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.
The extent to which law enforcement is permitted to rely on exigent circumstances for a warrantless entry of a home has a relationship to the seriousness of the offense. When the underlying offense for which there is probable cause to arrest is relatively minor, courts should be very hesitant to find exigent circumstances. In determining the extent to which the underlying offense may support's finding of exigency, the critical factor is the penalty that may attach. Courts, in evaluating whether a warrantless entry is justified by exigent circumstances, should consider whether the underlying offense is a jailable or nonjailable offense, rather than whether the legislature has labeled that offense a felony or a misdemeanor. State v. Ferguson,
2009 WI 50,
317 Wis. 2d 586, 767 N.W2d 187,
07-2095.
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.
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. But see Caniglia v. Strom, 593 U.S. ___,
141 S. Ct. 1596,
209 L. Ed. 2d 604 (2021).
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
Jardines,
569 U.S. 1 (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
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.
A warrantless blood sample may be justified even when an inferior form of evidence may be available. The fact that morphine remains in the body for several hours after the ingestion of heroin does not mean that it would be unreasonable for an officer to believe that taking the time to obtain a search warrant in this case risked destruction of evidence of heroin use. That the defendant never used a car in this case did not elevate his privacy interests to such heights as to render any warrantless blood draw under exigent circumstances unreasonable. State v. Parisi,
2016 WI 10,
367 Wis. 2d 1,
875 N.W. 2d 619,
14-1267.
A blood draw from the defendant under s. 343.305 while the defendant was unconscious was permissible under the 4th amendment under the exigent circumstances doctrine when a deputy had probable cause to arrest the defendant for operating a vehicle with a prohibited alcohol concentration. State v. Howes,
2017 WI 18,
373 Wis. 2d 468,
893 N.W.2d 812,
14-1870.
Under
Purtell, when a condition of probation prohibits the possession of a certain item, and the subject of the search knowingly breaks that condition, in most situations a probation agent would presumably have reasonable grounds to search the contents of the item.
Purtell tells us that as long as there are “reasonable grounds” to believe a probationer has contraband, a probation agent will almost always have the right to search the contraband itself without a warrant. State v. Keller,
2017 WI App 19,
374 Wis. 2d 325,
893 N.W.2d 276,
16-0500.
When a probation agent lawfully seized a contraband computer from a probationer but did not have the ability to examine the contents of the contraband and requested the assistance of an analyst at the division of criminal investigation, independent from any law enforcement investigation, so as to examine the contents of the computer, based upon the rationale set forth in
Purtell and
Devries, the search was not a police search. State v. Keller,
2017 WI App 19,
374 Wis. 2d 325,
893 N.W.2d 276,
16-0500.
In cases involving warrantless community caretaker impoundments, the fundamental question is the reasonableness of the seizure. The absence of standard criteria does not by default render a warrantless community caretaker impoundment unconstitutional under the 4th amendment reasonableness standard, nor does an officer's lack of adherence to standard criteria, if they exist, automatically render such impoundments unconstitutional. Under the reasonableness standard, an officer's discretion to impound a car is sufficiently cabined by the requirement that the decision to impound be based, at least in part, on a reasonable community caretaking concern and not exclusively on the suspicion of criminal activity. State v. Asboth,
2017 WI 76,
376 Wis. 2d 644,
898 N.W.2d 541,
15-2052.
The danger inherent to traffic stops authorizes an officer to take certain negligibly burdensome precautions in order to complete his or her mission safely. When after writing traffic citations, the officer returned to the defendant's car and asked him to submit to a search, this request did not extend the stop beyond its permissible duration. Because the request related to officer safety and was negligibly burdensome, it was part of the traffic stop's mission, and so did not cause an extension. Whatever additional time the actual search consumed, or the burden it imposed, was irrelevant so long as the defendant consented to it. State v. Floyd,
2017 WI 78,
377 Wis. 2d 394,
898 N.W.2d 560,
15-1294. See also State v. Brown,
2020 WI 63,
392 Wis. 2d 454,
945 N.W.2d 584,
17-0774.
A court is not bound by an officer's subjective reasons for a search. That a search was going to happen pursuant to law enforcement agency policy is not controlling. Rather, the question is whether the search itself was constitutionally permissible as an objective matter. The officer in this case had reasonable suspicion to search for weapons. One who reacts to a question by quieting down, becoming deflated, and responding demurely does so for a reason. A reasonably prudent officer seeing this response to a question about weapons would be suspicious and wonder if the answer was truthful. An abnormal nervousness or unusual response to interaction with law enforcement is a relevant factor in whether a person is armed and dangerous. State v. Nesbit,
2017 WI App 58,
378 Wis. 2d 65,
902 N.W.2d 266,
16-0224.
In
Hughes,
233 Wis. 2d 280, the supreme court held that exigent circumstances exist where there is a strong odor of marijuana emanating from a residence and occupants simply become aware of police outside the door. An officer could reasonably believe that a juvenile who is attempting to flee from a residence when officers are on the property and the odor of burning marijuana is in the air is more likely to also attempt to prevent evidence from being discovered by the police, including through the destruction of such evidence. State v. Torres,
2017 WI App 60,
378 Wis. 2d 201,
902 N.W.2d 543,
16-1061.
Under
City of Indianapolis v. Edmond,
531 U.S. 32, generally, a search or seizure will be deemed unreasonable “in the absence of individualized suspicion of wrongdoing.” However, there are limited circumstances when special law enforcement concerns justify highway stops without individualized suspicion, such as when a suspicionless search is designed to serve special needs, beyond the normal need for law enforcement. The factors for determining reasonableness are the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. If the public interest aspects of the first 2 factors are not outweighed by the 4th amendment protections represented by the third factor, the protections offered by the 4th amendment are not violated. State v. Scott,
2017 WI App 74,
378 Wis. 2d 578,
904 N.W.2d 125,
16-1742.
Because a traffic stop's mission includes the ordinary inquiries, such as checking a driver's license, an officer who lawfully stops a vehicle should be able to complete that mission even if the reason for the traffic stop ended during the officer's walk to the stopped vehicle. Ordinary inquiries incident to the traffic stop include: checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance. State v. Smith,
2018 WI 2,
379 Wis. 2d 86,
905 N.W.2d 353,
15-0756.
A police officer's act of opening a vehicle's passenger door in order to effectively communicate with a driver otherwise inaccessible due to the malfunctioning driver's door and window when the defendant appeared to be cooperating and moving toward the passenger seat, and seemed to be trying to open the passenger door, did not constitute an unreasonable search. The officer's actions, viewed objectively, would warrant a person of reasonable caution to believe the action taken was appropriate. State v. Smith,
2018 WI 2,
379 Wis. 2d 86,
905 N.W.2d 353,
15-0756.
Despite the defendant passing field sobriety tests and the officer apparently concluding that the defendant was not impaired due to alcohol, the officer, quite reasonably, believed there was “something else going on,” though he did not know if it was a medical issue or a drug issue. From the totality of the circumstances, a reasonable inference of wrongful conduct—that the defendant had driven while under the influence of a drug or drugs—could be objectively discerned, and thus the officer had the right to continue the temporary detention of the defendant for further investigation. State v. Rose,
2018 WI App 5,
379 Wis. 2d 663,
907 N.W.2d 463,
16-2257.
Under
Payton,
445 U.S. 573 (1980), police may enter a residence pursuant to an arrest warrant if the facts and circumstances present the police with a reasonable belief that: 1) the subject of the arrest warrant resides in the home; and 2) the subject of the arrest warrant is present in the home at the time entry is effected. State v. Delap,
2018 WI 64,
382 Wis. 2d 92,
913 N.W.2d 175,
16-2196.
A search occurs when a convicted recidivist sex offender who has completed his or her sentence is required to attach a monitoring device to his or her body to track his or her movements. The reasonableness of a search depends upon the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations. Under the totality of the circumstances, given the diminished nature of a defendant's privacy interest and the state's particularly strong interest in reducing recidivism through the information collected by the tracking device, the global positioning system tracking requirement for convicted sex offenders is reasonable under the 4th amendment. Kaufman v. Walker,
2018 WI App 37,
382 Wis. 2d 774,
915 N.W.2d 193,
17-0085.
The 4th amendment's special needs doctrine applies to s. 301.48. The global positioning system (GPS) tracking program effectively serves the recognized special needs of deterring future crimes and gathering information needed to solve them. The state's interest in accomplishing these special needs in the context of sex crimes outweighs sex offenders' diminished privacy expectations. Kaufman v. Walker,
2018 WI App 37,
382 Wis. 2d 774,
915 N.W.2d 193,
17-0085.
Under
Birchfield,
579 U.S. 438,
136 S. Ct. 2160, it is impermissible to impose criminal penalties for refusing to submit to a warrantless blood draw. A lengthier jail sentence is a criminal penalty. Therefore, the circuit court in this case violated
Birchfield by explicitly subjecting the defendant to a more severe criminal penalty because the defendant refused to provide a blood sample absent a warrant. State v. Dalton,
2018 WI 85,
383 Wis. 2d 147,
914 N.W.2d 120,
16-2483.
The expectation of privacy in digital files is governed by the same standards as the expectation of privacy in physical property. There is no reasonable expectation of privacy in digital files that are publicly shared on a peer-to-peer network, including where law enforcement used non-publicly available softwear and geolocation services based on a publicly available IP address to discover the files and locate the defendant. State v. Baric,
2018 WI App 63,
384 Wis. 2d 359,
919 N.W.2d 221,
17-0185.
Whether consent is verbal or inferred from one's actions, consent must be unequivocal and specific. Leading an officer to the threshold of an apartment and then entering the apartment and closing the door does not imply consent for the officer to enter the apartment. The standard for measuring the scope of a suspect's consent under the 4th amendment is that of objective reasonableness—what the typical reasonable person would have understood by the exchange between the officer and the suspect. State v. Reed,
2018 WI 109,
384 Wis. 2d 469,
920 N.W.2d 56,
16-1609.
Generalized concerns for safety and risk of flight are not enough to give rise to exigent circumstances. The test is whether there are objective facts known to the officer that would reasonably lead him to believe that the delay caused by obtaining a warrant would gravely endanger life or greatly enhance the likelihood of the subject's escape. State v. Reed,
2018 WI 109,
384 Wis. 2d 469,
920 N.W.2d 56,
16-1609.
The 4th amendment tolerates certain investigations that are outside the scope of the mission of a traffic stop, so long as the investigations do not measurably extend the duration of the stop. When the officer questioned the defendant on whether the defendant had a valid concealed carry permit, although the questioning and a permit check were outside the mission of the traffic stop, they did not violate the 4th amendment because they did not measurably extend the duration of the stop and were conducted concurrently with mission-related activities. State v. Wright,
2019 WI 45,
386 Wis. 2d 495,
926 N.W.2d 157,
17-2006. See also State v. Brown,
2020 WI 63,
392 Wis. 2d 454,
945 N.W.2d 584,
17-0774.
An anonymous informant is considered reliable if police are able to corroborate details in the informant's tip. In this case, the record contained no information indicating the informant's identity or whether the informant had provided reliable information to police in the past, but, because the tips were corroborated, the court did not discount them entirely in its analysis. Accordingly, the corroborated tips of the unnamed informant in this case could be considered in the analysis of the totality of the circumstances, giving them such weight as they were due. State v. Anderson,
2019 WI 97,
389 Wis. 2d 106,
935 N.W.2d 285,
17-1104.
An immediate and continuous pursuit was a hot pursuit satisfying the 4th amendment exception to the warrant requirement. The measured speed at which the pursuit occurred in no way lessened its “hot” nature. State v. Ionescu,
2019 WI App 68,
389 Wis. 2d 586,
937 N.W.2d 90,
18-1620.
The reasonableness approach, and not the categorical approach, is the correct interpretation of
Gant,
556 U.S. 332 (2009). When the totality of the circumstances objectively demonstrated that the officer had reasonable suspicion that a bag in the passenger compartment of the vehicle might contain relevant evidence of operating while intoxicated (OWI), the search was permissible under the 4th amendment. State v. Coffee,
2020 WI 53,
391 Wis. 2d 831,
943 N.W.2d 845,
18-1209.
In this case, the deputies were not performing a bona fide community caretaker function when they seized the defendant's vehicle without a warrant. The defendant was parked on the side of a road after having been stopped for speeding, was alone in the vehicle, and had been driving with a suspended operator's license. Although the defendant told the deputies who were issuing the traffic citations that he could have a licensed driver retrieve the vehicle, the deputies told him department policy required them to take the vehicle to an impound lot. A standardized policy may provide some evidence that the police performed their community caretaker role reasonably, but it cannot establish the predicate—that they were acting as community caretakers. Because the seizure in this case violated the 4th amendment, so did the ensuing inventory search. State v. Brooks,
2020 WI 60,
392 Wis. 2d 402,
944 N.W.2d 832,
18-1774.
The U.S. Supreme Court in
Mitchell, 588 U.S. ___,
139 S. Ct. 2525 (2019), indicated that a court's exigent-circumstances analysis should consider whether law enforcement could have taken steps en route to a medical facility without significantly increasing the delay in procuring the blood sample. A court is not at liberty to begin the exigency analysis for a warrantless blood draw at a point following a suspect's refusal to provide a blood sample when the U.S. Supreme Court has indicated the analysis begins earlier. State v. Hay,
2020 WI App 35,
392 Wis. 2d 845,
946 N.W.2d 190,
18-2240.
Following
Mitchell, 588 U.S. ___,
139 S. Ct. 2525 (2019), the four factors that the state bears the burden to show that exigent circumstances justified a warrantless blood draw are: 1) law enforcement has probable cause to believe that the driver has committed a “drunk-driving offense"; 2) the driver is, at pertinent times, unconscious or in a stupor; 3) the driver's unconscious state or stupor requires that he or she be taken to a hospital or similar facility; and 4) the driver is taken to the hospital or similar facility before law enforcement has a “reasonable opportunity" to administer a standard evidentiary breath test. The burden is on the defendant to show that the defendant's blood would not have been drawn if police had not been seeking blood alcohol concentration information and to show that law enforcement could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. State v. Richards,
2020 WI App 48,
393 Wis. 2d 772,
948 N.W.2d 359,
17-0043.
Because the natural dissipation of alcohol over time presents a risk that evidence will be destroyed, the passage of time may help support an exigent circumstances determination in a given case. Here, there had already been a significant delay, which occurred through no fault of the police. An objectively reasonable officer would have been concerned that additional delay to obtain a warrant, beyond the five hours that had already elapsed, would have further undermined the probative value of a test, possibly even rendering it inadmissible if an expert was not able to support its probative value. State v. Dieter,
2020 WI App 49,
393 Wis. 2d 796,
948 N.W.2d 431,
18-2269.
The reasonable suspicion test for executing a traffic stop is not an exercise in evaluating individual details in isolation. It is the whole picture, evaluated together, that serves as the proper analytical framework. State v. Genous,
2021 WI 50,
397 Wis. 2d 293,
961 N.W.2d 41,
19-0435.
A reasonable person being repetitively questioned while the officer retains the person's driver's license would not feel free to drive away and thereby terminate the encounter. In this case, it was the officer's conduct of retaining the driver's licenses, while repeatedly asking questions that the defendant and her passenger had already answered, that coerced the defendant to remain in the jurisdiction. Also, the officer's questioning was intended to require them to remain in the jurisdiction so that time would pass and a drug-sniff dog would appear to sniff for drugs. Accordingly, the defendant was seized during the second round of repetitive questions while the officer retained the defendant's driver's license. State v. VanBeek,
2021 WI 51,
397 Wis. 2d 311,
960 N.W.2d 32,
19-0447.
