State v. Jeffrey Stout, 2002 WI App 41, PFR filed 2/21/02
For Stout: James L. Fullin, Jr., SPD, Madison Appellate
Issue: Whether the police must have reasonable suspicion before seeking consent to enter a residence.
Holding:
¶17. We hold that there is no Fourth Amendment requirement of reasonable suspicion as a prerequisite to seeking consent to enter a dwelling. We find support for this holding in federal automobile search cases. In Ohio v. Robinette, 519 U.S. 33, 39-40 (1996), the United States Supreme Court held that as a matter of Fourth Amendment jurisprudence, the voluntariness of a driver’s consent to search, requested without articulable suspicion, cannot be made to depend upon his or her being told by the police that if he or she refuses to consent to the search, he or she will be free to go. The proposition that reasonable suspicion is not required as a basis for seeking consent is apparently the majority view respecting the mandate of the Fourth Amendment of the Federal Constitution. State v. Carty, 753 A.2d 149, 153 (N.J. Super. Ct. App. Div. 2000); see also 3 Wayne R. LaFave, Search and Seizure § 8.1 n.8, at 597 (3rd ed. 1996). In Wisconsin, our supreme court has stated that the law of search and seizure under the state constitution conforms to that developed by the United States Supreme Court under the Fourth Amendment. State v. Phillips, 218 Wis. 2d 180, 195, 577 N.W.2d 794 (1998). We therefore apply the federal approach to our state law and conclude that reasonable suspicion is not a prerequisite to an officer’s seeking consent to enter a private dwelling.
(The court remands for further fact-finding as to consent. ¶18.)
