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).
Unlike private homes, warrantless inspections of commercial premises are not necessarily unreasonable. A warrantless inspection of a dairy farm under authority of ss. 93.08, 93.15 (2), 97.12 (1) and related administrative rules made without prior notice and without the owner being present was not unconstitutional. Because the administrative rules govern operations, equipment and processes not typically conducted in residential areas, the rules and statutes sufficiently preclude making warrantless searches of residences. Lundeen v. Dept. of Agriculture, 189 W (2d) 255, 525 NW (2d) 758 (1994).
An arrest warrant was not legal authority to enter and search the home of a third-party based on an officer's simple belief that the subject of the warrant might be there. The mere fact that the subject could leave was not an exigent circumstance justifying the warrantless search where the warrant was a pick-up warrant for failure to pay a traffic fine. State v. Kiper, 193 W (2d) 69, 532 NW (2d) 698 (1995).
Suppression of evidence is not required when a law enforcement officer obtains evidence outside his or her jurisdiction. Any jurisdictional transgression violates the appropriate jurisdiction's authority not the defendant's rights. State v. Mieritz, 193 W (2d) 571, 534 NW (2d) 632 (Ct. App. 1995).
A warrantless search of a vehicle was constitutional where the defendant fled the vehicle to avoid arrest. The defendant did not have a reasonable expectation of privacy in the vehicle. State v. Roberts, 196 W (2d) 445, 538 NW (2d) 825 (Ct. App. 1995).
Whether a pat-down search is reasonable requires the officer to have a reasonable suspicion that a suspect is armed. Finding reasonableness requires looking at the totality of the circumstances. The officer's perception of the area as a high-crime area, the time of day and the suspect's nervousness are all factors which may be considered. State v. Morgan, 197 W (2d) 200, 539 NW (2d) 887 (1995).
Whether persons have "common authority" to consent to a search of a premises depends, not on property rights, but on the relationship between the consenting party and the premises. Co-residents have "common authority" to consent to a search, but relatives of residents and property owners do not. Consent of one who possesses common authority is binding against an absent resident, but is not binding against a nonconsenting party who is present. State v. Kieffer, 207 W (2d) 464, 558 NW (2d) 664 (Ct. App. 1996); Affirmed 217 W (2d) 531, ___ NW (2d) ___ (1998).
A probation officer may conduct a warrantless search. That the underlying conviction is subsequently overturned does not retroactively invalidate the search. State v. Angiolo, 207 W (2d) 559, 558 NW (2d) 701 (Ct. App. 1996).
An initial traffic stop is not unlawfully extended by asking the defendant if he had drugs or weapons and requesting permission to search. Where there is justification for the initial stop, it is the extension of the stop beyond the point reasonably justified by the stop and not the type of questions asked that render a stop unconstitutional. State v. Gaulrapp, 207 W (2d) 598, 558 NW (2d) 696 (Ct. App. 1996).
An officer has the right to remain at an arrested person's elbow at all times. When an officer accompanied a juvenile in his custody into the juvenile's house, leaving the juvenile's "elbow" to enter a bedroom where incriminating evidence was found, monitoring of the juvenile stopped and an unconstitutional search occurred. State v. Dull, 211 W (2d) 651, 565 NW (2d) 575 (Ct. App. 1997).
A threat to the safety of the suspect or others is an exigent circumstance justifying the warrantless entry of a residence. The mere presence of firearms does not create exigent circumstances. Where conducting an unannounced warrantless entry creates the potential danger, that conduct cannot justify the warrantless entry. State v. Kiekhefer, 212 W (2d) 460, 569 NW (2d) 316 (Ct. App. 1997).
The likelihood that evidence will be destroyed is an exigent circumstance justifying the warrantless entry of a residence. The mere presence of contraband does not create exigent circumstances. State v. Kiekhefer, 212 W (2d) 460, 569 NW (2d) 316 (Ct. App. 1997).
Detaining a person at his home and transporting him about one mile to the scene of an accident in which he was involved was an investigative stop and not an arrest, moved the person within the vicinity of the the stop within the meaning of s. 968.24 and was a reasonable part of an ongoing accident investigation. State v. Quartana, 213 W (2d) 440, 570 NW (2d) 618 (Ct. App. 1997).
A warrant authorizing the search of a particularly described premises may permit the search of vehicles owned or controlled by the owner of, and found on, the premises. State v. O'Brien, 214 W (2d) 327, 572 NW (2d) 870 (Ct. App. 1997).
Absent independent police observation of suspicious activity, an anonymous call that indicated drug dealing was occurring form a certain vehicle was insufficient to justify an investigative stop. State v. Williams, 214 W (2d) 411, 570 NW (2d) 892 (Ct. App. 1997).
The warrantless search of the defendant's purse when it was being returned to her while still in custody was authorized where searching the purse without a warrant would have been authorized at the time of arrest and where return of the purse could have given the defendant access to a weapon or evidence. State v. Wade, 215 W (2d) 678, 573 NW (2d) 228 (Ct. App. 1998).
Whre a third party lacks actual common authority to consent to a search of a defendant's residence, the police may rely on the third party's apparent authority, if that reliance is reasonable. There is no presumption of common authority tocosent to search and the police maust make sufficeint inquiry to establish apparent authority. State v. Kieffer, 217 W (2d) 531, ___ NW (2d) ___ (1998).
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 366, 124 LEd 2d 334 (1993).
An officer making a traffic stop may order passengers to get out of the vehicle pending the completion of the stop. Maryland v. Wilson, 519 US 408, 137 LEd 2d 41 (1997).
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.
Section 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).
An ex post facto law is one which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission; or which deprives one charged with a crime of any defense available at the time the act was committed. State v. Thiel, 188 W (2d) 695, 524 NW (2d) 641 (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.
5342There 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).
A taking claim is not ripe for judicial review until the government agency charged with implementing applicable regulations has made a final decision applying the regulations to the property at issue. Taking claims based on equal protection or due process grounds must meet the ripeness requirement. Streff v. Town of Delafield, 190 W (2d) 348, 526 NW (2d) 822 (Ct. App. 1994).
Damage to property is not compensated as a taking. For flooding to be a taking it must constitute a permanent physical occupation of property. Menick v. City of Menasha, 200 W (2d) 737, 547 NW (2d) 778 (Ct. App. 1996).
A constructive taking occurs when government regulation renders a property useless for all practical purposes. Taking jurisprudence does not allow dividing the property into segments and determining whether rights in a particular segment have been abrogated. Zealy v. City of Waukesha, 201 W (2d) 365, 548 NW (2d) 528 (1996).
Section 32.10 does not govern inverse condemnation proceedings seeking just compensation for a temporary taking of land for public use. Such takings claims are based directly on Article I, section 13, of the constitution. Anderson v. Village of Little Chute, 201 W (2d) 467, 549 NW (2d) 561 (Ct. App. 1996).
The mandate of just compensation cannot be limited by statute or barred by sovereign immunity. Just compensation is not measured by the economic benefit to the state resulting from the taking, but by the property owner's loss. Just compensation is for property presently taken and necessarily means the property's present value presently paid, not its present value to be paid at some future time without interest. Retired Teachers Ass'n v. Employe Trust Funds Board, 207 W (2d) 1, 558 NW (2d) 83 (1997).
When a state's constitution and statutes are silent as to the distribution of excess proceeds received when a tax lien is foreclosed on and the property subsequently sold by the municipality, the municipality may constitutionally retain the proceeds as long as there has been notice sufficient to meet due process requirements. Due process does not require that notices state that should the tax lien be foreclosed and the property sold the municipality may retain all the proceeds. Ritter v. Ross, 207 W (2d) 477, 558 NW (2d) 909 (Ct. App. 1996).
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 1003, 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 43, 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. Dolan v. City of Tigard, 512 US 374, 129 LEd 2d 304 (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.
