State v. Xiong, 93-0182-CR

• Decision Date: 28 July 1993
• Docket Number: No. 93-0182-CR,93-0182-CR
• Citation: 504 N.W.2d 428,178 Wis.2d 525
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Leng K. XIONG, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 428

504 N.W.2d 428

178 Wis.2d 525

STATE of Wisconsin, Plaintiff-Appellant, v. Leng K. XIONG, Defendant-Respondent.

No. 93-0182-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs June 11, 1993.

Opinion Released July 28, 1993.

Opinion Filed July 28, 1993.

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

BROWN, Judge.

The state brings this interlocutory appeal from the trial court's order suppressing evidence found during a warrantless consent search. The issue is whether Leng K. Xiong's wife, Mai Lee, voluntarily consented to a police search of the Xiongs' residence. We conclude that Mai Lee's consent was voluntary under the totality of the circumstances, and we reverse the trial court's order.

On the night of January 23, 1992, the police found Moua Xiong dead in a van that was parked on a city street. An autopsy determined that multiple stab wounds caused Moua's death. The next day, the police took an interpreter to Leng's home. Both Leng and Mai Lee identified Moua from a photograph. Moua was Leng's cousin.

Over the next few days, the police questioned Leng and Mai Lee several times about Moua's death. The record indicates that an interpreter was used on these occasions. At about 9:00 p.m. on January 25, they transported Leng and Mai Lee to the police station for questioning. The officers questioned Mai Lee alone in a small room for about one hour. An interpreter was used here. They made no promises or threats, did not deny her food or water, and did not harm her in any way. Mai Lee did not indicate at any time that she was unwilling to talk to the officers.

Near the end of the interview, the officers asked, through the interpreter, if Mai Lee would allow them to search her home. She verbally agreed to the search. After obtaining her verbal agreement, the officers asked her to sign a standard consent to search form. The Hmong interpreter translated the form to Mai Lee and attempted to explain its provisions.

An officer then asked the interpreter to reiterate his explanation so that the officer could be certain that Mai Lee understood the form's contents. When he was satisfied that Mai Lee understood her consent, the officer asked her to sign the form. After obtaining her signature, the officers went to the Xiong residence and searched it. They seized four knives and a pair of boots that had a dark red substance on them.

At the hearing on the motion to suppress, the interpreter testified that he first read the form in English, translated it into Hmong, and then repeated it twice in Hmong for Mai Lee. He also testified that the Hmong language does not have words for "constitution" or "warrant." He translated "constitutional right" as "some sort of law" or "you have your own right to say or to do." When asked how he translated "warrant," the interpreter said, "This is something that is not direct translation. Then I have to explain this would allow so- and-so to do something. That means you allow to do it; you agree."

Leng brought a motion to suppress the evidence obtained in the consent search on the ground that Mai Lee's consent was involuntary. The trial court granted the motion on the ground that the interpreter's translation of the consent form inaccurately defined "warrant." The court also stated:

In the course of his translation from the detectives to Mrs. Xiong, Mr. Yang did not give her any indication that she would have the right to limit the scope of the search. A search pursuant to consent may not be more intensive than was contemplated by the person giving the consent. Since Vue Yang had no idea what the officers were going to search for when the search was to commence, it is clear that he could not have relayed this information to Mrs. Xiong.

The burden is on the State to prove that this consent was given voluntarily, intelligently, and freely. In this instance the Court is not satisfied that Mrs. Xiong had sufficient information to give a knowing consent for the search of her home.

The state appeals from the trial court's order.

We must decide whether Mai Lee's consent was voluntary. We review the trial court's findings of historical facts under the clearly erroneous standard set out in sec. 805.17(2), Stats. See State v. Michels, 141 Wis.2d 81, 90, 414 N.W.2d 311, 314 (Ct.App.1987). We independently apply constitutional principles to the facts as found to determine whether the standard of voluntariness has been met. See State v. Clappes, 136 Wis.2d 222, 235, 401 N.W.2d 759, 765 (1987). We owe no deference to the trial court in making this constitutional determination. See State v. Rodgers, 119 Wis.2d 102, 107-08, 349 N.W.2d 453, 455 (1984).

The test for voluntariness is whether consent to search was given in the "absence of actual coercive, improper police practices designed to overcome the resistance of a defendant." Clappes, 136 Wis.2d at 245, 401 N.W.2d at 769. We make this determination after looking at the totality of the circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); Rodgers, 119 Wis.2d at 114, 349 N.W.2d at 459. No single criterion should control our decision. See Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047. The state has the burden of proving voluntary consent by clear and convincing evidence. Rodgers, 119 Wis.2d at 114-15, 349 N.W.2d at 459.

In its decision, the trial court relied on the fact that Mai Lee did not have "sufficient information to give a knowing consent for the search of her home." It expressed concern that she did not understand what a warrant was and that her consent was not given "voluntarily, intelligently, and freely." This language indicates that the trial court applied the "knowing and intelligent waiver" standard to determine voluntariness. This was error. The test for waiver of a constitutional right is inapplicable to a consent search. Schneckloth, 412 U.S. at 241, 93 S.Ct. at 2055. The state's burden in a consent search is to show voluntariness, which is different from informed consent. Rodgers, 119 Wis.2d at 110, 349 N.W.2d at 457.

However, we will not remand to the trial court with directions to use the correct test and make a new determination. The historical facts have already been determined by the parties. Those facts, such as they are, remain undisputed. The sole issue is the application of the constitutional principles to those facts of record. This is a task which we can perform independently of the trial court. We therefore will set forth the correct constitutional principles and apply those principles to the facts.

The state and Leng do not agree about what those constitutional principles are that we must apply. The state appears to argue that there must be affirmative evidence of overt improper police tactics in obtaining Mai Lee's consent. While acknowledging that voluntariness must be determined by considering the totality of the circumstances, it nonetheless contends that "[i]n the absence of any coercive tactics, it is questionable whether a court should even consider the individual characteristics of the person giving consent." It argues that because Leng presented no affirmative evidence of what we would term "conspicuous" police tactics, he failed in his burden and the motion to suppress should have been denied.

Leng concedes that the standard for valid consent is voluntariness rather than the "knowing and intelligent waiver" standard applied in other situations. He also concedes that the officers were not required to inform Mai Lee of her right to refuse consent. However, he appears to argue that conspicuous police tactics are but one factor to consider. Inconspicuous tactics must be factored in as well. His view is that Mai Lee consented involuntarily in response to subtly coercive police tactics. In particular, Leng cites his wife's inability to speak or understand English, her lack of knowledge of the American judicial system, and the poor translation of the word "warrant." Leng also contends that the police tactic of removing his wife from her home "late at night" and questioning her alone in a locked area of the police department was coercive. Thus, her consent was involuntary under the totality of the circumstances.

If it is the state's assertion that the absence of obviously coercive police tactics negates the need to consider the characteristics of the person giving his or her consent, we disagree with it. While the state cites four cases purporting to corroborate its view: Clappes; Michels; Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); and State v. Owens, 148 Wis.2d 922, 436 N.W.2d 869 (1989), those cases support a different view. Those cases suggest that police...