The use of a police dog to sniff an automobile parked in a motel parking did not constitute a search. There is no legitimate expectation of privacy in the air space around a car in a motel parking lot. State v. Garcia,
195 Wis. 2d 68,
535 N.W.2d 124 (Ct. App. 1995),
94-2573.
Although a vehicle had been improperly seized, evidence obtained in a later search of the vehicle under a warrant that was not based on information gathered from the illegal seizure was not subject to suppression. State v. Gaines,
197 Wis. 2d 102,
539 N.W.2d 723 (Ct. App. 1995),
94-1225.
When executing a search warrant on private premises, the belongings of a visitor on the premises that are plausible repositories for the objects of the search, except those worn by or in the physical possession of persons whose search is not authorized by the warrant, may be searched. State v. Andrews,
201 Wis. 2d 383,
549 N.W.2d 210 (1996),
94-1888.
Presence in a high drug-trafficking area, a brief meeting of individuals on a sidewalk in the afternoon, and the officer's experience that drug transactions that take place in that neighborhood involve brief meetings on the street, without more, is not particularized suspicion justifying an investigative stop. State v. Young,
212 Wis. 2d 417,
569 N.W.2d 84 (Ct. App. 1997),
97-0034.
A prison inmate does not possess a reasonable expectation of privacy in his body that permits a 4th-amendment challenge to strip searches. Prisoners convicted of crimes are protected from cruel and unusual treatment that prohibits prison officials from utilizing strip searches to punish, harass, humiliate, or intimidate inmates regardless of their status in the institution. Al Ghashhiyah v. McCaughtry,
230 Wis. 2d 587,
602 N.W.2d 307 (Ct. App. 1999),
98-3020.
Police failure to comply with the rule of announcement in violation of the 4th amendment and Art. I, s. 11, did not require suppression of the evidence seized when the officers relied, in objective good faith, upon the pronouncements of the Wisconsin Supreme Court, as no remedial purpose would be served. State v. Ward,
2000 WI 3,
231 Wis. 2d 723,
604 N.W.2d 517,
97-2008.
A curtilage determination is a question of constitutional fact subject to a 2-step review. The findings of evidentiary or historical fact are reviewed for clear error to determine if they are contrary to the great weight and clear preponderance of the evidence. The ultimate determination of constitutional fact is reviewed
de novo. State v. Martwick,
2000 WI 5,
231 Wis. 2d 801,
604 N.W.2d 552,
98-0101.
Generally a premises warrant authorizes the search of all items that are plausible receptacles of the objects of the search. When currency was an object, looking through documents for hidden currency was appropriate. When the incriminating nature of the document was apparent upon brief perusal, its seizure was justified under the plain view doctrine. State v. Oswald,
2000 WI App 3,
232 Wis. 2d 103,
606 N.W.2d 238,
97-1219.
When a person turns material over to a 3rd party, the person who turned over the material has no 4th-amendment protection if the 3rd party reveals or conveys the material to governmental authorities, whether or not the person who turned over the material had a subjective belief that the 3rd party would not betray him or her. State v. Knight,
2000 WI 16,
232 Wis. 2d 305,
605 N.W.2d 291,
99-0368.
While the subtleties of police practice in some cases necessitate an expert witness, there is no per se requirement that there be expert testimony to prove an excessive use of force claim. Robinson v. City of West Allis,
2000 WI 126,
239 Wis. 2d 595,
619 N.W.2d 692,
98-1211.
What a person knowingly exposes to the public is not subject to 4th-amendment protection. An inner tube rental and campground business did not have a reasonable expectation of privacy in areas open to the public. Float-Rite Park, Inc. v. Village of Somerset,
2001 WI App 113,
244 Wis. 2d 34,
629 N.W.2d 818,
00-1610.
An individual does not have a reasonable expectation of privacy in a public restroom stall when he or she occupies it with another individual, leaves the door slightly ajar, and evinces no indication that the stall is being used for its intended purpose. State v. Orta,
2003 WI App 93,
264 Wis. 2d 765,
663 N.W.2d 358,
02-1008.
The first sentence of this section is a statement of purpose that describes the policies to be promoted by the state and does not create an enforceable, self-executing right. Schilling v. Wisconsin Crime Victims Rights Board,
2005 WI 17,
278 Wis. 2d 216,
692 N.W.2d 623,
03-1855.
Although defendant's initial trip to the police station was consensual, when the defendant was left in a locked room for 5 hours, he was seized within the meaning of the 4th amendment. Under these circumstances, a reasonable person would not have believed that he was free to leave. Defendant's post-
Miranda confession, offered within 5 minutes of the officers' first questions to the defendant after 5 hours of isolation, was insufficiently attenuated from the illegal seizure and should have been suppressed. State v. Farias-Mendoza,
2006 WI App 134,
294 Wis. 2d 726,
720 N.W.2d 489,
05-0365.
For a search to be a private action not covered by the 4th amendment: 1) the police may not initiate, encourage, or participate in a private entity's search; 2) the private entity must engage in the activity to further its own ends or purpose; and 3) the private entity must not conduct the search for the purpose of assisting governmental efforts. A search may be deemed a government search when it is a “joint endeavor" between private and government actors. Once the state raises the issue, asserting that a search is a private search, the defendant has the burden of proving by a preponderance of the evidence that government involvement in a search or seizure brought it within the protections of the 4th amendment. State v. Payano-Roman,
2006 WI 47,
290 Wis. 2d 380,
714 N.W.2d 548,
04-1029
A premises warrant generally authorizes the search of all items on the premises so long as those items are plausible receptacles of the objects of the search. A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. State v. LaCount,
2008 WI 59,
310 Wis. 2d 85,
750 N.W.2d 780,
06-0672.
What a person knowingly exposes to the public, even in his or her own home or office, is not a subject of 4th amendment protection. When affidavits were left unattended in a public hallway frequented by hundreds, there was no illegal search when a court commissioner picked up and looked at or photocopied the affidavits. State v. Russ,
2009 WI App 68,
317 Wis. 2d 764,
767 N.W.2d 629,
08-1641.
The good faith exception precludes application of the exclusionary rule where officers conduct a search in objectively reasonable reliance upon clear and settled Wisconsin precedent that is later deemed unconstitutional by the United States Supreme Court. State v. Dearborn,
2010 WI 84,
327 Wis. 2d 252;
786 N.W.2d 97,
07-1894.
It is a violation of the defendant's right to due process for a prosecutor to comment on a defendant's failure to consent to a warrantless search. It has long been a tenet of federal jurisprudence that a defendant's invocation of a constitutional right cannot be used to imply guilt. State v. Banks,
2010 WI App 107,
328 Wis. 2d 766,
790 N.W.2d 526,
09-1436.
Even if police use excessive force in making an arrest a defendant's remedy is a suit for damages rather than exclusion of the evidence in the defendant's criminal trial. For evidence to be suppressed there must be a causal relationship between the alleged use of unreasonable force and the evidence sought to be suppressed. State v. Herr,
2013 WI App 37,
346 Wis. 2d 603,
828 N.W.2d 896,
12-0935.
Requiring the state in all inevitable discovery doctrine cases to prove active pursuit of an alternative line of investigation at the time of the constitutional violation risks exclusion of evidence that the state might demonstrate that it inevitably would have discovered. Therefore, the factors in
Schwegler,
170 Wis. 2d 487,
Lopez,
207 Wis. 2d 413, and
Avery,
2011 WI App 124, should be regarded as important indicia of inevitability rather than indispensable elements of proof. Instead, the relevant inquiry is whether the prosecution has met its burden of proving by a preponderance of the evidence that it inevitably would have discovered the evidence sought to be suppressed. State v. Jackson,
2016 WI 56,
369 Wis. 2d 673,
882 N.W.2d 422,
14-2238.
Arson investigations under s. 165.55 (9) and (10) are subject to search warrant requirements set forth in
Michigan v. Tyler,
436 U.S. 499 (1978). Consent to search discussed. 68 Atty. Gen. 225.
In-custody statements stemming from an illegal arrest are not admissible merely because
Miranda warnings were given. Brown v. Illinois,
422 U.S. 590.
Bank records are not private papers protected by a legitimate “expectation of privacy." United States v. Miller,
425 U.S. 435.
Standard procedure inventorying of any container impounded by police is a reasonable search. South Dakota v. Opperman,
428 U.S. 364.
Standards for application of exclusionary rule to live-witness testimony are discussed. United States v. Ceccolini,
435 U.S. 268 (1978).
A newspaper office may be searched for evidence of a crime even though the newspaper is not suspected of a crime. Zurcher v. Stanford Daily,
436 U.S. 547 (1978).
Stopping a car for no other reason than to check the license and registration was unreasonable under the 4th amendment. Delaware v. Prouse,
440 U.S. 648 (1979).
In-court identification of the accused was not suppressed as the fruit of an unlawful arrest. United States v. Crews,
445 U.S. 463 (1980).
A person has been seized within the meaning of the 4th amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave. United States v. Mendenhall,
446 U.S. 544 (1980).
Illegally seized evidence was properly admitted to impeach the defendant's false trial testimony, given in response to proper cross-examination, when the evidence did not squarely contradict the defendant's testimony on direct examination. United States v. Havens,
446 U.S. 620 (1980).
Arcane concepts of property law do not control the ability to claim 4th amendment protections. Rawlings v. Kentucky,
448 U.S. 98 (1980).
Resemblance to a “drug courier profile" was an insufficient basis for seizure. Reid v. Georgia,
448 U.S. 438 (1980).
Objective facts and circumstantial evidence justified an investigative stop of a smuggler's vehicle. United States v. Cortez,
449 U.S. 411 (1981).
A warrant to search premises for contraband implicitly carries with it limited authority to detain occupants during a search. Michigan v. Summers,
452 U.S. 692 (1981).
The automobile exception does not extend to a closed, opaque container located in the luggage compartment. Robbins v. California,
453 U.S. 420 (1981).
Police placement of a beeper in a container of precursor chemical used to manufacture an illicit drug and the subsequent surveillance of the defendant's car by monitoring beeper transmissions was not prohibited by the 4th amendment. U.S. v. Knotts,
460 U.S. 276 (1983).
The detention and interrogation of an airline passenger fitting a “drug courier profile" was unconstitutional. Florida v. Royer,
460 U.S. 491 (1983).
Under the “independent source" doctrine, evidence discovered during a valid search was admissible regardless of whether initial entry was illegal. Segura v. U.S.
468 U.S. 796 (1984).
The “good faith" exception to the exclusionary rule allowed the admission of evidence obtained by officers acting in objectively reasonable reliance on a search warrant, issued by a detached and neutral magistrate, later found to be unsupported by probable cause. U.S. v. Leon,
468 U.S. 897 (1984).
The “good faith" exception to the exclusionary rule is discussed. Massachusetts v. Sheppard,
468 U.S. 981 (1984).
If a “wanted flyer" has been issued on the basis of articulable facts supporting reasonable suspicion that a wanted person has committed a crime, other officers may rely on the flyer to stop and question that person. United States v. Hensley,
469 U.S. 221 (1985).
In assessing whether detention is too long to be justified as an investigative stop, it is appropriate to examine whether the police diligently pursued a means of investigation likely to quickly confirm or dispel their suspicions. United States v. Sharpe,
470 U.S. 675 (1985).
Proposed surgery under general anesthetic to recover a bullet from an accused robber's body was an unreasonable search. Winston v. Lee,
470 U.S. 753 (1985).
Fingerprints were not admissible when the police transported the suspect to a station house for fingerprinting without consent, probable cause, or prior judicial authorization. Hayes v. Florida,
470 U.S. 811 (1985).
Apprehension by the use of deadly force is a seizure subject to the reasonableness requirement. Tennessee v. Garner,
471 U.S. 1 (1985).
When an officer stopped a car for traffic violations and reached into the car to move papers obscuring the vehicle ID number, discovered evidence was admissible. New York v. Class,
475 U.S. 106 (1986).
The reasonable expectation of privacy was not violated when police, acting on an anonymous tip, flew over the defendant's enclosed backyard and observed marijuana plants. California v. Ciraolo,
476 U.S. 207 (1986).
Defendants have no reasonable privacy interest in trash left on a curb for pick-up. Therefore, a warrantless search is not prohibited under federal law. California v. Greenwood,
486 U.S. 35 (1988).
The impeachment exception to the exclusionary rule does not extend to the use of illegally obtained evidence to impeach testimony of defense witnesses other than the defendant. James v. Illinois,
493 U.S. 307,
107 L. Ed. 2d 676 (1990).
For a seizure of a person to occur there must either be an application of force, however slight, or when force is absent, submission to an officer's “show of authority." California v. Hodari D.
499 U.S. 279, 113 L. Ed. 690 (1991).
When an officer has no articulable suspicion regarding a person, but requests that person to allow the search of his luggage, there is no seizure of the person if a reasonable person would feel free to decline the officer's request or end the encounter. Florida v. Bostick,
501 U.S. 429,
115 L. Ed. 2d 389 (1991).
Fourth-amendment protections against unreasonable searches and seizures extend to civil matters. The illegal eviction of a trailer home from a private park with deputy sheriffs present to prevent interference was an unconstitutional seizure of property. Soldal v. Cook County,
506 U.S. 56,
121 L. Ed. 2d 450 (1992).
Whether police must “knock and announce" prior to entering a residence in executing a warrant is part of the reasonableness inquiry under the 4th amendment. Wilson v. Arkansas,
514 U.S. 927,
131 L. Ed. 2d 976 (1995).
Public school students are granted lesser privacy protections than adults, and student athletes even less. Mandatory drug testing of student athletes did not violate the constitutional protection against unreasonable searches and seizures. School Dist. 475 v. Acton,
515 U.S. 646,
132 L. Ed. 2d 564 (1995).
It is a violation of the 4th amendment for police to bring members of the media or other 3rd persons into a home during the execution of a warrant when the presence of the 3rd persons in the home is not in aid of the execution of the warrant. Wilson v. Layne,
526 U.S. 603,
143 L. Ed. 2d 818 (1999).
Inherent in
Summers' authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention. Use of force in the form of handcuffs to effectuate detention in the garage outside the house being searched was reasonable when the governmental interests outweighed the marginal intrusion. Muehler v. Mena,
544 U.S. 93,
161 L. Ed. 2d 299,
125 S. Ct. 1465 (2004).
A claim of excessive force in the course of making a seizure of the person is properly analyzed under the 4th amendment's objective reasonableness standard. A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the 4th amendment, even when it places the fleeing motorist at risk of serious injury or death. Scott v. Harris,
550 U.S. 372,
167 L. Ed. 2d 686,
127 S. Ct. 1769 (2007).
To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter the conduct, and sufficiently culpable that such deterrence is worth the price paid by the justice system. The exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. When police mistakes are the result of negligence, such as here when a cancelled warrant was not removed from a database, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not pay its way. Herring v. United States,
555 U.S. 135,
129 S. Ct. 695,
172 L. Ed. 2d 496 (2009).
When officers make an arrest supported by probable cause for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the 4th amendment. In the context of a valid arrest supported by probable cause, the arrestee's expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks for DNA. That same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations, DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. Maryland v. King, 569 U.S. ___,
133 S. Ct. 1236 185 L. Ed. 2d 171, (2013).
The objective reasonableness of a particular seizure under the 4th amendment requires a careful balancing of the nature and quality of the intrusion on the individual's 4th amendment interests against the countervailing governmental interests at stake analyzed from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. If police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended. Plumhoff v. Rickard, 572 U. S. ___ ,
134 S. Ct. 2012,
188 L. Ed. 2d 1056 (2014).
Facial challenges to statutes authorizing warrantless searches under the 4th amendment are not categorically barred or especially disfavored. A facial challenge is an attack on a statute itself as opposed to a particular application. While such challenges are the most difficult to mount successfully, the Supreme Court has never held that these claims cannot be brought under any otherwise enforceable provision of the Constitution. Los Angeles v. Patel, 576 U. S. ___ (2015)
Search regimes where no warrant is ever required may be reasonable when special needs make the warrant and probable cause requirement impracticable, and when the primary purpose of the searches is distinguishable from the general interest in crime control. The Supreme Court has referred to this kind of search as an administrative search. In order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker. Los Angeles v. Patel, 576 U. S. ___ (2015)
The “reasonableness" of the investigative detention: An “ad hoc" constitutional test. Wiseman. 67 MLR 641 (1984).
The exclusionary rule and the 1983-1984 term. Gammon. 68 MLR 1 (1984).
The constitutionality of the canine sniff search: From Katz to dogs. Fitzgerald. 68 MLR 57 (1984).
Analyzing the reasonableness of bodily intrusions. Sarnacki. 68 MLR 130 (1984).
The good faith exception to the exclusionary rule: The latest example of “new federalism" in the states. 71 MLR 166 (1987).
Search and seizure — abandonment. 1974 WLR 212.
Terry revisited: Critical update on recent stop-and-frisk developments. 1977 WLR 877.
The future of the exclusionary rule and the development of state constitutional law. 1987 WLR 377.
The good-faith exception to the exclusionary rule. Wiseman. WBB Aug. 1986.
Search and Seizure of Computer Data. McChrystal, Gleisner, Kuborn. Wis. Law. Dec. 1998.
DNA Extraction on Arrest: Maryland v. King and Wisconsin's New Extraction Law. Dupuis. Wis. Law. Sept. 2013.
CONSENT AND STANDING
The fact that consent to the search of a car was given while the defendant was in custody does not establish involuntariness. It was not improper for the police to tell the defendant that if a search did not produce stolen goods he would be released. Gautreaux v. State,
52 Wis. 2d 489,
190 N.W.2d 542.
When police opened a package in the possession of an express company without a warrant or the consent of the addressee, persons later arrested in possession of the package, other than the addressee, had no standing to challenge the evidence on the ground of illegal search. Defendants would have to establish a possessory interest in the package at the time of the search. State v. Christel,
61 Wis. 2d 143,
211 N.W.2d 801.
The defendant was qualified to challenge the admissibility of evidence taken from his wife, when he and his wife were in each other's presence when arrested for the same crime, a search of her person at that time would have been at a place where the defendant had a legitimate right to be; the object of the search, incident to the arrest for robbery could only be for weapons and incriminating evidence against him and his wife; and this situation carried over into a custodial search of the wife which was thereafter conducted at the police station where the search occurred. State v. Mabra,
61 Wis. 2d 613,
213 N.W.2d 545.
Sons of a murdered property owner did not, as such, have authority to consent to a search of the premises. Kelly v. State,
75 Wis. 2d 303,
249 N.W.2d 800.
A person living in a tent in the yard of a house had no authority to grant consent to a warrantless search of the house. A police officer's observation through a window of a cigarette being passed in the house did not constitute probable cause for a warrantless search of the house for marijuana. The “plain view" doctrine discussed. State v. McGovern,
77 Wis. 2d 203,
252 N.W.2d 365.
An estranged wife had no authority to consent to the warrantless search of property she owned jointly with her defendant husband but did not occupy at that time. State v. Verhagen,
86 Wis. 2d 262,
272 N.W.2d 105 (Ct. App. 1978).
The boyfriend of an apartment lessee who paid no rent or expenses and whose access to the apartment was at the whim of the lessee did not have even a limited reasonable expectation of privacy in the premises when away form the premises. State v. Fillyaw,
104 Wis. 2d 700,
312 N.W.2d 795 (1981).
The impoundment and subsequent warrantless inventory search of car, including a locked glove box, were not unconstitutional. Automatic standing is discussed. State v. Callaway,
106 Wis. 2d 503,
317 N.W.2d 428 (1982).
