By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 17, 2010 – In a classic fruit of the poisonous tree case, the Wisconsin Supreme Court held that a defendant’s voluntary consent to search his residence was “sufficiently attenuated” from police officers’ illegal entry to remove the taint of the illegal entry.

In State v. Artic, 2010 WI 83, the supreme court rejected 5-2 defendant Robert Artic Sr.’s argument that police obtained evidence illegally in violation of his Fourth Amendment rights, and thus his trial counsel’s failure to raise certain issues prejudiced his defense.

In dissent, Chief Justice Shirley Abrahamson (Bradley, J. joined) noted a “spotty factual record” and opposed the majority’s view that “evidence obtained following a concededly unconstitutional forced entry to the home was nevertheless properly used in court.”

Facts

Police obtained information that a man named Rob would be picking up 4.5 ounces of cocaine at a specific residence for delivery to the informant. The informant described the man and the car he would be driving. Six narcotics officers began observation of the residence.

The described vehicle later arrived. Artic’s son, Robert Artic Jr., stepped out of the car, walked into the residence, and returned five minutes later. Police arrested him and found cocaine.

Without a warrant, two police officers then performed a “knock and talk” at the residence, identifying themselves as Milwaukee police. A third officer walked to the rear of the house, through the fenced backyard, and began observation at the back door. The third officer saw lights and heard people scurrying up and down stairs inside.

After knocking for 30 seconds and hearing the third officer’s reports of people inside, police kicked in the front, outer door. They broke the window of the inner door, unlocked it, and gained entry to the first floor residence. They found a man sleeping in the back room.

A separate hallway in the rear revealed a staircase to the second floor and a closed door at the top of the stairs. Police were unsure if the second floor was a separate residence. An officer knocked and announced himself as Milwaukee police.

A man later identified as Robert Artic Sr. told police to “wait a minute,” then answered the door. The police officer had his weapon drawn when Artic opened the door. Artic allowed police officers to enter the premises. Artic refused to sign a written consent, but police obtained oral consent to search.

The officers found a baggie of cocaine, baggies, gloves, razor blades, a digital scale, and a shoe box of white residue. The residue also tested positive for cocaine.

The state charged Artic with maintaining a drug trafficking place, and possession with intent to deliver cocaine as a party to a crime. Artic moved to suppress the evidence. The court denied the motion, and he was later convicted.

Artic filed a motion for postconviction relief based on ineffective assistance of counsel. The circuit court denied the motion on the ground that counsel’s performance was not prejudicial. The appeals court affirmed, and Arctic petitioned the supreme court for review.

Illegal entry and voluntary consent

Recognizing that the Fourth Amendment to the U.S. and Wisconsin constitutions prohibit unreasonable searches and seizures, the court – in an opinion written by Justice David T. Prosser – nevertheless determined that police did not violate the Fourth Amendment.

The court determined that police illegally entered the house, but Artic voluntarily consented to search his second-floor residence.

That is, police officers entered the house on a belief that evidence was being destroyed, and such a belief normally falls in the category of exigent circumstances to allow a warrantless entry. But here, entry into the house was based on observations from the officer in the rear of the house, and the officer’s presence in the rear was not lawful.

However, Artic voluntarily consented to a search of his second-floor residence, and voluntary consent provides an exception to the warrant requirement, the court explained. That is, Artic consented to the search absent express or implied duress or coercion.

Applying the totality of the circumstances, the court concluded that Artic’s consent was voluntary. The fact that an officer had a weapon drawn when Artic opened the door, or the fact that Artic refused to sign a written consent did not weigh against the voluntary nature of his oral consent in light of all the circumstances, the court explained.

Sufficiently attenuated

The legal search of Artic’s second-floor residence was “sufficiently attenuated” from the illegal entry to “remove the taint” of the illegal entry, the court explained.

“Evidence does not become ‘fruit of the poisonous tree’ simply because it would not have come to light but for illegal actions by law enforcement,” the court wrote.

The court applied a three-factor test to determine whether Artic’s consent was “sufficiently attenuated” from the illegal entry, examining the time between the illegal entry and the search, the presence or absence of intervening circumstances, and the purposefulness and flagrancy of the police conduct. It concluded that consent was sufficiently attenuated.

Thus, the court held Artic was not prejudiced by his trial counsel’s failure to raise an argument that police created the exigent circumstances, an exception that lets police enter a premises without a warrant. Here, consent served as the exception.

Dissent

The dissent took issue with the majority’s analysis of Artic’s voluntary consent and its analysis of the attenuation doctrine.

The majority “ignores a key, overarching circumstance in this case, namely that the encounter between Artic and the police was precipitated by a forcible, unlawful and warrantless entry into Artic’s home,” the chief justice wrote. “The majority also significantly understates the legal significance of the fact that police confronted Artic with weapons drawn.”

In addition, the dissent argued that the majority’s application of the attenuation doctrine “is out of sync with the controlling federal interpretations of the Fourth Amendment.”

Attorneys

Keith Findley and James Cooley of the Frank J. Remington Center at U.W. Law School, Madison, represented Robert Artic. Assistant Attorney General Thomas Balistreri represented the state.