Updated 7/15/08

TOPICAL OUTLINE
ADMINISTRATIVE SEARCHES Probation/Parole Building Inspections CHIPS investigation DNA Collection (also see here, re: ordering DNA collection at sentencing) Inventory
APPLICABILITY OF EXCLUSIONARY RULE Generally: Express Provision Unnecessary Dog Sniff Identity: go here Non-Police Conduct Probation/Parole Proceeding Violation of Non-Constitutional Right § 146.82 § 968.135, Subpoena for Bank Records Stop by Officer Outside Jurisdiction Strip Search, § 968.255 Building Inspection Unauthorized Practice of Law SCR (Attorney Ethical Rules) Administrative Rule -- Prison Discipline Vienna Convention
ARREST Authority of Sheriff, in Municipality Legislator's Exemption Probable Cause Specific Examples Mistaken View of Law Citizen Informant Collective Knowledge Drug Odor OWI Preliminary Breath test Search Incident to Arrest Generally "Immediate Control" Rule Blood Test Laxative-Search (See also "Body Cavity" Searches, here.) Probable Cause but No Arrest in Fact Protective Sweep Automobile Driver Passenger's Property, Incident to Driver's Arrest Strip Search -- see here Test for Custody Traffic Arrest Warrant Arrest in Residence, Based on Search Warrant (for Residence)
ATTENUATION OF TAINT Abandonment of Property Arrest in Home Consent In-Court Identification Oustanding Arrest Warrant: see "Identification Search" Search Warrant Showup Identification -- see here Statements
CONSENT Acquiescence Authority 3rd-Party, Residence Driver, for Passenger Minor, to Enter residence Coercion Scope Miscellaneous Also see summaries under: "ATTENUATION OF TAINT"; and "STOP"
EXIGENCY General Automobile Blood Alcohol/OWI Investigation Community Caretaker/Emergency/Report of Crime in Progress Destruction of Evidence Domestic Violence Hot Pursuit Strip / Body Cavity Search: See here, and here
EXPECTATION OF PRIVACY Generally Abandoned Property Automobile Standing: Driver Standing: Passenger Closed Container Bank Records Commercial Property Curtilage Garbage Hospital Emergency Room Guest Mail Multi-Unit Common Area Passenger Prison Inmate Public Rest Room Stall Possessory Interest Necessary Stairway, Multi-Unit Threshold of Residence
FORFEITURE
PLAIN VIEW
REASONABLE SUSPICION ISSUES STOP Duration General Routine Traffic Stops Basis Warrantless Entry of Residence Limits -- See Arrest: Test for Custody FRISK Generally Automobile "Identification Search" Minor Traffic Violation High-Crime Area Placed in Police Squad Residence Scope Refusing to Keep Hands out of Pockets Subjective Apprehension of Danger Behavior During Pat-Down as Support for Frisk
SUPPRESSION HEARING PROCEDURE
WARRANTS Arrest Warrant, Entry 3rd-Party residence "Franks" Good-Faith No-Knock "Oath or Affirmation" Requirement Overbreadth Probable Cause Reconstruction of Warrant Application Scope Staleness
Wisconsin Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c)

  

CASE SUMMARIES

ADMINISTRATIVE SEARCHES

Administrative Searches -- Probation/Parole State v. Brandon L. Wheat, 2002 WI App 153, PFR 6/14/02 For Wheat: Steven A. Koch, Bradley J. Lochowicz Issue/Holding: The record shows that the search of defendant's residence was performed by his probation agent; police officers were present only for protection; therefore, this was a probation and not a law enforcement search. ¶23. UPDATE: What about where the search of the probationer/parolee's home is conducted by the police alone? See, e.g., U.S. v. Knights, 534 U.S. 112 (2001) (probationer who had agreed to condition subjecting him to law enforcement searches had significantly diminished expectation of privacy). But the police in that instance knew that Knights was on probation, and for a case saying that the logic of Knights doesn't apply where the police are unaware of the person's status as a parolee, see People v. Sanders, 31 Cal.4th 318 (2003), whose holding was extended first to probationers in People v. Bowers, 117 Cal. App.4th 1261 (2004) ("the constitutionality of the search turns on the factual circumstances known to the officer at the time, not the suspect’s implied consent to his probationary search condition") and Myers v. Superior Court, 4th Dist. No. G033785, 12/14/04 ("for a probation search to be valid pursuant to a search and seizure condition, the officer must know the person is on probation at the time of the search"), then to juveniles, In Re Jaime P., Cal SCt No. S135263, 11/30/06. Also see Moreno v. Baca, 9th Cir. No. 02-55627, 12/9/05 (police can't rely on parole status and outstanding parole warrant where they were unaware of same; thus: "police officers cannot retroactively justify a suspicionless search and arrest on the basis of an after-the-fact discovery of an arrest warrant or a parole condition"). On a separate point: "before conducting a warrantless search pursuant to a properly imposed parole condition, law enforcement officers must have probable cause to believe that the parolee resides at the house to be searched," Motley v. Parks, 9th Cir. No. 02-56648, en banc 12/31/05 (in other words, Steagald v. U.S., 451 U.S. 204, 213 (1981) applies). As to whether the police must have "paticularized suspicion" of wrongdoing by the parolee or probationer, the answer is, No, at least given a signed parole agreement permitting law enforcement to search the parolee without cause, Samson v. California, 126 S.Ct. 2193 (2006). Thus the Knights-Samson doctrine "rest[s] on the parolee's diminished expectation of privacy stemming from his own parole agreement and the state regulations applicable to his case," U.S. v. Freeman, 10th Cir No. 05-3437, 3/8/07 (but this also makes the doctrine limited in the following way: "Samson does not represent a blanket approval for warrantless parolee or probationer searches by general law enforcement officers without reasonable suspicion; rather, the Court approved the constitutionality of such searches only when authorized under state law"). The knock-and-announce requirement of the 4th amendment is distinct, and survives a Knights consent to search, Michael J. Green v. Butler, 7th Cir No. 04-2993, 8/24/05: ... Nor can it be said that Belter or Mr. Green consented by agreeing to the conditions in the host site agreement. Belter consented to a search at any time; however neither Belter nor the homeowner consented to the activity alleged here: parole agents walking into the house without informing anyone of their identity and purpose. ... In sum, a reasonable officer would not believe that a parolee’s consent to submit to search on demand eliminates the need to make such a demand, absent an exigency or demonstrated futility. ... For authority for the idea that a parolee / probationer's significantly diminished expectation of privacy doesn't automatically translate into consent to search during a routine, suspicion-less traffic stop, see People v. Moss, Ill App 5th Dist No. 5-03-0210, 10/22/04. Though it might seem obvious, note authority for the idea that an arrest doesn't eliminate the diminished expectation of privacy attending probation/parole conditions, U.S. v. Trujillo, 10th Cir No. 04-4074, 4/12/05 Authority favorably distinguishing pre-trial release on bond (conditioned on consent to random drug test and warrantless search of home) from probation / parole supervision: U.S. v. Scott, 9th Cir No. 04-10090, 9/9/05 ("His privacy and liberty interests were far greater than a probationer's"; "government's interests in surveillance and control as to a pre-trial releasee are thus considerably less than in the caes of a probationer"). That case also contains a very instructive discussion on "special needs" analysis: the purpose fulfilled by the "special need" must be separate from crime control; although the purported need of assuring pre-trial releasees' appearance in court is separate in the abstract, the government would have to establish empirically that drug use is a good predictor for absconding (something it made no attempt to do). The authorities must have probable cause to believe that the person under supervision is a resident of the house to be searched; that he or she spends the night there occasionally isn't sufficient, U.S. v. Howard, 9th Cir No. 05-10469, 5/25/06.

Administrative Searches -- Probation/Parole

State v. Charles J. Hajicek, 2001 WI 3, 240 Wis. 2d 349, 620 N.W.2d 781, reversing 230 Wis. 2d 697, 602 N.W.2d 93 (Ct. App. 1999).

For Hajicek: Bruce J. Rosen, Susan C. Blesener

Issue1: Whether a trial court finding that a search conducted jointly by probation and police agents was a police rather than probation search is reviewed deferentially.

Holding: ¶2 .... We hold that the determination of whether a search is a police or probation search is a question of constitutional fact reviewed according to a two-step process. First, we review the circuit court's findings of historical fact under the clearly erroneous standard. Second, we review the circuit court's determination of constitutional fact de novo. ... ¶26 In summary, we hold that the determination of whether a search is a police or probation search is a question of constitutional fact that requires application of a two-step standard of review.

Issue2: Whether, on the particular facts, including active police involvement in the search of the probationer's residence by probation officers, the search was a police search and therefore in violation of the warrant requirement.

Holding: "(T)he law enforcement officers were present at the search only for protective purposes," and their mere cooperation with the probation officer did not change its nature as a probation search. ¶34.

Issue3: Whether the probation officer had reasonable grounds, based on an anonymous tip which was "confirmed" by the local police, to search the probationer's residence.

Holding: ¶40 In the instant case, probation officer Hammes had reasonable grounds for a probation search of Hajicek's residence based on the factors provided in the Wisconsin Administrative Code. Hammes searched Hajicek's residence based on information provided by an informant. Wis. Admin. Code § DOC 328.21(7)(b) (June, 1999). Hammes received an anonymous tip that Hajicek was involved in drug use, drug trafficking, or both. Hammes searched Hajicek's residence because the information contained in the anonymous tip was reliable and the informant was reliable. Wis. Admin. Code§ DOC 328.21(7)(c) and (d) (June, 1999). The La Crosse County Sheriff's Department and the DNE verified the information contained in the anonymous tip by telling Hammes that the information was similar to information that they had from their investigation of Hajicek. Following the application of the factors for reasonable grounds applied in State v. Griffin and State v. Flakes, we conclude that reliable information from a reliable source that a probationer possesses contraband provides reasonable grounds for a probation search of the probationer's residence.

Analysis: The trial court found that this was a police search, because the probation officer used law enforcement to carry out the search (the police, that is, acted as a "stalking horse" for the p.o.). Instead of deeming this a finding of fact, entitled to deference, the supreme court deems it a "constitutional fact," reviewed independently, because its existence is "decisive of constitutional rights." ¶¶14-15. By that reasoning, virtually any "finding" should be reviewed non-deferentially. The dissent points out in thinly veiled terms the result-oriented nature of this approach: "As is evident in the majority opinion, the majority appears to have decided that it wishes to exercise de novo review and then labels the issue as one of constitutional fact." ¶51. But the majority is still stuck with the trial court's findings of historical fact (among others: the police prevailed on the p.o. to hold off on a search so that they could conduct their own investigation, during which they unsuccessfully sought a warrant). The supreme court says that these findings show only that the police were present for protective purposes, and that this sort of cooperation with law enforcement doesn't change a probation search into a police search. ¶¶29-32. That begs at least a couple of questions, namely, whether this was indeed mere cooperation and, more broadly, just what does make a probation search into a police search. The dissent aptly characterizes the background: ¶65 Indeed, the word 'cooperation' does not appropriately describe the situation here. I agree with the circuit court that the probation officer "changed hats" and was serving a law enforcement rather than probationary function. The probation officer allowed law enforcement to dictate his operations. The probation officer agreed to allow law enforcement officers to interfere with ordinary probationary supervision and to delay a probationary search for more than three weeks. Law enforcement officers were not able to obtain a search warrant because their information was not good enough and then the probation officer worked with these same officers on a 'probation' search looking for the same evidence as the aborted search warrant would have sought. So just when, in the majority's view, would a probation search become a police search? The dissent says never: ¶67 Guidance? I think not. Puzzlement? I think so. The question the readers should ask, after reading the majority opinion, is whether they can hypothesize any realistic fact situation in which a probation officer who performs a search under the protection of the very law enforcement officers with whom they have been 'cooperating' would be transformed into a stalking horse. I fear that no such situation exists. UPDATE: As indicated above, the dissent's concern turns out to be prescient -- not long after this case was decided, the Supreme Court decided U.S. v. Knights, 534 U.S. 112 (2001) (Knights' consent to probationary condition authorizing searches of his property by probation and police officers allowed warrantless search on reasonable suspicion). That holding has been construed as "confirm(ing) that the Fourth Amendment does not require a stalking horse inquiry.... In short, when a probationary condition authorizes searches by probation officers, the Fourth Amendment does not require probation officers to choose between endangering themselves by searching alone and foregoing the search because they lacked the resources and expertise necessary to search alone safely." U.S. v. Brown, 8th Cir. #03-1578, 10/10/03, and cases cited. See also U.S. v. Newton, 2nd Cir. No. 02-1310, 5/26/04, rejecting stalking horse "challenges to coordinated efforts between probation/parole officers and other law enforcement officials" in virtually all instances; State v. Kottman, 2005 SD 116 (same, noting "that after Knights ... most ... appellate courts rejected the previously accepted stalking horse doctrine"). That said, as also discussed above a meaningful distinction may be made where the police are unaware of the person's status as probationer or parolee.)

Administrative Searches -- Warrants -- Building Inspection

State v. Albert Jackowski, 2001 WI App 187

For Jackowski: Ronald C. Shiroka

Issue1: Whether review of issuance of an administrative warrant is entitled to the same deference as a criminal search warrant.

Holding: "Great deference" is no less accorded a magistrate's decision to issue an administrative warrant than a criminal search warrant. ¶¶9-14.

Issue2: Whether a building inspection warrant must be supported by probable cause to believe code violations then exist in the building.

Holding: ¶11. The U.S. Supreme Court in Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523 (1967), explained the Fourth Amendment standards applicable to administrative building code inspections. The Court held that, absent consent, an inspection executed under an administrative code enforcement program requires a warrant, but administrative inspection warrants may be issued on a showing other than probable cause to believe 'a particular dwelling contains violations.' Id. at 534. Rather, the Court concluded that, 'probable cause' to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building ... or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling. Id. at 538 (emphasis added). ¶12. The Seventh Circuit discussed Camara's holding and applied it to a Wisconsin city's 'special inspection warrants' in Platteville Area Apartment Assoc. v. City of Platteville, 179 F.3d 574 (7th Cir. 1999). The court noted that 'Camara and the other decisions that allow the use of warrants for administrative or regulatory searches modify the conventional understanding of the Fourth Amendment's "probable cause" requirement for warrants, since it is the essence of such searches that there is no probable cause to believe that a particular search will yield evidence of a violation of law....' Id. at 578. Thus, Jackowski's claim that the application for the inspection warrant was deficient because it did not establish probable cause to believe code violations then existed in his building is unavailing. ¶13. Jackowski does not challenge, nor did he in the trial court, the overall 'reasonableness' of the City of Franklin's 'regulatory package that includes compulsory inspections.' Platteville, 179 F.3d at 578. We thus deem him to have conceded the existence of 'reasonable legislative or administrative standards' for conducting a building code enforcement inspection of his building. Camara, 387 U.S. at 538. Additionally, we observe that the application is made under oath and generally follows the 'illustrative' format provided in Wis. Stat. § 66.0119(3). The applicant is identified as a person authorized to conduct building inspections in the City of Franklin. The code provisions to be enforced are cited, and the need for the current inspection is described: citizen complaints of code violations, as well as a determination of whether previously cited violations (pending in municipal court) are still present.

Administrative Searches -- CHIPS Investigation John Doe and Jane Doe v. Heck, 7th Cir. 01-3648, 4/16/03 Issue/Holding: "(T)o the extent § 48.981(3)(c)1 authorizes government officials to conduct an investigation of child abuse on private property without a warrant or probable cause, consent, or exigent circumstances, the statute is unconstitutional."

Administrative Searches -- DNA -- Collection from Prisoners, § 165.76 (See also DNA collection ordered at sentencing, here.) Green v. Berge, 7th Cir. 01-4080, 1/9/04 Issue/Holding: The Wisconsin law, § 165.76 et seq., was passed in 1993. In its original form, only prisoners convicted of certain offenses were required to give DNA samples for analysis. In 1999, the law was amended to require that all persons convicted of felonies in Wisconsin (and those who were in prison at the time) provide DNA samples for analysis and storage in the state’s data bank. ... Although the United States Supreme Court has yet to address the validity of DNA collection statutes under the Fourth Amendment, as we just noted, state and federal courts that have are almost unanimous in holding that these statutes do not violate the Fourth Amendment.... ... Wisconsin’s DNA collection statute is, we think, narrowly drawn, and it serves an important state interest. Those inmates subject to testing because they are in custody, are already “seized,” and given that DNA is the most reliable evidence of identification—stronger even than fingerprints or photographs—we see no Fourth Amendment impediments to collecting DNA samples from them pursuant to the Wisconsin law. The Wisconsin law withstands constitutional attack under the firmly entrenched “special needs” doctrine. (The court quotes with approval from an earlier district court opinion, Shelton v. Gudmanson, 934 F. Supp. 1048 (W.D. Wis 1996), which likens "special needs searches" to administrative searches, "in which the warrant and probable cause showing are replaced by the requirement of showing a neutral plan for execution, a compelling governmental need, the absence of less restrictive alternatives and reduced privacy rights.... Although the state’s DNA testing of inmates is ultimately for a law enforcement goal, it seems to fit within the special needs analysis the Court has developed for drug testing and searches of probationers’ homes, since it is not undertaken for the investigation of a specific crime.") Although there appears to be deep division over the rationale, it appears that appellate decisions have unanimously upheld suspicionless collection of DNA (though individual panels have closely split). For discussion of this line of cases, go here; use Back button to return. But see, U.S. v. Zimmerman, 9th Cir No. 06-50506, 12/18/07 (order to provide DNA may, depending on facts, violate Religious Freedom Restoration Act). Authority for idea that warrant not needed to extract DNA from saliva sample (obtained by ruse) from mere suspect: State v. Athan, Wash SCt No. 75312-1, 5/10/07.

Administrative Searches -- Inventory -- Existence of Police Policy Goes to Search, not Seizure State v. Timothy T. Clark, 2003 WI App 121 For Clark: Rodney Cubbie Issue/Holding: Existence of, and compliance with, a police policy on conducting an inventory search relates only to the reasonableness of the search and not the seizure of the item searched: ¶11. Here, the State contends that the search of the vehicle was a valid inventory search. "Although an inventory search is a 'search' within the meaning of the fourth amendment, it is also a well-defined exception to the warrant requirement." State v. Weber, 163 Wis. 2d 116, 132, 471 N.W.2d 187 (1991) (citations omitted). Analysis of an inventory search involves a two-step process: (1) analysis of the reasonableness of the seizure in the first instance; and (2) analysis of the reasonableness of the inventory search. See id. at 133. Clark challenges the first step and concludes that the police had no right to tow the vehicle. ¶12. The State makes much of the written "safekeeping tow" policy as well as the unwritten "unsecured vehicle" policy. The State cites Thompson v. State, 83 Wis. 2d 134, 265 N.W.2d 467 (1978), for the proposition that the seizure was reasonable and permissible. The Thompson court stated: "The United States Supreme Court has held that inventory searches pursuant to 'Standard police procedures' are reasonable and permissible." Id. at 139-40 (citing South Dakota v. Opperman, 428 U.S. 364, 372-73 (1976)). The State, however, has applied the reasoning of Thompson to the wrong step of the inventory search analysis - both Thompson and Opperman deal with the reasonableness of the inventory search; i.e., was the decision to conduct an inventory search made pursuant to standard police operating procedures? See Thompson, 83 Wis. 2d at 140 ("[I]t was standard police operating procedures to inventory an automobile whose driver has been arrested, before towing it...."); Opperman, 428 U.S. at 372 ("[I]nventories pursuant to standard police procedures are reasonable."). These cases, however, do not deal with the reasonableness of the seizure of the vehicle in the first instance; i.e., was the decision to impound and tow the vehicle reasonable? ¶13. Moreover, the Opperman court explicitly stated that each search must be independently evaluated applying the Fourth Amendment standard of reasonableness... ¶14. Thus, with respect to the Milwaukee Police Department's policies, first and foremost, we conclude that compliance with an internal police department policy does not, in and of itself, guarantee the reasonableness of a search or seizure. Rather, the constitutionality of each search or seizure will, generally, depend upon its own individual facts. See State v. Guy, 172 Wis. 2d 86, 100, 492 N.W.2d 311 (1992) (stating that the court would not place a constitutional imprimatur on the Milwaukee Police Department's policy of automatically frisking everyone present for weapons while executing a search warrant for drugs in a private residence, but rather, that the constitutionality of each such frisk would continue to depend upon its unique facts) As to reasons for existence and adherence to established inventory policy, see e.g. State v. Johnson, 2003 NY Int 160, 12/22/03: An inventory search is exactly what its name suggests, a search designed to properly catalogue the contents of the item searched. The specific objectives of an inventory search, particularly in the context of a vehicle, are to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel and others from any dangerous instruments (Florida v Wells, 495 US 1, 4 [1990]). As the Supreme Court has stated, “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence” ( id.). To guard against this danger, an inventory search should be conducted pursuant to “an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably” (People v. Galak, 80 NY2d 715, 719 [1980]). The procedure must be standardized so as to “limit the discretion of the officer in the field” ( id.). While incriminating evidence may be a consequence of an inventory search, it should not be its purpose. See also U.S. v. Proctor, DC Cir No. 05-3132, 6/19/07 ("if a standard impoundment procedure exists, a police officer’s failure to adhere thereto is unreasonable and violates the Fourth Amendment. ... The Fourth Amendment requires, again, that an inventory search be reasonable and, if a standard procedure for conducting an inventory search is in effect, it must be followed."); State v. Coleman, Or App No. A117104, 11/10/04 ("A valid administrative search must be conducted for purposes other than law enforcement, pursuant to a policy that is authorized by a politically accountable lawmaking body. ... Furthermore, in order to be valid, such a policy must limit the discretion of those responsible for conducting the search and the scope of the search authorized must reasonably relate to its purpose."); State v. Eldridge, Or App A123728, 8/16/06 (impoundment policy that vehicle "shall be completely searched and inventoried" overboad); State v. Nordloh, Or App No. A121786, 9/27/06 (follows Eldridge, with inventive twist, that overly broad inventory policy analgous to Commerce Clause challenge: "The power to inventory a vehicle's contents exists only pursuant to a properly authorized policy... Because the Grants Pass DPS inventory policy requires an officer to open all closed containers in an impounded vehicle, it is not reasonably related to protecting property or eliminating false claims, and thus the purported inventory in this case pursuant to the policy was in fact a warrantless and nonconsensual search that required suppression of the evidence."). (Seizure of vehicle discussed separately below, under community caretaker rationale. Keep in mind: "In determining the propriety of an inventory search, the threshold question is whether the impoundment itself was proper," Taylor v. State, Ind SC No. 49S04-0410-CR-457, 2/14/06.)

APPLICABILITY OF EXCLUSIONARY RULE

Applicability of Exclusionary Rule – Violation of Statutory Right, Generally: Suppression Need not Be Expressly Provided

State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16

For Popenhagen: James B. Connell

Issue/Holding: ¶62 …[E]vidence obtained in violation of a statute (or not in accordance with the statute) may be suppressed under the statute to achieve the objectives of the statute, even though the statute does not expressly provide for the suppression or exclusion of the evidence. … The court of appeals had previously stated: “"wrongfully or illegally obtained evidence is to be suppressed only where the evidence was obtained in violation of an individual's constitutional rights or in violation of a statute that expressly requires suppression as a sanction,” State ex rel. Jane Peckham v. Krenke, 229 Wis.2d 778, 787, 601 N.W.2d 287 (Ct. App. 1999). The supreme court now says (¶65) that that statement is “too broad”: ¶68 Arnold, Raflik, Peckham, and Verkuylen, properly read, do not require the legislature expressly to require or allow suppression of unlawfully obtained evidence in order for a circuit court to grant a motion to suppress. In other words, the legislature need not express its intent to provide a remedy of exclusion or suppression of evidence with greater clarity than ordinarily required of any legislative enactment. The cases demonstrate that the circuit court has discretion to suppress or allow evidence obtained in violation of a statute that does not specifically require suppression of evidence obtained contrary to the statute, depending on the facts and circumstances of the case and the objectives of the statute. … ¶70 The proposition of law that wrongfully or illegally obtained evidence may not be suppressed except when the evidence was obtained in violation of an individual's constitutional rights or in violation of a statute that expressly requires suppression of evidence as a sanction has been carried expressly or impliedly from case to case without any support or reasoning. This proposition is an unsupported mistaken statement of the law. Mistaken statements of the law should not constitute precedent that binds this court. [39] We do more damage to the rule of law by refusing to admit error than by correcting an erroneous proposition of law. [40] The instant case presents an opportunity to correct an error of law that has been repeated in numerous cases, and we do so

Applicability of Exclusionary Rule -- Dog Sniff, Wisconsin Constitution

State v. Ramon Lopez Arias, 2008 WI 84, on Certification

For Arias: Lora B. Cerone, SPD, Madison

Issue/Holding: A dog sniff is no more a “search” under the Wisconsin than the U.S. Constitution, at least with respect to vehicles: ¶22      We are unwilling to undertake such a departure here. First, we note that there is no constitutionally protected interest in possessing contraband under the United States Constitution, United States v. Jacobsen, 466 U.S. 109, 123 (1984), nor is there a constitutionally protected interest in possessing contraband under the Wisconsin Constitution. Moreover, the occupant of a vehicle has no reasonable expectation of privacy in the air space surrounding a vehicle that he is occupying in a public place. State v. Garcia, 195 Wis.  2d 68, 74-75, 535 N.W.2d 124 (Ct. App. 1995). ¶23      Second, a dog sniff is much less intrusive than activities that have been held to be searches. Place, 462 U.S. at 707. When a dog sniffs around the perimeter of a vehicle, the occupant of the vehicle is not subjected to the embarrassing disclosure or inconvenience that a search often entails. Id. The dog sniff reveals only the presence or absence of narcotics, a contraband item. Id. Indeed, a dog sniff is unique as a means of detection because, as the Supreme Court has observed, a dog sniff gives limited information that is relevant only to contraband for which there is no constitutional protection. Id. The court doesn’t explore the possible distinction, but does it matter where King plies his trade? Maybe; maybe not: see split of authority discussed under Miller summary, immediately below.

Applicability of Exclusionary Rule -- Dog Sniff State v. Tina M. Miller, 2002 WI App 150, PFR filed 6/3/03 For Miller: Timothy A. Provis Issue/Holding: ¶6. The Supreme Court first addressed whether the Fourth Amendment applies to canine sniffs in United States v. Place, 462 U.S. 696 (1983). ... The Court then concluded "that the particular course of investigation that the agents intended to pursue here-exposure of respondent's luggage, which was located in a public place, to a trained canine-did not constitute a `search' within the meaning of the Fourth Amendment." ... ... ¶8. Miller does not discuss Place or Garcia but rather argues that a conclusion in her favor is dictated by City of Indianapolis v. Edmond, 531 U.S. 32 (2000). ... Although the Court held that the program was unconstitutional, its holding had nothing to do with the use of drug-sniffing dogs, but resulted because vehicles were being stopped, i.e. "seized," without reasonable suspicion. ... Miller's car did not need to be stopped in order to conduct a dog sniff, so Edmond does not apply. ... ¶9. We therefore conclude that under the Supreme Court's interpretation of the Fourth Amendment, dog sniffs are not searches. ... ¶10. Because current law does not classify canine sniffs as searches within the meaning of the Fourth Amendment, Forbes was not required to have probable cause or reasonable suspicion before walking a dog around Miller's vehicle for the purpose of detecting drugs in the vehicle's interior. The Supreme Court has now weighed in, Illinois v. Caballes, 03-923, 1/24/05 (upholding sniff of car without reasonable suspicion during lawful traffic stop), on remand: People v. Caballes, IL SCt No. 91547, 5/18/06 (challenge rejected under state constitution, albeit by closely divided vote). The Court stressed that the question before it "is narrow," i.e., whether reasonable suspicion is required before a drug-detection dog can be used during a legitimate traffic stop; the Court answers, no: "the use of a well-trained narcotics-detection dog -- one that "does not expose noncontraband items that otherwise would remain hidden from public view," Place, 462 U.S., at 707 -- during a lawful traffic stop, generally does not implicate legitimate privacy interests." A number of questions remain. The first -- whether the results of a dog-sniff are suppressible on account of an unlawful detention -- is at least impliedly resolved by Caballes itself: Here, the initial seizure of respondent when he was stopped on the highway was based on probable cause, and was concededly lawful. It is nevertheless clear that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. United States v. Jacobsen, 466 U.S. 109, 124 (1984). A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. In an earlier case involving a dog sniff that occurred during an unreasonably prolonged traffic stop, the Illinois Supreme Court held that use of the dog and the subsequent discovery of contraband were the product of an unconstitutional seizure. People v. Cox, 202 Ill. 2d 462, 782 N. E. 2d 275 (2002). We may assume that a similar result would be warranted in this case if the dog sniff had been conducted while respondent was being unlawfully detained. Three points. First, this quote resolves the idea that a drug-sniff is suppressible, if occasioned by an illegal detention. The point may be seem perfectly obvious, but given that the Court elsewhere says that a dog-sniff does not invade any "legitimate" privacy interest, it might otherwise be argued that since no "search" is involved, there can be no taint. (See, e.g., State v. Poliar, Fla App 4th Dist No 4D03-4856, 3/9/05 ("It follows that if the dog search occurred while Poliar 'was being unlawfully detained,' then the cocaine would be the product of an unconstitutional seizure." Thus, absent reasonable suspicion, canine search during routine traffic stop must occur "within the time frame required to issue a citation").) Second, the Court touches on what is likely to be a recurrent problem, "an unreasonably prolonged traffic stop"; that is, merely because the stop is valid at inception doesn't mean that it necessarily remains so. Third, the Court all but ratifies the particular result in Cox, and that case should therefore be read closely (note, particularly, that latter court's stress that "this was a routine traffic stop, which should have resulted in a correspondingly abbreviated detention," with a citation or warning issued "expeditiously"). Note that in Miller, the sniff occurred during execution of a warrant, therefore this issue of underlying legality of warrantless seizure wasn't raised or resolved. But as the Caballes quote suggests, the problem of prolonging an otherwise lawful detention in order to perform the detection activity is likely to be the subject of recurrent litigation. See, e.g., U.S. v. Ladeaux, 10th Cir No. 05-8097, 7/12/06 (Caballes doesn't apply to stop prolonged by "ancillary requests" such as rolling up window or closing vent which exceed scope of detention); Cox; People v. Brandon, Colo App No. 03CA1176, 7/14/05 (because dog sniff occurred after traffic stop illegally prolonged, Caballes distinguishable); State v. Bruce, Tenn Cr App No. E2004-02325-CCA-R3-CD, 8/22/05 (though dog sniff is not a "search," "when a canine sweep is ancillary to a legitimate traffic stop, it may constitute an unlawful search if the suspect is detained beyond the time necessary to complete the traffic stop because the detention itself becomes unlawful"); Sims v. State, Ark. S.Ct. No. CR03-63, 4/1/04 (to same effect); U.S. v. Beck, 140 F.3d 1129 (8th Cir. 1998) (originally consenusal encounter became seizure when driver told if didn't consent to search, canine unit would sniff car; because the detention wasn't supported by reasonable suspicion, results of ensuing dog sniff suppressible); Damato v. State, 2003 WY 13, 64 P.3d 700 (2003) (though stop initially valid, trooper didn't have sufficient cause to prolong detention until arrival of drug-detection dog); U.S. v. Davis, 6th Cir No. 03-1451, 11/22/05 (reasonable suspicion dissipated once Rocky, a well-trained sniffer, failed to alert to drugs in car; therefore, detention for another hour to bring in a substitute sniffer off the bench, unreasonably prolonged the detention);and U.S. v. Martinez, 8th Cir. No. 03-1229, 1/14/04 (Lay, dissenting) ("the proper inquiry is whether the Defendants' rights to be free from an unreasonable seizure were violated, not a search." In other words, the distinction between seizure and search should be kept in mind; the fact that a dog sniff doesn't implicate concerns of the latter doesn't preclude an argument with respect to concerns of the former.). But see U.S. v. Alexander, 8th Cir No. 05-3378, 5/15/06 (momentary extension of a lawful traffic stop, lasting no more than a few minutes, to permit canine sniff of the vehicle upheld) For general discussion of prolonged traffic stop, see cases under that topic, below. For cases deeming dog sniff a "search" under respective state constitutions, see discussion in People v. Caballes, IL SCt No. 91547, 5/18/06 (though result in that case unfavorable). The next question left open by Caballes is whether a dog sniff of something other than a car -- a home, in particular -- invades a "legitimate" interest. Caballes, it should be noted, does not explicitly leave this question open; rather, it is something that simply is not addressed. Indeed, a nation-wide split has developed and cert review may be in the offing. Lower courts wrestling with this problem tend to start with a potential analogy between dog sniffs and invasive technology such as thermal imaging. Some of those cases are cited below, and will remain in this posting, but it must be said that Caballes does have a glancing reference to this analogy that doesn't augur well for itst ultimate viability: This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States, 533 U.S. 27 (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity–in that case, intimate details in a home, such as “at what hour each night the lady of the house takes her daily sauna and bath.” Id., at 38. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment. In the meantime, a Florida court of appeals panel had held that a dog sniff of the exterior of a home is a sense-enhancing search, and thus regulated by the thermal imaging case of Kyllo v. U.S., 533 U.S. 27 (2001), State v. Rabb, 881 So.2d 587 (Fla. 4th DCA 2004): ... Although a drug detector dog’s sense of smell may not be technology, it, like the Agema Thermovision 210, allows law enforcement to detect that which it otherwise likely would not detect. Relying on Kyllo, we conclude that although the use of such enhancement techniques to detect contraband subsequently seized by warrant may not amount to a search in a place such as a public airport, it does when intruding into a house to discern “intimate details.” See Payton, 445 U.S. at 586-587 n.24. Rabb was vacated 5/16/05 for reconsideration of Caballes; on remand, the lower court reaffirmed, Fla. App. 4D02-5139, 9/14/05. That hardly ended the matter: on state's motion for rehearing, the court vacated the remand opinion, but substituted in its place a detailed analysis which by 2-1 vote again sustained the earlier result. State v. Rabb, 2/15/06. Some highlights: Given the shroud of protection wrapped around a house by the Fourth Amendment, we conclude that Kyllo v. United States, 533 U.S. 27 (2001), controls the outcome of the case at bar.... ... The use of the dog, like the use of a thermal imager, allowed law enforcement to use sense-enhancing technology to intrude into the constitutionally-protected area of Rabb’s house, which is reasonably considered a search violative of Rabb’s expectation of privacy in his retreat. Likewise, it is of no importance that a dog sniff provides limited information regarding only the presence or absence of contraband, because as in Kyllo, the quality or quantity of information obtained through the search is not the feared injury. ... In the present case, there are significant place and situation differences from Caballes. The challenged dog sniff occurred at the exterior of Rabb’s house, the most sacred of places under Fourth Amendment jurisprudence. ... To this end, we re-emphasize our discussion of Kyllo v. United States, 533 U.S. 27 (2001). In that discussion, we stress that the nature of what the dog detects—whether phrased as the quality or quantity of information or the presence or absence of contraband—is not the focus of Fourth Amendment concern. The Fourth Amendment concern is that the government endeavored at all to employ sensory-enhancing methods to cross the firm line at the entrance of a house. Id. at 593. ... Or, for you real estate brokers out there, the three main determinants are, location, location, location. For like authority, see the thoughtful decision in U.S. v. Larry D. Jackson, S.D. Ind. No. 03-79-CR-1 2004 U.S. Dist. Lexis 15676, 2/2/04 (no non-commerical link): Jackson contends that the use of the dog to sniff the back door of his house amounted to an unreasonable and warrantless search, so that the foundation for the search warrant was obtained by violating his Fourth Amendment rights. The court agrees. The use of a drug-sniffing dog at the entrance of a home in this case is comparable to police use of a thermal-imaging device outside a home to scan the interior of that home in Kyllo v. United States, 533 U.S. 27, 34, 150 L. Ed. 2d 94, 121 S. Ct. 2038 (2001), which was held to be a search of the home in question. ... This reasoning applies directly to the "sense-enhancing" use of a specially trained dog. Dogs with such training are not in "general public use" (which refers to the general public, not to police forces, which often use such dogs to detect drugs). The information such a dog can provide about the interior of the home would not otherwise be obtained without a physical intrusion into the home. The court sees no constitutional distinction between the use of specially trained dogs and sophisticated electronics from outside a home to detect activities in or contents of the home's interior. A leading pre-Kyllo case, State v. Ortiz, 257 Neb 784 (10/1/99) held: "By using a canine to snifff or illegal drugs in a hallway outside an apartment, the police engage an investigative technique by which they are able to obtain information regarding the contents of a place that has traditionally been accordeda heightened expectation of privacy. While such an investigative technique may be minimally intrusive, it nevertheless implicates the Fourth Amendmentand Neb. Const. art. I, § 7, and requires independent reasonable suspicion." Contrary authority certainly exists, such as U.S. v. Brock, 7th Cir No. 03-2279, 8/2/05 (dog sniff of locked bedroom "was not a Fourth Amendment search because it detected only the presence of contraband and did not provide any information about lawful activity over which Brock had a legitimate expectation of privacy"); Smith v. State, TX App No. 01-02-00503-CR, 2/5/04 ("Unlike the surveillance device used in Kyllo, a drug-dog sniff does not explore the details of a house. See id. Indeed, a drug-dog sniff can do no more than reveal the presence or absence of contraband (viz., narcotics)."); Stauffer v. State, TX App No 14-03-00193-CR, 2/12/04; for one of the most comprehensive treatments, see Fitzgerald v. State, Md Ct App No. 8, 12/10/04 (making strong case for idea that dog sniff simply is not "search" no matter directed at car or home). Note, though, that Fitzgerald, fn. 7, reserves the issue of whether and under what circusmtances a dog sniff of a person might constitute a search. Of related interested, see Morgan v. State, 2004 WY 95, ¶18: dog sniff of car's exterior is not a search; Kyllo didn't overrule U.S. v. Place, 492 U.S. 696 (1983) (dog sniff of luggage in public place not a search) on this point -- rather the different results are attributable to greater privacy-protection afforded homes than vehicles. And: U.S. v. Lopez, 1st Cir. No. 03-1767, 8/19/04 (Kyllo doesn't require balancing weight of probable cause evidence against privacy interests, but simply holds that use of thermal-imaging device to measure heat coming from house was "search" of that house; even if Kyllo required balancing, "the recognized privacy interest is of a different caliber from that in the present case because the search there involved a home rather than a car"). Many courts, to be sure, reject the analogy of cutting-edge technology to canine extra-human perception, see e.g., Fitzgerald (dogs are family members, not "advancing technology," and their efforts are limited solely to determining existence of contraband for which no legitimate expectation of privacy exists anyway; technology carries the danger of much greater intrusions). Whatever the general merits of rejecting the Kyllo analogy, the particular idea that "A person does not have a legitimate expectation of privacy in contraband, but does in bath water" is quite troublesome. "Obscene" material, for example, lies outside first amendment protection, yet it is long-settled that "mere possession (of obscene material) in the privacy of (one's) own home" is protected by the first amendment. Stanley v. Georgia 394 U.S. 557 (1969). Obviously, there is no first amendment right to possess drugs, but the point, rather, is that it is too facile to simply assert that you cannot have a legitimate expectation of privacy in something that you keep in a place that is private. And yet, Caballes clearly says that any interest in possessing contraband cannot be deemed legitimate, so that governmental conduct that only reveals the presence of contraband cannot compromise a legitimate privacy interest. Indeed, the principle is stated so broadly that it may well signal an intent to permit warrantless dog-sniff of a residence. Rabb, though, squarely rejects that idea ("If determining whether law enforcement conduct constitutes a search is solely a function of whether the item searched for is illegal, whether that item be in a vehicle on a public highway or beyond the closed doors of an individual’s castle, the Fourth Amendment is rendered meaningless."). Rabb's appellate sojourn likely isn't over. See also State v. Davis, MN SCt No. A05-857, 5/24/07 ("the police needed only reasonable, articulable suspicion that Davis was engaged in illegal drug activity, rather than probable cause, to conduct the dog sniff in the common hallway outside Davis’s apartment door"). But the first step is understanding the proper analysis, not simply the fact that a dog sniffed an object. This may at times require familiarity with increasingly complex concepts such as the "special needs" doctrine and when it might apply instead of the general balancing test of reasonableness, and to what effect. (At the risk of gross oversimplification, where there is a "special need" for the government intrusion and it isn't focused on a law enforcement purpose, then individualized suspicion may be dispensed with.) This may not necessarily have anything to do with dog sniffs or emerging technology, but then again it might in some given context. To illustrate: see U.S. v. Kincade, 9th Cir. No. 02-50380, 08/18/04, en banc (hotly contested 6-5 opinion with no clear majority, narrowly upholding mandatory DNA testing for certain federal convicts under conditional release, despite absence of reasonable suspicion -- be warned, though, that at 108 pp., the opinion is a hefty download). Though the opinion mentions Kyllo only sparingly, note Judge Kozinski's separate dissent: New technologies test the judicial conscience. On the one hand, they hold out the promise of more effective law enforcement, and the hope that we will be delivered from the scourge of crime. On the other hand, they often achieve these ends by intruding, in ways never before imaginable, into the realms protected by the Fourth Amendment. Which is no doubt why the Supreme Court has told us to be wary of “this power of technology to shrink the realm of guaranteed privacy.” Kyllo v. United States, 533 U.S. 27, 34 (2001). Throughout the opinion -- more accurately, opinions: plurality, concurrence, dissents -- is a very detailed discussion of the "special needs" doctrine and very little discussion of Kyllo. But Judge Kozinski's elegant introductory remarks more than hints at the relevance of that case, amplification of which awaits further litigation. For a general discussion of the interplay of developing technologies and the fourth amendment, see Orin S. Kerr, "The Fourth Amendment and New Technologies," 102 Mich. L. Rev 801 (2004) (Kerr, a very knowledgeable commentator, argues that Kyllo takes a conservative approach, in that it attempts "to retain the very core of traditional Fourth Amendment protections: the protection of information about the home traditionally enforced by property law.") If Kerr's analysis is right, then it is highly unlikely that Kyllo will be seen as overruling Place -- as proven by the outcome in Caballes. Kerr's immediate take on Caballes observes that the very notion that a "search" isn't conducted when the police perform tests for contraband is based on the idea promoted in his referenced article, namely that a property right must be infringed for there to be a "search in a "constitutional" sense; and, "a person cannot have a property right in narcotics[.]" Relatedly (and more specifically as to Kyllo): The opinion today more fully reconciles the existing cases on use of technologies to detect what the human senses cannot (if you can consider Fido a technology), further cementing the idea of focusing on the nature of the information obtained rather than the way the surveillance works. [¶]In my view, this is a potentially troubling development. The Fourth Amendment traditionally has focused on how the surveillance occurred, rather than the nature of the information obtained. Under the traditional approach, the government could not invade your property without a warrant no matter what information it wished to obtain. Under the rationale followed by the Court today, the government may be free to invade your property so long as they only obtain "non private" information. For more pointed criticism from another fourth amendment expert, litigator and author John Wesley Hall, see his site's January 24, 2005, entry.

Applicability of Exclusionary Rule: Private / Government Search, Generally

State v. Tomas Payano-Roman, 2006 WI 47, reversing 2005 WI App 118

For Payano-Roman: Timothy A. Provis

Issue/Holding: ¶17      … Private searches are not subject to the Fourth Amendment's protections because the Fourth Amendment applies only to government action. State v. Rogers, 148 Wis.  2d 243, 246, 435 N.W.2d 275 (Ct. App. 1988) …. ¶18      The court of appeals in Rogers stated three requirements that must be met for a search to be a private search: (1) the police may not initiate, encourage or participate in the 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. Rogers, 148 Wis.  2d at 246. ¶19      Similarly, a search may be deemed a government search when it is a "joint endeavor" between private and government actors …. ¶20      At the same time, however, the mere presence of a government official will not necessarily transform a private search into government action. … … ¶23      We agree with the State that Payano-Roman had the burden of proof. 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 Fourth Amendment. … ¶24      However, the circuit court's determination of whether the search was a private search or a government search is not a finding of evidentiary or historical fact. Rather, it is ultimately a question of law subject to independent appellate review. …

Applicability of Exclusionary Rule: Private / Government Search: Administration of Laxative to Arrestee at Hospital

State v. Tomas Payano-Roman, 2006 WI 47, reversing 2005 WI App 118

For Payano-Roman: Timothy A. Provis

Issue: Whether the administration to an arrestee of a laxative at a hospital was under 4th amendment constraints because of the involvement of the police (including keeping the defendant handcuffed in the hospital room; police administration of the laxative; their palpable goal to recover a controlled substance that the defendant had swallowed).

Holding: ¶28      Taking all of these circumstances into account, we determine that Payano-Roman established by a preponderance of the evidence that the search meets the test for a government search. The totality of the facts shows that the officers and medical personnel were engaged in a joint endeavor to speed the passage of the baggie of drugs through Payano-Roman's system. The administration of the laxative had a dual purpose, medical treatment and the recovery of evidence of a crime. [6] Moreover, Agent Parker directly participated in the administration of the laxative to Payano-Roman. This is not a case involving the "mere presence" of a police officer. ¶29      There can be no question on this record that one purpose of the laxative procedure was medical treatment. However, when we consider all the circumstances of this case, we conclude that the medical purpose of the procedure cannot insulate the simultaneous evidence-gathering purpose from Fourth Amendment scrutiny. [6]  Cf. State v. Jenkins, 80 Wis. 2d 426, 433-34, 259 N.W.2d 109 (1977) (holding that where a blood test is taken at the request of a physician "solely" for diagnostic purposes, there is no search and seizure within the meaning of the Fourth Amendment).

Applicability of Exclusionary Rule: Private / Government Search -- UPS

State v. Christopher D. Sloan, 2007 WI App 146

For Sloan: Thomas E. Hayes

Issue/Holding: Inspection of a package by UPS personnel and subsequent disclosure of its contents to the police didn’t require a warrant because of lack of governmental involvement in the initial search: ¶10 A private party’s discovery, and subsequent disclosure to law enforcement, of contraband is not prohibited by the Fourth Amendment where there is not a reasonable expectation of privacy in dealings with the private party. See United States v. Jacobsen, 466 U.S. 109, 113, 115 (1984). One does not generally have a reasonable expectation of privacy when delivering property to a private shipping company, particularly when the shipping company posts a sign reserving its right to inspect parcels left with it for shipping. See id. at 117-18. … ¶15 As noted above, a warrantless search conducted by a governmental agent that goes beyond the search conducted by the private party providing the package to law enforcement may be unconstitutional. Jacobsen, 466 U.S. at 115. Here, however, the only thing Hennen did, which UPS employees had not done, was to perform the field test to confirm that the material was marijuana. As we know from Jacobsen, that is permissible conduct by law enforcement. Id. at 123. Under the facts of Jacobsen, and the nearly identical facts here, the Fourth Amendment was not violated by Hennen’s conducting the field test to determine whether the material was, or was not, marijuana. We conclude that Hennen properly replicated the search already conducted by UPS employees and, under Jacobsen, did not move into an unreasonable search when he did the field test. See id. at 123 (“A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. This conclusion is not dependent on the result of any particular test.”). ¶16 Based upon the teachings of Jacobsen and Beal, we conclude that the UPS employees had the authority to examine what they considered to be a suspicious package, that they could properly contact law enforcement about their findings, and that law enforcement was authorized to replicate the search already conducted by UPS. We conclude that law enforcement (i.e., Hennen’s search of the package) did not exceed the scope of the private-party search conducted by the UPS employees. Based upon the foregoing, we affirm the trial court’s decision with respect to search of the box left with UPS.

Applicability of Exclusionary Rule -- Government Action - Conduct by Non-Police Officer Pursuant to Court Order

State v. Robert C. Knight, 2000 WI App 16, 232 Wis.2d 305, 606 N.W.2d 291.

For Knight: Scott B. Taylor.

Issue: Whether seizure of a disbarred attorney's client files by a court-ordered trustee amounted to governmental action so as to trigger fourth amendment protections.

Holding: ¶8 Here, Garczynski's seizure and search of Knight's client files were conducted pursuant to an order issued by Judge Carlson under the authority conferred on the circuit courts by the Wisconsin Supreme Court in Rule 22.271(2). The courts are an arm of the government. Therefore, Judge Race correctly ruled, and the State properly concedes, that Garczynski's conduct was governmental. As such, it must comport with the Fourth Amendment.

Applicability of Exclusionary Rule -- Probation/Parole Search State v. Brandon L. Wheat, 2002 WI App 153, PFR 6/14/02 For Wheat: Steven A. Koch, Bradley J. Lochowicz Issue/Holding: Because the exclusionary rule doesn't apply at revocation hearings, "(a) reasonable probation search, as conducted here, is lawful even if the probation officer relies, in part, on information from law enforcement officials in violation of the Fourth Amendment." ¶29.

Applicability of Exclusionary Rule – Violation of Non-Constitutional Right: Patient Records (HIPAA, § 146.82)

State v. Ellen T. Straehler, 2008 WI App 14

For Straehler: Daniel P. Fay

Issue: Whether suppression is a remedy for violation of health care privacy laws (HIPAA; § 146.82).

Holding1: ¶10      Straehler’s argument does not carry for a number of reasons. First, Straehler ignores the fact that HIPAA is limited in its scope and applicability. Investigating authorities, i.e., police officers, are not among the “covered entities” expressly subject to HIPPA. … ¶11      Notably, there is judicial agreement that the legislature did not intend HIPAA to apply to noncovered entities. … … ¶13      Second, even if Bernotas was somehow bound by HIPAA, which we have established an officer is not, HIPAA does not provide for suppression of the evidence as a remedy for a HIPAA violation. Suppression is warranted only when evidence has been obtained in violation of a defendant’s constitutional rights or if a statute specifically provides for suppression as a remedy. … Holding2: ¶15      The plain language of Wis. Stat. § 146.82 states that it applies to patient health care records: “All patient health care records shall remain confidential. Patient health care records may be released only to the persons designated in this section or to other persons with the informed consent of the patient or of a person authorized by the patient.” Sec. 146.82(1). Patient health care records are defined as “all records related to the health of a patient prepared by or under the supervision of a health care provider.” See Wis. Stat. § 146.81(4). ¶16      In Thompson, we examined Wis. Stat. § 146.82 and held that it does not reach beyond protection of health care records. Thompson, 222 Wis. 2d at 188. Thompson moved for suppression of evidence seized by police while he was being treated by hospital staff. Id. at 181. … ¶19      On appeal, Thompson argued that under Wis. Stat. § 146.82, the police should not have been allowed into the area where he was being treated. Thompson, 222 Wis. 2d at 184. We rejected this argument and held that, by its terms, § 146.82 “applies only to records.” Thompson, 222 Wis. 2d at 188. ¶20      Hagerman’s verbal statements based upon her observations are no more protected by Wis. Stat. § 146.82 than the medical procedures at issue in Thompson. Accordingly, under Thompson, there is no evidence of a violation of § 146.82 because there is no claim or evidence that Hagerman disclosed health records. [9]  [9] Whether Hagerman disclosed information that ultimately ended up in Straehler’s patient health care records cannot be determined from the record. Regardless, Hagerman did not disclose the records themselves.

Applicability of Exclusionary Rule – Violation of § 968.135, Standing to Assert

State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16

For Popenhagen: James B. Connell

Issue: Whether the person whose documents were produced by a bank pursuant to subpoena has standing to seek suppression of the documents.

Holding: ¶24 A person has standing to seek judicial intervention when that person has "a personal stake in the outcome" [12] and is "directly affected by the issues in controversy." [13] Under Wisconsin law, standing "should not be construed narrowly or restrictively," but rather should be construed broadly in favor of those seeking access to the courts. [14] ¶25 The defendant meets the test for standing. In requiring a showing of probable cause and a court order, Wis. Stat. § 968.135 protects the interests of persons whose documents are sought in addition to protecting the interests of the person on whom a subpoena is served. The statute prevents unwarranted fishing expeditions. Just to avoid any confusion: the court is not discussing standing in the fourth amendment sense of whether your own valid privacy interests have been invaded. In other words, despite language generously conferring standing, this holding doesn’t expand fourth amendment rights. (For that matter, the court takes pains, e.g., ¶5, to say that the decision is based purely on the statute, and that constitutional issues are left for another day.) Taking this one step farther: standing, as might be imagined, is similarly defined for purposes of appellate procedure, e.g., Ford Motor Credit Co. v. Mills, 142 Wis.2d 215, 217-18, 418 N.W.2d 14 (Ct. App. 1987) (“A person may not appeal from a judgment unless he or she is aggrieved by it. … A person is aggrieved if the judgment bears directly and injuriously upon his or her interests; the person must be adversely affected in some appreciable manner.”). Point is, standing for purposes of litigating a claim, whether trial or appeal, is “construed broadly in favor of those seeking access to the courts.”

Applicability of Exclusionary Rule – Violation of Statutory Right: § 968.135, Subpoena Procedure for Production of Documents – Suppressibility of Documents Themselves

State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16

For Popenhagen: James B. Connell

Issue: Whether documents produced in violation of § 968.135 subpoena procedure are suppressible.

Holding: ¶30 The State concedes, and properly so, that contrary to the requirements of Wis. Stat. § 968.135 no showing of probable cause was made to the circuit court before the circuit court issued the subpoenas. We must therefore consider whether suppression of the bank documents is an appropriate remedy for the violation of § 968.135. … … ¶37 By its plain terms, Wis. Stat. § 968.135 provides that subpoenas issued under its terms may be reviewed by the circuit court upon "[m]otions to the court, including, but not limited to, motions to quash or limit the subpoena." ¶38 The question presented is the meaning of the statutory language "[m]otions to the court, including, but not limited to, motions to quash or limit the subpoena." More specifically, the question presented is: Does the class of motions that may be brought in response to a subpoena issued under Wis. Stat. § 968.135 include a motion to suppress documents obtained pursuant to a subpoena issued in violation of Wis. Stat. § 968.135? Although the answer to this question is not explicitly set forth in the statute, the answer is evident upon close examination of the text of the statute. … ¶56 In applying each of the three rules for interpreting the word "includes" we have concluded that under each rule the defendant's motion to suppress the documents at issue in the present case was properly granted. Detailed statutory construction analysis omitted: it only matters where you end up, not how you got there, right? Speaking of which …. A majority of 4 signs on to the foregoing. A total of 6 vote for suppression of the documents, which makes it 6-1 in favor of that relief. However, the two concurrences, for different reasons, take a much narrower view of the remedy. (Justice Prosser stresses the extreme nature of the violation on the particular facts, ¶¶127-29; Justice Ziegler, similarly, stresses “the unique facts of this case,” ¶136.) This makes the outcome, in effect, 4-3, which means: draw your own conclusions about how this would have turned out had it come up for decision this August or later. And what about the court of appeals decision, which said that no 4th amendment violation had occurred? The supreme court mandate “reversed” the court of appeals “decision,” but it did not specifically reverse the 4th amendment holding. Instead, the court merely held that question open. The general rule is that a published court of appeals’ decision holding that is reviewed but not specifically reversed by the supreme court retains its precedential value, State v. Jones, 2002 WI App 196, ¶40. Does the court of appeals decision in this case, then, retain its precedential effect? Possibly so: State v. Gary M.B., 2003 WI App 72, ¶13 (court of appeals holding in a case reversed by the supreme court on other grounds, so that holding neither “overruled, withdrawn, or modified,” continues to bind court of appeals), affirmed on other grounds (but of course!), 2004 WI 33.

Applicability of Exclusionary Rule – Violation of Statutory Right: § 968.135, Subpoena Procedure for Production of Documents – Suppressibility of Statements Made When Confronted with Improperly Subpoenaed Documents

State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16

For Popenhagen: James B. Connell

Issue: Whether statements made when confronted with documents produced in violation of § 968.135 subpoena procedure are suppressible.

Holding: ¶81 The defendant's motion to suppress the incriminating statements in the present case is substantially similar in nature to a motion to quash the subpoena. Both motions prevent the State's using evidence derived from the subpoena. The documents are derived from the unlawful subpoena and the incriminating statements are derived from the documents derived from the unlawful subpoena. … ¶87 When the legislature allows a motion to quash or limit a subpoena to prevent the State from enforcing a subpoena issued in violation of Wis. Stat. § 968.135, it is absurd and unreasonable to allow the State to use incriminating statements derived directly from such a subpoena and to gain an advantage by violating the statute. The legislature could not have intended that the statute would be interpreted in such a way to allow circumvention of the carefully drafted legislative requirements and safeguards for the issuance of a subpoena under Wis. Stat. § 968.135. [42]

Applicability of Exclusionary Rule -- Violation of Nonconstitutional Right -- Investigative Stop Outside Officer's Jurisdiction

State v. James W. Keith, 2003 WI App 47, PFR filed 3/5/03

For Keith: Christopher A. Mutschler

Issue/Holding: Suppression of evidence seized as a result of a stop by an officer outside of his or her jurisdiction is not suppressible for that reason alone; there is no "reason to ignore the well-established rule that suppression is required only when evidence is obtained in violation of a constitutional right or in violation of a statute providing suppression as a remedy." ¶9, citing State v. Raflick, 2001 WI 129, ¶15.

Would it matter if the stop were outside the state? Perhaps not: State v. Dentler, Iowa SCt No. 122 / 06-1905, 12/7/07.

Applicability of Exclusionary Rule -- Violation of Nonconstitutional Right --Violation of Statute, § 175.40(6)

State v. Peter R. Cash, 2004 WI App 63

For Cash: Lynn M. Bureta

Issue/Holding: Any violation of § 175.40(6), which regulates the arrest power of an officer operating outside territorial jurisdiction would not support suppression as a remedy: ¶30. Assuming arguendo that the Waukesha County Sheriff's Department had not adopted the written policies required by Wis. Stat. § 175.40(6)(d), we agree with the State that suppression is not a remedy for such a statutory transgression. "[W]rongfully or illegally obtained evidence is to be suppressed only where the evidence was obtained in violation of an individual's constitutional rights or in violation of a statute that expressly requires suppression as a sanction." State ex rel. Peckham v. Krenke, 229 Wis. 2d 778, 787, 601 N.W.2d 287 (Ct. App. 1999) (emphasis added). Wisconsin Stat. § 175.40 does not protect a constitutional right; nor does it recite suppression as a sanction for its violation. Therefore, we conclude that Cash was not prejudiced by counsel's failure to challenge his arrest on this ground

Applicability of Exclusionary Rule -- Violation of Nonconstitutional Right -- § 968.255 (Strip Searches)

State v. Charles A. Wallace, 2002 WI App 61

For Wallace: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: ¶25. We conclude, however, that we need not address whether police may conduct a consensual strip search free of the statutory restrictions. Absent a constitutional violation, a court may not suppress evidence obtained in violation of a statute except where the statute 'specifically requires suppression of wrongfully or illegally obtained evidence as a sanction.' State ex. rel. Peckham v. Krenke, 229 Wis. 2d 778, 787, 601 N.W.2d 287 (Ct. App. 1999). Wisconsin Stat. § 968.255 does not require suppression of evidence obtained in violation of its provisions. Go to Brief

As suggested below, a body cavity search is more intrusive than a mere strip search and should be analyzed separately. Nor should it be overlooked that strip searches are themselves governed by the fourth amendment. In effect, § 968.255 imposes certain extra-constitutional protections violation of which, as Wallace holds, isn't enforceable by the exclusionary rule -- but that hardly means that the fruits of strip searches are ipso facto admissible. Not only should cavity searches be separated out analytically, there will undoubtedly be cases which raise the question of whether a strip search, hence need for heightened review, is actually presented. Definitions, that is, very much matter; see, for example, Commonwealth v. Prophete, Mass. SJC No. 09321, 3/1/05, adopting definition of a strip search as one in which a detainee is commanded to remove the last layer of his or her clothing. Here, the defendant was ordered to remove his shirt, his shoes, his socks, and his pants. In the last analysis, however, he was not told to remove the last layer of his clothing [i.e., his underpants], and, thus, he was not subjected to a strip search. And, Blackburn v. Snow, 771 F.2d 556, 561 n.3 (1st Cir. 1985), as quoted in State v. Jenkins, 842 A.2d 1148, 1156 n.8 (Conn. App. 2004): ‘‘A ‘strip search,’ though an umbrella term, generally refers to an inspection of a naked individual, without any scrutiny of the subject’s body cavities. A ‘visual body cavity search’ extends to visual inspection of the anal and genital areas. A‘manual body cavity search’ includes some degree of touching or probing of body cavities.’’ For a good overview of strip searches, especially relating to fourth amendment restrictions for minor offenses, see also Nieves v. State, Md. Ct. Spec. App. No. 2003, 12/23/03, affirmed, Md. Ct. App. No. 10, 11/15/04. Among its points: The issue of strip search is like a pebble in the shoe of the judiciary. Virtually every court that has addressed the issue of the permissibility of a strip search under any circumstances has recognized the extreme intrusiveness of that search beyond a mere search incident to arrest.... The Departmental Rules spell out as clearly as possible when and how to conduct the search in order to eliminate the potential for abuse. Though this is a step in the right direction, there are still the larger issues looming over the whole area of strip searching, such as the meaning of reasonableness and the insuring of seemingly "fragile" privacy rights. Furthermore, there is a presumption against strip searching for minor or traffic offenses, absent some suspicion that the arrestee is in possession of contraband or weapons. ... A strip search is permissible only if the official has an individualized suspicion that an arrestee is hiding weapons or contraband. This suspicion must relate to the "individual," not a "category of offenders," such as drug users. ... When formulating articulable reasonable suspicion, The Departmental Rules provide guidelines as to what factors may be taken into consideration by the arresting officer: Reasonable suspicion may be based on, but is not limited to: The nature of the offense charged. The arrestee's appearance and demeanor. The circumstances surrounding the arrest. The arrestee's criminal record, particularly past crimes of violence and narcotics offenses. The discovery of evidence of a major offense in plain view or in the course of a search incident to the arrest. Detection of suspicious objects beneath the suspect's clothing during a search incident to arrest. The Maryland Court of Appeals' affirmance contains a thorough canvass of relevant caselaw, and should be closely reviewed. Main points: where the arrest is for a minor traffic offense unrelated to drugs or violence, you need reasonable suspicion to conduct a strip search incident to arrest; and, something more than the arrestee's prior drug history is needed for reasonable suspicion. (As discussed below, there is also authority for the idea that probable cause is needed.) See also, e.g., State v. Edwards, 759 N.E.2d 626, 629 (Ind. 2001) (routine, warrantless strip searches of misdemeanor arrestees, even when incident to lawful arrests, unreasonable); Way v. County of Ventura, 9th Cir No. 04-55457, 4/30/06 (blanket policy of strip searching all drug-offense arrestees before release into general jail population unreasonable); Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001) (misdemeanor arrestee being processed into jail can't be strip searched, or subjected to visual body cavity inspection, absent reasonable suspicion of concealed weapon or contraband). The 2nd Circuit reaffirmed this point, in N.G. v. Connecticut, 2nd Cir. No. 02-9274, 9/7/04: However, in several decisions, we have ruled that strip searches may not be performed upon adults confined after arrest for misdemeanors, in the absence of reasonable suspicion concerning possession of contraband.... As far as we can tell, all the circuits to have considered the issue have reached the same conclusion with respect to strip searches of adults confined for minor offenses.... (N.G. followed, Smook v. Minnehaha County, 8th Cir No. 05-1363, 8/9/06.) It is worth stressing the importance not only of the nature of the offense of arrest but also the distinction between a strip-search for evidence and one made pursuant to a jail's "security and safety" policy. While the authorities above indicate that these concerns are linked, other authority decouples the issues, and reserves the issue of whether a jail requires cause to "lawfully conduct strip searches of person about to become inmates of jail administration," Evans v. Stephens, 407 F.3d 1272 (11th Cir No. 2005), en banc, reversing panel decision, Evans v. City of Zebulon, 351 F.3d 485 (11th Cir. 2003). But as the en banc Evans goes on to say, in the instance of "a post-arrest investigatory strip search by the police looking for evidence (and not weapons)," the "officer must have at least a reasonable suspicion that the strip search is necessary[.]" More: not only must the police have reasonable suspicion (lacking in Evans' case, where the arrest was not for drugs), the strip search must be conducted in a reasonable manner, again lacking: "Plaintiffs were taken to and searched in an abnormal place (thus, capable of exciting more fear): a broom closet or supply room, not a dedicated search cell, medical examination room, or even a bathroom.... [¶] The physical aspects of the searches are also disturbing. Unnecessary force was used. [¶] ... Stephens used threatening and racist language. We accept that such language has an impact on people and counts towards the unreasonableness of the manner of the searches." Bear in mind, that Evans nonetheless questions whether a broad policy of suspicionless strip searching when processing arrestees into jail violates the 4th amendment, see, Hicks v. Moore, fn. 5, 11th Cir No. 03-13686, 8/31/05 (court goes on to "accept that a person’s being charged with a crime of violence is sufficient to evoke reasonable suspicion that the person may be concealing weapons or contraband"). For an example where the court upheld a strip search after not merely finding reasonable suspicion, largely based on arrestee's nervousness and known drug trafficking, but weighing potential danger against the potential humiliation, see U.S. v. Cofield, 391 F.3d 334 (1st Cir. 2004). As indicated above, the quantum of belief neccesary to support a strip search -- reasonable suspicion vs. probable cause -- hasn't been definitively resolved. The Nieves observation (fn. 4) that the majority rule favors reasonable suspicion is reinforced by Evans; but there is also support for probable cause: Commonwealth v. Thomas, 708 N.E.2d 669 (Mass. 1999) ("probable cause is the appropriate standard to apply to strip and visual body cavity searches"); and Tinetti v. Wittke, 479 F.Supp. 486 (E.D. Wis. 1979), opinion adopted and affirmed, 620 F.2d 160 (7th Cir. 1980): Accordingly, for the reasons given, this Court declares that the defendants' subjection of plaintiff, a non-misdemeanor traffic violator incarcerated only due to the inability to post cash bond, to a strip search without probable cause to believe that she was concealing weapons or contraband on her body was a violation of the plaintiff's rights under the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution. Further, this Court permanently enjoins and restrains defendants from undertaking, enforcing, maintaining or adopting any policies, procedure, practices or acts of strip searching persons charged with traffic offenses which are not misdemeanors except where law enforcement officers have probable cause to believe that contraband or weapons are being concealed on the person of the traffic violator. See also Tardiff v. Knox County, 1st Cir. No. 04-1065, 4/9/04 ("the core notion that some classes of arrestees should not be strip searched without particularized suspicion is now embedded in the case law"), and cases cited, id. n. 1; and Commonwealth v. Prophete, Mass. SJC No. 09321, 3/1/05, citing Commonwealth v. Thomas, 429 Mass. 403, 407-08, 708 N.E.2d 669 (1999) ("probable cause is the appropriate standard that must be met for a strip or visual body cavity search to be constitutionally permissible"). As indicated by Evans, the fourth amendment "reasonableness" requirement equally regulates the manner in which the search is conducted, apart from individualized belief. Thus, by way of another example, People v. Mitchell, 2003 NYSlipOp 19080, App. Div., 1st Dept., 12/4/03, holds that even after arrest a strip search, conducted in a public place, regardless of whether it includes a search of the arrested person's body cavities, is not justified or reasonable absent the most compelling circumstances, that is, circumstances that pose potentially serious risks to the arresting officer or others in the vicinity (accord Illinois v Lafayette (462 US 640, 645 [1983] ["the interests supporting a search incident to an arrest would hardly justify disrobing an arrestee on the street"]). The strip search in this case, conducted as it was on the street, in full view of the public, fails to meet the place or manner component of the Bell v. Wolfish inquiry, and, therefore, the glassine envelopes containing cocaine, obtained as a result of this unlawful search, should have been suppressed. Seemingly adopting this approach ("must also consider the manner in which the search was conducted"): Paulino v. State, 399 MD 341 (2007) (detailed survey of caselaw; concluding on facts that strip/cavity search incident to arrest was "unnecessarily within the public view and thus violative of the Fourth Amendment"), cert. petition, here; Amaechi v. West, 237 F.3d 356, 364 (4th Cir. 2001) (“we have repeatedly emphasized the necessity of conducting a strip search in private”); U.S. v. Ford, 232 F. Supp. 2d 625, 630 (E.D. Va. 2002) (4th amendment violated because due to "highly invasive search by exposing the defendant's buttocks on the side of a public highway in broad daylight"); cf. State v. Jenkins, 842 A.2d 1148, 1157 (Conn. App. 2004), though denying relief on contrasting facts (officers took defendant out of public view, and merely pulled underwear away from body rather than requiring removal). For a quick take, to effect that although Mitchell holding "is not already a well-established constitutional principle," but is nonetheless correct, see Sherry F. Colb, Are Strip Searches Special?. But see: U.S. v. Williams, 8th Cir No. 06-2448 (probable cause-based seizure of drugs from inside underwear, near arrestee's genitals, in police parking lot reasonable because police "took sufficient precautions to protect Williams's privacy before fulfilling their legitimate need to seize contraband that Williams had chosen to carry in his underwear"). One court has held that even given ample justification for a strip search, the ensuing "search was unreasonable because a civilian camerawoman with no affiliation with law enforcement was present during and filmed the strip search," State v. Thompson, Ind Ct. App. No. 49A05-0405-CR-286, 4/7/05. Also see, Campbell v. Miller, 7th Cir. No. 03-3018, 6/28/04, dissent ("That the search of Campbell was conducted in public significantly increases the severity of the governmental intrusion involved here," with supporting case cites; majority holding turns on separate procedural issue and doesn't reject, indeed doesn't discuss, this point). Again: the manner of, as opposed to justification for, a strip search may require separate scrutiny. In contradistinction, visual body cavity and strip searches in a prison setting don't generally require individualized suspicion, given the institution's need for security and the inmate's reduced expectation of privacy (though such searches must still be "reasonably" carried out). People v. Collins, Cal. App. No. B160390, 1/23/04. See also Peckham v. Wis. Dep’t of Corr., 141 F.3d 694, 697 (7th Cir. 1998) ("given the considerable deference prison officials enjoy to run their institutions it is difficult to conjure up too many real-life scenarios where prison strip searches of inmates could be said to be unreasonable under the Fourth Amendment"); and Jeffrey Whitman v. Nesic and Ellerd, 7th Cir. No. 03-2728, 5/18/04 (strip search as part of prison random drug testing program didn't violate 8th amendment). For a discussion of strip searches in juvenile detention facilities, see N.G. v. Connecticut, 2nd Cir. No. 02-9274, 9/7/04, including the dissent.

Applicability of Exclusionary Rule -- Violation of Nonconstitutional Right -- Statutory Building Inspection Procedure

State v. Albert Jackowski, 2001 WI App 187

For Jackowski: Ronald C. Shiroka

Issue: Whether violation of a statutory requirement for issuance of a building inspection warrant (namely, the § 66.0119(2) condition that such a warrant be issued only upon showing that consent to enter was refused) supports suppression of evidence obtained after entry under the warrant.

Holding: ¶17. We accept, however, the State's alternative argument that refusal of consent is not a constitutional requirement for issuance of an administrative warrant, and suppression is not available as a remedy for a "mere" statutory violation. As we have recently explained, numerous Wisconsin "cases stand for the proposition that the exclusionary rule is applicable in civil and criminal proceedings only where the evidence sought to be excluded was obtained in violation of a constitutional right or a statute t