A person with no property interest who may have entered the premises legitimately but did not have permission to remain to the time of a search is without standing to challenge the search. State v. McCray, 220 Wis. 2d 705, 583 N.W.2d 668 (Ct. App. 1998), 97-2746.
To have standing to challenge the pre-delivery seizure of a package not addressed to the defendant, the defendant has the burden of establishing some reasonable expectation of privacy in the package, which will be determined on a case-by-case basis. State v. Ramirez, 228 Wis. 2d 561, 598 N.W.2d 247 (Ct. App. 1999), 98-0996.
Non-objected to warrantless entry by police into living quarters is entry demanded under color of office granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right. If consent is granted only in acquiescence to an unlawful assertion of authority, the consent is invalid. An initial refusal to permit a search when asked militates against a finding of voluntariness. State v. Munroe, 2001 WI App 104, 244 Wis. 2d 1, 630 N.W.2d 223, 00-0260.
When officers gained entry into a motel room for the stated, but false, reason of determining whether the occupant had violated an ordinance requiring the presentation of proper identification when renting a room, any license granted by acquiescence to their entry vanished when proper identification was presented, and the officers had no authority to conduct a general search. State v. Munroe, 2001 WI App 104, 244 Wis. 2d 1, 630 N.W.2d 223, 00-0260.
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.
A social guest who is not an overnight guest may have a reasonable expectation of privacy in premises giving standing to challenge a warrantless search if the guest's relationship to the property and host is firmly rooted. State v. Trecroci, 2001 WI App 126, 246 Wis. 2d 261, 630 N.W.2d 555, 00-1079.
Warrants for administrative or regulatory searches modify the conventional understanding of probable cause requirements for warrants as the essence of the search search is that there is no probable cause to believe a search will yield evidence of a violation. Refusal of consent is not a constitutional requirement for issuing the warrant, although it may be a statutory violation. Suppression only applies to constitutional violations. State v. Jackowski, 2001 WI App 187, 247 Wis. 2d 430, 633 N.W.2d 649, 00-2851.
A visual body cavity search is more intrusive than a strip search. It is not objectively reasonable for police to conclude that consent to a strip search includes consent to scrutiny of body cavities. State v. Wallace, 2002 WI App 61, 251 Wis. 2d 625, 642 N.W.2d 549, 00-3524.
A search authorized by consent is wholly valid unless that consent is given while an individual is illegally seized. The general rule is that a seizure has occurred when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Questioning alone does not a seizure make. That a defendant spontaneously and voluntarily responded to an officer's questions is not enough to transform an otherwise consensual exchange into an illegal seizure. State v. Williams, 2002 WI 94, 255 Wis. 2d 1, 646 N.W.2d 834, 01-0463.
There is no bright-line rule that a tenant in an unlocked apartment building with at least four units does not have a reasonable expectation of privacy in the common areas of the stairways, hallways, and basement. Whether there is a reasonable expectation of privacy is decided on a case-by-case basis. State v. Eskridge, 2002 WI App 158, 256 Wis. 2d 314, 647 N.W.2d 434, 01-2720.
A teenage child may have apparent common authority to consent to police entry into the family home justifying a warrantless entry. State v. Tomlinson, 2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367, 00-3134.
Consent to a vehicle search, given following the conclusion of a traffic stop, when the police had given verbal permission for the defendant to leave but continued to ask questions, was valid. Applying a "reasonable person" test, there was no "seizure" at the time and consent to the search was not an invalid result of an illegal seizure. State v. Williams, 2002 WI 94, 253 Wis. 2d 99, 644 N.W.2d 919, 00-3065.
Detaining, in handcuffs, a person who had arrived at a motel room with the person who had rented the room pending the arrival of and during the execution of a search warrant for the hotel room was reasonable. Consent to a search of the person's living quarters on completion of the search, which resulted in the seizure of illegal drugs, when the person had been repeatedly told she was being detained but was not under arrest was voluntarily given and not the product of an illegal seizure. State v. Vorburger, 2002 WI 105, 255 Wis. 2d 537, 648 N.W.2d 829, 00-0971.
Questioning the defendant's 3-year-old son outside the defendant's presence did exceed the scope of the defendant's consent to search his home when the child was left with a police officer without any restrictions and there was no evidence of trickery, deceit, or coercion. The questioning constituted on-the-scene questioning of a potential witness in an ongoing investigation. There was no applicable prohibition against speaking with the boy about whether a gun was in the house. State v. Ragsdale, 2004 WI App 178, 276 Wis. 2d 52, 687 N.W.2d 785, 03-2795.
For a search with no probable cause made after a traffic stop to be consensual, the consent must be given under circumstances where a reasonable person granting the consent would have believed that he or she was free to leave. Some verbal or physical demonstration by the officer, or some other equivalent facts, clearly conveying to the person that the traffic matter is concluded and the person should be on his or her way is necessary. Absent that, it is a legal fiction to conclude that a reasonable person would believe that he or she is free to depart the scene. State v. Jones, 2005 WI App 26, 278 Wis. 2d 774, 693 N.W.2d 104, 03-3216.
In a traffic stop context, where the test of consent to search is whether a reasonable person would feel free to disregard the police and go about his or her business, the fact that the person's driver's license or other official documents are retained by the officer is a key factor in assessing whether the person is seized and, therefore, whether consent is voluntary. State v. Luebeck, 2006 WI App 87, 292 Wis. 2d 748, 715 N.W.2d 639, 05-1013.
Orderly submission to law enforcement officers who, in effect, incorrectly represent that they have the authority to search and seize property, is not knowing, intelligent, and voluntary consent under the 4th amendment. When officers offered the defendant a fleeting glimpse of a subpoena signed by a judge, they suggested authority they did not possess that led the defendant to believe he could not refuse consent for the officers to search his room and seize his computer. State v. Giebel, 2006 WI App 239, 297 Wis. 2d 446, 724 N.W.2d 402, 06-0189.
The holding of Jones, 2005 WI App 26, is inapplicable to consent to the search of a vehicle made after the defendant had been lawfully seized. State v. Hartwig, 2007 WI App 160, 302 Wis. 2d 678, 735 N.W.2d 597, 06-2804.
The holding of Angelia D.B. that searches on school grounds must be supported by reasonable suspicion extends to searches in school parking lots. A school search is legal when it satisfies a 2-prong test: 1) the search must be justified at its inception, and 2) reasonably related in scope to the circumstances which justified the interference in the first place. A school official has the responsibility to keep students safe on school grounds. The search here was justified at its inception because school officials were put on alert that the defendant was in possession of drugs that day and school officials must act on such a tip. When searches of the defendant's person, backpack, and locker were cleared, the search was reasonable in scope when the next step for school officials was to search the defendant's car. State v. Schloegel, 2009 WI App 85, 319 Wis. 2d 741, 769 N.W.2d 130, 08-1310.
The defendant in this case did not have a legitimate expectation of privacy in a package intercepted by a delivery service and later searched. While the expectation of privacy when using an alias to send or receive mail is something society may accept as reasonable, the coupling of a false name and a false address, along with an unknown sender and a statement by the defendant that the package belonged to someone else did not demonstrate that the defendant had a reasonable expectation of privacy in the package. State v. Earl, 2009 WI App 99, 320 Wis. 2d 639, 770 N.W.2d 755, 08-1580.
In considering the totality of the circumstances surrounding whether consent was given voluntarily the court considered: 1) whether the police used deception, trickery, or misrepresentation; 2) whether the police threatened or physically intimidated the defendant or punished him or her by the deprivation of something like food or sleep; 3) whether the conditions attending the request to search were congenial, non-threatening, and cooperative, or the opposite; (4) how the defendant responded to the request to search; (5) what characteristics the defendant had as to age, intelligence, education, physical and emotional condition, and prior experience with the police; and (6) whether the police informed the defendant that he or she could refuse consent. State v. Artic, 2010 WI 83, ___ Wis. 2d___, ___ N.W.2d ___, 08-0880.
Threatening to obtain a search warrant does not vitiate consent if "the expressed intention to obtain a warrant is genuine and not merely a pretext to induce submission. State v. Artic, 2010 WI 83, ___ Wis. 2d___, ___ N.W.2d ___, 08-0880.
Voluntary consent is less likely when the defendant answers the door to find officers with guns drawn. However, the fact that an officer has a weapon drawn at the beginning of an encounter does not prevent the situation from evolving into something non-threatening and relatively congenial. State v. Artic, 2010 WI 83, ___ Wis. 2d___, ___ N.W.2d ___, 08-0880.
A defendant's consent to a search obtained following illegal police activity may be admissible. The court must consider the temporal proximity of the misconduct to the statements by the defendant, the presence of intervening circumstances, and the purpose and flagrancy of the misconduct. Circumstances may mitigate a short time span including congenial conditions. Meaningful intervening circumstances concerns whether the defendant acted of free will unaffected by the initial illegality. Purposefulness and flagrancy of the police conduct is particularly important because it goes to the heart of the exclusionary rule's objective of deterring unlawful police conduct. State v. Artic, 2010 WI 83, ___ Wis. 2d___, ___ N.W.2d ___, 08-0880.
Passengers had no "legitimate expectation of privacy" in the glove box or under the seat of a car. Rakas v. Illinois, 439 U.S. 128 (1978).
A court may not suppress otherwise admissible evidence on the ground that it was seized unlawfully from a 3rd party not before court. United States v. Payner, 447 U.S. 727 (1980).
Defendants charged with crimes of possession may only claim benefits of the exclusionary rule if their own 4th-amendment rights have in fact been violated. United States v. Salvucci, 448 U.S. 83 (1980).
When police entered a 3rd party's house to execute an arrest warrant, evidence discovered during the search was inadmissible. Steagald v. United States, 451 U.S. 204 (1981).
A prisoner has no constitutionally protected reasonable expectation of privacy in his or her cell. Hudson v. Palmer, 468 U.S. 517 (1984).
The state need not prove that the defendant consenting to search knew of the right to withhold consent. Florida v. Rodriguez, 469 U.S. 1 (1984).
A warrantless entry to premises is permitted under the 4th amendment when entry is based upon 3rd-party consent and officers reasonably believed the3rd party possessed authority to consent. Illinois v. Rodriguez, 497 U.S. 177, 111 L. Ed. 2d 148 (1990).
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).
A defendant can urge suppression of evidence obtained in violation of constitutional protections only if that defendant's rights were violated. U.S. v. Padilla, 508 U.S. 954, 123 L. Ed. 2d 635 (1993).
The 4th amendment does not require that a seized person must be advised that he is free to go before his consent to a search can be recognized as voluntary. Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347 (1996).
A physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant. If a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out. Georgia v. Randolph, 547 U.S. 103, 164 L. Ed. 2d 208, 126 S. Ct. 1515 (2006).
When a police officer makes a traffic stop, the driver of the car and its passengers are seized within the meaning of the 4th amendment and so may challenge the constitutionality of the stop. Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).
As a matter of federal law, an appellant cannot assert an alleged violation of his wife's 4th-amendment rights as a basis for suppression, at his trial, of evidence taken from his wife. Mabra v. Gray, 518 F.2d 512.
Zurcher: third party searches and freedom of the press. Cantrell. 62 MLR 35 (1978).
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.
State v. Stevens: Consent by deception in the context of garbage searches. 1987 WLR 191.
PROBABLE CAUSE AND WARRANTS
Probable cause meeting constitutional requirements for issuance of the search warrant of defendant's premises was not established by testimony of a police officer that a youth found in possession of amphetamines informed the officer that a shipment of marijuana was being delivered to the defendant's premises, when it was established that the officer had had no previous dealings with the informant and could not personally attest to the informant's reliability. The warrant was invalid. State ex rel. Furlong v. Waukesha County Court, 47 Wis. 2d 515, 177 N.W.2d 333.
Probable cause for arrest without a warrant under the 4th amendment of the U.S. constitution is applicable in this state. Tests for probable cause are discussed. A citizen informer is not subject to the requirement that the officer show prior reliability of his informant. State v. Paszek, 50 Wis. 2d 619, 184 N.W.2d 836.
Probable cause must exist prior to a search of body orifices. State v. Guy, 55 Wis. 2d 83, 197 N.W.2d 774.
An affidavit reciting that a reliable informant had reported seeing a large quantity of heroin in defendant's apartment was sufficient to support a search warrant. State v. Mansfield, 55 Wis. 2d 274, 198 N.W.2d 634.
Unauthorized out-of-court disclosures of private marital communications may not be used in a proceeding to obtain a search warrant. Muetze v. State, 73 Wis. 2d 117, 243 N.W.2d 393.
A search warrant designating an entire farmhouse occupied by the accused and "other persons unknown" was not invalid despite the multiple occupancy. State v. Suits, 73 Wis. 2d 352, 243 N.W.2d 206.
A warrant authorizing the search of the "entire first-floor premises" encompassed a balcony room that was part and parcel of first floor. Rainey v. State, 74 Wis. 2d 189, 246 N.W.2d 529.
A search warrant obtained on an affidavit containing misrepresentations by a police officer as to the reliability of an unnamed informant is invalid. When the search was conducted within a reasonable time following an arrest based on probable cause, the search will be sustained even though it was conducted in execution of invalid warrant. Schmidt v. State, 77 Wis. 2d 370, 253 N.W.2d 204.
Affidavits for search warrants need not be drafted with technical specificity nor demonstrate the quantum of probable cause required in a preliminary examination. The usual inferences that reasonable persons draw from evidence are permissible, and doubtful or marginal cases should be resolved by the preference to be accorded to warrants. State v. Starke, 81 Wis. 2d 399, 260 N.W.2d 739.
Probable cause for arrest on a charge of homicide by intoxicated use of a motor vehicle justified taking a blood sample without a search warrant or arrest. State v. Bentley, 92 Wis. 2d 860, 286 N.W.2d 153 (Ct. App. 1979).
A defect in a portion of a search warrant did not invalidate the entire search warrant. State v. Noll, 116 Wis. 2d 443, 343 N.W.2d 391 (1984).
A "no knock" warrant to search a drug dealer's house was invalid because of a lack of specific information to indicate the evidence would be destroyed otherwise. State v. Cleveland, 118 Wis. 2d 615, 348 N.W.2d 512 (1984).
At a "Franks hearing" challenging the veracity of a statement supporting a search warrant, the defendant must prove that a falsehood was intentional or with reckless disregard for truth and that the false statement was necessary to finding probable cause. State v. Anderson, 138 Wis. 2d 451, 406 N.W.2d 398 (1987).
Under the "independent source doctrine" the court examines whether an agent would have sought a warrant had it not been for an illegal entry, and if information obtained during the entry affected the decision to issue the warrant. State v. Lange, 158 Wis. 2d 609, 463 N.W.2d 390 (Ct. App. 1990).
A status check of a driver's license arising out of police exercise of the community care-taker function is not a stop and does not require reasonable suspicion of a crime. State v. Ellenbecker, 159 Wis. 2d 91, 464 N.W.2d 427 (Ct. App. 1990).
Seizure of a package delivered to a 3rd party for limited investigative detention requires reasonable suspicion, not probable cause. State v. Gordon, 159 Wis. 2d 335, 464 N.W.2d 91 (Ct. App. 1990).
An evidentiary search of a person not named in a search warrant but present during the search of a residence reasonably suspected of being a drug house was reasonable. State v. Jeter, 160 Wis. 2d 333, 466 N.W.2d 211 (Ct. App. 1991).
A probable cause determination in the face of a staleness challenge depends upon the nature of the underlying circumstances, whether the activity is of a protracted or continuous nature, the nature of the criminal activity under investigation, and the nature of what is being sought. State v. Ehnert, 160 Wis. 2d 464, 466 N.W.2d 237 (Ct. App. 1991).
A warrant for the seizure of film authorized the seizure, removal, and development of the undeveloped film. State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d 676 (1991).
Knowledge that a dealer operating an ongoing drug business was armed in his residence satisfied the requirements for a "no knock" search. A reasonable belief that the weapon will be used need not be shown. State v. Watkinson, 161 Wis. 2d 750, 468 N.W.2d 763 (Ct. App. 1991), State v. Williams, 168 Wis. 2d 970, 485 N.W.2d 42 (1992).
A warrantless search of an apartment for evidence of occupancy when the police reasonably believed that the tenant had vacated and the occupants were not legitimately on the premises was not unreasonable. The defendant had no reasonable expectation of privacy in the apartment or in property kept there. State v. Whitrock, 161 Wis. 2d 960, 468 N.W.2d 696 (1991).
An informant need not have a "track record" established with the police if the totality of the circumstances indicate probable cause for a search exists. State v. Hanson, 163 Wis. 2d 420, 471 N.W.2d 301 (Ct. App. 1991).
The severability rule under Noll applies when the description of the premises to be searched is overly broad. State v. Marten, 165 Wis. 2d 70, 477 N.W.2d 304 (Ct. App. 1991).
If old information contributes to an inference that probable cause exists at the time of the application for a warrant, its age is no taint. State v. Moley, 171 Wis. 2d 207, 490 N.W.2d 764 (Ct. App. 1992).
Police serving a warrant are not required to ring a doorbell before forcing entry. State v. Greene, 172 Wis. 2d 43, 491 N.W.2d 181 (Ct. App. 1992).
Use of a ruse to gain entry in the execution of warrant when "no-knock" was not authorized did not violate the announcement rule. Special authorization is not required for the use of a ruse. State v. Moss, 172 Wis. 2d 110, 492 N.W.2d 627 (1992).
Failure to comply with the announcement rule was allowable when officers reasonably believed further announcement was futile. State v. Berry, 174 Wis. 2d 28, 496 N.W.2d 746 (Ct. App. 1993).
Compliance with the announcement rule must be determined at time of execution. While advance request for "no-knock" authority is preferable if police at the time of execution have grounds, failure to seek authorization is not fatal. State v. Kerr, 174 Wis. 2d 55, 496 N.W.2d 742 (Ct. App. 1993).
The incorrect identification of a building's address in the warrant did not render the resulting search unreasonable when the search made was of the building identified by the informant, which was otherwise correctly identified in the warrant. State v. Nicholson, 174 Wis. 2d 542, 497 N.W.2d 791 (Ct. App. 1993).
A federal magistrate's decision at a 4th amendment suppression hearing was not binding on a state trial court when the state was not a party nor in privity with a party to the federal action and the federal case did not review errors in the proceeding. State v. Mechtel, 176 Wis. 2d 87, 499 N.W.2d 662 (1993).
An investigatory stop of an automobile based solely on the fact that the vehicle bore "license applied for" plates, and the reasonable inferences that could be drawn therefrom, was justified by reasonable suspicion. State v. Griffin, 183 Wis. 2d 327, 515 N.W.2d 535 (Ct. App. 1994).
For a violation of the requirement that a warrant be issued by a neutral and detached magistrate, actual bias and not the appearance of bias must be shown. State v. McBride, 187 Wis. 2d 408, 523 N.W.2d 106 (Ct. App. 1994).
An "anticipatory warrant" issued before the necessary events have occurred that will allow a constitutional search, is subject to the same probable cause determination as a conventional search warrant. State v. Falbo, 190 Wis. 2d 328, 526 N.W.2d 814 (Ct. App. 1994).
That a person was a passenger in a vehicle in which cocaine was found in the trunk was not of itself sufficient to establish probable cause to arrest the person for being a part of a conspiracy to possess or sell the cocaine. State v. Riddle, 192 Wis. 2d 470, 531 N.W.2d 408 (Ct. App. 1995).
A search warrant authorizing the search of certain premises and "all occupants" was not unconstitutional where there was probable cause to believe that persons on the premises were engaged in illegal activities. State v. Hayes, 196 Wis. 2d 753, 540 N.W.2d 1 (Ct. App. 1995), 94-3040.
A request to perform field sobriety tests does not convert an otherwise lawful investigatory stop into an arrest requiring probable cause. County of Dane v. Campshure, 204 Wis. 2d 27, 552 N.W.2d 876 (Ct. App. 1996), 96-0474.
Probable cause is not required to justify a search conducted on school grounds by a police officer at the request of and in conjunction with with school authorities. A lesser "reasonable grounds" standard applies. State v. Angelia D.B. 211 Wis. 2d 140, 564 N.W.2d 682 (1997), 95-3104.
A suspect's seeming reluctance to have the front of his boxer shorts patted at or below the waist did not give rise to probable cause to search inside the shorts when no specific suspicion of a crime was focused on the suspect and no weapon or contraband had been plainly felt in a Terry pat down search. State v. Ford, 211 Wis. 2d 741, 565 N.W.2d 286 (Ct. App. 1997), 96-2826.
It is not necessary that a warrant explicitly state that delivery of the sought after contraband must take place before the search is initiated when the requirement is sufficiently implied. It is not necessary to describe in the affidavit in support of the warrant the exact role the police will play in delivering the contraband. State v. Ruiz, 213 Wis. 2d 200, 570 N.W.2d 556 (Ct. App. 1997), 96-1610.
A no-knock search cannot be founded on generalized knowledge. Fruits of an invalid no-knock search must be suppressed. State v. Stevens, 213 Wis. 2d 324, 570 N.W.2d 593 (Ct. App. 1997), 97-0758.
The showing required to sustain an unannounced entry parallels the reasonable suspicion standard for justifying investigative stops. The police must have reasonable suspicions based on specific articulable facts that announcing their presence will endanger safety or present an opportunity to destroy evidence. State v. Larson, 215 Wis. 2d 155, 572 N.W.2d 127 (Ct. App. 1997), 95-1940.
There is no constitutional requirement that an anticipatory search warrant contain explicit conditional language limiting the execution of the warrant until after delivery of the contraband. State v. Meyer, 216 Wis. 2d 729, 576 N.W.2d 260 (1998), 96-2243.
To dispense with the rule of announcement in executing a warrant, particular facts must be shown in each case that support an officer's reasonable suspicion that exigent circumstances exist. An officer's experience and training are valid relevant considerations. State v. Meyer, 216 Wis. 2d 729, 576 N.W.2d 260 (1998), 96-2243.
Police are not prevented from ever using evidence gleaned from an illegal search in a subsequent and independent investigation. When the later investigation is not prompted by the information obtained in the earlier search, the information may be used. State v. Simmons, 220 Wis. 2d 775, 585 N.W.2d 165 (Ct. App. 1998), 97-1861.
The odor of a controlled substance provides probable cause to arrest when the odor is unmistakable and may be linked to a specific person under the circumstances of the discovery of the odor. The odor of marijuana emanating from a vehicle established probable cause to arrest the sole occupant of the vehicle. State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999), 97-2476.
Police have authority under a valid search warrant to enter unoccupied premises if the search is otherwise reasonable under the circumstances. Knocking and announcing is not required. State v. Moslavac, 230 Wis. 2d 338, 602 N.W.2d 150 (Ct. App. 1999), 98-3037.
"Probable cause to believe" does not refer to a uniform degree of proof, but instead varies in degree at different stages of the proceedings. County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999), 97-3512.
The test for finding probable cause to issue a warrant is not whether the inference drawn from the supporting affidavit is the only reasonable inference. The test is whether the inference drawn is a reasonable one. State v. Ward, 2000 WI 3, 231 Wis. 2d 723, 604 N.W.2d 517, 97-2008.
