The 4 warnings
Miranda requires are invariable, but the U.S. Supreme Court has not dictated the words in which the essential information must be conveyed. The inquiry is simply whether the warnings reasonably convey to a suspect his or her rights as required by
Miranda. Florida v. Powell,
559 U.S. 50,
130 S. Ct. 1195,
175 L. Ed. 2d 1009 (2010).
Under
Edwards, 451 U.S. 477, a voluntary
Miranda waiver is sufficient at the time of an initial attempted interrogation to protect a suspect's right to have counsel present, but not at the time of subsequent interrogation attempts if the suspect initially requested the presence of counsel. However, confessions obtained after a 2-week break in custody and a waiver of
Miranda rights are most unlikely to be compelled, and hence are unreasonably excluded. Lawful imprisonment imposed upon conviction of a crime does not create the coercive pressures identified in
Miranda and is not considered continued custody for determining whether custodial interrogation ended. Maryland v. Shatzer,
559 U.S. 50,
130 S. Ct. 1213,
175 L. Ed. 2d 1045 (2010).
An invocation of the right to remain silent must be unambiguous and unequivocal. The defendant did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his right to cut off questioning. He did neither, so he did not invoke his right to remain silent. A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Berghuis v. Thompkins,
560 U.S. 370,
130 S. Ct. 2250,
176 L. Ed. 2d 1098 (2010).
The age of a child subjected to police questioning is relevant to the custody analysis of
Miranda. So long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test, but a child's age will not be determinative, or even a significant, factor in every case. J. D. B. v. North Carolina,
564 U.S. 261,
131 S. Ct. 2394,
180 L. Ed. 2d 310 (2011).
A prisoner is not always in custody for purposes of
Miranda whenever a prisoner is isolated from the general prison population and questioned about conduct outside the prison. Imprisonment, questioning in private, and questioning about events in the outside world are not necessarily enough to create a custodial situation for
Miranda purposes. “Custody" is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of the objective circumstances of the interrogation, a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. Howes v. Fields,
565 U.S. 499,
132 S. Ct. 1181,
182 L. Ed. 2d 17 (2012).
No fifth amendment violation was found in this case. Petitioner, without being placed in custody or receiving
Miranda warnings, voluntarily answered the questions of a police officer who was investigating a murder then balked when the officer asked whether a ballistics test would show that the shell casings found at the crime scene would match petitioner's shotgun. Petitioner was subsequently charged with murder, and at trial prosecutors argued that his reaction to the officer's question suggested that he was guilty. Salinas v. Texas,
570 U.S. 178,
133 S. Ct. 2174,
186 L. Ed. 2d 376 (2013).
Collateral estoppel barred the state from introducing evidence of a van theft as an overt act in a conspiracy charge when the accuseds had earlier been acquitted in the van theft trial. The accused's silence prior to receiving
Miranda warnings was properly used to impeach the accused. The prosecution's reference to post-
Miranda silence was harmless error. Feela v. Israel,
727 F.2d 151 (1984).
Assertion of the constitutional privilege against self-incrimination in federal civil litigation: Rights and remedies. Daskal, 64 MLR 243 (1980).
Privilege against self-incrimination-truthful statements may be used in a perjury prosecution. 64 MLR 744 (1981).
Adding (or Reaffirming) a Temporal Element to the Miranda Warning “You Have a Right to an Attorney. Bazelon. 90 MLR 1009 (2007).
The privilege against self-incrimination in civil commitment proceedings. 1980 WLR 697.
McNeil v. Wisconsin: Blurring a Bright Line on Custodial Interrogation. 1992 WLR 1643.
I,9
Remedy for wrongs.
Section 9
. Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.
The constitutional guaranty of a remedy for injuries to person and property does not give a constitutional right to sue the state in tort. There is no right of a citizen to hold the sovereign substantively liable for torts, and the state, being immune from suit without its consent, may define the conditions under which it will permit actions against itself. Cords v. State,
62 Wis. 2d 42,
214 N.W.2d 405.
The action for common-law seduction is extended to allow recovery against the seducer by the woman herself. Slawek v. Stroh,
62 Wis. 2d 295,
215 N.W.2d 9.
The constitution does not entitle state litigants to the exact remedy they desire, but merely to their day in court. Wiener v. J.C. Penney Co.
65 Wis. 2d 139,
222 N.W.2d 149.
Illegal aliens have the right to sue in Wisconsin for injuries negligently inflicted upon them. Arteaga v. Literski,
83 Wis. 2d 128,
265 N.W.2d 148 (1978).
Pre-1981 statutory paternity proceedings, which vested exclusive authority in district attorney to commence paternity action, unconstitutionally denied the child a “day in court." Accordingly, the child's action was not barred by any statute of limitations. In re Paternity of R.W.L.
116 Wis. 2d 150,
341 N.W.2d 682 (1984).
When an adequate remedy or forum does not exist to resolve disputes or provide due process, the courts can fashion an adequate remedy. Collins v. Eli Lilly Co.
116 Wis. 2d 166,
342 N.W.2d 37 (1984).
A register in probate's fee based on the value of the estate does not violate this section. Treiber v. Knoll,
135 Wis. 2d 58,
398 N.W.2d 756 (1987).
A court faced with a litigant who has engaged in a pattern of frivolous litigation has the authority to implement a remedy that may include restrictions on the litigant's access to the court. Village of Tigerton v. Minniecheske,
211 Wis. 2d 777,
565 N.W.2d 586 (Ct. App. 1997),
96-1933.
This section applies only when a prospective litigant seeks a remedy for an already existing right. It preserves the right to obtain justice on the basis of law as it in fact exists. Legislative actions define how the law does exist. Aicher v. Wisconsin Patients Compensation Fund,
2000 WI 98,
237 Wis. 2d 99,
613 N.W.2d 849,
99-2955.
Although Article I, s. 9, itself may not create new rights, it does allow for a remedy through the existing common law. The goal of providing certainty is not necessarily achievable, and that is not necessarily a bad thing. The common law develops to adapt to the changing needs of society. Thomas v. Mallett,
2005 WI 129,
285 Wis. 2d 236,
701 N.W.2d 523,
03-1528.
A referee's fees increase the costs of litigation and may have a chilling effect on litigants. If the expenses are not circumscribed, people with meritorious claims will be discouraged from pursuing them in court because they cannot afford to go to court. A reference to a referee in effect requires litigants to pay for the court system twice — once through the tax system and a second time by paying fees to a referee for resolution of their suit. Referee fees may offend constitutional mandates “if they chill advocacy severely enough to `effectively end the litigation' or impose `an intolerable burden on a losing litigant.'” Appointment of a referee is for the exceptional case; it is not the general rule. Universal Processing Services v. Circuit Court of Milwaukee County,
2017 WI 26,
374 Wis. 2d 26,
892 N.W.2d 267,
16-0923.
I,9m
Victims of crime.
Section 9m
. [
As created April 1993] This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy. This state shall ensure that crime victims have all of the following privileges and protections as provided by law: timely disposition of the case; the opportunity to attend court proceedings unless the trial court finds sequestration is necessary to a fair trial for the defendant; reasonable protection from the accused throughout the criminal justice process; notification of court proceedings; the opportunity to confer with the prosecution; the opportunity to make a statement to the court at disposition; restitution; compensation; and information about the outcome of the case and the release of the accused. The legislature shall provide remedies for the violation of this section. Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law. [
1993 J.R. 2, vote April 1993]
The state did not breach a plea agreement when two police officers, one of whom the defendant shot during the execution of a search warrant, requested during the sentencing hearing that the sentencing court impose the maximum sentence. The police officers were not speaking to the court as investigating officers, but as victims of a crime, which they have a right to do. In Wisconsin, every crime victim has the right to make a statement to the court at disposition. State v. Stewart,
2013 WI App 86,
349 Wis. 2d 385,
836 N.W.2d 456,
12-1457.
This section provides for restitution only insofar as the legislature confers that right through statute. The legislature makes restitution available to crime victims under s. 973.20 and other statutes, but crime victims are not guaranteed restitution in every instance. Section 973.20 (12) (b) makes clear that restitution payments take priority over specific statutory fees, surcharges, fines, and costs, but the priority scheme does not include supervision fees under s. 304.074. OAG 2-15.
I,10
Treason. Section 10
. Treason against the state shall consist only in levying war against the same, or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
I,11
Searches and seizures.
Section 11
. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
GENERAL
Electronic eavesdropping, done with the consent of one of the parties, does not violate the U.S. constitution. State ex rel. Arnold v. County Court,
51 Wis. 2d 434,
187 N.W.2d 354.
The prohibition against unreasonable searches and seizures is not limited to criminal cases. It applies in forfeiture actions arising out of ordinance violations. Milwaukee v. Cohen,
57 Wis. 2d 38,
203 N.W.2d 633.
An inspection by police of a basement storage room accessible to the public and the observation of evidence found there in open view that was later seized under a search warrant did not amount to an improper invasion of the defendant's privacy. Watkins v. State,
59 Wis. 2d 514,
208 N.W.2d 449 (1973).
Police have a right to lock a car to protect its contents after arresting the driver, but if it is already locked they cannot enter it on the pretense of locking it and thus discover contraband. When the car was borrowed, consent by the lawful user of the car was sufficient to allow a search and any containers found could be opened and examined. Soehle v. State,
60 Wis. 2d 72,
208 N.W.2d 341.
When officers, armed with a search warrant, knocked on a door, pushed it open when the defendant opened it 2 inches, and put him under restraint before showing the warrant, they acted legally. State v. Meier,
60 Wis. 2d 452,
210 N.W.2d 685.
The observation of tools in a car by police officers did not constitute a search, and the tools could be seized and were properly admissible into evidence. Anderson v. State,
66 Wis. 2d 233,
223 N.W.2d 879.
Pertinent to the validity of an investigative stop is whether the facts available to the officer at the moment of the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate. Wendricks v. State,
72 Wis. 2d 717,
242 N.W.2d 187.
When an abused child, an occupant of defendant's house, was accompanied to the house by social workers to recover the child's belongings and exhibited to the workers the instruments used to inflict punishment, a subsequent search warrant was not tainted by an unconstitutional search. State v. Killory,
73 Wis. 2d 400,
243 N.W.2d 475.
When evidence seized in an illegal search was admitted, no reversible error resulted when other evidence uninfluenced by the inadmissible evidence was sufficient to convict. Kelly v. State,
75 Wis. 2d 303,
249 N.W.2d 800.
The drawing and testing of blood solely for diagnostic and not government-instigated purposes was not a “search or seizure" even when the testing physician testified at a negligent homicide trial. State v. Jenkins,
80 Wis. 2d 426,
259 N.W.2d 109.
A person who is lawfully in custody for a civil offense may be required to participate in a lineup for an unrelated criminal offense. State v. Wilks,
121 Wis. 2d 93,
358 N.W.2d 273 (1984).
There is no reasonable expectation of privacy in garbage once it has been routinely collected by garbage collectors. State v. Stevens,
123 Wis. 2d 303,
367 N.W.2d 788 (1985).
Under the inevitable discovery doctrine, evidence seized under a defective search warrant was admissible because a later inventory search would have discovered it. State v. Kennedy,
134 Wis. 2d 308,
396 N.W.2d 765 (Ct. App. 1986).
The reasonableness of an investigative stop depends on facts and circumstances present at the time of the stop. State v. Guzy,
139 Wis. 2d 663,
407 N.W.2d 548 (1987).
When an officer observed a traffic violation but stopped the vehicle merely to render assistance, inadvertently discovered criminal evidence was admissible. State v. Baudhuin,
141 Wis. 2d 642,
416 N.W.2d 60 (1987).
The trial court is permitted to consider suppressed evidence at sentencing when nothing suggests consideration will encourage illegal searches. State v. Rush,
147 Wis. 2d 225,
432 N.W.2d 688 (Ct. App. 1988).
An escapee does not have a legitimate privacy expectation in premises other than the penal institution he or she is sent to. State v. Amos,
153 Wis. 2d 257,
450 N.W.2d 503 (Ct. App. 1989).
Aerial surveillance using standard binoculars and cameras with generally available standard and zoom lenses from an airplane flying no lower than 800 feet was reasonable. State v. Lange,
158 Wis. 2d 609,
463 N.W.2d 390 (Ct. App. 1990).
The statutory privilege protecting an informer protects the contents of a communication that will tend to reveal the identity of the informant. The trial court may rely on redacted information in determining the informant's reliability and credibility in determining whether there was reasonable suspicion justifying a warrantless seizure. State v. Gordon,
159 Wis. 2d 335,
464 N.W.2d 91 (Ct. App. 1990).
Bank customers have no protectable privacy interest in bank records relating to accounts. State v. Swift,
173 Wis. 2d 870,
496 N.W.2d 713 (Ct. App. 1993).
A defendant had no reasonable expectation of privacy in a porch through which the door to the living area was visible and that was entered through an unlocked screen door. When an officer came to the defendant's residence for a legitimate purpose, observation of contraband from the porch through a window in the interior door was not a search. State v. Edgeberg,
188 Wis. 2d 339,
524 N.W.2d 911 (Ct. App. 1994).
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.
It was constitutionally reasonable for an emergency medical technician (EMT), as opposed to a physician, to draw an OWI suspect's blood. The important point for constitutional purposes was that the evidence demonstrated that the EMT was thoroughly trained and experienced in properly drawing blood. Also, it was not unreasonable for the blood draw to occur in the non-medical setting of the jail when the evidence indicated that the room in which the blood was drawn “was clean and as clean as a hospital emergency room,” and the EMT used a new blood draw kit containing a sterile needle. State v. Kozel,
2017 WI 3,
373 Wis. 2d 1,
889 N.W.2d 423,
15-0656.
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).
