Pubdate: Thu, 07 Jul 2005
Source: Janesville Gazette (WI)
Copyright: 2005 Bliss Communications, Inc
Author: Kevin Murphy


MADISON-Police didn't have the unequivocal consent of a former Williams Bay 
man to search his car, a state appeals court ruled Wednesday, excluding the 
handgun and marijuana cigarettes collected as evidence.

The court reversed misdemeanor concealed weapon and drug possession 
convictions against Malcolm J. Muller, 27.

The District 2 Court of Appeals found that Muller did not give Walworth 
police officer James Lantz the constitutionally required unequivocal 
consent to search his car when Muller refused permission but said he 
wouldn't interfere after Lantz asked to search the car.

Lantz proceeded with the search and then asked Muller if he could look into 
the car's console. Muller initially refused but then allowed it.

Lantz found a handgun in the console, told Muller not to move and called 
for backup, according to Wednesday's decision. Handgun ammunition and some 
marijuana cigarettes were recovered during a further search.

After Judge John Race refused Muller's request to dismiss the evidence, 
Muller pleaded guilty to misdemeanor concealed weapon and marijuana 
possession offenses. Race fined Muller $707 in June 2004 and sentenced him 
to 90 days in jail but later stayed the jail term pending appeal.

On appeal, Walworth County Assistant District Attorney Steven Madson 
conceded that Lantz never received clear consent from Muller to search his 
car, which violated Muller's Fourth Amendment rights. However, Madson 
argued that the search of the car's console was a distinct and lawful 
second search and should result in preserving the handgun and marijuana as 
legally obtained evidence.

The District 2 Court disagreed, saying that the few minutes that elapsed 
between the overall vehicle search and the console search were insufficient 
to make them two different searches. The illegal first search tainted the 
evidence found in the second search, the court ruled.

Without the evidence, it's doubtful that charges will be refiled against 
Muller, Madson said.

"I don't know if we want to push it.It's a rare situation, something I've 
only encountered once in my 15-plus years of doing this, and since he's no 
longer living in Wisconsin we may not pursue it, subject to further 
review," Madson said.

Muller's attorney, Morris Berman of Madison, said he was pleased that the 
appeals court recognized the Fourth Amendment rights of his client and 
everyone else.
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