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Attorney General Van Hollen Praises Court of Appeals Decision


MADISON - The Fourth Amendment does not prohibit the introduction of drug evidence obtained through voluntary consent when an individual is in custody of law enforcement, the Wisconsin Court of Appeals declared yesterday in State v. Hartwig. Yesterday's decision reversed a ruling by the Lincoln County Circuit Court that had suppressed methamphetamine evidence seized by DNR wardens during a consent search of a vehicle.


As described in the opinion, DNR wardens investigating a report of illegal ATV operation on state land encountered John Hartwig and a companion. After determining that Hartwig was carrying a concealed pistol, they ordered Hartwig to accompany them to his truck. While at the truck, the wardens asked for and received Hartwig's consent to search the truck. During the search, the wardens found evidence of methamphetamine possession. Hartwig was then charged with possession of methamphetamine, possession of drug paraphernalia and carrying a concealed weapon.


Lincoln County Circuit Judge Glenn H. Hartley granted Hartwig's motion to suppress the evidence seized during the search. Judge Hartley found that while Hartwig had consented to the search, his consent was involuntary as a matter of law because he was in custody when he gave that consent.


The Court of Appeals held that the lower court had applied the wrong legal standard in analyzing Hartwig's motion. Custody will invalidate consent, the Court of Appeals held, only when the custody is unlawful. When a person is lawfully in custody, as Hartwig was, the test is whether consent was voluntarily given. Examining the undisputed facts of this case, the Court of Appeals concluded that Hartwig's consent was voluntarily given and not the result of duress or coercion.


Attorney General J.B. Van Hollen, whose office handled the appeal, hailed the Court's decision.


"The Court's opinion clarifies the legal standard that Wisconsin courts must use when evaluating whether consent searches conform to constitutional requirements," Van Hollen said. "The decision reaffirms that it is permissible and appropriate for law enforcement to seek an individual's consent to a search, even if that person is in custody at the time of the request. As a practical matter, this is a significant decision because law enforcement will not be discouraged from properly taking an individual into custody before a scene is fully and lawfully investigated. The DNR wardens acted appropriately, and there is no Fourth Amendment bar to using the evidence they lawfully obtained."


The Court of Appeals directed that Hartwig's case be returned to Lincoln County Circuit Court for further proceedings. Lincoln County District Attorney Donald Dunphy is the prosecutor handling the case.


This was a pretrial appeal. Hartwig enjoys a presumption of innocence, and the State will be required to prove his guilt beyond a reasonable doubt at trial.


The State of Wisconsin was represented in the Court of Appeals by Assistant Attorney General Jeffrey Kassel.