                                                               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.

                                                  4
                                                                   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
                                 5
                                                         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).

                                      6
                                                          No.    2011AP3007-CR.dtp


       ¶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

                                      7
                                                                    No.   2011AP3007-CR.dtp


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?"

                                              8
                                                                    No.    2011AP3007-CR.dtp


      ¶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



                                              9
                                                           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.




                                     10
    No.   2011AP3007-CR.dtp




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