State v. Stankus, 97-2131-CR

• Decision Date: 20 May 1998
• Docket Number: No. 97-2131-CR,97-2131-CR
• Citation: 220 Wis.2d 232,582 N.W.2d 468
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Timothy R. STANKUS, Defendant-Appellant. d
• Court: Wisconsin Court of Appeals

Page 468

582 N.W.2d 468

220 Wis.2d 232

STATE of Wisconsin, Plaintiff-Respondent, v. Timothy R. STANKUS, Defendant-Appellant. ^d

No. 97-2131-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs April 24, 1998.

Opinion Released May 20, 1998.

Opinion Filed May 20, 1998.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Steven J. Watson of Elkhorn.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Susan M. Crawford, Assistant Attorney General.

Before SNYDER, P.J., and BROWN and ANDERSON, JJ.

BROWN, Judge.

At issue in this case is the validity of the consent given to police officers to search an automobile during a routine traffic stop. Timothy R. Stankus alleges that the police employ a procedure designed to create a coercive atmosphere affecting a person's ability to freely decide whether to consent to a search of a car. That procedure is to suddenly place one officer at the passenger side of the car to assist the other officer, who is positioned at the driver's side, just prior to asking for consent. Stankus further argues that even if his initial consent is deemed by us to be voluntary, it did not include permission to search the trunk. Based on our review of the record, we conclude that Stankus' consent was voluntary and uncoerced. Moreover, because the officer seized suspected contraband concealed under the front seat of the car during the initial portion of the search, he had probable cause to search the trunk. We affirm.

Stankus was charged with possession of a short-barreled shotgun contrary to § 941.28(2) and (3), STATS. He filed a motion to suppress the evidence (the shotgun), arguing that his consent was not voluntary, and if it was voluntary, he did not consent to a search of the trunk. An evidentiary hearing followed where the trial court established the following facts.

At approximately 8:30 p.m. on May 30, 1996, a village police chief and his sergeant were in a marked squad car while patrolling a mixed residential and business area when they observed an automobile with a burnt out headlamp. Both officers were in uniform and armed. After they stopped the vehicle, the sergeant approached the driver's side of the automobile. The chief remained in the squad car.

The sergeant informed the driver that he had been stopped for driving with a burnt out headlamp and asked him for his driver's license. The driver gave his driver's license and the sergeant returned to the squad car, where he followed standard procedure by checking whether the license was valid and if there were any outstanding arrest warrants. The driver was identified as Stankus. Dispatch confirmed that the driver's license was valid and there were no outstanding warrants.

The sergeant, however, was suspicious and he wanted to search Stankus' vehicle. He had observed an unusual amount of fast-food wrappers, packs of cigarettes, soda cans and other debris on the floor of Stankus' car, and in his experience, this was an indication that the car might contain illegal drugs. ¹ So he advised the chief that he was going to ask Stankus for his consent to search the vehicle and both officers then exited the squad car. The chief approached the car on the passenger's side, while the sergeant again walked up to the driver's side. Neither officer had his weapon drawn. The sergeant then asked Stankus if "he had any guns, drugs, or anything illegal in the vehicle," to which Stankus responded, "[N]o." The sergeant then asked if he "could go ahead and take a look through the vehicle." Stankus replied, "Sure. Go ahead."

The sergeant then asked Stankus and a passenger, Stankus' fiancee, to exit the car and stand with the chief on the curb near the car. The sergeant testified that as Stankus exited the car, he told him he would find nothing illegal and that "[y]ou can even look in the trunk." Stankus also told the sergeant that the trunk did not open.

The sergeant began his search by looking under the driver's seat, where he found a large clear plastic baggy containing a white powdery substance. The sergeant did not ask Stankus what the substance was, and he did not open the bag or conduct any field testing to identify the substance. However, based on its location, packaging and appearance, the sergeant suspected that the bag contained cocaine, and he placed both Stankus and his fiancee under arrest. They were then handcuffed and placed in the back seat of the squad car.

The sergeant then resumed his search and tried to open the trunk with the car key. But Stankus' statement that the trunk did not open proved correct, and the sergeant bent the key as he tried to unlock the trunk. The sergeant then discovered that he could access the trunk by folding down the back seats to the hatch area. During his examination of the trunk, he found a gym bag and a pair of lead-cast brass knuckles. When he opened the gym bag, he discovered a sawed-off, twelve-gauge shotgun. The plastic bag later proved to contain flour.

At the conclusion of the hearing, the trial court found that Stankus' consent was voluntary and its scope was not limited so as to exclude a search of the trunk. Moreover, the trial court concluded that even if Stankus did not consent to a search of the trunk, the search was nonetheless valid as being based on probable cause to believe that a crime had been committed. Stankus subsequently pled no contest and the trial court sentenced him to seven days in jail and eighteen months' probation. His motions for postconviction relief were also denied. On appeal, Stankus reasserts his arguments.

For a search pursuant to consent to be constitutionally permissible, the consent must be voluntary under the totality of the circumstances and not the product of duress or coercion, express or implied. See State v. Rodgers, 119 Wis.2d 102, 114, 349 N.W.2d 453, 459 (1984). If the State relies on consent for the search, it has the burden of proving by clear and convincing evidence that consent was voluntarily given. See id. Although the trial court's findings of fact will not be disturbed unless they are clearly erroneous, see State v. Garcia, 195 Wis.2d 68, 75, 535 N.W.2d 124, 127 (Ct.App.1995), the application of these facts to constitutional principles is a question of law subject to our de novo review, see State v. Xiong, 178 Wis.2d 525, 531, 504 N.W.2d 428, 430 (Ct.App.1993).

As stated above, Stankus asserts the same two arguments challenging the validity of his consent that he raised before the trial court. First, Stankus claims that his consent to search the car was tainted by an illegal detention and coercion and was therefore involuntary. Second, Stankus asserts that even if his initial consent was voluntary, he did not consent to a search of the trunk. We address them in turn.

"Voluntariness" is an elusive standard impervious to concise articulation, and the criteria for voluntariness reflect a balancing of competing values implicated in police questioning of a suspect. See Rodgers, 119 Wis.2d at 122, 349 N.W.2d at 463 (Abrahamson, J., dissenting). In order to preserve the safety and security of the community, the police need to be able to seek the cooperation of and ask questions of individuals. To unduly restrict effective law enforcement would only serve to lessen our security. See id. at 123, 349 N.W.2d at 463. Thus, courts have recognized that to preserve our safety and security, "stealth and strategy are necessary weapons in a police officer's arsenal." See id. (quoted source omitted). To this end, the community has a real interest in encouraging consent to facilitate law enforcement activities. See id. At the same time, citizens have a liberty interest in conducting their business free from unreasonable prying into their personal affairs. The criminal law cannot be used as an instrument of unfairness, and law enforcement officials should maintain a high standard of conduct. See id. at 123-24, 349 N.W.2d at 463. So an officer has a right to ask for consent to search and the individual has a right to say no. The point at which the consent is deemed to have been coerced is when the right to say no to a search is compromised by an official show of authority. Consent must be received, not extracted. See State v. George, 557 N.W.2d 575, 579 (Minn.1997).

Here, Stankus insists that his initial consent, though unequivocal, was involuntary because both the sergeant and the chief approached the car just prior to his being asked to consent. It is not the presence of two officers that he finds problematic, however, but the fact that only one officer approached the car for the headlamp violation, while both officers approached the car to request consent for the search. Had both officers originally approached the car, claims Stankus, there would have been no problem with both officers also approaching the car to ask for consent. But by confronting him with two officers when asking for consent, the police created an atmosphere in which reasonable persons would believe that the police were about to embark on an endeavor for which cooperation of the individual was demanded. In sum, he contends that a subtle but calculated show of authority by the police created a coercive environment in order to secure his consent.

The State argues that the mere presence of two officers when asking for consent is not inherently coercive. It further contends that the totality of the circumstances provides no evidence that either officer did anything to coerce Stankus' consent. We agree.

The mere fact that two officers, rather than one, confronted Stankus does not create a situation which is per se coercive. See State v. Nehls, 111 Wis.2d 594, 599-600, 331 N.W.2d 603, 606 (Ct.App.1983) (presence of officers in the home was not a basis to find coercion); 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE, § 8.2(b), at 644 (3rd ed.1996). The number of officers, by itself, does not...