# Holt v. State

> Wisconsin Supreme Court · October 30, 1962 · 17 Wis. 2d 468

URL: https://www.frixlaw.com/law-library/cases/9670124

## Case

- **Full name:** Holt, Plaintiff in Error, v. State, Defendant in Error
- **Court:** Wisconsin Supreme Court
- **Decided:** October 30, 1962
- **Citations:** 17 Wis. 2d 468; 117 N.W.2d 626
- **Precedential status:** Published
- **Opinion:** Dissent by Dieterich
- **Judges:** Gordon, Fairchild, Dieterich
- **Cited by:** 59 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9670124

## Opinion text

Dieterich, J.
(dissenting). I disagree with the majority that the facts in this case support the conclusion that defendant freely consented to a search of her home.
The majority opinion deplores the police methods used in the instant murder case. This does not erase the fact that the opinion holds those practices constitutional.
When the defendant first saw the police officers they had entered her living room. That they entered with the husband’s permission is immaterial, the' fact is that defendant was confronted by a hostile situation immediately upon entering her own living room. Under these conditions I do not think it can be said that defendant’s consent to a search was free, intelligent, specific, unequivocal, and “uncontaminated by any duress or coercion, actual or implied.” Channel v. United States (9th Cir. 1960), 285 Fed. (2d) 217, 219.
The acts of the defendant are as consistent with the proposition that defendant submitted to lawful authority in permitting the search and seizure as they are to the proposition that defendant freely consented to such search and seizure.
*485 The Fourth amendment to the United States constitution and sec. 11, art. I of the Wisconsin constitution 1 protect the rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. This is a basic right of all the people without exception. I agree with the dissenting opinion of Mr. Justice Douglas in Abel v. United States 2 where he made this comment on the eroding of the guaranties contained in the Fourth amendment: “Cases of notorious criminals — like cases of small, miserable ones — are. apt to make bad law. When guilt permeates a record, even judges sometimes relax and let the police take shortcuts not sanctioned by constitutional procedures. . . . The harm in the given case may seem excusable. But the practices generated by the precedent have far-reaching consequences that are harmful and injurious beyond measurement.”
An individual’s constitutional guaranties should be construed in favor of the individual and not the government. Therefore, under the facts of this case, the prosecution fails for lack of evidence to prove, beyond a reasonable doubt, that defendant freely consented to the search of her home.
Fourth amendment to the United States constitution. “The right of the people to be- secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Note: The provision of the Wisconsin constitution relating to searches and seizure, sec. 11, art. I, uses the same language as above, but with slightly different punctuation.
Abel v. United States (1960), 362 U. S. 217, 241 , 80 Sup. Ct. 683, 4 L. Ed. (2d) 668. A five-to-four decision with a dissent by Mr. Justice Douglas with whom Mr. Justice Black concurred, and a dissent by Mr. Justice Brennan with which Messrs. Chief Justice Warren, Justices Black and Douglas joined.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9670124. Public record. Not legal advice.