Whether exigent circumstances existed justifying a warrantless entry to prevent destruction of evidence after the defendant saw, and retreated from, a plain-clothes officer was not a question of whether the defendant knew that the detective was a police officer, but whether it was reasonable for the officer to believe that he had been identified and that the suspect would destroy evidence as a consequence. State v. Garrett, 2001 WI App 240, 248 Wis. 2d 61, 635 N.W.2d 615.
For the warrantless search of an area made incident to the making of an arrest to be justified as a protective sweep to protect the safety of police officers where the area searched was not in the immediate vicinity of where the arrest was made, there must be articulable facts that would warrant a reasonably prudent officer to believe that the area harbored an individual posing a danger to the officers. State v. Garrett, 2001 WI App 240, 248 Wis. 2d 61, 635 N.W.2d 615.
When a caller identifies himself or herself by name, placing his or her anonymity at risk, and the totality of the circumstances establishes a reasonable suspicion that criminal activity may be afoot, the police may execute a lawful investigative stop. Whether the caller gave correct identifying information or the police ultimately could have verified the the information, the caller, by providing the information, risked that his or her identity would be discovered and cannot be considered anonymous. State v. Sisk, 2001 WI App 182, 247 Wis. 2d 443, 634 N.W.2d 877.
The need to transport a person in a police vehicle is not an exigency that justifies a search for weapons. More specific and articulable facts must be shown to support a Terry frisk. While a routine pat-down of a person before a police officer places the person in a squad car is wholly reasonable, evidence gleaned from the search will only be admissible if there are particularized issues of safety concerns about the defendant. State v. Hart, 2001 WI App 283, 249 Wis. 2d 329, 639 N.W.2d 213.
Although no traffic violation occurred, a traffic stop to make contact with the defendant was reasonable when police had reasonable suspicion that the defendant had previously been involved in a crime and the defendant had intentionally avoided police attempts to engage her in voluntary conversation. State v. Olson, 2001 WI App 284, 249 Wis. 2d 391, 639 N.W.21d 207.
It was reasonable to conduct a Terry search of a person who knocked on the door of a house while it was being searched for drugs pursuant to a warrant. State v. Kolp, 2002 WI App 17, 250 Wis. 2d 296, 640 N.W.2d 551.
A warrantless blood draw by a physician in a jail setting may be unreasonable if it invites an unjustified element of personal risk of pain and infection. Absent evidence of those risks, a blood draw under those circumstances was reasonable. State v. Daggett, 2002 WI App 32, 250 Wis. 2d 112, 640 N.W.2d 546.
Terry applies to confrontations between the police and citizens in public places only. For private residences and hotels, in the absence of a warrant, the police must have probable cause and exigent circumstances or consent to justify an entry. Reasonable suspicion is not a prerequisite to an officer's seeking consent to enter a private dwelling. If the police have lawfully entered a dwelling with valid consent and have a reasonable suspicion that a suspect is armed, a Terry pat-down for weapons is permissible. State v. Stout, 2002 WI App 41, 250 Wis. 2d 768, 641 N.W.2d 474.
A warrantless nonconsensual blood draw from a person arrested, with probable cause, for drunk driving is constitutional based on the exigent circumstances exception to the warrant requirement of the 4th amendment, even if the person offers to submit to a chemical test other than the blood test chosen by law enforcement, provided that the blood draw complies with the factors enumerated in Bohling. State v. Krajewski, 2002 WI 97, 255 Wis. 2d 98, 648 N.W.2d 385.
A warrantless search of a home is presumptively unreasonable, but exigent circumstances that militate against delay in getting a warrant can justify immediate entry and search. Whether the officers acted reasonably in entering the house without a warrant is measured against what a reasonable police officer would reasonably believe under the circumstances. State v. Londo, 2002 WI App 90, 252 Wis. 2d 731, 643 N.W.2d 869.
Canine sniffs are not searches within the meaning of the 4th amendment, and police are not required to have probable cause or reasonable suspicion before walking a dog around a vehicle for the purpose of detecting drugs in the vehicle's interior. A dog's alert on an object provides probable cause to search that object, provided that the dog is trained in narcotics detection and has demonstrated a sufficient level of reliability in detecting drugs in the past and the officer with the dog is familiar with how it reacted when it smelled contraband. State v. Miller, 2002 WI App 150, ___ Wis. 2d ___, 647 N.W.2d 348.
An arrest made in hot pursuit constitutes an exigent circumstance required for a warrantless entry, but the exception is limited to the hot pursuit of fleeing felons. State v. Mikkelson, 2002 WI App 152, ___ Wis. 2d ___, 647 N.W.2d 421.
A reasonable probation search is lawful even if premised, in part, on information obtained in violation of the 4th amendment by law enforcement. State v. Wheat, 2002 WI App 153, ___ Wis. 2d ___, 647 N.W.2d 441.
But What of Wisconsin's Exclusionary Rule? The Wisconsin Supreme Court Accepts Apparent Authority to Consent as Grounds for Warrantless Searches. Schmidt. 83 MLR 299 (1999).
A warrantless, non-exigent, felony arrest in public was constitutional despite the opportunity to obtain a warrant. United States v. Watson, 423 U.S. 411.
Where a driver was stopped because of expired license plates, a police order to get out of the car was reasonable and a subsequent "pat down" based on an observed bulge under the driver's jacket resulted in the legal seizure of an unlicensed revolver. Pennsylvania v. Mimms, 434 U.S. 106 (1977).
A burning building clearly presents an exigency rendering a warrantless entry reasonable, and fire officials need no warrant to remain in a building for a reasonable time to investigate the cause of the fire after it is extinguished. Michigan v. Tyler, 436 U.S. 499 (1978)
The warrantless installation of a pen register, that recorded telephone numbers called but not the contents of the calls, did not violate the 4th amendment. Smith v. Maryland, 442 U.S. 735 (1979).
A warrantless search of a suitcase in the trunk of a taxi was unconstitutional. Arkansas v. Sanders, 442 U.S. 753 (1979).
Police may not make a warrantless and nonconsensual entry into suspect's home in order to make a routine felony arrest. Payton v. New York, 445 U.S. 573 (1980).
The fact that police had lawful possession of pornographic film boxes did not give them authority to search their contents. Walter v. United States, 447 U.S. 649 (1980).
The search of a jacket lying in the passenger compartment of a car was incident to a lawful custodial arrest that justified th infringement of any privacy interest the arrestee may have. New York v. Belton, 453 U.S. 454 (1981).
An officer who accompanied an arrestee to the arrestee's residence to obtain identification properly seized contraband in plain view. Washington v. Chrisman, 455 U.S. 1 (1982).
Officers who have legitimately stopped an automobile and who have probable cause to believe contraband is concealed somewhere within it may conduct a warrantless search of the vehicle as thorough as could be authorized by warrant. United States v. Ross, 456 U.S. 798 (1982).
A warrantless search by arson investigators of defendant's fire-damaged home that was not a continuation of an earlier search was unconstitutional. Michigan v. Clifford, 464 U.S. 287 (1984).
Where a damaged shipping package was examined by company employees who discovered white powder, a subsequent warrantless field test by police was constitutional. U.S. v. Jacobsen, 466 U.S. 109 (1984).
The "open fields" doctrine discussed. Oliver v. U.S. 466 U.S. 170 (1984).
The warrantless, nighttime entry of the defendant's home for arrest for a civil, nonjailable traffic offense was not justified under the "hot pursuit" doctrine or the preservation of evidence doctrine. Welsh v. Wisconsin, 466 U.S. 740 (1984).
School officials need not obtain a warrant before searching a student. The legality of the search depends on the reasonableness, under all circumstances, of the search. New Jersey v. T. L. O. 469 U.S. 325 (1985).
Where officers were entitled to seize packages in a vehicle and could have searched them immediately without a warrant, a warrantless search of the packages 3 days later was reasonable. United States v. Johns, 469 U.S. 478 (1985).
The vehicle exception for warrantless search applies to motor homes. California v. Carney, 471 U.S. 386 (1985).
The good faith exception to the exclusionary rule applies where an officer reasonably relies upon a statute allowing a warrantless administrative search that was subsequently ruled unconstitutional. Illinois v. Krull, 480 U.S. 340 (1987).
A protective sweep of a residence in conjunction with an arrest is permissible if law enforcement reasonably believes that the area harbors an individual posing a danger to officers or others. Maryland v. Buie, 494 U.S. 325, 108 L. Ed. 2d 276 (1990).
"Inadvertence" is not a necessary condition to a "plain view" seizure. Horton v. California, 496 U.S. 128, 110 L. Ed. 2d 112 (1990).
A determination of probable cause made within 48 hours of a warrantless arrest generally meets the promptness requirement. If a hearing is held more than 48 hours following the arrest the burden shifts to the government to demonstrate an emergency or extraordinary circumstances. County of Riverside v. McLaughlin, 500 U.S. 44, 114 L. Ed. 2d 49 (1991).
An officer's opening of a closed bag found on the floor of a suspect's car during a search of the car made with suspect's consent was not unreasonable. Florida v. Jimeno, 500 U.S. 248, 114 L. Ed. 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 U.S. 565, 114 L. Ed. 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 U.S. 366, 124 L. Ed. 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 U.S. 408, 137 L. Ed. 2d 41 (1997).
Persons observed through a window in a home where they were not overnight guests but were present for a short period to engage in a primarily commercial illegal drug transaction, had no expectation of privacy in the home and the observation of those persons was not a constitutionally prohibited search. Minnesota v. Carter, 525 U.S. 83, 142 L. Ed. 2d 373 (1998).
The issuance of a traffic citation without an arrest did not authorize a full search of the vehicle. Knowles v. Iowa, 525 U.S. 113, 142 L. Ed. 2d 492 (1998).
When there is probable cause to search a vehicle for contraband officers may examine containers in the vehicle without a showing of individualized probable cause for each container. The container may be searched whether or not it's owner is present as a passenger, or otherwise, because it may contain contraband that the officers reasonably believe is in the car. Wyoming v. Houghton, 526 U.S. 295, 143 L. Ed. 2d 408 (1999).
Police need not obtain a warrant before seizing an automobile from a public place when there is probable cause to believe that the vehicle is forfeitable contraband. Florida v. White, 526 U.S. 559, 143 L. Ed. 2d 748 (1999).
The exception to the requirement of a warrant for automobiles does not require a separate finding of exigency, in addition to a finding of probable cause. Maryland v. Dyson, 527 U.S. 465, 144 L. Ed. 2d 442 (1999).
When there is probable cause to search a motor vehicle, the search is not unreasonable if the search is based on facts that would justify the issuance of a warrant, although a warrant was not obtained. No separate finding of exigent circumstances is required. Maryland v. Dyson, 527 U.S. 465, 144 L. Ed. 2d 442 (1999).
There is no murder scene exception to the warrant requirement. Flippo v. West Virginia, 528 U.S. 11, 145 L. Ed. 2d 16 (1999).
Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight is the consummate act of evasion. Illinois v. Wardlow, 528 U.S. 119, 145 L. Ed. 2d 570 (2000).
An anonymous tip that a person is carrying a gun, without more, is insufficient to justify a police officer's stop and frisk of a person. The tip must bear indicia of reliability. Reasonable suspicion requires that a tip be reliable in its assertion of criminal activity, not just in its tendency to to identify a person. Florida v. J.L. 529 U.S. 266, 146 L. Ed. 2d 254 (2000).
Stopping vehicles at highway checkpoints without any individualized suspicion to interdict illegal drugs was an unreasonable seizure under the 4th amendment because the primary purpose was to uncover evidence of ordinary criminal wrongdoing, unlike checkpoints to check for drunk driving or illegal immigrants. City of Indianapolis v. Edmond, 531 U.S. 32, 148 L. Ed. 2d 333 (2000).
The police acted reasonably when, with probable cause to believe that the defendant had hidden drugs in his home, prevented the man from entering the home for about 2 hours until a search warrant could be obtained. Illinois v. McArthur, 531 US 326, 148 LEd2d 838 (2001).
A state hospital could not test maternity patients for cocaine and then turn the results over to law enforcement authorities without patient consent. The interest of using the threat of criminal sanctions to deter pregnant women from using cocaine does not justify a departure from the rule that a nonconsensual search is unconstitutional if not authorized by a warrant. Ferguson v. City of Charleston, 525 US 67, 149 LEd 2d 205 (2001).
If an officer has probable cause to believe a person has committed even a very minor criminal offense that does not breach the peace, the officer may, without violating the 4th amendment, arrest the offender without the need to balance the circumstances involved in the particular situation. Atwater v. City of Lago Vista, 532 US 318, 149 L. Ed. 2d 549 (2001)
Obtaining, by sense enhancing technology like infrared imaging, information regarding the interior of a home that could otherwise not be obtained without physical intrusion into a constitutionally protected area is a search presumptively unreasonable without a warrant. Kyllo v. U.S. 533 U.S. 27, 150 L. Ed. 2d 94 (2001).
A warrantless search of a probationer's residence founded on reasonable suspicion of criminal activity and authorized as a condition of probation was reasonable. Such a search is not restricted to monitoring whether the probationer is complying with probation restrictions. U.S. v. Knights, 534 U.S. 112, 151 L. Ed. 2d 497 (2001).
Police officers may approach bus riders at random to ask questions and to request consent to search luggage without advising the passengers of their right to not cooperate. U.S. v. Drayton, ___ U.S. ___, 153 L. Ed. 2d 242 (2002).
A school district policy of requiring all participants in competitive extracurricular activities to submit to drug testing was a reasonable means of furthering the district's interest in preventing drug use among students and was not an unreasonable search. Board of Education of Independent School District. No. 92 of Pottawatomie County v. White, ___ U.S. ___, 153 L. Ed. 2d 735 (2002).
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.
But What of Wisconsin's Exclusionary Rule? The Wisconsin Supreme Court Accepts Apparent Authority to Consent as Grounds for Warrantless Searches. Schmidt. 83 MLR 299.
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 Wis. 2d 580, 175 N.W.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 an impairment of contract. State ex rel. Bldg. Owners v. Adamany, 64 Wis. 2d 280, 219 N.W.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 Wis. 2d 643, 221 N.W.2d 692.
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 Wis. 2d 144, 233 N.W.2d 470.
Where a probation statute was amended after a crime was committed but before the accused pled guilty and was placed on probation, application of the amended statute to probation revocation proceedings offended ex post facto clause. State v. White, 97 Wis. 2d 517, 294 N.W.2d 36 (Ct. App. 1979).
A challenge to legislation must prove 1) the legislation impairs an existing contractual relationship, 2) the impairment is substantial and 3) if substantial, the impairment is not justified by the purpose of the legislation. Reserve Life Ins. Co. v. La Follette, 108 Wis. 2d 637, 323 N.W.2d 173 (Ct. App. 1982).
The 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 that was innocent when committed. State v. Kurzawa, 180 Wis. 2d 502, 509 N.W.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 Wis. 2d 213, 520 N.W.2d 107 (Ct. App. 1994).
An ex post facto law is one that punishes as a crime an act previously committed, that 1) was innocent when done, 2) makes more burdensome the punishment for a crime, after its commission or 3) deprives one charged with a crime of any defense available at the time the act was committed. State v. Thiel, 188 Wis. 2d 695, 524 N.W.2d 641 (1994).
A violation of this section occurs when application of the new law: 1) criminalizes conduct that was innocent when committed; 2) increases the penalty for conduct after its commission; or 3) removes a defense that was available at the time the act was committed. Retroactive application of a new statute of limitations, enacted at a time when the old limitations period has not yet run, does not violate the ex post facto clause. State v. Haines, 2002 WI App 139, ___ Wis. 2d ___, 647 N.W.2d 311.
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.
The dismissal of an appeal for lack of prosecution in a condemnation action does not violate the condemnee's right to just compensation. Taylor v. State Highway Comm. 45 Wis. 2d 490, 173 N.W.2d 707.
The total rental loss occasioned by the condemnation is compensable, and a limitation to one year's loss is invalid. Luber v. Milwaukee County, 47 Wis. 2d 271, 177 N.W.2d 380.
A prohibition against filling in wetlands pursuant to an ordinance adopted under ss. 59.971 and 144.26 [now 59.692 and 281.31] does not amount to a taking of property. Police powers vs. eminent domain discussed. Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.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 Wis. 2d 665, 221 N.W.2d 907.
In order for the petitioner to succeed in the initial stages of an 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 Wis. 2d 720, 226 N.W.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 Wis. 2d 187, 228 N.W.2d 173.
There must be a "taking" of property to justify compensation. DeBruin v. Green County, 72 Wis. 2d 464, 241 N.W.2d 167.
Condemnation powers are discussed. Falkner v. Northern States Power Co. 75 Wis. 2d 116, 248 N.W.2d 885.
Ordering a utility to place its power lines under ground in order to expand an airport constituted a taking because the public benefited from the enlarged airport. Public Service Corp. v. Marathon County, 75 Wis. 2d 442, 249 N.W.2d 543.
For inverse condemnation purposes, a taking can occur absent a physical invasion only where there is a legally imposed restriction upon the property's use. Howell Plaza, Inc. v. State Highway Comm. 92 Wis. 2d 74, 284 N.W.2d 887 (1979).
The doctrine of sovereign immunity cannot bar an action for just compensation based on the 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 Wis. 2d 417, 334 N.W.2d 67 (1983).
Zoning classifications may unconstitutionally deprive property owners of due process of law. State ex rel. Nagawicka Is. Corp. v. Delafield, 117 Wis. 2d 23, 343 N.W.2d 816 (Ct. App. 1983).
Ordering a riparian owner to excavate and maintain a ditch to regulate a lake level was an unconstitutional taking of property. Otte v. DNR, 142 Wis. 2d 222, 418 N.W.2d 16 (Ct. App. 1987).
The operation of this section is discussed. W.H. Pugh Coal Co. 157 Wis. 2d 620, 460 N.W.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 Wis. 2d 527, 510 N.W.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 Wis. 2d 348, 526 N.W.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 Wis. 2d 737, 547 N.W.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 Wis. 2d 365, 548 N.W.2d 528 (1996).
