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An accused who requests counsel may not be interrogated without counsel unless the accused initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477 (1981).

Where, for impeachment purposes, the prosecution cross-examined the defendant as to postarrest silence before the defendant received Miranda warnings, due process was not violated. Fletcher v. Weir, 455 U.S. 603 (1982).

Where the prosecutor improperly commented to the jury that the defendants did not challenge certain accusations against them, the court erred in reversing the conviction on appeal without determining whether error was harmless. U.S. v. Hasting, 461 U.S. 499 (1983).

A probationer under an obligation to appear before a probation officer and answer questions truthfully was not entitled to Miranda warnings. A confession was, therefore, admissible. Minnesota v. Murphy, 465 U.S. 420 (1984).

The court adopts an "inevitable discovery" exception to the exclusionary rule. Nix v. Williams, 467 U.S. 431 (1984).

The court adopts a "public safety" exception to the Miranda rule. Where the accused, known to have had gun, did not have a gun at time of arrest in a supermarket, the officer properly asked where the gun was before giving Miranda warnings. New York v. Quarles, 467 U.S. 649 (1984).

A person subjected to custodial interrogation is entitled to Miranda warnings regardless of the nature or severity of offense. Berkemer v. McCarty, 468 U.S. 420 (1984).

A suspect who has once responded to unwarned yet uncoercive questioning may later waive his or her rights and confess after Miranda warnings are given. Oregon v. Elstad, 470 U.S. 298 (1985).

The prosecutor's use of the defendant's postarrest, post-Miranda warnings silence as evidence of the defendant's sanity violated due process clause. Wainwright v. Greenfield, 474 U.S. 284 (1986).

Police failure to inform the defendant that a third party had retained counsel did not invalidate the defendant's waiver of Miranda rights. Moran v. Burbine, 475 U.S. 412 (1986).

Exclusion of testimony about the circumstances of a confession deprived the defendant of due process and other fundamental constitutional rights. Crane v. Kentucky, 476 U.S. 683 (1986).

Where no evidence is present suggesting that police officers sent the suspect's wife in to see him with the hope of obtaining incriminating information, no "interrogation" was undertaken even though a detective was present and tape recorded the conversation. Arizona v. Mauro, 481 U.S. 520 (1987).

Police may not interrogate a suspect held in custody after the suspect has previously requested counsel even when the interrogation relates to an offense different from that for which the suspect requested counsel. Arizona v. Roberson, 486 U.S. 675 (1988).

The custodian of corporate records may not resist a subpoena for records on self-incrimination grounds, regardless of the size of corporate entity. Braswell v. United States, 487 U.S. 99 (1988).

The self-incrimination privilege does not support a refusal to comply with a juvenile court's order to produce a child. Baltimore Soc. Serv. v. Bouknight, 493 U.S. 474, 107 L. Ed. 2d 992 (1990).

An undercover officer is not required to give Miranda warnings to a suspect before surreptitious custodial interrogation. Illinois v. Perkins, 496 U.S. 292, 110 L. Ed. 2d 243 (1990).

When counsel is requested interrogation must cease and may not be reinstated without counsel present even though the accused previously did have an opportunity to consult an attorney. Minnich v. Mississippi, 498 U.S. 146, 112 L. Ed. 2d 489 (1990).

Admission of a coerced confession may be found to be "harmless error". Arizona v. Fulminate, 499 U.S. 279, 113 L. Ed. 2d 302 (1991).

The 6th amendment right to counsel is offense specific. An accused's invocation of this right during a judicial proceeding did not constitute an invocation of the right to counsel under Miranda arising from the 5th amendment guarantees against self-incrimination in regard to police questioning concerning a separate offense. McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158 (1991).

A police officer's subjective and undisclosed view of whether a person being interrogated is a suspect is irrelevant to determining whether the person is in custody and entitled to Miranda warnings. Stansbury v. California, 511 U.S. 318, 128 L. Ed. 2d 293 (1994).

Officers need not cease questioning a suspect subject to custodial interrogation when the suspect makes an ambiguous reference to an attorney. Although often good practice, it is not necessary that the officer ask clarifying questions. Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d 362 (1994).

Miranda and its progeny govern the admissibility of statements made during custodial interrogation in both state and federal courts, and it may not be overruled by act of Congress. Dickerson v. U.S. 530 U.S. 428, 147 L. Ed. 2d 405 (2000).

A witness who denies all culpability has a 5th amendment privilege against self-incrimination. Ohio v. Reiner, 532 US 67, 149 LEd 2d 205 (2001).

A prison rehabilitation program that required inmates convicted of sexual assault to admit having committed the crime or have prison privilege reduced did not violate the privilege against self-incrimination although immunity was not granted and prosecution of previously uncharged crimes that might be revealed by the required admissions is possible. McKune v. Lile, ___ U.S. ___, 153 L. Ed. 2d 47 (2002).

Collateral estoppel barred the state from introducing evidence of a van theft as an overt act in a conspiracy charge where the accuseds had earlier been acquitted in the van theft trial. The accused's silence prior to receiving Miranda warnings was properly used to impeach the accused. The prosecution's reference to post- Miranda silence was harmless error. Feela v. Israel, 727 F.2d 151 (1984).

Assertion of the constitutional privilege against self-incrimination in federal civil litigation: Rights and remedies. Daskal, 64 MLR 243 (1980).

Privilege against self-incrimination-truthful statements may be used in a perjury prosecution. 64 MLR 744 (1981).

The privilege against self-incrimination in civil commitment proceedings. 1980 WLR 697.

McNeil v. Wisconsin: Blurring a Bright Line on Custodial Interrogation. 1992 WLR 1643.

I,9 Remedy for wrongs. Section 9. Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.

The constitutional guaranty of a remedy for injuries to person and property does not give a constitutional right to sue the state in tort, because there is no right of a citizen to hold his sovereign substantively liable therefor, and the state, being immune from suit without its consent, may define the conditions under which it will permit actions against itself. Cords v. State, 62 Wis. 2d 42, 214 N.W.2d 405.

The action for common-law seduction is extended to allow recovery against the seducer by the woman herself. Slawek v. Stroh, 62 Wis. 2d 295, 215 N.W.2d 9.

The constitution does not entitle state litigants to the exact remedy they desire, but merely to their day in court. Wiener v. J.C. Penney Co. 65 Wis. 2d 139, 222 N.W.2d 149.

Illegal aliens have the right to sue in Wisconsin for injuries negligently inflicted upon them. Arteaga v. Literski, 83 Wis. 2d 128, 265 N.W.2d 148 (1978).

No legal rights are conferred by this section. Mulder v. Acme-Cleveland Corp. 95 Wis. 2d 173, 290 N.W.2d 176 (1980).

Pre-1981 statutory paternity proceedings, which vested exclusive authority in district attorney to commence paternity action, unconstitutionally denied the child "day in court". Accordingly, child's action was not barred by any statute of limitations. In re Paternity of R.W.L. 116 Wis. 2d 150, 341 N.W.2d 682 (1984).

When an adequate remedy or forum does not exist to resolve disputes or provide due process, the courts can fashion an adequate remedy. Collins v. Eli Lilly Co. 116 Wis. 2d 166, 342 N.W.2d 37 (1984).

The state is not entitled to protection under this section. State v. Halverson, 130 Wis. 2d 300, 387 N.W.2d 124 (Ct. App. 1986).

A register in probate's fee based on the value of the estate does not violate this section. Treiber v. Knoll, 135 Wis. 2d 58, 398 N.W.2d 756 (1987).

A court faced with a litigant who has engaged in a pattern of frivolous litigation has the authority to implement a remedy that may include restrictions on the litigant's access to the court. Village of Tigerton v. Minniecheske, 211 Wis. 2d 775, 565 N.W.2d 586 (Ct. App. 1997).

This section applies only when a prospective litigant seeks a remedy for an already existing right. It preserves the right to obtain justice on the basis of law as it in fact exists Legislative actions define how the law does exist. Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849.

I,9m Victims of crime. Section 9m. [As created April 1993] This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy. This state shall ensure that crime victims have all of the following privileges and protections as provided by law: timely disposition of the case; the opportunity to attend court proceedings unless the trial court finds sequestration is necessary to a fair trial for the defendant; reasonable protection from the accused throughout the criminal justice process; notification of court proceedings; the opportunity to confer with the prosecution; the opportunity to make a statement to the court at disposition; restitution; compensation; and information about the outcome of the case and the release of the accused. The legislature shall provide remedies for the violation of this section. Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law. [1993 J.R. 2, vote April 1993]

I,10 Treason. Section 10. Treason against the state shall consist only in levying war against the same, or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

I,11 Searches and seizures. Section 11. 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 warrant 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.

GENERAL

Electronic eavesdropping, done with the consent of one of the parties, does not violate the U.S. constitution. State ex rel. Arnold v. County Court, 51 Wis. 2d 434, 187 N.W.2d 354.

The prohibition against unreasonable searches and seizures is not limited to criminal cases. It applies in forfeiture actions arising out of ordinance violations. Milwaukee v. Cohen, 57 Wis. 2d 38, 203 N.W.2d 633.

An inspection by police of a basement storage room accessible to the public and the observation of evidence found there in open view that was later seized under a search warrant does not amount to an improper invasion of the defendant's privacy. Watkins v. State, 59 Wis. 2d 514 (1973).

Police have a right to lock a car to protect its contents after arresting the driver, but if it is already locked they cannot enter it on the pretense of locking it and thus discover contraband. Where the car was borrowed, consent by the lawful user of the car was sufficient to allow a search and any containers found could be opened and examined. Soehle v. State, 60 Wis. 2d 72, 208 N.W.2d 341.

When officers, armed with a search warrant, knocked on a door, pushed it open when the defendant opened it 2 inches, and put him under restraint before showing the warrant, they acted legally. State v. Meier, 60 Wis. 2d 452, 210 N.W.2d 685.

The observation of tools in a car by police officers did not constitute a search, and the tools could be seized and were properly admissible into evidence. Anderson v. State, 66 Wis. 2d 233, 223 N.W.2d 879.

Pertinent to the validity of an investigative stop is whether the facts available to the officer at the moment of the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate. Wendricks v. State, 72 Wis. 2d 717, 242 N.W.2d 187.

Where an abused child, an occupant of defendant's house, was accompanied to the house by social workers to recover the child's belongings and exhibited to the workers the instruments used to inflict punishment, a subsequent search warrant was not tainted by an unconstitutional search. State v. Killory, 73 Wis. 2d 400, 243 N.W.2d 475.

Where evidence seized in an illegal search was admitted, no reversible error resulted since other evidence uninfluenced by the inadmissible evidence was sufficient to convict. Kelly v. State, 75 Wis. 2d 303, 249 N.W.2d 800.

The drawing and testing of blood solely for diagnostic and not government-instigated purposes is not a "search or seizure" even if the testing physician testifies at negligent homicide trial. State v. Jenkins, 80 Wis. 2d 426, 259 N.W.2d 109.

A stop and frisk was not an unreasonable search and seizure. State v. Williamson, 113 Wis. 2d 389, 335 N.W.2d 814 (1983).

A person who is lawfully in custody for a civil offense may be required to participate in a lineup for an unrelated criminal offense. State v. Wilks, 121 Wis. 2d 93, 358 N.W.2d 273 (1984).

There is no reasonable expectation of privacy in garbage once it has been routinely collected by garbage collectors. State v. Stevens, 123 Wis. 2d 303, 367 N.W.2d 788 (1985).

An unlawful arrest does not deprive a court of personal jurisdiction over a defendant. State v. Smith, 131 Wis. 2d 220, 388 N.W.2d 601 (1986).

Under the inevitable discovery doctrine, evidence seized under a defective search warrant was admissible because a later inventory search would have discovered it. State v. Kennedy, 134 Wis. 2d 308, 396 N.W.2d 765 (Ct. App. 1986).

The reasonableness of an investigative stop depends on facts and circumstances present at the time of the stop. State v. Guzy, 139 Wis. 2d 663, 407 N.W.2d 548 (1987).

Where an officer observed a traffic violation but stopped the vehicle merely to render assistance, inadvertently discovered criminal evidence was admissible. State v. Baudhuin, 141 Wis. 2d 642, 416 N.W.2d 60 (1987).

The trial court is permitted to consider suppressed evidence at sentencing where nothing suggests consideration will encourage illegal searches. State v. Rush, 147 Wis. 2d 225, 432 N.W.2d 688 (Ct. App. 1988).

An escapee does not have a legitimate privacy expectation in premises other than the penal institution he or she is sent to. State v. Amos, 153 Wis. 2d 257, 450 N.W.2d 503 (Ct. App. 1989).

Aerial surveillance using standard binoculars and cameras with generally available standard and zoom lenses from an airplane flying no lower than 800 feet was reasonable. State v. Lange, 158 Wis. 2d 609, 463 N.W.2d 390 (Ct. App. 1990).

The statutory privilege protecting an informer protects the contents of a communication that will tend to reveal the identity of the informant. The trial court may rely on the redacted information in determining the informant's reliability and credibility in determining whether there was reasonable suspicion justifying the warrantless seizure of a package. State v. Gordon, 159 Wis. 2d 335, 464 NW 91 (Ct. App. 1990).

Evidence obtained from a legal search following 2 prior illegal searches was not suppressed where the 3rd search was sufficiently attenuated from the prior 2. State v. Anderson, 165 Wis. 2d 441, 477 N.W.2d 277 (1991).

Factors used to determine the extent of a home's curtilage discussed. State v. Moley, 171 Wis. 2d 207, 490 N.W.2d 764 (Ct. App. 1992).

Bank customers have no protectable privacy interest in bank records relating to accounts. State v. Swift, 173 Wis. 2d 870, 496 N.W.2d 713 (Ct. App. 1993).

A defendant had no reasonable expectation of privacy in a porch through which the door to the living area was visible and which was entered through an unlocked screen door. Where an officer came to the defendant's residence for a legitimate purpose, observation of contraband from the porch through a window in the interior door was not a search. State v. Edgeberg, 188 Wis. 2d 339, 524 N.W.2d 911 (Ct. App. 1994).

The use of a police dog to sniff an automobile parked in a motel parking did not constitute a search. There is no legitimate expectation of privacy in the air space around a car in a motel parking lot. State v. Garcia, 195 Wis. 2d 68, 535 N.W.2d 124 (Ct. App. 1995).

Although a vehicle had been improperly seized, evidence obtained in a later search of the vehicle under a warrant which was not based on information gathered from the illegal seizure was not subject to suppression. State v. Gaines, 197 Wis. 2d 102, 539 N.W.2d 723 (Ct. App. 1995).

When executing a search warrant for private premises, the belongings of a visitor on the premises which are plausible repositories for the objects of the search, except those worn by or in the physical possession of persons whose search is not authorized by the warrant, may be searched. State v. Andrews, 201 Wis. 2d 383, 549 N.W.2d 210 (1996).

Presence in a high drug-trafficking area, a brief meeting of individuals on a sidewalk in the afternoon and the officer's experience that drug transactions take place in that neighborhood which involve brief meetings on the street, without more, is not particularized suspicion justifying an investigative stop. State v. Young, 212 Wis. 2d 417, 569 N.W.2d 84 (Ct. App. 1997).

A prison inmate does not possess a reasonable expectation of privacy in his body that permits a 4th amendment challenge to strip searches. Prisoners convicted of crimes are protected from cruel and unusual treatment that prohibits prison officials from utilizing strip searches to punish, harass, humiliate or intimidate inmates regardless of their status in the institution. Al Ghashhiyah v. McCaughtry, 230 Wis. 2d 587, 602 N.W.2d 307 (Ct. App. 1999).

Police failure to comply with the rule of announcement in violation of the 4th amendment and Art. I, s. 11, did not require suppression of the evidence seized when the officers relied, in objective good faith, upon the pronouncements of the Wisconsin Supreme Court. as no remedial purpose would be served. State v. Ward, 2000 WI 3, 231 Wis. 2d 723, 604 N.W.2d 517.

A curtilage determination is a question of constitutional fact subject to a 2-step review. The findings of evidentiary or historical fact are reviewed for clear error to determine if they are contrary to the great weight and clear preponderance of the evidence. The ultimate determination of constitutional fact is reviewed de novo. State v. Martwick, 2000 WI 5, 231 Wis. 2d 801, 604 N.W.2d 552.

Generally a premises warrant authorizes the search of all items that are plausible receptacles of the objects of the search. When currency was an object, looking through documents for hidden currency was appropriate. When the incriminating nature of the document was apparent upon brief perusal, its seizure was justified under the plain view doctrine. State v. Oswald, 2000 WI App 3, 232 Wis. 2d 103, 606 N.W.2d 238.

When a person turns material over to a 3rd party, the person who turned over the material has no 4th amendment protection if the 3rd party reveals or conveys the material to governmental authorities, whether or not the person who turned over the material had a subjective belief that the 3rd party would not betray him or her. State v. Knight, 2000 WI 16, 232 Wis. 2d 305, 605 N.W.2d 291.

A pretrial detainee, including the subject of an arrest, is entitled to receive medical attention. The scope of this due process protection is not specifically defined, but is at least as great as the 8th amendment protection available to a convicted prisoner. Robinson v. City of West Allis, 2000 WI 126, 239 Wis. 2d 595, 619 N.W.2d 692.

While the subtleties of police practice in some cases necessitate an expert witness, there is no per se requirement that there be expert testimony to prove an excessive use of force claim. Robinson v. City of West Allis, 2000 WI 126, 239 Wis. 2d 595, 619 N.W.2d 692.

What a person knowingly exposes to the public is not subject to 4th amendment protection. An inner tube rental and campground business did not have a reasonable expectation of privacy in areas open to the public. Float-Rite Park, Inc. v. Village of Somerset, 2001 WI App 113, 244 Wis. 2d 34, 629 N.W.2d 818.

The use of an infrared sensing device to detect heat emanating from a residence constitutes a search requiring a warrant. State v. Lorager, 2002 WI App 5, 250 Wis. 2d 198, 640 N.W.2d 555. See also Kyllo v. U.S. 533 U.S. 27, 150 L. Ed. 2d 94 (2001).

Arson investigations under s. 165.55 (9) and (10) are subject to search warrant requirements set forth in Michigan v. Tyler, 436 U.S. 499 (1978). Consent to search discussed. 68 Atty. Gen. 225.

In-custody statements stemming from an illegal arrest are not admissible merely because Miranda warnings were given. Brown v. Illinois, 422 U.S. 590.

Bank records are not private papers protected by a legitimate "expectation of privacy". United States v. Miller, 425 U.S. 435.

Standard procedure inventory of any container impounded by police is reasonable search. South Dakota v. Opperman, 428 U.S. 364.

Standards for application of exclusionary rule to live-witness testimony discussed. United States v. Ceccolini, 435 U.S. 268 (1978).

A newspaper office may be searched for evidence of a crime even though the newspaper is not suspected of a crime. Zurcher v. Stanford Daily, 436 U.S. 547 (1978).

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Wisconsin Constitution updated by the Legislative Reference Bureau. Published March 22, 2014. Click for the Coverage of Annotations for the Annotated Constitution. Report errors at (608) 266-3561, FAX 264-6948.