State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15
For Johnson: Eileen A. Hirsch, SPD, Madison Appellate
Issue: Whether Johnson’s statement, “I don’t have a problem with that,” made in response to an officer’s assertion that they were “going to search the vehicle” was voluntary consent or mere acquiescence.
Holding:
¶19 As the record indicates, neither Stillman nor Dummer asked for Johnson’s permission to search the car. Stillman did not recall asking for consent, but indicated he would have noted that fact in his report if he had. Dummer clarified that Stillman advised Johnson that “we were going to search the vehicle.” Johnson’s response to that command must consequently be construed as acquiescence. On the basis of the undisputed testimony of Stillman and Dummer, we therefore conclude that the circuit court’s statement that Stillman obtained Johnson’s consent to search the vehicle was against the great weight and clear preponderance of the evidence, and was, therefore, clearly erroneous. …
The dissent draws a distinction between “voluntary acquiescence,” which it characterizes as consistent with valid consent and “involuntary acquiescence,” which isn’t. See ¶¶66-76. The dissent construes the majority opinion as: “a verbal, but positive, response to a request to search or a statement that a search will be conducted, … is always ‘acquiescing’ to law enforcement,” ¶71, emphasis supplied. That construction vastly overstates the holding: for one thing, the disjunctive “or” makes all the difference in the world. You don’t acquiesce to “a request” but you certainly do to the inevitability of a command. The majority recites the facts in some detail, which include the construction by an officer on the scene that Johnson’s statement meant “he wasn’t going to do anything to stop you,” ¶18. It is quite novel, then, that asserted police intent to search without offering a choice in the matter and eliciting a response of, OK, I won’t interfere, is something other than mere acquiescence to the stated intent. Point is, the holding certainly represents a nice restatement of the mere acquiescence principle but it isn’t nearly as dramatic a statement as the dissent would have it. The State conceded error on the issue, for good reason.
