CONVICTION REVERSED OVER SEARCH

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.