When 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 to consent to a search and the police must make sufficient inquiry to establish apparent authority. State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998), 96-0008.
A warrantless entry may be justified when police engage in a bona fide community caretaker activity, although the ultimate test is reasonableness, considering the degree of public interest and exigency of the situation, the circumstances surrounding the search, whether an automobile is involved, and whether there are alternatives to entry. State v. Paterson, 220 Wis. 2d 526, 583 N.W.2d 190 (Ct. App. 1998), 97-2066. See also, State v. Ferguson, 2001 WI App 102, 244 Wis. 2d 17, 629 N.W.2d 788, 00-0038, State v. Ziedonis, 2005 WI App 249, 287 Wis. 2d 831, 707 N.W.2d 565, 04-2888.
Reasonable suspicion required in a Terry investigative search is a common sense test of what under the circumstances a reasonable police officer would reasonably suspect in light of his or her experience. Police in an area known for drug dealing were justified to stop a driver when at nearly the same time they observed a woman approach then turn from the driver's parked car when she seemed to notice the police and the driver immediately exited the parking lot he was in. State v. Amos, 220 Wis. 2d 793, 584 N.W.2d 170 (Ct. App. 1998), 97-3044.
There is an expectation of privacy in commercial property that is applicable to administrative inspections. Because administrative inspections are not supported by probable cause, they will not be reasonable if, instead of being conducted to enforce a regulatory scheme, they are conducted as a pretext to obtain evidence of criminal activity. State v. Mendoza, 220 Wis. 2d 803, 584 N.W.2d 174 (Ct. App. 1998), 97-0952. Reversed on other grounds. 227 Wis. 2d 838, 596 N.W.2d 736 (1999), 97-0952.
There is no reasonable expectation of privacy in a hospital emergency or operating room. An officer who was present, with the consent of hospital staff, in an operating room during an operation and collected, as evidence, cocaine removed from an unconscious defendant's intestine did not conduct a search and did not make an unreasonable search. State v. Thompson, 222 Wis. 2d 179, 585 N.W.2d 905 (Ct. App. 1998), 97-2744.
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, 223 Wis. 2d 303, 588 N.W.2d 8 (1999), 96-3028.
The "emergency doctrine" justifies a warrantless search when an officer is actually motivated by a perceived need to render aid and a reasonable person under the circumstances would have thought an emergency existed. State v. Richter, 224 Wis. 2d 814, 592 N.W.2d 310 (Ct. App. 1999), 98-1332.
Reasonable suspicion justifying an investigative stop may be based on an anonymous tip that does not predict future behavior. The key concern is the tipster's veracity. Officers' corroboration of readily observable information supports a finding that because the tipster was correct about innocent activities, he or she is probably correct about the ultimate fact of criminal activity. State v. Williams, 225 Wis. 2d 159, 591 N.W.2d 823 (1999), 96-1821.
A traffic stop must be based on probable cause, not reasonable suspicion. If the facts support a violation only under a legal misinterpretation, no violation has occurred, and by definition there can be no probable cause that a violation has occurred. State v. Longcore, 226 Wis. 2d 1, 594 N.W.2d 412 (Ct. App. 1999), 98-2792.
Being in a high crime area, making brief contact with a car, and hanging around a neighborhood, each standing alone would not create reasonable suspicion justifying a Terry stop. When these events occurred in sequence and were considered with the officers training and experience, the reputation of the neighborhood, and the time of day, there was enough to create reasonable suspicion. State v. Allen, 226 Wis. 2d 66, 593 N.W.2d 504 (Ct. App. 1999), 98-1690.
A picture of a mushroom on the defendant's wallet, his appearance of nervousness, and the lateness of the hour were insufficient factors to extend a stop. State v. Betow, 226 Wis. 2d 90, 593 N.W.2d 499 (Ct. App. 1999), 98-2525. See also State v. Gammons, 2001 WI App 36, 241 Wis. 2d 296, 625 N.W.2d 623, 00-0377. See also State v. Arias, 2008 WI 84, ___ Wis. 2d ___, ___ N.W.2d ___, 06-0974.
The owner of a commercial property has a reasonable expectation of privacy in those areas immediately surrounding the property only if affirmative steps have been taken to exclude the public. State v. Yakes, 226 Wis. 2d 425, 595 N.W.2d 108 (Ct. App. 1999), 98-0470.
A home's backyard and back door threshold were within the home's curtilage; an officer's warrantless entry was unlawful and evidence seized as a result of the entry was subject to suppression. State v. Wilson, 229 Wis. 2d 256, 600 N.W.2d 14 (Ct. App. 1999), 98-3131.
When the 2 other occupants of a vehicle had already been searched without any drugs being found, a search of the 3rd occupant based solely on the odor of marijuana was made with probable cause and was reasonable. State v. Mata, 230 Wis. 2d 567, 602 N.W.2d 158 (Ct. App. 1999), 98-2895.
A probation officer may search a probationer's residence without a warrant if the officer has reasonable grounds to believe the terms of probation are being violated, but the officer may not conduct a warrantless search as a subterfuge to further a criminal investigation to help the police evade the usual warrant and probable cause requirements. State v. Hajicek, 230 Wis. 2d 697, 602 N.W.2d 93 (Ct. App. 1999), 98-3485.
The risk that evidence will be destroyed is an exigent circumstance that may justify a warrantless search. When suspects are aware of the presence of the police, that risk increases. The seriousness of the offense as determined by the overall penalty structure for all potentially chargeable offenses also affects whether exigent circumstances justify a warrantless search. State v. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621, 97-1121.
Police officers do not need to choose between completing a protective frisk and handcuffing a suspect in a field investigation. They may do both. State v. McGill, 2000 WI 38, 234 Wis. 2d 560, 609 N.W.2d 795, 98-1409.
A frisk of a motor vehicle passenger that occurred 25 minutes after the initial stop that was a precautionary measure, not based on the conduct or attributes of the person frisked, was unreasonable. State v. Mohr, 2000 WI App 111, 235 Wis. 2d 220, 613 N.W.2d 186, 99-2226.
"Hot pursuit," defined as immediate or continuous pursuit of a suspect from a crime scene is an exigent circumstance justifying a warrantless search. An officer is not required to personally observe the crime or fleeing suspect. State v. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, 98-1332.
When a vehicle passenger has been seized pursuant to a lawful traffic stop, the seizure does not become unreasonable because an officer asks the passenger for identification. The passenger is free to refuse to answer, and refusal will not justify prosecution nor give rise to reasonable suspicion of wrongdoing. However, if the passenger chooses to answer falsely, the passenger can be charged with obstruction. State v. Griffith, 2000 WI 72, 236 Wis. 2d 48, 613 N.W.2d 72, 98-0931.
The property of a passenger in a motor vehicle may be searched when the police have validly arrested the driver but do not have a reasonable basis to detain or probable cause to arrest the passenger. State v. Pallone, 2000 WI 77, 236 Wis. 2d 162, 613 N.W.2d 568, 98-0896.
The search of a crawl space in a ceiling, which was located in an area where police had heard much activity, was large enough to hide a person, and was secured by screws that had to be removed with a screwdriver, was a reasonable "protective sweep" to search for persons who would pose a threat to the police as they executed an arrest warrant for a murder suspect. State v. Blanco, 2000 WI App 119, 237 Wis. 2d 395, 614 N.W.2d 512, 98-3153.
A police officer performing a Terry stop and requesting identification could perform a limited search for identifying papers when the information received by the officer was not confirmed by police records, the intrusion on the suspect was minimal, the officer observed that the suspect's pockets were bulging, and the officer had experience with persons who claimed to have no identification when in fact they did. State v. Black, 2000 WI App 175, 238 Wis. 2d 203, 617 N.W.2d 210, 99-1686.
The Paterson community caretaker exception justified a warrantless entry during an emergency detention of a mentally ill person who was threatening suicide. A protective sweep of the premises while acting as a community caretaker was reasonable. State v. Horngren, 2000 WI App 177, 238 Wis. 2d 347, 617 N.W.2d 508, 99-2065.
A warrantless blood draw is permissible when: 1) the blood is taken to obtain evidence of intoxication from a person lawfully arrested; 2) there is a clear indication evidence of intoxication will be produced; 3) the method used is reasonable and performed in a reasonable manner; and 4) the arrestee presents no reasonable objection. State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, 99-1765.
That a driver stopped at a stop sign for a few seconds longer than normal, that it was late in the evening, and that there was little traffic did not give rise to a reasonable suspicion that the driver was committing an unlawful act. State v. Fields, 2000 WI App 218, 239 Wis. 2d 38, 619 N.W.2d 279, 00-0694.
A warrantless entry need not be subjectively motivated solely by a perceived need to render aid and assistance in order for the "emergency doctrine" to apply. A dual motivation of investigating a potential crime and rendering aid and assistance may be present. State v. Rome, 2000 WI App 243, 239 Wis. 2d 491, 620 N.W.2d 225, 00-0796.
Whether a search is a probation search, which may be conducted without a warrant, or a police search, which may not, is a question of constitutional fact to be reviewed in a 2-step review of historical and constitutional fact. A determination of reasonableness of the search must also be made. A search is reasonable if the probation officer has reasonable grounds to believe that the probationer has contraband. Cooperation with police officers does not change a probation search into a police search. State v. Hajicek, 2001 WI 3, 240 Wis. 2d 349, 620 N.W.2d 781, 98-3485.
In light of the reduced expectation of privacy that applies to property in an automobile, the search of a vehicle passenger's jacket based upon the driver's consent to the search of the vehicle was reasonable. State v. Matejka, 2001 WI 5, 241 Wis. 2d 52, 621 N.W.2d 891, 99-0070.
Before the government may invade the sanctity of the home, it must demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. Reluctance to find an exigency is especially appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. State v. Kryzaniak, 2001 WI App 44, 241 Wis. 2d 358, 624 N.W.2d 389, 00-1149.
Under Florida v. J.L, an anonymous tip giving rise to reasonable suspicion must bear indicia of reliability. That the tipster's anonymity is placed at risk indicates that the informant is genuinely concerned and not a fallacious prankster. Corroborated aspects of the tip also lend credibility. The corroborated actions of the suspect must be inherently criminal in and of themselves. State v. Williams, 2001 WI 21, 241 Wis. 2d 631, 623 N.W.2d 106, 96-1821.
An anonymous tip regarding erratic driving from another driver calling from a cell phone contained sufficient indicia of reliability to justify an investigative stop when the informant was exposed to possible identification, and therefore possible arrest if the tip proved false; the tip reported contemporaneous and verifiable observations regarding the driving, location, and vehicle; and the officer verified many of the details in the tip. That the tip reasonably suggested intoxicated driving created an exigency strongly in favor of immediate police investigation without the necessity that the officer personally observe erratic driving. State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516, 98-3541.
The state constitution does not provide greater protection under the automobile exception for warrantless searches than the 4th amendment. The warrantless search of a vehicle is allowed when there is probable cause to search the vehicle and the vehicle is mobile. The exception apples to vehicles that are not in public places. There is no requirement that obtaining a warrant be impracticable. State v. Marquardt, 2001 WI App 219, 247 Wis. 2d 765, 635 N.W.2d 188, 01-0065.
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, 00-3183.
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, 00-3183.
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 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, 00-2614.
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, 00-1444.
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 N.W.2d 391, 639 N.W.21d 207, 01-0433.
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, 01-0549.
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, 01-1417.
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, 01-0904.
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, 99-3165.
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, 01-1015.
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, 256 Wis. 2d 80, 647 N.W.2d 348, 01-1993.
Evidence from a warrantless nonconsensual blood draw is admissible when: 1) the blood is drawn to obtain evidence of intoxication from a person lawfully arrested for drunk-driving; 2) there is a clear indication that the blood draw will produce evidence of intoxication; 3) the method used to take the blood sample is reasonable and is performed reasonably; and 4) the arrestee presents no reasonable objection to the blood draw. In the absence of an arrest, probable cause to believe blood currently contains evidence of a drunk-driving-related violation satisfies the first and 2nd prongs. State v. Erickson, 2003 WI App 43, 260 Wis. 2d 279, 659 N.W.2d 407, 01-3367.
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, 256 Wis. 2d 270, 647 N.W.2d 441, 01-2224.
A three-step test is used to evaluate the reasonableness of a seizure made under the community caretaker exception: 1) that a seizure within the meaning of the 4th amendment has occurred; 2) whether the police conduct was bona fide community caretaker activity; and 3) whether the public need and interest outweighed the intrusion upon the privacy of the individual. A bona fide community caretaker activity is one that is divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. State v. Clark, 2003 WI App 121, 265 Wis. 2d 557, 666 N.W.2d 112, 02-2195.
When an unlocked vehicle was not 1) involved in an accident; 2) interrupting the flow of traffic; 3) disabled or damaged; 4) violating parking ordinances; or 5) in any way jeopardizing the public safety or the efficient movement of vehicular traffic, it was unreasonable to impound and tow the vehicle to ensure that the vehicle and any property inside it would not be stolen when there were reasonable alternatives to protect the vehicle. Evidence seized in an "inventory search" of the vehicle was inadmissible. State v. Clark, 2003 WI App 121, 265 Wis. 2d 557, 666 N.W.2d 112, 02-2195.
Before the government may invade the sanctity of the home without a warrant, the government must demonstrate not only probable cause but also exigent circumstances that overcome the presumption of unreasonableness. When a police officer placed his foot in a doorway to prevent the defendant from closing the door, the act constituted an entry into the home. A warrantless home arrest cannot be upheld simply because evidence of the suspect's blood alcohol level might have dissipated while the police obtained a warrant. State v. Larson, 2003 WI App 150, 266 Wis. 2d 236, 668 N.W.2d 338, 02-2881.
The propriety of a warrantless search of a person's garbage outside the persons' home comes under a two-part test: 1) whether the individual by his or her conduct has exhibited an actual, subjective expectation of privacy, and 2) whether that expectation is justifiable in that it is one which society will recognize as reasonable. Consideration of curtilage or open fields appropriately falls within an expectation-of-privacy analysis and is not a separate factor. The defendant did not have a reasonable expectation of privacy in garbage placed in a dumpster not set out for collection located down a private driveway marked "Private Property." State v. Sigarroa, 2004 WI App 16, 269 Wis. 2d 234, 674 N.W.2d 894, 03-0703.
When the police are lawfully on the suspect's premises by virtue of a valid search warrant, they may make a warrantless arrest of the suspect prior to the search if the arrest is supported by probable cause. State v. Cash, 2004 WI App 63, 271 Wis. 2d 451, 677 N.W.2d 709, 03-1614.
The rapid dissipation of alcohol in the bloodstream of an individual arrested for drunk driving is an exigency that justifies the warrantless nonconsensual test of the individual's blood, so long as the test satisfies the 4 factors enumerated in Bohling. A presumptively valid chemical sample of the defendant's breath does not extinguish the exigent circumstances justifying a warrantless blood draw. The nature of the evidence sought, (the rapid dissipation of alcohol from the bloodstream) not the existence of other evidence, determines the exigency. State v. Faust, 2004 WI 99, 274 Wis. 2d 183, 682 N.W.2d 371, 03-0952.
A law enforcement officer acted reasonably when during a routine traffic stop he requested the passengers, as well as the driver, to exit the vehicle and individually asked them questions outside the scope of the initial traffic stop after officer had become aware of specific and articulable facts giving rise to the reasonable suspicion that a crime had been, was being, or was about to be committed. State v. Malone, 2004 WI 108, 274 Wis. 2d 540, 683 N.W.2d 1, 02-2216.
To perform a protective search for weapons, an officer must have reasonable suspicion that a person may be armed and dangerous. A court may consider an officer's belief that his, her, or another's safety is threatened in finding reasonable suspicion, but such a belief is not a prerequisite to a valid search. There is no per se rule justifying a search any time an individual places his or her hands in his or her pockets contrary to police orders. The defendant's hand movements must be considered under the totality of the circumstances of the case. State v. Kyles, 2004 WI 15, 269 Wis. 2d 1, 675 N.W.2d 449, 02-1540.
Whether a warrantless home entry is justified based on the need to render assistance or prevent harm is judged by an objective test of whether a police officer under the circumstances known to the officer at the time of entry reasonably believes that delay in procuring a warrant would gravely endanger life. In addition to the circumstances known to the police at the time of entry, a court may consider the subjective beliefs of police officers involved, but only insofar as such evidence assists the court in determining objective reasonableness. State v. Leutenegger, 2004 WI App 127, 275 Wis. 2d 512, 685 N.W.2d 536, 03-0133.
Although a known citizen informer did not observe the defendant drive his truck in a manner consistent with someone who was under the influence of an intoxicant, the tip was reliable when it was based on the informer's first-hand observation that he defendant was drunk and was independently verified by the arresting officer. State v. Powers, 2004 WI App 143, 275 Wis. 2d 456, 685 N.W.2d 869, 03-2450.
The anonymous caller in this case provided predictive information that, if true, demonstrated a special familiarity with the defendant's affairs that the general public would have had no way of knowing. When the officer verified this predictive information, it was reasonable for the officer to believe that a person with access to such information also had access to reliable information about the defendant's illegal activities providing reasonable suspicion to stop the defendant's vehicle. State v. Sherry, 2004 WI App 207, 277 Wis. 2d 194, 690 N.W.2d 435, 03-1531.
Under Hodari D., 499 U.S. at 629, a person who did not submit to an officer's show of police authority was not seized within the meaning of the 4th amendment. Until a submission occurs, Hodari D. holds that a person is not seized for purposes of the 4th amendment and therefore the person may not assert a 4th amendment violation that evidence resulting from the encounter with the police was the fruit of an illegal seizure. State v. Young, 2004 WI App 227, 277 Wis. 2d 715, 690 N.W.2d 866, 03-2968. Affirmed. 2006 WI 98, 294 Wis. 2d 1, 717 N.W.2d 729, 03-2968.
Blood may be drawn in a search incident to an arrest for a non-drunk-driving offense if the police reasonably suspect that the defendant's blood contains evidence of a crime. State v. Repenshek, 2004 WI App 229, 277 Wis. 2d 780, 691 N.W.2d 780, 03-3089
An arrest immediately following a search, along with the probable cause to arrest before the search, causes the search to be lawful. A search was not unlawful because the crime arrested for immediately after the search was different than the crime for which the officer had probable cause to arrest before the search. As long as there was probable cause to arrest before the search, no additional protection from government intrusion is afforded by requiring that persons be arrested for and charged with the same crime as that for which probable cause initially existed. Whether the officer subjectively intended to arrest for the first crime is not the relevant inquiry. The relevant inquiry is whether the officer was aware of sufficient objective facts to establish probable cause to arrest before the search was conducted and whether an actual arrest was made contemporaneously with the search. State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d 277, 03-1234.
Under Terry, a n officer is entitled not just to a patdown but to an effective patdown in which he or she can reasonably ascertain whether the subject has a weapon; where an effective patdown is not possible, the officer may take other action reasonably necessary to discover a weapon. When an officer could not tell whether a suspect had any objects hidden in his waistband because of the suspect's bulky frame and heavy clothing it was reasonable for the officer to shake the suspect's waistband by his belt loops in order to loosen any possible weapons. State v. Triplett, 2005 WI App 255, 288 Wis. 2d 505, 707 N.W.2d 881, 04-2032.
The 4th Amendment neither forbids nor permits all bodily intrusions. The Amendment's function is to constrain against intrusions that are not justified in the circumstances, or are made in an improper manner. Whether the warrantless administration of laxatives done to assist the police in recovering suspected swallowed heroin was a reasonable search required evaluating 3 factors: 1) the extent to which the procedure may threaten the safety or health of the individual; 2) the extent of the intrusion upon the individual's dignitary interests in personal privacy and bodily integrity; and 3) the community's interest in fairly and accurately determining guilt or innocence. State v. Payano-Roman, 2006 WI 47, 290 Wis. 2d 380, 714 N.W.2d 548, 04-1029
Deciding when a seizure occurs is important because the moment of a seizure limits what facts a court may consider in determining the existence of reasonable suspicion for that seizure. The Mendenhall, 446 U.S. 544, test applies when the subject of police attention is either subdued by force or submits to a show of authority. Where, however, a person flees in response to a show of authority, Hodari D., 499 U.S. 279, governs when the seizure occurs. The Hodari D. test does not supersede the Mendenhall test, it supplements it. State v. Young, 2006 WI 98, 294 Wis. 2d 1, 717 N.W.2d 729, 03-2968.
An anonymous tip, whose indicia of reliability was debatable, along with behavior observed by the officer at the scene and deemed suspicious provided reasonable suspicion to justify a Terry stop. Terry holds that the police are not required to rule out the possibility of innocent behavior before initiating a Terry stop. Suspicious conduct by its very nature is ambiguous, and the principle function of the investigative stop is to quickly resolve that ambiguity. State v. Patton, 2006 WI App 235, 297 Wis. 2d 415, 724 N.W.2d 347, 05-3084.
There is a difference between police informers, who usually themselves are criminals, and citizen informers that calls for different means of assessing credibility. A citizen informant's reliability is subject to a much less stringent standard. Citizens who purport to have witnessed a crime are viewed as reliable, and police are allowed to act accordingly although other indicia of reliability have not yet been established. That an informant does not give some indication of how he or she knows about the suspicious or criminal activity reported bears significantly on the reliability of the information. State v. Kolk, 2006 WI App 261, 298 Wis. 2d 99, 726 N.W.2d 337, 06-0031.
To have a 4th Amendment claim an individual must have standing. Standing exists when an individual has a reasonable expectation of privacy; which requires meeting a two-prong test: 1) whether the individual's conduct exhibited an actual, subjective, expectation of privacy in the area searched and the item seized; and 2) if the individual had the requisite expectation of privacy, whether the expectation of privacy was legitimate or justifiable. State v. Bruski, 2007 WI 25, 299 Wis. 2d 177, 727 N.W.2d 503, 05-1516.
In considering whether an individual's expectation of privacy was legitimate or justifiable, the following may be relevant: 1) whether the accused had a property interest in the premises; 2) whether the accused was lawfully on the premises; 3) whether the accused had complete dominion and control and the right to exclude others; 4) whether the accused took precautions customarily taken by those seeking privacy; 5) whether the property was put to some private use; and 6) whether the claim of privacy was consistent with historical notions of privacy. State v. Bruski, 2007 WI 25, 299 Wis. 2d 177, 727 N.W.2d 503, 05-1516.
Whether an individual may have a reasonable expectation of privacy in personal property found inside a vehicle that he or she does not have a reasonable expectation of privacy in is not governed by a bright-line rule. Principles pertinent to whether there was a reasonable expectation of privacy are that: 1) personal property found in vehicles is treated differently than personal property found in dwellings, there being a lesser expectation of privacy in vehicles; 2) neither ownership nor possession of an item alone establishes a reasonable expectation of privacy; 3) an individual's expectation of privacy in the space, rather than concepts of property law, is critical. State v. Bruski, 2007 WI 25, 299 Wis. 2d 177, 727 N.W.2d 503, 05-1516.
When the defendant was only suspected of driving a vehicle with a suspended registration for an emissions violation and failing to signal for a turn, violations in no way linked to criminal activity or weapons possession, and when the only purported basis for a protective search was a single, partially obscured movement of the defendant in his vehicle that the officers observed from their squad car, the behavior observed by the officers was not sufficient to justify a protective search of Johnson's person and his car. State v. Johnson, 2007 WI 32, 299 Wis. 2d 675, 729 N.W.2d 182, 05-0573.
Weaving within a single traffic lane does not alone give rise to the reasonable suspicion necessary to conduct an investigative stop of a vehicle. The reasonableness of a stop must be determined based on the totality of the facts and circumstances. State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, 05-2778.
A private party's discovery, and subsequent disclosure to law enforcement, of contraband is not prohibited by the 4th amendment when there is no reasonable expectation of privacy in dealings with the private party. One does not generally have a reasonable expectation of privacy when delivering property to a private shipping company, particularly when the shipping company posts a sign reserving its right to inspect parcels left with it for shipping. State v. Sloan, 2007 WI App 146, 303 Wis. 2d 438, 736 N.W.2d 189, 06-1271.
An employee of a private company is not acting on behalf of the government and is free to disclose a package and material to law enforcement. Law enforcement, without a warrant, can properly replicate the search the employee has already conducted. By otherwise replicating the private-party search, police did not exceed the scope of the private search by conducting a field test for drugs. State v. Sloan, 2007 WI App 146, 303 Wis. 2d 438, 736 N.W.2d 189, 06-1271.
The emergency doctrine permits officers investigating a kidnapping case to conduct a warrantless search if the officers possess an objectively reasonable belief that the particular search will result in finding the victim or evidence leading to the victim's location. Police need not delay rescue where they reasonably believe that a kidnap victim is being held and a search of the premises will lead to the victim or to information about the victim's whereabouts; time is of the essence. State v. Larsen, 2007 WI App 147, 302 Wis. 2d 718, 736 N.W.2d 211, 06-1396.
One common factor in some cases in which courts have concluded that the officers did not have a justifiable basis for conducting a protective sweep has been that the protective search takes place after the traffic investigation has been completed. A protective sweep was justified when there were specific facts that demonstrated that the officers' primary concern was indeed weapons and safety and the protective search was the first thing the officers did, and was not an afterthought. State v. Alexander, 2008 WI App 9, ___ Wis. 2d ___, ___ N.W.2d ___, 07-0403.
The fact that that an officer told the defendant that she was under arrest did not necessarily establish an arrest when immediately after making that statement the officer told the defendant that she would be issued a citation and then would be free to go. Although the statements are contradictory, the assurance that the defendant would be issued a citation and released would lead a reasonable person to believe he or she was not in custody. Under those circumstances a search of the defendant was not incident to a lawful arrest and, as such, unlawful. State v. Marten-Hoye, 2008 WI App 19, ___ Wis. 2d ___, ___ N.W.2d ___, 06-1104.
Under Belton, 453 U.S. 454, when a police officer has made a lawful custodial arrest of the occupant of an automobile, the officer may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile. An officer may assume that the interior of an automobile is within the reach of a defendant when the defendant is still at the scene of an arrest, but the defendant is not physically in the vehicle. A literal reading of the term "immediate control" has plainly been rejected. State v. Littlejohn, 2008 WI App 45, ___ Wis. 2d___, 747 N.W.2d 712, 07-0900.
That an officer is to be "totally divorced," from law enforcement functions when acting in a community caretaker function that justifies a warrantless search cannot mean that an officer must have subjectively ruled out all possibility of criminal activity. Police commonly act as community caretakers in situations where it remains reasonably possible that they will discover some criminal activity. State v. Kramer, 2008 WI App 62, ___ Wis. 2d___, ___ N.W.2d ___, 07-1834.
The potential availability of an innocent explanation does not prohibit an investigative stop. If any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of innocent inferences that could be drawn, officers have the right to temporarily detain an individual for the purpose of inquiry. State v. Limon, 2008 WI App 77, ___ Wis. 2d___, ___ N.W.2d ___, 07-1578.
Although Terry provides only for an officer to conduct a carefully limited search of the outer clothing in an attempt to discover weapons that might be used to assault the officer, under the circumstances of this case, the search was properly broadened to encompass the opening of the defendant's purse, which was essentially an extension of her person where the purse was accessible by her. State v. Limon, 2008 WI App 77, ___ Wis. 2d___, ___ N.W.2d ___, 07-1578.
Because of the limited intrusion resulting from a dog sniff for narcotics and the personal interests that Art. I, s. 11 were meant to protect, a dog sniff around the outside perimeter of a vehicle located in a public place is not a search under the Wisconsin Constitution. The 78 seconds during which the dog sniff occurred was a not an unreasonable incremental intrusion upon the defendant's liberty. State v. Arias, 2008 WI 84, ___ Wis. 2d ___, ___ N.W.2d ___, 06-0974.
The "search incident to arrest" exception to the 4th amendment warrant requirement holds that a lawful arrest creates a situation justifying a contemporaneous, warrantless search of the arrestee's person and the area within his or her immediate control. It is reasonable to search an area near the arrestee, but not an area so broad as to be unrelated to the protective purposes of the search. Although a bedroom might be considered within the defendant's immediate presence or control the search of a bedroom was not a search incident to arrest after the defendant had been removed from the home as the defendant could not have gained possession of a weapon or destructible evidence. State v. Sanders, 2008 WI 85, ___ Wis. 2d ___, ___ N.W.2d ___, 06-2060.
Reasonable suspicion was not obviated by the fact that 15 minutes passed between the time of a stop and a protective search when the defendant was kept under continuous surveillance. The passage of time can be a factor in the totality of circumstances, but it is not likely to be a determinative factor in establishing or eliminating reasonable suspicion for a frisk. State v. Sumner, 2008 WI 94, ___ Wis. 2d ___, ___ N.W.2d ___, 06-0102.
The standing of a guest to challenge a search is measured by the guest's relationship to the property and the host. When a person claims guest status, the analysis examines the evidence in light of: 1) whether the guest's use of the premises was for a purely commercial purpose; 2) the duration of the guest's stay; and 3) the nature of the guest's relationship to the host. The defendant did not have standing when there was little evidence of the duration or closeness of the defendant's friendship with the property owner, the defendant did not have a long-term relationship to the place andnot an overnight guest, and at the time of the search, used it for a largely commercial purpose. State v. Fox, 2008 WI App 136, ___ Wis. 2d ___, ___ N.W.2d ___, 07-0685.
The defendant did not have standing to assert a 4th amendment violation based on an officer unlocking the door of the public restroom the defendant occupied. The defendant's expectation of privacy was not reasonable when, while his initial use of the restroom was for its intended purpose, he continued to have the private use of the locked restroom for at least 25 minutes without responding to knocking and while dozing off. State v. Neitzel, 2008 WI App 143, ___ Wis. 2d ___, ___ N.W.2d ___, 07-2346.
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.
When 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).
