Non-parolee living with parolee has a legitimate expectation of privacy in shared living quarters, but a warrantless search authorized as a condition of parole can reasonably extend to all areas in which the parolee and non-parolee enjoy common authority. Evidence found in such a search may be used against the non-parolee. State v. West, 185 W (2d) 68, 517 NW (2d) 482 (1994).
Failure to conduct a probable cause hearing within 48 hours of arrest is not a jurisdictional defect and not grounds for dismissal with prejudice or voiding of a subsequent conviction unless the delay prejudiced the defendant;'s right to present a defense. State v. Golden, 185 W (2d) 763, 519 NW (2d) 659 (Ct. App. 1994).
Evidence obtained in consensual search of defendant's car where the consent was given during an illegal search was admissible as the evidence was not "come at" by information learned in the interrogation. State v. Goetsch, 186 W (2d) 1, 519 NW (2d) 634 (Ct. App. 1994).
A determination that an area was within a defendant's immediate control at the time of arrest does not give police authority to generally search the premises; only a limited search is justified. State v. Angiolo, 186 W (2d) 488, NW (2d) 923 (Ct. App. 1994).
The plain view exception applies if the following criteria are met: the officer must have prior justification for being present, the evidence must be in plain view and its discovery inadvertent and the seized item and facts known by the officer at the time of seizure must provide probable cause to believe there is a connection between a crime and the evidence. State v. Angiolo, 186 W (2d) 488, NW (2d) 923 (Ct. App. 1994).
Permission to search a vehicle for weapons did allow the officer to open a film cannister discovered in the search as it could not have contained a weapon and its contents were not in plain view. State v. Johnson, 187 W (2d) 237 , ___ NW (2d) ___ (Ct. App. 1994).
Warrantless, non-exigent, felony arrest in public was constitutional despite opportunity to obtain warrant. United States v. Watson, 423 US 411.
Where driver was stopped because of expired license plates, police order to get out of car was reasonable and subsequent "pat down" based on observed bulge under driver's jacket resulted in legal seizure of unlicensed revolver. Pennsylvania v. Mimms, 434 US 106 (1977).
Warrantless installation of pen register, which recorded telephone numbers called but not contents of calls, did not violate Fourth Amendment. Smith v. Maryland, 442 US 735 (1979).
Warrantless search of suitcase in trunk of taxi was unconstitutional. Arkansas v. Sanders, 442 US 753 (1979).
Police may not make warrantless and nonconsensual entry into suspect's home in order to make routine felony arrest. Payton v. New York, 445 US 573 (1980).
Fact that police had lawful possession of pornographic film boxes did not give them authority to search their contents. Walter v. United States, 447 US 649 (1980).
Search of jacket lying in passenger compartment of car was incident to lawful custodial arrest which justified infringement of any privacy interest arrestee may have. New York v. Belton, 453 US 454 (1981).
Officer who accompanied arrested person to residence to obtain identification properly seized contraband in plain view. Washington v. Chrisman, 455 US 1 (1982).
Officers who have legitimately stopped automobile and who have probable cause to believe contraband is concealed somewhere within it may conduct warrantless search of vehicle as thorough as could be authorized by warrant. United States v. Ross, 456 US 798 (1982).
Where damaged shipping package was examined by company employes who discovered white powder, subsequent warrantless field test by police was constitutional. U.S. v. Jacobsen, 466 US 109 (1984).
"Open fields" doctrine discussed. Oliver v. U.S. 466 US 170 (1984).
Warrantless, nighttime entry of defendant's home for arrest for civil, nonjailable traffic offense was not justified under "hot pursuit" doctrine or preservation of evidence doctrine. Welsh v. Wisconsin, 466 US 740 (1984).
School officials need not obtain warrant before searching student; legality of search depends simply on reasonableness, under all circumstances, of search. New Jersey v. T. L. O. 469 US 325 (1985).
Where officers were entitled to seize packages in vehicle and could have searched them immediately without warrant, warrantless search of packages 3 days later was reasonable. United States v. Johns, 469 US 478 (1985).
Vehicle exception for warrantless search applies to motor homes. California v. Carney, 471 US 386 (1985).
Good faith exception to exclusionary rule applies where officer reasonably relies upon statute allowing warrantless administrative search which was subsequently ruled unconstitutional. Illinois v. Krull, 480 US 340 (1987).
Protective sweep of residence in conjunction with arrest is permissible if law enforcement reasonably believes that area harbors individual posing danger to officers or others. Maryland v. Buie, 494 US 325, 108 LEd 2d 276 (1990).
"Inadvertence" is not necessary condition to "plain view" seizure. Horton v. California, 496 US 128, 110 LEd 2d 112 (1990).
Determination of probable cause made within 48 hours of warrantless arrest generally meets promptness requirement; if hearing is held more than 48 hours following arrest the burden shifts to the government to demonstrate emergency or extraordinary circumstances. County of Riverside v. McLaughlin, 500 US 44, 114 LEd 2d 49 (1991).
Officer's opening of closed bag found on floor of suspect's car during search of car made with suspect's consent was not unreasonable. Florida v. Jimeno, 500 US 248, 114 LEd 2d 297 (1991).
There shall be one rule governing all automobile searches; the police may search the car and all containers within it without a warrant where they have probable cause to believe contain contraband or evidence is contained. California v. Acevedo, 500 US 565, 114 LEd 2d 619 (1991).
If during a lawful weapons pat down an officer feels an object whose contours or mass makes its identity immediately apparent, there has been no invasion of privacy beyond that already authorized. Minnesota v. Dickerson, 508 US ___, 124 LEd 2d 334 (1993).
State v. Seibel: Wisconsin Police Now Need Only a Reasonable Suspicion to Search a Suspect's Blood Incident to an Arrest. Armstrong. 1993 WLR 563.
I,12 Attainder; ex post facto; contracts. Section 12. No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate.
45.37 (9), Stats. 1963, constituted a contract as to the property an applicant for admission to the Grand Army Home had to surrender, and to apply a later amendment would be unconstitutional. Estate of Nottingham, 46 W (2d) 580, 175 NW (2d) 640.
Although the obligation of contract is not an absolute right but one that may yield to the compelling interest of the public, the public purpose served by a law mandating rent reductions due to property tax relief is not so vital so as to permit such impairment of contract. State ex rel. Bldg. Owners v. Adamany, 64 W (2d) 280, 219 NW (2d) 274.
Retroactive application of 57.06, 1987 stats. [now 304.06] as amended in 1973, increasing the period to be served by petitioners, state prison inmates, from 2 to 5 years before they are eligible for parole consideration, imposes an additional penalty and violates the prohibition against ex post facto legislation. State ex rel. Mueller v. Powers, 64 W (2d) 643, 221 NW (2d) 692.
Challenge by the creditor to the constitutionality of the entire Wisconsin Consumer Act, by reason of alleged balance or imbalance of remedies available respectively to creditor and debtor, cannot be considered on the factual situation presented. Smith v. Burns, 65 W (2d) 638, 223 NW (2d) 562.
The legislative preclusion against the State Medical Society's divesting itself of control of ch. 148, disability plans does not constitute any impairment of the Society's charter because: (1) The grant of ch. 148 powers is permissive and voluntarily exercised by the Society; (2) the ch. 148 grant is in the nature of a franchise rather than a contract and cannot be viewed as unalterable or it would constitute a delegation of inalienable legislative power; and (3) the constitutional interdiction against statutes impairing contracts does not prevent the state from exercising its police powers for the common good. State Medical Society v. Comm. of Insurance, 70 W (2d) 144, 233 NW (2d) 470.
Where probation statute was amended after crime was committed but before accused pled guilty and was placed on probation, application of amended statute to probation revocation proceedings offended ex post facto clause. State v. White, 97 W (2d) 517, 294 NW (2d) 36 (Ct. App. 1979).
Challenge to legislation must prove 1) legislation impairs existing contractual relationship; 2) impairment is substantial; and 3) if substantial, impairment is not justified by purpose of legislation. Reserve Life Ins. Co. v. La Follette, 108 W (2d) 637, 323 NW (2d) 173 (Ct. App. 1982).
Retroactive application of 46.03 (22) doesn't violate this section. Overlook Farms v. Alternative Living, 143 W (2d) 485, 422 NW (2d) 131 (Ct. App. 1988).
Ex post facto prohibition applies to judicial pronouncements as well as legislative acts; the question to be addressed is whether the new law criminalizes conduct which was innocent when committed. State v. Kurzawa, 180 W (2d) 502, 509 NW (2d) 712 (1993).
Legislation creating penalty enhancers resulting from convictions prior to the effective date does not run afoul of the ex post facto clause. State v. Schuman, 186 W (2d) 213, 520 NW (2d) 107 (Ct. App. 1994).
Constitutionality of rent control discussed. 62 Atty. Gen. 276.
I,13 Private property for public use. Section 13. The property of no person shall be taken for public use without just compensation therefor.
A dismissal of an appeal for lack of prosecution in a condemnation action does not violate condemnee's right to just compensation. Taylor v. State Highway Comm. 45 W (2d) 490, 173 NW (2d) 707.
Total rental loss occasioned by the condemnation is compensable, and the limitation to one year's loss in 32.19 (4), 1969 Stats., is invalid. Luber v. Milwaukee County, 47 W (2d) 271, 177 NW (2d) 380.
A prohibition against filling in wetlands pursuant to an ordinance adopted under 59.971 and 144.26 does not amount to a taking of property unconstitutionally. Police powers vs. eminent domain discussed. Just v. Marinette County, 56 W (2d) 7, 201 NW (2d) 761.
A special assessment against a railroad for a sanitary sewer laid along the railroad's right-of-way, admittedly of no immediate use or benefit to the railroad, does not constitute a violation of this section. Soo Line RR. Co v. Neenah, 64 W (2d) 665, 221 NW (2d) 907.
In order for the petitioner to succeed in the initial stages of the inverse condemnation proceeding, it must allege facts that, prima facie at least, show there has been either an occupation of its property under 32.10, or a taking, which must be compensated under the terms of the Wisconsin Constitution. Howell Plaza, Inc. v. State Highway Comm. 66 W (2d) 720, 226 NW (2d) 185.
The owners of private wells ordered by the department of natural resources to seal them because of bacteriological danger are not entitled to compensation, because such orders were a proper exercise of the state's police power to prevent a public harm, for which compensation is not required. Village of Sussex v. Dept. of Natural Resources, 68 W (2d) 187, 228 NW (2d) 173.
There must be a "taking" of property to justify compensation. DeBruin v. Green County, 72 W (2d) 464, 241 NW (2d) 167.
Condemnation power discussed. See also notes to 32.06 and 32.07 citing this case. Falkner v. Northern States Power Co. 75 W (2d) 116, 248 NW (2d) 885.
Ordering utility to place its power lines underground in order to expand airport constituted a taking because the public benefited from the enlarged airport. Public Service Corp. v. Marathon County, 75 W (2d) 442, 249 NW (2d) 543.
For inverse condemnation purposes, taking can occur absent physical invasion only where there is legally imposed restriction upon property's use. Howell Plaza, Inc. v. State Highway Comm. 92 W (2d) 74, 284 NW (2d) 887 (1979).
Doctrine of sovereign immunity cannot bar action for just compensation based on taking of private property for public use even though legislature has failed to establish specific provisions for recovery of just compensation. Zinn v. State, 112 W (2d) 417, 334 NW (2d) 67 (1983).
Zoning classification unconstitutionally deprived owners of property without due process of law. State ex rel. Nagawicka Is. Corp. v. Delafield, 117 W (2d) 23, 343 NW (2d) 816 (Ct. App. 1983).
Ordering riparian owner to excavate and maintain ditch to regulate lake level was unconstitutional taking of property. Otte v. DNR, 142 W (2d) 222, 418 NW (2d) 16 (Ct. App. 1987).
In absence of physical occupancy or possession property is "taken" for public use only by action which imposes legally enforceable restriction on use and deprives owner of significant portion of use. Reel Enterprises v. City of LaCrosse, 146 W (2d) 662, 431 NW (2d) 743 (Ct. App. 1988).
Discussion of operation of this section. W.H. Pugh Coal Co., 157 W (2d) 620, 460 NW (2d) 787 (Ct. App. 1990).
A taking by government restriction occurs only if the restriction deprives the owner of all or practically all use. Busse v. Dane County Regional Planning Comm. 181 W (2d) 527, 510 NW (2d) 136 (Ct. App. 1993).
New York law that landlord must permit cable television company to install cable facilities upon property was compensable taking. Loretto v. Teleprompter Manhattan CATV Corp. 458 US 419 (1982).
State land use regulation preventing beachfront development which rendered owner's land valueless constituted a taking; when a regulation foreclosing all productive economic use of land goes beyond what "relevant background principals", such as nuisance law, would dictate, compensation must be paid. Lucas v. S. Carolina Coastal Council, 505 US ___, 120 LEd 2d 798 (1992).
Seizure of private property in a forfeiture action under a warrant issued at an ex parte hearing to establish probable cause that a crime subjecting the property to forfeiture was committed, while possibly satisfying the prohibition against unreasonable searches and seizures, was a taking of property without due process. United States v. Good Real Estate, 510 US ___, 126 LEd 2d 490 (1993).
A municipality requiring the dedication of private property for some future public use as a condition of obtaining a building permit must meet a "rough proportionality" test showing it made some individualized determination that the dedication is related in nature and extent to the proposed development. Dolen v. City of Tigard, 512 US ___, 129 LEd 2d 546 (1994).
The backing of water so as to overflow the lands of an individual, or any other superinduced addition of water, earth, sand, or other material, if done under statutes authorizing it for the public benefit, is a taking within the meaning of Art. I, sec. 13. Pumpelly v. Green Bay and Miss. Canal Co. 13 Wall. (U.S.) 166.
Compensation for lost rents. 1971 WLR 657.
I,14 Feudal tenures; leases; alienation. Section 14. All lands within the state are declared to be allodial, and feudal tenures are prohibited. Leases and grants of agricultural land for a longer term than fifteen years in which rent or service of any kind shall be reserved, and all fines and like restraints upon alienation reserved in any grant of land, hereafter made, are declared to be void.
I,15 Equal property rights for aliens and citizens. Section 15. No distinction shall ever be made by law between resident aliens and citizens, in reference to the possession, enjoyment or descent of property.
I,16 Imprisonment for debt. Section 16. No person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied.
See note to 943.24, citing Locklear v. State, 86 W (2d) 603, 273 NW (2d) 334 (1979).
Sec. 943.20 (1) (e) does not unconstitutionally imprison one for debt. State v. Roth, 115 W (2d) 163, 339 NW (2d) 807 (Ct. App. 1983).
I,17 Exemption of property of debtors. Section 17. The privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability hereafter contracted.
I,18 Freedom of worship; liberty of conscience; state religion; public funds. Section 18. [As amended Nov. 1982] The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries. [1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982]
The contract requiring the state to pay an amount to Marquette University for the education of dental students (ch. 44, Laws 1971) violates the constitution. State ex rel. Warren v. Nusbaum, 55 W (2d) 316, 198 NW (2d) 650.
It is outside the province of a civil court to review the merits of a determination of a duly authorized ecclesiastical tribunal which has adhered to prescribed canonical procedure and which results in terminating a clergyman's relationship with his church. Olston v. Hallock, 55 W (2d) 687, 201 NW (2d) 35.
Section 115.85 (2) (d) does not violate this section since the primary effect is not the advancement of a religious organization but to provide special educational services to the handicapped children of Wisconsin, a clearly secular purpose. State ex rel. Warren v. Nusbaum, 64 W (2d) 314, 219 NW (2d) 577.
This section is not violated by the released time provisions of 118.155, where the statute accommodates rather than restricts the right of students to religious instruction, does not compel any student to participate in religious training, and does not involve the use or expenditure of public funds especially where the electorate approved an amendment to art. X, sec. 3, specifically authorizing enactment of a released time statute. State ex rel. Holt v. Thompson, 66 W (2d) 659, 225 NW (2d) 678.
For purposes of 121.51 (4), 1981 stats. [now 121.51 (1)] and in the absence of fraud or collusion, where a religious school demonstrates by its corporate charter and bylaws that it is independent of, and unaffiliated with, a religious denomination, further inquiry by the state would violate Art. I, sec. 18. Holy Trinity Community School v. Kahl, 82 W (2d) 139, 262 NW (2d) 210.
Refusal on religious grounds to send children to school was held to be a personal, philosophical choice by parents, rather than a protected religious expression. State v. Kasuboski, 87 W (2d) 407, 275 NW (2d) 101 (Ct. App. 1978).
Primary effect of health facilities authority under ch. 231 does not advance religion, nor does chapter foster excessive entanglement between church and state. State ex rel. Wis. Health Fac. Auth. v. Lindner, 91 W (2d) 145, 280 NW (2d) 773 (1979).
Meals served by religious order, in carrying out their religious work, were not, under circumstances, subject to Wisconsin sales tax for that portion of charges made to guests for lodging, food, and use of order's facilities. Kollasch v. Adamany, 104 W (2d) 552, 313 NW (2d) 47 (1981).
Equal Rights Division does not violate free exercise clause by investigating discrimination complaint brought by employee of religious school. Sacred Heart School Board, 157 W (2d) 638, 460 NW (2d) 430 (Ct. App 1990).
Test to determine whether governmental aid offends establishment clause discussed. Freedom from Religion Foundation v. Thompson, 164 W (2d) 736, 476 NW (2d) 318 (Ct. App. 1991).
Free exercise clause does not excuse a person from compliance with a valid law; a visitation order intended to prevent a noncustodial parent from imposing his religion on his children was a reasonable protection of the custodial parent's statutory right to choose the children's religion. Lange v. Lange, 175 W (2d) 373, NW (2d) (Ct. App. 1993).
In setting a sentence, a court may consider a defendant's religious beliefs and practices only if a reliable nexus exists between the defendant's criminal conduct and those beliefs and practices. State v. Fuerst, 181 W (2d) 903, 512 NW (2d) 243 (Ct. App. 1994).
A nativity scene surrounded by Christmas trees and accompanied by a sign proclaiming a "salute to liberty" did not violate the first amendment's establishment and free exercise of religion clause or Art. I, s.18. King v. Village of Waunakee, 185 W (2d) 25, 517 NW (2d) 671 (1994).
Probation conditions may impinge on religious rights as long as the conditions are not overly broad and are reasonably related to rehabilitation. Von Arx v. Schwarz, 185 W (2d) 645, 517 NW (2d) 540 (Ct. App. 1994).
Constitutionality of state tuition grants to parents of resident pupils enrolled in private elementary or high schools discussed. 58 Atty. Gen. 163.
1971 Assembly Bill 1577 would violate the establishment clause of the First Amendment to the U.S. Const. and sec. 18. Guidelines to possibly avoid constitutional objection to CESA service contracts with private schools discussed. 62 Atty. Gen. 75.
Leasing of university buildings to a religious congregation during nonschool days and hours on a temporary basis while the congregation's existing facility is being renovated and leasing convention space to a church conference would not violate separation of church and state provisions of the First Amendment to U.S. Const. and sec. 18. 63 Atty. Gen. 374.
The department of public instruction may, if so authorized under 16.54, implement the school lunch program and special food service plan for children in secular and sectarian private schools and child-care institutions without violating the U.S. or Wisconsin Constitutions. 63 Atty. Gen. 473.
