2d 524, ¶ 54. There the police entered the home for reasons unrelated to investigating Richter, believing instead that they were in pursuit of a burglar. Here, by contrast, police entered the home with the very purpose which they eventually carried out: securing and seizing evidence of drug crimes and apprehending any persons involved.17
*457¶ 144. The majority also concludes that the unconstitutional entry was not "flagrant," a point which the parties vigorously dispute. Once again, the majority allows its focus on one isolated piece of the three-factor attenuation analysis to obscure the overarching attenuation inquiry, which, as the majority recognizes, aims to discern when "the deterrent effect of the exclusionary rule no longer justifies its cost." Majority op., ¶ 65 (quoting Brown v. Illinois, 422 U.S. at 609 (Powell, J., concurring)). Here, police deliberately abandoned their well-grounded plan to seek a warrant, which all agree they had probable cause to obtain. "Until a valid warrant has issued, citizens are entitled to shield 'their persons, houses, papers, and effects' from the government's scrutiny. Exclusion of the evidence obtained by a warrantless search vindicates that entitlement." Hudson v. Michigan, 547 U.S. 586, 591 (2006). The majority analysis loses sight of the deterrence and judicial integrity goals it purports to effect through the exclusionary rule by providing no reason for police to obtain a warrant when evidence obtained without one is nevertheless admitted.
¶ 145. Police conduct need not be flagrant in order for the exclusionary rule to have a meaningful deterrent effect. Here, as the majority recognizes, police not only considered seeking a warrant but were planning to do so. Majority op., ¶ 8. As was true in Robeles-Ortega, the police decision to proceed without first obtaining a warrant as planned was, in a sense, "inexplicable."18 Had police obtained a warrant, there would *458have been no concern with entering the curtilage, no concern with the forced entry, and no need for multiple rounds of appellate litigation addressing detailed suppression doctrines. The State would not bear the burden of showing why the evidence obtained as a result of unconstitutional police conduct should nevertheless be admitted.
¶ 146. As the Seventh Circuit court of appeals has recognized, police who undertake a "knock and talk" procedure take on the risk that they may or may not thereby obtain admissible evidence.19 Here, had the police obtained a search warrant, they would have been assured that any evidence thereby obtained would be lawful and admissible in court. When they chose to approach the house without a warrant, entered the curtilage, forced entry, and searched the upstairs and downstairs of Artie's house without ever seeking or obtaining a search warrant, police entered an arena where the law has maintained strong presumptions of constitutional protection and placed the burdens of *459proof on the state. It is "axiomatic," after all, that "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Richter, 235 Wis. 2d at 540 (quoting Welsh v. Wisconsin, 466 U.S. 740, 748 (1984)).
¶ 147. Because the majority has not candidly assessed the totality of the circumstances or properly allocated the burden of proof to the State and because the majority distorts the attenuation analysis, it has, in my view, incorrectly reached the conclusion that the evidence in this case was properly admitted and that the defendant therefore suffered no prejudice as a result of his counsel's failure to properly argue for its suppression. See majority op., ¶¶ 25-26. Although the majority concedes that Detective Davila's observations were unlawfully obtained, majority op., ¶ 26, no explanation is offered for why Artie was not prejudiced by her testimony both at the suppression hearing and at trial. The circuit court's crucial determination that Artie's own testimony at the suppression hearing was not credible relied explicitly on the unlawfully obtained Davila testimony. Nevertheless, the majority continues to rely on the credibility finding by the circuit court.20
¶ 148. For the reasons set forth, I dissent.
¶ 149. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
Majority op., ¶ 32.
The circuit court found as a matter of fact that Artie gave oral consent to search. See majority op., ¶ 31. The question becomes whether consent was given voluntarily, which is a question of "constitutional fact." A reviewing court independently applies the constitutional principles to the historic and evidentiary facts to determine whether the standard of voluntariness has been met. State v. Phillips, 218 Wis. 2d 180, 195, 577 N.W.2d 794 (1998).
Majority op., ¶¶ 32-33.
Majority op., ¶ 32 (quoting Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)).
For example, in addressing whether police threatened or intimidated Artie, the majority begins its discussion with the moment "when Artie opened the door to the second-floor unit." Majority op., f 39.
Likewise, when the majority addresses whether conditions were "non-threatening and cooperative," it begins its discussion at the time officers knocked on Artie's [upstairs] door. Majority op., ¶ 44. There is nothing non-threatening or cooperative about the circumstance where a police officer breaks through two locked doors to gain entry to a private house.
At the suppression hearing, Detective Wagner described his knocking as "very loud. At first it was just I would say a regular knock, and then it got louder." Asked about his announcements of "Milwaukee Police," Detective Wagner stated, "It was shouting." Detective Davila testified that she yelled many times from the back of the house to the officers in the front.
At the suppression hearing, Detective Wagner testified that his weapon was drawn at the time he entered the residence.
Majority op., ¶ 90.
4 Wayne R. LaFave Search and Seizure: A Treatise on the Fourth Amendment, § 8.2(b), at 63 (4th ed. 2004) (quoting Lowery v. State, 499 S.W.2d 160 (Tex. Crim. App. 1973)).
The majority, ¶¶ 47-48, relies principally on United States v. Smith, 973 F.2d 1374 (8th Cir. 1992). There, officers *448were outside the apartment and obtained consent to enter. There was no unlawful conduct prior to obtaining consent. Simply, officers outside the apartment " 'asked' if they could come inside and Debra Smith stepped aside and motioned for them to come in." 973 F.2d at 1375. The case is not analogous here unless, as the majority does, one treats the upstairs behavior in isolation. The other cases cited by the majority are also inapposite.
Majority op., ¶ 89.
Artie's trial testimony indicated that both his girlfriend Winnie and another friend named Matt had bedrooms in the downstairs and that neither paid rent. At oral argument, Artie's Attorney summarized the situation as follows:
Understand, this was Mr. Artie's home, the whole thing was his home. It was a single family dwelling. He happened to have his bedroom upstairs. There was a kitchen upstairs. There was no kitchen on the first floor, there was a shell of a kitchen that had been completely removed — no appliances, no plumbing. This was one home, and ... the encounter began when police pounded on the front door....
Further compounding its speculation about the defendant's subjective knowledge, the majority also asserts as a "fact" "that Artie believed that Grafton had disposed of the cocaine." Majority op., ¶ 58. There was no fact finding along these lines in the circuit court. It is at most a speculative inference regarding the defendant's subjective knowledge.
The majority also determines that "there was mutual apprehension" when Artie opened the door," majority op., ¶ 39, and that the "tension" between an obvious criminal suspect and the police who had forced entry into his house "appears to have dissipated quickly." No witness testified to the majority's conclusions regarding "mutual apprehension." Such supposition of "facts" by an appellate court is contrary to our standard of review and further distorts the majority's allocation of the burden in this case.
State v. Richter, 2000 WI 58, ¶ 64, 235 Wis. 2d 524, 612 N.W.2d 29 (Abrahamson, C.J., dissenting).
As Professor LaFave explains regarding the validity of a search justified by consent, 'While there is sufficient overlap of the voluntariness and fruits tests that often a proper result may be reached by using either one independently, it is extremely important to understand that (i) the two tests are not identical, and (ii) consequently the evidence obtained by the purported consent should be held admissible only if it is determined that the consent was both voluntary and not an exploitation of the prior illegality." 4 LaFave, supra note 9, § 8.2(d), at 76. See also United States v. Robeles-Ortega, 348 F.3d 679, 683 (7th Cir. 2003) ("[T]he voluntariness of the consent is only the first step, and the next inquiry is whether the consent was tainted by the entry, in other words, whether it was the product of that illegal entry.").
The majority also determines (without explanation) that the very brief time in which police knocked on the upstairs door and "the consensual opening of the door" constitute an intervening circumstance. Majority op., ¶ 81. Contradicting itself, the majority asserts that Artie was "prepared" for police to enter his apartment because he had been watching the downstairs entry by video. Majority op., ¶ 83. Thus the majority corroborates what the time analysis reveals: that the entry and search amount to a single, continuous course of police conduct.
The majority goes on to make the additional factual assertions that police "did not treat Artie as a suspect," and "made a concerted effort to diffuse a tense situation," without citation to record facts.
The majority opinion acknowledges that this was a "knock and talk" procedure. This procedure is described as one in which "police approach a house or apartment in which they suspect drug dealing... [and] listen outside the door.... [T]hen they knock on the door and attempt to persuade whoever answers to give them permission to enter. If consent is forthcoming, they enter and interview the occupants of the place; if it is not, they try to see from their vantage point at the door whether drug paraphernalia or contraband is in plain view. If it is, then they malee a warrantless entry. As this description makes plain, the 'knock and talk procedure typically does not involve the prior issuance of a warrant.'" State v. Robinson, 2010 WI 80, ¶ 7 n.5, 327 Wis. 2d 302, 786 N.W.2d 463 (quoting United States v. Johnson, 170 F.3d 708, 711 (7th Cir. 1999)).
Clearly the "purpose" of the knock and talk procedure, in general and as employed here, is to secure, if possible, drug evidence, without obtaining a warrant.
United States v. Robeles-Ortega, 348 F.3d 679, 680 (7th Cir. 2003) ("The actions taken by the DEA agents at that point in time are inexplicable. Rather than obtaining a search warrant based on that information, within two minutes of the [informant's] departure the agents forcibly entered the apartment by breaking down the door.").
In United States v. Collins, 510 F.3d 697, 701 (7th Cir. 2007), the Seventh Circuit court of appeals explained that
[T]here is no legal requirement of obtaining a warrant to knock on someone's door.... But the risk [police] take in proceeding... is that the emergency will not materialize — that the occupant of the house will calmly open the door and ask to see their warrant.... The further risk is that no one will answer the knock and the government will be unable to prove that the police knew the house was occupied.
Here, this is just what unfolded. Because the observations made from the rear of the house were unlawfully made, police were unable to prove, by evidence legally admissible in court, that the house was occupied. The majority nevertheless, and without explanation, relies on the observations unlawfully made by Detective Davila in its analysis of the case. See majority op., ¶¶ 10-11, 26 & n.5, 42, 99.
Neither the majority opinion nor the parties' briefs separately argue the issue of counsel's deficiency, and neither shall I.