The police entered defendant’s house and sought to search his computer and represented that they had a subpoena, which they did not show to the defendant, but they did show part of a document. The search was invalid, and any consent was coerced. State v. Giebel, 2006 WI App 239, 297 Wis. 2d 446, 724 N.W.2d 402 (2006):
P18 Consent must be more than mere acquiescence to a claim of lawful authority. See Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). In State v. Kiekhefer, 212 Wis. 2d 460, 471-74, 569 N.W.2d 316 (Ct. App. 1997), we held that where the police represented that they could obtain a search warrant when in fact they could not, that misleading statement of authority led to consent that was not the product of free and unconstrained choice. Orderly submission to law enforcement officers who, in effect, incorrectly represent that they have the authority to search and seize property, is not knowing, intelligent and voluntary consent under the Fourth Amendment. See United States v. Elliott, 210 F. Supp. 357, 360 (D. Mass 1962).
P19 Subtle suggestions, strategically made, may amount to deception or trickery where the intent is a misrepresentation of authority. Here, we cannot fathom any other reason for Lewis’ display of the subpoena. The subpoena simply showed Giebel’s address as the one associated with an email account. Had Giebel asked Lewis how the investigation led to his home, perhaps the subpoena would have been relevant. Here, the subpoena simply had no application to the conversation as it occurred.
P20 Like the circuit court, we ascertain no outright deceit or blatant misrepresentation by Lewis or Mack; however, we believe that a reasonable police officer would understand, appreciate, and anticipate that a person of average intelligence would not grasp the distinction between a subpoena and a warrant. We are convinced that when the officers offered Giebel a fleeting glimpse of the subpoena signed by a judge, they suggested authority they did not possess. It was this suggestion of authority that led Giebel to believe he could not refuse consent for the officers to search his room and seize his computer.
The New York Supreme Court, New York County, has also ruled in a cellphone tracking case that “pinging” a cellphone to locate it is not an unreasonable search under the Fourth Amendment and is permitted by federal law. Also, cellphone records are not barred from production under the Fourth Amendment. People v Hall, 2006 NY Slip Op 26427, 2006 N.Y. Misc. LEXIS 3057 (New York Co. October 17, 2006). (A week later, the S.D. N.Y. similarly ruled in a more comprehensive decision reported below.)
Stop for lane change violation was supported by the record. State v. Allison, 2006 Ohio 5550, 2006 Ohio App. LEXIS 5542 (5th Dist. September 29, 2006).*
Tipster was sufficiently corroborated to justify stop. State v. Patton, 2006 WI App 235, 297 Wis. 2d 415, 724 N.W.2d 347 (2006):
P18 We reject Patton’s argument that this case is governed by J.L. The tipster in that case simply provided a description of a person who would be at a particular bus stop in possession of a gun. The troubling thing for the Supreme Court was the absence of anything that indicated the reliability of the tipster’s “assertion of illegality.” J.L., 529 U.S. at 272. “All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about [the suspect].” Id. at 271.
P19 Here, although the anonymous tipster did not provide any information indicating the basis of his or her knowledge of the alleged armed robbery, the tipster’s additional information about the location of the suspects, their direction of travel and their appearance was contemporaneously verified by Schroeder’s observations as he was receiving the tipster’s information via the police dispatch. The Wisconsin Supreme Court deemed this same factor important in Rutzinski when the court held that the tipster’s information carried sufficient indicia of reliability. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, P33, 623 N.W.2d 516. In short, the totality of the circumstances in this case conveys a greater indicia of the tipster’s reliability than in J.L.
