An entry into a home was illegal when police, after seizing contraband from the defendant and seeing others on cell phones, acted on a hunch that someone would destroy evidence at the defendant's residence and entered the residence without a warrant upon the silence of the defendant's elderly mother and made a protective sweep without seizing any contraband. However, the illegality was attenuated by knowledge that contraband was seized after two hours had passed from the entry, no search for contraband took place during the entry, and the eventual search of the residence was pursuant to a valid search warrant. State v. Rogers,
2008 WI App 176,
315 Wis. 2d 60,
762 N.W.2d 795,
07-1850.
Government involvement in a search is not measured by the primary occupation of the actor, but by the capacity in which the actor acts at the time in question. An off-duty officer acting in a private capacity in making a search does not implicate the 4th amendment. When an officer opened mail that contained evidence of criminal activity that was incorrectly addressed to a person other than herself at her home address, her action was that of a private citizen. State v. Cole,
2008 WI App 178,
315 Wis. 2d 75,
762 N.W.2d 711,
07-2472.
Based on the reasoning in
Pallone and under the facts of this case, the police could search the personal belongings of a passenger that were found outside a motor vehicle incident to the arrest of the driver
. State v. Denk,
2008 WI 130,
315 Wis. 2d 5,
758 N.W.2d 775,
06-1744.
A security guard's seizure, detention, and search of the defendant was not a government action that permitted the invocation of the exclusionary rule, because unless state action is involved, a defendant detained by another citizen has no right to suppress the fruits of the citizen's search. Although a citizen may detain another citizen for a misdemeanor committed in the citizen's presence and amounting to a breach of the peace, the court left for another day whether a citizen is privileged to detain another whom he or she sees breaching the peace by doing something that is not a crime, but an offense subject to a forfeiture. State v. Butler,
2009 WI App 52,
317 Wis. 2d 515,
768 N.W.2d 46,
08-1178.
During a traffic stop, a police officer may make inquiries to obtain information confirming or dispelling the officer's suspicions concerning weapons or other dangerous articles. The response that a person provides to an officer's inquiry, including the absence of or refusal to provide a response, may provide information that is relevant to whether a protective search is reasonable, and is therefore a factor to be considered alongside other factors that together comprise the totality of the circumstances. In this case, failure to provide an explanation effectively transformed what the defendant maintains was an innocent movement into a specific, articulable fact supporting a reasonable suspicion that the defendant posed a threat to the officers' safety. State v. Bridges,
2009 WI App 66,
319 Wis. 2d 217,
767 N.W.2d 593,
08-1207.
When officers found themselves in the middle of an unstable situation — having to decide whether to stand guard over the open door to an apartment potentially occupied by armed individuals prepared to attack them while they took the time necessary to obtain a warrant, or instead to retreat and risk the destruction of evidence, along with a continuing risk of attack — the circumstances posed the sort of special risks that required the officers to act immediately and to forego obtaining a warrant and constituted exigent circumstances justifying warrantless entry. State v. Lee,
2009 WI App 96,
320 Wis. 2d 536,
771 N.W.2d 373,
07-2976.
Unlike in
Johnson,
2007 WI 32, where the defendant's head and shoulder movement did not give reasonable suspicion to conduct a search of the person and car, here, the defendant after being stopped in his vehicle made 3 to 5 furtive-type movements that the trial court found were attempts to hide something. While the number of acts by itself may not be determinative of a reasonable basis, the persistence in the gesture is a specific, articulable measure of a strong intent to hide something from the police officer who made the stop. Further, when the defendant said the object seemingly being hidden was candy, it was reasonable to doubt the truthfulness of that response and it created another articulable suspicion to support the inference that the defendant was trying to hide a gun. State v. Bailey,
2009 WI App 140,
321 Wis. 2d 350,
773 N.W.2d 488,
08-3153.
The defendant, not the police, created the exigency in this case that resulted in a warrantless search when, after seeing the police outside his residence, the defendant retreated into the residence and shut the door after the police ordered him to stop. Those actions created the exigency of the risk that evidence would be destroyed. It was not necessary to delve into the appropriateness of the officers' determination after a controlled drug buy to conduct a “knock and talk" contact with the defendant or whether a knock and talk creates an exigency because in this case, a knock and talk was never actually accomplished. State v. Phillips,
2009 WI App 179,
322 Wis. 2d 576,
778 N.W.2d 157,
09-0249.
In a community caretaker context, when under the totality of the circumstances an objectively reasonable basis for the community caretaker function is shown, that determination is not negated by the officer's subjective law enforcement concerns. An officer may have law enforcement concerns even when the officer has an objectively reasonable basis for performing a community caretaker function. State v. Kramer,
2009 WI 14,
315 Wis. 2d 414,
759 N.W.2d 598,
07-1834.
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. Kramer,
2009 WI 14,
315 Wis. 2d 414,
759 N.W.2d 598,
07-1834.
Even if no probable cause exists, a police officer may conduct a traffic stop when, under the totality of the circumstances, he or she has grounds to reasonably suspect that a crime or traffic violation has been or will be committed. The officer must be able to point to specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant the intrusion of the stop. The crucial question is whether the facts would warrant a reasonable police officer, in light of his or her training and experience, to suspect that the individual has committed, was committing, or is about to commit a crime. While any one fact, standing alone, might well be insufficient for reasonable suspicion, as facts accumulate, reasonable inferences about the cumulative effect can be drawn. State v. Popke,
2009 WI 37,
317 Wis. 2d 118,
765 N.W.2d 569,
08-0446.
An officer's demand that a suspect drop an object that the officer believes could be a weapon can be likened to a frisk or pat-down. The approach in Wisconsin for determining whether a pat-down is valid has been one of reasonableness. State v. Carroll,
2010 WI 8,
322 Wis. 2d 299,
778 N.W.2d 1,
07-1378.
Law enforcement agents are justified in seizing and continuing to hold a container if: 1) there is probable cause to believe that it contains evidence of a crime; and 2) if exigencies of the circumstances demand it. Analogizing a cell phone containing pictures to a container was appropriate. An officer who legally viewed an image of the defendant with marijuana in plain view on an open cell phone and who testified that he knew, based on his training and experience, that drug traffickers frequently personalize their cell phones with images of themselves with items acquired through drug activity, had probable cause to believe that the phone contained evidence of illegal drug activity. State v. Carroll,
2010 WI 8,
322 Wis. 2d 299,
778 N.W.2d 1,
07-1378.
When an officer had probable cause to seize a cell phone that he reasonably believed was a tool used in drug trafficking, exigent circumstances permitted the officer to answer an incoming call. The test for whether exigent circumstances are present focuses on whether the officer reasonably believes that the delay necessary to obtain a warrant, under the circumstances, threatens the destruction of evidence. The fleeting nature of a phone call is apparent; if it is not picked up, the opportunity to gather evidence is likely to be lost, as there is no guarantee or likelihood that the caller would leave a voice mail or otherwise preserve the evidence. State v. Carroll,
2010 WI 8,
322 Wis. 2d 299,
778 N.W.2d 1,
07-1378.
Under the collective knowledge doctrine, an investigating officer with knowledge of facts amounting to reasonable suspicion may direct a second officer without such knowledge to stop and detain a suspect. At the same time, in a collective knowledge situation, if a defendant moves to suppress, the prosecutor must prove the collective knowledge that supports the stop. Proof is not supplied by the mere testimony of one officer that he relied on the unspecified knowledge of another officer. Such testimony provides no basis for the court to assess the validity of the police suspicion. The testimony contains no specific, articulable facts to which the court can apply the reasonable suspicion standard. State v. Pickens,
2010 WI App 5,
323 Wis. 2d 226,
779 N.W.2d 1,
08-1514.
When a temporary detention is justified, the court will still examine the circumstances of the detention to determine whether the investigative means used in a continued seizure are the least intrusive means reasonably available to verify or dispel the officer's suspicion and whether it lasted no longer than was necessary to effectuate the purpose of the stop. It was an unreasonable seizure when a suspect was handcuffed based on the bare fact that the officer knew the suspect was suspected in a prior shooting when no specific, articulable facts were presented to support that position under the collective knowledge doctrine. State v. Pickens,
2010 WI App 5,
323 Wis. 2d 226,
779 N.W.2d 1,
08-1514.
Although a person sharing a hotel room was found to have apparent authority over the room authorizing her to consent to a search of the room, she did not have actual or apparent authority over the inside of the safe when the safe was locked, she could not open the safe, and she did not even know it was in the room. Even if the scope of her consent to search the room included the safe, the search of the safe was unreasonable if she had no authority to grant that consent. State v. Pickens,
2010 WI App 5,
323 Wis. 2d 226,
779 N.W.2d 1,
08-1514.
In a search incident to an arrest, an officer may only search that area within the “immediate control" of the arrestee. In a no-arrest case, the possibility of access to weapons in the vehicle always exists since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed. Because the defendant was not under arrest, the officers had an immediate safety interest in verifying that that the defendant did not have a gun or other weapon under his immediate control. Therefore, the search of the defendant's vehicle console was not prohibited. State v. Williams,
2010 WI App 39,
323 Wis. 2d 460,
781 N.W.2d 495,
09-0501.
Soldal, 506 U.S. 56, recognized that there could be a seizure of property in violation of the 4th amendment even though the seizure was not preceded or accompanied by a search.
Soldal also specifically recognized that a valid consent permits a lawful 4th amendment seizure. Here computers owned by one tenant were legally seized when another tenant, who had permission to use those computers, specifically gave the detective the right to “conduct a complete search of [m]y premises, and all property found therein, located at" the apartment and to take the computers away for further analysis. State v. Ramage,
2010 WI App 77,
325 Wis. 2d 483,
784 N.W.2d 746,
09-0784.
The holding of
Arizona v. Gant,
556 U.S. 332, that
Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle is adopted as the proper interpretation of the Wisconsin Constitution's protection against unreasonable searches and seizures. State v. Dearborn,
2010 WI 84,
327 Wis. 2d 252,
786 N.W.2d 97,
07-1894.
Federal case law does not limit an officer's community caretaker functions to incidents involving automobiles, but instead counsels a cautious approach when the exception is invoked to justify law enforcement intrusion into a home. State v. Pinkard,
2010 WI 81,
327 Wis. 2d 346,
785 N.W.2d 592,
08-1204.
Police cannot conduct warrantless searches pursuant to a probation apprehension request. Warrantless searches conducted by police, as opposed to probation agents, are prohibited. State v. Bauer,
2010 WI App 93,
327 Wis. 2d 765,
787 N.W.2d 412,
09-1367.
A “knock and talk" interview at a private residence that has lost its consensual nature and has effectively become an in-home seizure or constructive entry may trigger 4th amendment scrutiny. When the situation is such that a person would not wish to leave his or her location, such as his or her home, the appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter. City of Sheboygan v. Cesar,
2010 WI App 170,
330 Wis. 2d 760,
796 N.W.2d 429,
09-3049.
The test for exigent circumstances justifying a warrantless seizure is an objective one: whether a police officer under the circumstances known to the officer at the time reasonably believes that delay in procuring a warrant would gravely endanger life or risk destruction of evidence or greatly enhance the likelihood of the suspect's escape. An arrest was lawful when the urgency reasonably perceived by the officers was compelling and the danger they reasonably perceived for themselves and others if they did not move quickly was substantial. State v. Ayala,
2011 WI App 6,
331 Wis. 2d 171,
793 N.W.2d 511,
09-2690.
An officer's exercise of the bona fide community caretaker function must be reasonable as determined by the court by balancing the public interest or need that is furthered by the officers' conduct against the degree and nature of the intrusion on the citizen's constitutional interest. The stronger the public need and the more minimal the intrusion upon an individual's liberty, the more likely the police conduct will be held to be reasonable. Four factors are considered: 1) the extent of the public's interest; 2) the attendant circumstances surrounding the search; 3) whether the search or seizure took place in an automobile; and 4) the alternatives that were available to the action taken. State v. Ultsch,
2011 WI App 17,
331 Wis. 2d 242,
793 N.W.2d 505,
10-0895.
Under the totality of the circumstances, the trooper's observation of the defendant's furtive movements and visible nervousness, a record of arrests for violent crimes, and a drug delivery arrest that had occurred nearby a short time before the stop constituted specific and articulable facts that, taken together with the rational inferences from those facts, created reasonable suspicion and justified a protective search for the officer's safety. State v. Buchanan,
2011 WI 49,
334 Wis. 2d 379,
799 N.W.2d 775,
09-2934.
As a general matter, it is unacceptable for a member of the public to enter a home's attached garage uninvited regardless of whether an overhead or entry door is open. Thus, generally, an attached garage will never be impliedly open to public, i.e., police entry. There may be an exception to that general rule if, in a given circumstance, it reasonably appears that entry into the attached garage is the least intrusive means of attempting contact with persons inside the home. State v. Davis,
2011 WI App 74,
333 Wis. 2d 490,
798 N.W.2d 902,
10-2191.
Randolph held that in co-habitation cases, if both parties are present, a search is unlawful when one consents but the other expressly refuses to consent.
Randolph did not apply when one co-habitant consented and the other did not object. State v. Pirtle,
2011 WI App 89,
334 Wis. 2d 211,
799 N.W.2d 492,
10-1363.
Under circumstances where: 1) a man in a high-crime area; 2) late at night; 3) wearing a ski mask that covered his face below his eyes; 4) wearing a hoodie; 5) had an ambiguous but “unusual"-appearing encounter with a woman walking by herself, the police reasonably and based on their experience could objectively see that further investigation was warranted to ensure that criminal activity was not afoot. State v. Matthews,
2011 WI App 92,
334 Wis. 2d 455,
799 N.W.2d 911,
10-1712.
It was reasonable for the officers to conclude that the leaseholder of a property had the authority to consent to them proceeding up the property's stairs to look for another tenant who was not present to either consent or refuse consent when: 1) a third non-leaseholder tenant refused to consent; 2) the officers were aware that the tenant granting consent was the leaseholder of the property; and 3) the person refusing consent had not previously lived there and had left the room to wake up the subject of the police inquiry after the officers arrived. State v. Lathan,
2011 WI App 104,
335 Wis. 2d 234,
801 N.W.2d 772,
10-1228.
Under
Arizona v. Johnson,
555 U.S. 323, a lawful roadside stop “ordinarily" begins when a vehicle is pulled over for a traffic violation and ends when the police no longer have further need to control the scene, at which time the driver and passengers are free to leave.
Johnson does not create a bright-line rule that police always have the authority to detain passengers for the duration of a roadside stop.
Johnson leaves the door open for exceptions to the general rule that passengers are reasonably detained for the duration of a stop. Nonetheless, the stop in this case was reasonable under the totality of the circumstances. State v. Salonen,
2011 WI App 157,
338 Wis. 2d 104,
808 N.W.2d 162,
10-2504.
The plain view doctrine did not justify opening opaque cylinders that were in plain view, but the contents were not, and the containers, as indicated by their size or shape, could hold a weapon. State v. Sutton,
2012 WI App 7,
338 Wis. 2d 338,
808 N.W.2d 411,
11-0036.
If a third party has mutual use of a property and joint access or control for most purposes, then the third party may consent to a search of the property regardless of whether he or she owns the property. While a mere guest in a home may not ordinarily consent to a search of the premises, the analysis is different when the guest is more than a casual visitor but instead has the run of the house. A weekend house guest who was permitted to stay in the home by herself and had the authority to receive people into the home had the authority to permit an officer to enter. Similarly, when the defendant gave his guest permission to use his computer, the guest had the authority to consent to the officer's search and seizure of that item. State v. Sutton,
2012 WI App 7,
338 Wis. 2d 338,
808 N.W.2d 411,
11-0036.
When police have probable cause to arrest before an unlawful entry and warrantless arrest from a defendant's home, this violation of
Payton,
445 U.S. 573, does not require the suppression of evidence obtained from a defendant outside of the home. This rule applies when the only illegal police conduct is an unlawful entry and arrest in violation of
Payton, not when the evidence may be tied to an unlawful search by police. State v. Felix,
2012 WI 36,
339 Wis. 2d 670,
811 N.W.2d 775,
10-0346.
Under the totality of the circumstances police acted reasonably when they conducted an investigatory stop of the vehicle that the defendant was driving based on reasonable suspicion “that criminal activity may be afoot." The police had the requisite reasonable suspicion primarily based on the reliability of their final informant and the information provided by him when the information was supported by the prior tips to police. While the initial tips were of limited reliability, the final informant and his tips had significant indicia of reliability because the informant provided self-identifying information that made him more reliable than a truly anonymous informant and the final informant provided details and accurate future predictions that police were able to corroborate. State v. Miller,
2012 WI 61,
341 Wis. 2d 307,
815 N.W.2d 349,
10-0557.
Under
Jacobsen, 466 U.S. at 115-17, an individual can retain a legitimate expectation of privacy after a private individual conducts a search. However, additional invasions of that individual's privacy by a government agent must be tested by the degree to which they exceeded the scope of the private search. The officer's search in this case did not exceed the original search by the private individual who after discovering and reviewing child pornography, placed it in a duffel bag and invited the officer to view the contents of the bag. State v. Cameron,
2012 WI App 93,
344 Wis. 2d 101,
820 N.W.2d 433,
11-1368.
Guzy, 139 Wis. 2d at 663, forged a list of factors to be considered in determining reasonable suspicion that a person or vehicle was the one connected to a reported crime: 1) the particularity of the description of the offender or the vehicle in which he or she fled; 2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; 3) the number of persons about in that area; 4) the known or probable direction of the offender's flight; 5) observed activity by the particular person stopped; and 6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation. State v. Rissley,
2012 WI App 112,
344 Wis. 2d 422,
824 N.W.2d 853,
11-1789.
The administration of a preliminary breath test by a police officer, at the request and on behalf of a probation agent during a probation meeting in the probation office, for probation purposes and for no independent police purpose, was a probation search, not a police search, and was lawful. State v. Devries,
2012 WI App 119,
344 Wis. 2d 726,
824 N.W.2d 913,
10-0429.
The test applied in determining whether an officer has sufficient reasonable suspicion under
Terry is objective — “would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution' in the belief that the action taken was appropriate?" Backing away from a police officer is not sufficient objective evidence supporting a reasonable suspicion that criminal activity is afoot or that a person is a threat. A person approached by a law-enforcement officer need not answer any question put to him or her, may decline to listen to the questions, and may go on his or her way. Naming a movement that would accompany any walking away adds nothing to the calculus except a false patina of objectivity. State v. Pugh,
2013 WI App 12,
345 Wis. 2d 832,
826 N.W.2d 418,
12-0481.
Under the totality of the circumstances of this case, when a person came down the staircase between a building's upper unit and a common entrance and opened the door for the police, identified herself, expressly stated that she lived in the upper unit, granted consent to search both verbally and in writing, and acted as though she had access to the landlord by pretending to call him or her, that person had apparent authority to consent to the warrantless search of the upper unit and the police were reasonable in reaching the same conclusion. State v. Wheeler,
2013 WI App 53,
347 Wis. 2d 426,
830 N.W.2d 278,
12-1291.
A seizure following a “dog sniff" is subject to the
Terry test — that a seizure is reasonable only if it is justified at its inception and is “reasonably related in scope to the circumstances which justified the interference in the first place." Here, unlike in
Arias, the dog sniff attendant to defendant's seizure occurred after the initial stop had been completed and undisputed facts established that the reasons justifying the initial stop ceased to exist. The continued detention of the defendant to conduct the dog sniff was not reasonably related in scope to the circumstances justifying the stop. State v. House,
2013 WI App 111,
350 Wis. 2d 478,
837 N.W.2d 645,
12-2414.
Permitting
Terry stops of a person observed momentarily patting the outside of his or her clothing when the only additional facts are that the person is in a high crime area and has seen a cruising police car would expand the individualized “
reasonable suspicion" requirement so far so as to negate it. State v. Gordon,
2014 WI App 44,
353 Wis. 2d 468,
846 N.W.2d 483,
13-1878.
When an officer parks near a person's vehicle, gets out, and knocks on the person's window, the officer has not necessarily displayed sufficient authority to cause a reasonable person to feel that he or she was not free to leave. While a person is not automatically seized by a knock on the window, or even a supplementary request, the seizure inquiry looks at the totality of the circumstances to determine whether the officer has effected a detention. County of Grant v. Vogt,
2014 WI 76,
356 Wis. 2d 343,
850 N.W.2d 253,
12-1812.
The trial court's denial of the defendant's suppression motion arguing that the warrantless obtaining of of his cell phone's location data from his cell phone provider violated his 4th amendment rights was upheld by a divided court. State v. Subdiaz-Osorio,
2014 WI 87,
357 Wis. 2d 41,
849 N.W.2d 748,
10-3016.
Ordinary citizens, even citizens who are subject to diminished privacy interests because they have been detained, have a legitimate expectation of privacy in the contents of their electronic devices. This interest, however, is undercut when the electronic device in question is contraband. In this case, the defendant was prohibited from using a computer. It was irrelevant whether specific images were prohibited by the defendant's probationary terms or otherwise illegal to possess; the use of computers was itself prohibited, and the agent had reasonable grounds to believe the defendant had impermissibly used them. Thus, the probation search of the contents of the defendant's computers did not violate the 4th amendment or Article I, Section 11. State v. Purtell,
2014 WI 101,
358 Wis. 2d 212,
851 N.W.2d 417,
12-1307.
While exigent circumstances may justify entry, the fact that entry has already been made does not necessarily invalidate reliance on the exigent circumstances doctrine. In this case, the officer had already stepped into the apartment when the exigent circumstances arose. Whether or not the apartment occupants' behavior constituted consent to the officer's entry, so long as the officer was standing in the vicinity of the occupants when she received the information that they might possess a backpack with loaded weapons in it, her search for and seizure of the backpack was, at that moment, justified by exigent circumstances. State v. Kirby,
2014 WI App 74,
355 Wis. 2d 423,
851 N.W.2d 796,
13-0896.
Fourth amendment jurisprudence has evolved into two seemingly different, but somewhat interrelated, methods of identifying protectable interests relating to the home. One focuses on a person's expectation of privacy, where a person has exhibited an actual expectation of privacy that society is prepared to recognize as reasonable. The other, known as the intrusion or trespass test, focuses on whether government agents engaged in an unauthorized physical penetration into a constitutionally protected area. Officers in this case conducted an illegal search by trespassing on the defendants' property when they, without permission, went onto the porch of the defendants' trailer to peer into a window, had no other reason for being in those areas, and acknowledged that they could not have seen what they saw within the trailer if they had not been standing in the yard or on the porch. State v. Popp,
2014 WI App 100,
357 Wis. 2d 696,
855 N.W.2d 471,
13-1916.
In light of
Missouri v. McNeely, the holding in
State v. Bohling,
173 Wis. 2d 529, that the rapid dissipation of alcohol alone constitutes an exigent circumstance sufficient for law enforcement officers to order a warrantless investigatory blood draw, is no longer an accurate interpretation of the 4th amendment's protection against unreasonable searches and seizures. The rapid dissipation of alcohol alone no longer constitutes a per se exigent circumstance. Exigent circumstances, sufficient to justify a warrantless investigatory blood draw of a drunk-driving suspect, are to be determined on a case-by-case totality of the circumstances analysis. State v. Kennedy,
2014 WI 132,
359 Wis. 2d 454,
856 N.W.2d 834,
12-0523.
Under the facts and circumstances of this case, the deputy reasonably responded to an accident, secured the scene, investigated the matter, and ultimately was left with a very narrow time frame in which the defendant's blood could be drawn so as to produce reliable evidence of intoxication. This sort of “now or never" moment is the epitome of an exigent circumstance justifying a warrantless blood draw. State v. Tullberg,
2014 WI 134,
359 Wis. 2d 421,
857 N.W.2d 120,
12-1593.
An arrest need not precede a warrantless blood draw. When there is probable cause for a blood draw there also is probable cause to arrest for operating while intoxicated. An arrest is not a prerequisite to a warrantless blood draw justified by probable cause and exigent circumstances. State v. Tullberg,
2014 WI 134,
359 Wis. 2d 421,
857 N.W.2d 120,
12-1593.
The exigent circumstance exception does not require that officers observe actual destruction of evidence taking place before making entry. Officers do not impermissibly create exigent circumstances merely by knocking on a door and announcing themselves as police. State v. Parisi,
2014 WI App 129,
359 Wis. 2d 255,
857 N.W.2d 472,
14-0474.
Officers' approach to a defendant at gunpoint, use of handcuffs, and detention of the defendant in a squad car are not sufficient to transform an investigatory detention into an arrest. However, upon transportation of the defendant from the site of the stop to a hospital 10 miles away, a reasonable person in the defendant's position would have believed that he or she was in custody due to an arrest because the transportation was involuntary and the defendant had experienced a significant level of force and restraint since the initial stop. State v. Blatterman,
2015 WI 46,
362 Wis. 2d 138,
864 N.W.2d 26,
13-2107.
When a person who is temporarily detained for investigation pursuant to a
Terry stop is then moved to another location, courts conduct a two-part inquiry: First, was the person moved within the vicinity of the stop? Second, was the purpose in moving the person within the vicinity reasonable? Ten miles is too distant a transportation to be within the vicinity so long as the temporary detention is supported by no more than a reasonable suspicion. In order for the transporting of a defendant to a hospital that was not in the vicinity of the stop to have been lawful, it must have been supported by probable cause to arrest or by a reasonable exercise of the community caretaker function. State v. Blatterman,
2015 WI 46, _
362 Wis. 2d 138,
864 N.W.2d 26,
13-2107.
Nervousness, anxiety, and tremors are consistent with methamphetamine use. These characteristics may also have innocent explanations. That innocent explanations may exist for observed behavior does not preclude a finding of reasonable suspicion, but as a practical matter, police cannot expect to conduct field sobriety tests on every motorist who is shaking and nervous when stopped by an officer. State v. Hogan,
2015 WI 76,
364 Wis. 2d 167, 868 N.W.2d _124,
13-0430.
Reasonable suspicion that a traffic law has been or is being violated is sufficient to justify all traffic stops. An objectively reasonable mistake of law by a police officer can form the basis for reasonable suspicion to conduct a traffic stop. State v. Houghton,
2015 WI 79 364 Wis. 2d 234,
868 N.W.2d 143,
13-1581.
The defendant had no reasonable expectation of privacy in text messages that he had sent to and were stored in another person's cell phone. Once the defendant sent the messages, he had no control over whether the recipient saved them, deleted them, forwarded them to others or shared their content in any way. This lack of control over what is done with the text message and lack of any right to exclude others from reading it are key in the determination that the defendant did not have an objectively reasonable expectation of privacy in the text messages stored in the other person's phone. State v. Tentoni,
2015 WI App 77,
365 Wis. 2d 211,
871 N.W.2d 285,
14-2387.
The statement in
Popke, 2009 WI 37, that “a police officer may . . . conduct a traffic stop when, under the totality of the circumstances, he or she has grounds to reasonably suspect that a crime or traffic violation has been or will be committed," did not purport to circumscribe the universe of possible scenarios within which traffic stops permissibly may occur, or to make such limits contingent on whether the legislature has titled a particular law a “traffic regulation." A reasonable suspicion that a violation of the littering statute, s. 287.81, a non-traffic civil forfeiture offense, had occurred justified a brief and limited traffic stop. The more onerous standard of probable cause would also therefore justify a traffic stop. State v. Iverson,
2015 WI 101,
365 Wis. 2d 302,
871 N.W.2d 661,
14-0515.
In
Florida v. Jardines, 569 U.S. __,
133 S. Ct. 1409 (2013), the U.S. Supreme Court confirmed that the curtilage of a person's home remains a constitutionally protected area without consideration of whether a reasonable expectation of privacy exists. The Wisconsin Supreme Court has adopted 4 factors set forth in
United States v. Dunn,
480 U.S. 294 (1987), relevant to conducting an analysis of whether an area constitutes curtilage of a home: 1) the proximity of the area claimed to be curtilage to the home; 2) whether the area is included within an enclosure surrounding the home; 3) the nature of the uses to which the area is put; and 4) the steps taken by the resident to protect the area from observation by people passing by. These factors did not weigh in favor of curtilage designation when applied to the parking garage located beneath the defendant's apartment building. State v. Dumstrey,
2016 WI 3,
366 Wis. 2d 64,
873 N.W.2d 502,
13-0857.
There was no reasonable expectation of privacy in the defendant's parking garage located beneath a 30-unit apartment building such that it warranted 4th amendment protection against warrantless entry for arrest. The relevant test is: 1) whether the person exhibits an actual, subjective expectation of privacy in the area; and 2) whether society is willing to recognize such an expectation as reasonable. In making this determination a 6-factor test is applied. State v. Dumstrey,
2016 WI 3,
366 Wis. 2d 64,
873 N.W.2d 502,
13-0857.
The 4th amendment does not inflexibly require that officers be concerned about specific, known individuals in order to be acting as community caretakers. State v. Matalonis,
2016 WI 7,
366 Wis. 2d 443,
875 N.W.2d 567,
14-0108.
Under
Pennsylvania v. Mimms,
434 U.S. 106, a deputy's request that a driver step out of the vehicle during an ongoing traffic stop is per se lawful. In this case, the deputy also knew that the driver could not lawfully drive away in the vehicle after completion of the traffic stop due to the vehicle's suspended registration and the driver's lack of a driver's license or insurance. For that additional reason, the deputy's request that the driver step out of the vehicle in order for the deputy to issue and explain the citations to him was reasonable. Even if the deputy “extended” the traffic stop beyond what was necessary to address the registration, driver's license, and insurance violations, the extension was warranted when the deputy reasonably suspected criminal drug-related activity. State v. Floyd,
2016 WI App 64, ___ Wis. 2d ___, ___ N.W.2d ___,
15-1294.
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).
Police may not make a warrantless, nonconsensual entry into a suspect's home in order to make a routine felony arrest. Payton v. New York,
445 U.S. 573 (1980).
That police had lawful possession of pornographic film boxes did not give them authority to search their contents. Walter v. United States,
447 U.S. 649 (1980).
An officer who accompanied an arrestee to the arrestee's residence to obtain identification properly seized contraband in plain view. Washington v. Chrisman,
455 U.S. 1 (1982).
Officers who have legitimately stopped an automobile and who have probable cause to believe contraband is concealed somewhere within it may conduct a warrantless search of the vehicle as thorough as could be authorized by warrant. United States v. Ross,
456 U.S. 798 (1982).
When an officer, after stopping a defendant's car at a routine driver's license checkpoint, saw a tied-off party balloon in plain sight, the officer had probable cause to believe the balloon contained an illicit substance. Hence, a warrantless seizure of the balloon was legal. Texas v. Brown,
460 U.S. 730 (1983).
A warrantless search by arson investigators of the defendant's fire-damaged home that was not a continuation of an earlier search was unconstitutional. Michigan v. Clifford,
464 U.S. 287 (1984).
When a damaged shipping package was examined by company employees who discovered white powder, a subsequent warrantless field test by police was constitutional. U.S. v. Jacobsen,
466 U.S. 109 (1984).
The “open fields" doctrine is discussed. Oliver v. U.S.
466 U.S. 170 (1984).
The warrantless, nighttime entry of the defendant's home for arrest for a civil, nonjailable traffic offense was not justified under the “hot pursuit" doctrine or the preservation of evidence doctrine. Welsh v. Wisconsin,
466 U.S. 740 (1984).
School officials need not obtain a warrant before searching a student. The legality of the search depends on the reasonableness, under all circumstances, of the search. New Jersey v. T. L. O.
469 U.S. 325 (1985).
When officers were entitled to seize packages in a vehicle and could have searched them immediately without a warrant, a warrantless search of the packages 3 days later was reasonable. United States v. Johns,
469 U.S. 478 (1985).
The vehicle exception for warrantless searches applies to motor homes. California v. Carney,
471 U.S. 386 (1985).
The good faith exception to the exclusionary rule applies when an officer reasonably relies upon a statute allowing a warrantless administrative search that was subsequently ruled unconstitutional. Illinois v. Krull,
480 U.S. 340 (1987).
A protective sweep of a residence in conjunction with an arrest is permissible if police reasonably believe that the area harbors an individual posing a danger to officers or others. Maryland v. Buie,
494 U.S. 325,
108 L. Ed. 2d 276 (1990).
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).
A determination of probable cause made within 48 hours of a warrantless arrest generally meets the promptness requirement. If a hearing is held more than 48 hours following the arrest the burden shifts to the government to demonstrate an emergency or extraordinary circumstances. County of Riverside v. McLaughlin,
500 U.S. 44,
114 L. Ed. 2d 49 (1991).