Updated 2/3/10

TOPICAL OUTLINE
ADMINISTRATIVE SEARCHES Schools 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 Cell Phone Laxative-Search (See also "Body Cavity" Searches, here.) Probable Cause but No Arrest in Fact Protective Sweep (See also "Destruction of Evidence" Exigency, here) 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 Inevitable Discovery Outstanding 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 Cell Phone Community Caretaker/Emergency/Report of Crime in Progress Destruction of Evidence Domestic Violence Hot Pursuit Misdemeanor Arrest Third-Party Arrest Burglary in Progress 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 Courthouse Hallway Curtilage Garbage GPS Tracking Guest Hospital Emergency Room Mail Multi-Unit Common Area 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 Object Placed in Police Squad Plain Touch 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 Anticipatory Search Warrant Arrest Warrant Entry, Defendant's Residence Entry, 3rd-Party Residence Bench Warrant "Franks" Good-Faith No-Knock "Oath or Affirmation" Requirement Overbreadth Probable Cause Reconstruction of Warrant Application Scope Staleness Technical Defect
Wisconsin Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c)

  

CASE SUMMARIES

ADMINISTRATIVE SEARCHES

Administrative Searches - School Search – School Grounds Extended to Parking Lot

State v. Colin G. Schloegel, 2009 WI App 85

For Schloegel: Sarvan Singh

Issue/Holding1: School grounds are extended to the school parking lot, so that the test for searches of students, New Jersey v. T.L.O., 469 U.S. 325 (1985), applies to search of a student’s car parked in the lot, ¶¶15-19.

Issue/Holding2: Search of student's car in school parking lot was reasonable: ¶21      In this case, application of the T.L.O. two-prong test to the record facts leads to the conclusion that (1) the search was “justified at its inception,” and (2) the search of Schloegel’s car was “reasonably related in scope to” the search of contraband. See T.L.O., 469 U.S. at 341. The search was justified at its inception because school officials were put on alert that Schloegel was in possession that day of drugs, including pills and possibly some other substances. School officials must act on such a tip. “School officials not only educate students who are compelled to attend school, but they have a responsibility to protect those students and their teachers from behavior that threatens their safety and the integrity of the learning process.” Angelia D.B., 211 Wis. 2d at 157. Furthermore, Schloegel had a prior drug arrest on record, and Rudolph knew him from that previous arrest. Therefore, the decision to investigate further, and to search for contraband was reasonable at its inception. See, e.g., J.D. v. State, 920 So.2d 117, 122 (Fla. Ct. App. 2006) (holding that “[w]hen school authorities receive information, whether verified or not, involving illegal activities occurring on their campus, calling the suspect student out of class to investigate the report is a reasonable and minimal step in that investigation.”). ¶22      We also conclude that the search was reasonable in scope. Students who decide to bring drugs to school have many places to stash them, and the stated purpose and clear goal of this search was to discover whether Schloegel had contraband at school. A school official has the responsibility to keep students safe on school grounds, and as we have indicated, this includes school parking lots. When searches of Schloegel’s person, backpack and locker were cleared, it was a reasonable next step for school officials to take the search to Schloegel’s car.

Administrative Searches - Probation/Parole: Presence of Police not Determinative

State v. Jacob B. Jones, 2008 WI App 154, PFR filed 10/24/08

For Jones: David R. Karpe

Issue/Holding:  Warrantless search of bedroom upheld as probation/parole search under “special needs” doctrine, notwithstanding presence of police who were conducting a concurrent investigation: ¶15      We conclude, based on the court’s factual findings, that the search of Jones’s room was a probationary search and not a police search. Cooperation between a probation officer and law enforcement does not transform a probation search into a police search. See Hajicek, 240 Wis.  2d 349, ¶32. Indeed, cooperation with law enforcement for the purpose of preventing crime is a specific goal of probation supervision. Id., ¶33. A probation search is also not transformed into a police search because the information leading to the search was provided by law enforcement. Griffin, 131 Wis. 2d at 57. Nor is a probationary search transformed into a police search due to the existence of a concurrent investigation. See Hajicek, 240 Wis.  2d 349, ¶¶5, 32. Similarly, the transfer of the items seized to law enforcement following the search does not change the nature of the search itself. The circuit court’s findings of historical fact clearly indicate that Trimble was present at Jones’s residence in furtherance of her responsibilities as his agent. Trimble, not the police, initiated the search, and Trimble, not the police, conducted the search. ¶16      In addition, the facts demonstrate that the officers were present at Jones’s residence for protective purposes. This is a recognized example of cooperation between law enforcement and probation agents, and does not render the search a police search. See Griffin, 131 Wis. 2d 41, 63; Hajicek, 240 Wis.  2d 349, ¶34; State v. Wheat, 2002 WI App 153, ¶22-23, 256 Wis.  2d 270, 647 N.W.2d 441. Jones contends that, unlike these cases, police participation in the present case “went far beyond staying in their protective role,” apparently because an officer initially attempted to open Jones’s door after the door closed behind Jones, and then suggested the use of and paid for the locksmith. We disagree. The officers’ actions were in furtherance of their professional responsibility to gain access to Jones’s room for the purpose of their protective sweep, followed by Trimble’s probationary search. Based on the circuit court’s findings, we conclude that the search of Jones’s room was a probation search, not a police search. “Protective sweep”? That doctrine generally applies incident to arrest, State v. Dwight M. Sanders, 2008 WI 85 (“Once inside an area a law enforcement officer may perform a warrantless ‘protective sweep,’ that is, ‘a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.’”). Was Jones under arrest? The court doesn’t really say, though it does say that the p.o. “wanted officers to handcuff Jones because she had concerns about her safety.” Perhaps we can assume that they indeed carried out the intended task; and perhaps we can further assume that Jones therefore was … what? Handcuffing isn’t generally thought to establish the existence of an arrest. Can the protective sweep doctrine, then, apply to a warrantless, non-arrest situation? Some courts premise protective sweep on the existence of an arrest warrant although, to be sure, most don’t; see generally, United States v. Gandia, 424 F.3d 255, 262 (2d Cir. N.Y. 2005). Wisconsin indeed seems to allow protective sweeps in warrantless, non-arrest situations— State v. Walter Horngren, 2000 WI App 177, ¶20 (permitting sweep in warrantless, non-arrest community caretaker entry). Maybe this is picky, but it seems that something more than laconic mention of “protective sweep” was, well, warranted before its apparent extension to yet another context.

Administrative Searches - Probation/Parole: Reasonableness

State v. Jacob B. Jones, 2008 WI App 154, PFR filed 10/24/08

For Jones: David R. Karpe

Issue/Holding: Entry of a probationer’s residence to effectuate a probation/parole search was reasonable: ¶22      We reject Jones’s argument. As the circuit court found, Trimble was told by Detective Pertzborn that Jones was sexually involved with a fourteen-year-old girl and that Pertzborn had knowledge of nude photographs of Jones and love notes from Jones to the girl. Trimble testified that when she went to Jones’s home, she understood there were probably nude photographs of the girl in his possession. Further, Jones admitted that he had a marijuana pipe in the room that he was trying to hide. Jones does not dispute these facts, and we are satisfied that the court’s factual findings are not clearly erroneous. ¶23      The circuit court’s findings of historical fact demonstrate Trimble’s compliance with the provisions of Wis. Admin. Code § DOC 328.21(7) (Dec. 2006). First, she had received information from a reliable informant. In Griffin, 131 Wis. 2d at 62, the Wisconsin Supreme Court concluded that a tip from a police officer that the probationer had or may have had contraband constituted the requisite reasonable grounds to perform a probation search. Thus, this factor alone was sufficient to constitute reasonable grounds for the search. In addition, Trimble’s observations of Jones’s demeanor prior to the search, coupled with his admission that a marijuana pipe was in his room contributed additional reasonable grounds for the ensuing probation search. Based on the circuit court’s findings, we conclude that the search was based on reasonable grounds.

Administrative Searches - Probation/Parole: “Forcible” Manner of Entry

State v. Jacob B. Jones, 2008 WI App 154, PFR filed 10/24/08

For Jones: David R. Karpe

Issue/Holding: ¶24      Wisconsin Admin. Code § DOC 328.21(3)(f) (Dec. 2006) provides that probation or parole agents “may not forcibly enter a locked premises to search it if the client whose living quarters or property it is is not present.” Jones argues that the search of his bedroom was not reasonable because use of a locksmith constituted a forced entry in violation of § DOC 328.21(3)(f), and he asserts that this violation compels suppression of the evidence discovered during the search. … ¶27      The Appendix states with regard to Wis. Admin. Code § DOC 328.21(3)(f) that “[t]he agent may enter in any way that does not do damage to the property.” Wis. Admin. Code § DOC 328 app. note DOC 328.21 (Dec. 2006). It is clear from the Appendix that the intent of § DOC 328.21(3)(f) is to prohibit agents from causing damage to a locked premises in order gain entry. Jones does not argue that the door to his bedroom was damaged as a result of the locksmith’s entry, and we conclude that the use of the locksmith to gain entry was not forcible in violation of § DOC 328.21(3)(f).

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."

Also see Michael C. v. Gresbach, 7th Cir No. 07-1756, 5/19/08: "Today we reiterate Heck’s definitive holding, along the lines of the Fourth Amendment principles outlined above, that it is a violation of a child’s constitutional rights to conduct a search of a child at a private school without a warrant or probable cause, consent, or exigent circumstances."

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. Several points. 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").) The Court also 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. 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 the reference to a "well-trained" dog. See discussion below. 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. State v. Stabler, FL App No, 1D06-4555, 9/26/08 (rejecting Rabb); State v. Jardines, Fl App No. 3D07-1615, 10/22/08 (Rabb, disagreed with, "because, first, a canine sniff is not a Fourth Amendment search; second, the officer and the dog were lawfully present at the defendant’s front door"; dissent would "hold that a drug sniff is permissible at the door of a dwelling only if there is a reasonable suspicion of drug activity"); People v. Jones, MI App No. 275438, 5/20/08 (sniff outside front door of residence not search; over detailed dissent); U.S. v. Hayes, 2nd Cir No. 07-0063, 12/24/08 (sniff some distance from house not search; prior Circuit authority, holding that sniff outside apartment door was search, distinguished); 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 circumstances 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 - Off-Duty Police Officer Acting in Private Capacity – Viewing Memory Stick Containing Child Pornography

State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09

For Berggren: Robert G. LeBell

Issue/Holding1: Viewing of memory stick, concededly obtained in “private” search not covered by 4th amendment, ¶13 n. 6, by off-duty police lieutenant who was defendant’s brother-in-law, was not a “government search”: ¶14      “Private searches are not subject to the Fourth Amendment’s protections because the Fourth Amendment applies only to government action.” State v. Payano-Roman, 2006 WI 47, ¶17, 290 Wis. 2d 380, 714 N.W.2d 548. … … ¶16      Based on the findings of fact adopted by the trial court, when Bolender was given the memory stick, he was off-duty and went to Lisa’s home after receiving a call that she was upset about something having to do with his niece, Brittany. Bolender came into the situation being “on Todd[ Berggren]’s side,” as Berggren was someone he knew and trusted. Bolender “thought that this was probably a situation where something had been blown out of proportion.” He “never thought that the memory stick might contain the kind of pictures he observed” and “[h]e never thought that the pictures would contain evidence of a crime.” Bolender first tried to view the pictures on Lisa’s computer, which was in an open area of the house such that, if the memory stick had worked with Lisa’s computer, everyone present, including Cynthia and other children, would have been able to view the pictures. ¶17      We conclude that the viewing of the photographs by Bolender did not meet the requirements under Payano-Roman for a government search. First, despite the fact that Bolender was a lieutenant for the Oak Creek Police Department, his actions were not instigated by the police. Second, his actions were taken in his capacity as Brittany’s uncle; he acted in the interest of his family when he viewed the photographs that Brittany described as “nasty.” Finally, nothing in the record suggests that Bolender acted “‘for the purpose of assisting governmental efforts.’” See Payano-Roman, 290 Wis. 2d 380, ¶18 (citation omitted). The result is fact-driven, the court expressly noting that it is “based on our deferential review of the trial court’s factual findings,” ¶18.

Issue/Holding2: “(S)ubsequent viewing” of memory stick by the police didn’t exceed the scope of the private search, therefore didn’t violate the 4th amendment: ¶19      Berggren next contends that he had a clear expectation of privacy in the contents of the memory stick. Because we concluded that Bolender was acting in a private capacity and not in an official capacity when he viewed photographs on the memory stick, Berggren’s privacy expectations only become relevant insofar as they relate to the subsequent viewing of the photographs by the Oak Creek police officers. See United States v. Jacobsen, 466 U.S. 109, 113 (1984) (explaining the Fourth Amendment’s protection “as proscribing only governmental action; it is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official’”) (citation omitted). ¶20      After an initial invasion of privacy by private action, “additional invasions of … privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search.” Id. at 115. Following the viewing of the photographs through the private actions of Brittany and Bolender, Berggren no longer had an expectation of privacy subject to Fourth Amendment protections. The subsequent viewing by Oak Creek police officers was not an additional search subject to the warrant requirement as it did not exceed the scope of the private searches that preceded it. See id. at 117 (“Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information.”). As a final matter, we need not address Berggren’s contention that Bolender’s authority to possess the memory stick was distinct from his authority to view its contents, as this argument also only becomes relevant if we had concluded that Bolender was acting in an official capacity. See Walter v. United States, 447 U.S. 649, 654 (1980) (“[I]t has been settled that an officer’s authority to possess a package is distinct from his authority to examine its contents.”); see also Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (unnecessary to decide nondispositive issues).

Applicability of Exclusionary Rule: Seizure and Detention by Private Security Guard

State v. Paul Anthony Butler, 2009 WI App 52, PFR filed 4/20/09

For Butler: Trisha R. Stewart Martin

Issue/Holding: Seizure and detention by security guard, until police arrived to conduct search, didn’t amount to government action so as to trigger 4th amendment analysis, under 3-factor test of State v. Tomas Payano-Roman, 2006 WI 47: ¶14      As we see from Butler’s submissions that are in the Record, none of the elements of state-action identified by Payano-Roman is present here. First, the security guard acted entirely on his own—nothing he did in detaining and initially searching Butler was instigated by the police. Second, as a Chuck E. Cheese security guard, it was in his interest and in the interest of his employer to keep the restaurant’s parking lot safe for other drivers and pedestrians. Third, there is no evidence in the Record or in Butler’s offer-of-proof that indicates that the security guard’s detention and initial search of Butler was “‘for the purpose of assisting governmental efforts.’” See id., 2006 WI 47, ¶18, 290 Wis. 2d at 390, 714 N.W.2d at 553 (quoted source omitted). Finally, what the security guard did in detaining and initially searching Butler was not part of some “joint endeavor” with law enforcement. See id., 2006 WI 47, ¶19, 290 Wis. 2d at 390, 714 N.W.2d at 553. Thus, nothing the security guard did violated Butler’s Fourth Amendment rights against unreasonable searches and seizures. The security guard detained, searched and handcuffed Butler for driving recklessly on company property (over 40 in parking lot). The guard then called the police because Butler was wearing an empty gun holster, so the guard thought Butler had a gun. The police searched the car and found a loaded hand gun in the glove compartment. It’s almost pointless to add that Butler was a felon. That the “detention and initial search” was not a “joint endeavor” appears to be relatively non-controversial. But that initial interaction yielded no evidence, so in that sense it’s also irrelevant. The real question ought to be whether Butler’s continued detention for the express purpose of assisting a police investigation triggered the 4th A. The court simply doesn’t address that narrow issue, at least not explicitly. If cuffing and holding someone precisely so the police can come and conduct a search isn’t some sort of “joint endeavor” then it’s hard to imagine what might. And, if the court is correct in its sweeping statement (“nothing the security guard did violated Butler’s Fourth Amendment rights”), then what would stop some future security guard from conducting the search him or herself? This is to say that perhaps the court was simply addressing the narrow question being litigated (whether the “detention and initial search” involved state action), and not the distinct question of continued detention. Separately: Does it matter that the guard (presumably) was licensed under § 440.26; does a state license help establish, well, state action? (The court doesn’t address the question.) Detailed discussion on the general problem of private guards in relation to state action: LaFave, Search & Seizure, § 1.8(d) (caselaw, to be sure, seems overwhelmingly to exempt private guards from state-action analysis; but there are arguments to the contrary, besides which Butler’s case is a bit different from the mine-run case, in that he was detained by a guard for the express purpose of allowing the police to perform a search). What about Dog the Bounty Hunter? OK, not quite that Dog, but generically speaking, if the following case is representative, then a bounty hunter isn’t a “state actor,” at least when acting “without the assistance of law enforcement and for (his) own pecuniary interests”: U.S. v. Poe, 10th Cir No. 07-6237, 3/3/09.

Applicability of Exclusionary Rule: Private Government Search, Generally - Burden of Proof

State v. Willie B. Cole, 2008 WI App 178

For Cole: Scott A. Szabrowicz

Issue/Holding: The exclusionary rule applies only to government action, not private searches, ¶12. If the State asserts that the action was private in nature the burden shifts to the defendant to prove by governmental involvement, preponderance of evidence, id.

Applicability of Exclusionary Rule: Private Government Search - Off-Duty Police Officer Acting in Private Capacity – Opening Misaddressed Letter

State v. Willie B. Cole, 2008 WI App 178

For Cole: Scott A. Szabrowicz

Issue: Whether the action of a police officer in opening a letter misaddressed to the officer’s residence from a House of Correction inmate was private and therefore outside fourth amendment scrutiny.

Holding:   ¶13   There appears to be no Wisconsin case addressing the issue when an off-duty law enforcement officer acts in a private capacity rather than as a government agent for purposes of the Fourth Amendment. However, there appears to be general agreement in other jurisdictions that have considered the issue that “[government] involvement [in a search] is not measured by the primary occupation of the actor, but by the capacity in which he acts at the time in question”; therefore, an off-duty officer acting in a private capacity in making a search does not implicate the Fourth Amendment. State v. Pearson, 514 P.2d 884, 886 (Or. Ct. App. 1973) (emphasis in original).  Accord United States v. Ginglen, 467 F.3d 1071, 1074-76 (7th Cir. 2006); United States v. Couch 378 F. Supp. 2d 50, 58 (N.D.N.Y 2005); State v. Walker, 459 N.W.2d 527, 533 (Neb. 1990); State v. Castillo, 697 P.2d 1219, 1221 (Idaho Ct. App. 1985); People v. Luetkemeyer, 393 N.E.2d 117, 120 (Ill. App. Ct. 1979); State v. Woods, 790 S.W.2d 253, 257 (Mo. Ct. App. 1990); State v. Andrews 637 A.2d 787, 790-91 (Conn. App. Ct. 1994); People v. Wolder, 84 Cal. Rptr. 788, 793 (Cal. Ct. App. 1970). We agree with this conclusion. We therefore examine the totality of the circumstances, see Payano-Roman, 290 Wis. 2d 380, ¶21, to determine whether Detective Kostopulos was acting in her private capacity as a citizen or in her official capacity as a detective for the sheriff’s department when she opened Cole’s letter. … ¶19      Considering the totality of the circumstances, we conclude that Detective Kostopulos was acting in her private capacity, not her official capacity, when she opened Cole’s letter. The activity she was engaged in when she opened Cole’s letter—opening mail that had been delivered to her home—was that of a private citizen.  Even given our assumption that she saw the front of the envelope before she opened it and so knew it was not intended for her, she did not know Willie Cole or Charnaye Cole or have reason to suspect that she might discover criminal activity by opening the letter. There is no evidence she was aware of any pending case or investigation relating to Cole when she opened the letter. That the detective waited two days before turning over the letter doesn’t affect the court’s conclusion; for that matter, whatever she did subsequent to opening the envelope is seemingly irrelevant to whether her “act [of] simply opening and reading the letter” was in her private capacity, ¶20.   The letter, by the way, was written by an HOC inmate awaiting trial on a battery, addressed to his sister and telling her to prevent the victim (his wife) from testifying against him. Correct name but as you can see wrong address. What might the odds have been that the address belonged to a detective? How unlucky can someone be? Pure tangent: What about Dog the Bounty Hunter? Not a "state actor," at least when acting "without the assistance of law enforcement and for (his) own pecuniary interests," U.S. v. Poe, 10th Cir No. 07-6237, 3/3/09.

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: Evidence not suppressible merely because seized by officer effectuating stop outside of his or her jurisdiction: 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.

This rationale, but not necessarily the result, is now quite suspect (see Popenhagen, above). That is because, as the court notes, ¶9, under established caselaw an officer has authority to effectuate a "citizen's arrest" outside of his or her jurisdictional authority. (Whether the limits to this doctrine would have supported Keith's arrest under the particular facts didn't detain the court given affirmance on the separate, now-discredited ground that the violated statute must provide suppression as a remedy.) As to the constitutional argument: it would seem foreclosed by the idea in Virginia v. Moore that an arrest based on probable cause satisfies 4th amendment reasonableness even when a statute is violated in the process. E.g., State v. Jones, 2009 Ohio 316 (officer who personally observes traffic violation outside the officer’s statutory territorial jurisdiction has probable cause to make traffic stop which is therefore reaosnable under 4th A). Tangentially, would it matter if the stop were outside the state? Perhaps not: see discussion in State v. Dentler, Iowa SCt No. 122 / 06-1905, 12/7/07. But these all seem to be hot pursuit cases; for an interesting variant on this theme, holding that execution of a warrant by officers of the issuing state in a foreign state violates the fourth amendment, see Engleman v. Murray, 8th Cir No. 07-2060, 11/17/08.

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"). But see more recent authority: Powell v. Barrett, 11th Cir No. 05-16734, 9/4/08, en banc (suspicionless strip seraches of arrestees when processed into general jail population upheld). 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); State v. Jenkins, FL SCt No. SC06-389, 3/6/08 (albeit in public setting, officer's merely pulling boxer shorts away from arrestee's body, incident to arrest, not "strip search," hence not unconstitutional). 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 that 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). ¶18. We have discussed above the Fourth Amendment standard for the issuance of administrative inspection warrants, and a refusal of consent is not within it. When the Supreme Court noted in Camara that "it seems likely that warrants should normally be sought only after entry is refused," it was not discussing the requirements for warrant issuance. The Court was simply explaining, at the end of its opinion, why its holding would not prove unduly burdensome to municipal building code enforcement. See Camara, 387 U.S. at 539-40. Thus, we conclude that the lack of an averment that consent to inspect had been refused is a statutory violation only, not an omission of constitutional dimension requiring suppression as a remedy. Finally, we note that Wis. Stat. § 66.0119 (or its predecessor, see footnote 3) does not specifically require suppression of any evidence obtained in violation of its provisions.

Applicability of Exclusionary Rule -- Violation of Nonconstitutional Right -- SCR (Attorney Ethical Rules)

State v. John R. Maloney, 2004 WI App 141, PFR granted 10/19/04

For Maloney: Lew A. Wasserman

Issue/Holding: ¶11. The trial court held that there had been no violation of SCR 20:4.2 and that even if there had been, suppression would not be the remedy. We agree with the trial court that suppression is not available for an ethics violation. We therefore need not decide whether Paulus violated SCR 20:4.2. ... ¶12. "Suppression of evidence is 'only required when evidence has been obtained in violation of a defendant's constitutional rights, or if a statute specifically provides for the suppression remedy.'" State v. Keith, 2003 WI App 47, ¶8, 260 Wis. 2d 592, 659 N.W.2d 403. Indeed, the preamble to SCR ch. 20 of the Rules of Professional Conduct states in part: Failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process. ... Violation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The rules ... are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis ... for sanctioning a lawyer ... does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such duty. The rule provides neither a constitutional nor a statutory basis for Maloney to seek suppression of the tapes as a "procedural weapon." Because suppression is not available for an ethical violation,3 counsel is not ineffective for failing to raise the argument. See Reed, 256 Wis. 2d 1019, ¶17.4 Maloney’s argument was that the prosecutor violated SCR 20:4.2 (no communication between lawyer and opposing party when s/he is represented, without permission) when he wired Maloney’s girlfriend to record their conversations. Maloney hadn’t yet been charged, so he might have lost anyway on the ground he wasn’t a party. Indeed, that would have been the short way around the track for the court, but it decides to go for the gold instead. In footnote 3 [whose text isn’t reproduced above, but you can follow the link], the court indicates that the result “is sometimes referred to as the Michigan rule,” after the apparently leading case, Michigan v. Green, 274 N.W.2d 448, 454 (Mich. 1979). The footnote also string cites a number of other cases adopting the idea that violation of an ethical rule governing attorney conduct can’t in and of itself support suppression. That’s well and good, but recognition of this principle leads to a certain amount of doctrinal discordance, given the importation of ethical rules into the evidence code, in State v. Jeffrey J. Meeks, 2003 WI 104 (SCR 20:1.6 bars counsel from testifying as to client’s competency during prior representation). That is, it simply isn’t clear why SCRs impact evidentiary admissibility but not suppression. In fact, part of the quoted excerpt from Green explicitly points out that while the remedy for violation of an ethical rule is disciplinary action, “(t)he admissibility of evidence ... on the other hand, is normally determined by reference to relevant constitutional and statutory provisions, applicable court rules and pertinent common-law doctrines. Codes of professional conduct play no part in such decisions.” The “Michigan Rule” – which has now been expressly adopted by Wisconsin – is incompatible with Meeks. Indeed, in another context, our supreme court has said: ¶14. However, just because data is to be kept confidential, it does not necessarily follow that Wahl has a legal privilege not to produce it. The concepts of "confidential" and "legal privilege" are very different. ¶15. "Confidential" data is that which is "meant to be kept secret." Black's Law Dictionary 294 (7th ed. 1999). Legal privilege is a broader concept. It includes having the legal right not to provide certain data when faced with a valid subpoena… Custodian of Records for Legislative Technology Services Bureau v. State, 2004 WI 65. This, too, is incompatible with Meeks. The point is that Meeks rests on very shaky footing, but more: it creates unnecessary difficulties in raising competency issues (which counsel is ethically compelled to do, something the Meeks court paid insufficient attention to). And, note the procedural posture of Maloney’s appeal, namely a § 974.06 case in which the court doesn’t even mention the serial litigation bar of State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), despite a prior, unsuccessful direct appeal. This omission is undoubtedly based on the fact that the prior appeal was litigated by the trial attorney, and the current appeal attacks that attorney’s performance: clearly, counsel couldn’t have challenged his own performance on the direct appeal, so this must have been seen as a “sufficient reason” as a matter of law not to have raised the issue on direct appeal.

Applicability of Exclusionary Rule -- Violation of Nonconstitutional Right -- Unauthorized Practice of Law State v. Debra Noble, 2002 WI 64, reversing   2001 WI App 145, 246 Wis. 2d 533, 629 N.W.2d 31 For Noble: Thomas H. Boyd

Issue/Holding: Suppression of evidence is required only where it has been obtained in violation of the defendant's constitutional rights or of a statute specifically providing for suppression as a remedy. ¶14.

Issue: Whether, assuming that a detective's examining defendant at a John Doe proceeding amounted to violation of the unauthorized practice of law statute, the defendant's answers should be suppressed at a criminal proceeding for perjury based on those answers. Holding: Noble's constitutional rights weren't violated: she was questioned only briefly, and wasn't made a target of the Doe proceeding, ¶¶21-23; the detective's particpation wasn't a "drastic step beyond his permissible duties" and didn't make the proceeding "particularly unfair and oppressive," ¶24; there's no showing that the judge "acted partially" in permitting the detetctive to question Noble, ¶26. Further, there is no John Doe-related exception to the general rule that in the absence of statutory mandate, a constitutional violation is required for suppression. ¶28.

Applicability of Exclusionary Rule -- violation of nonconstitutional right -- administrative rule -- prison discipline

State ex rel. Jane Peckham v. Krenke, 229 Wis.2d 778, 601 N.W.2d 287 (Ct. App. 1999).

Issue: Whether evidence obtained in violation of administrative rules may be excluded from a prison disciplinary hearing.

Holding: (T)he 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 that specifically requires suppression of wrongfully or illegally obtained evidence as a sanction.

Applicability of Exclusionary Rule -- violation of nonconstitutional right prison discipline

State v. Joseph Steffes, 2003 WI App 55, PFR filed 3/13/03

For Steffes: Daniel P. Ryan

Issue/Holding: Violation of administrative code provision does not support suppression. ¶¶9, 25.

Applicability of Exclusionary Rule -- Vienna Convention on Consular Relations Doesn't Create Privately Enforceable Right

State v. Jose Carlos Navarro, 2003 WI App 50, PFR filed 3/5/03

For Navarro: Michael S. Holzman

Issue/Holding: ¶1. This case presents an issue of first impression in Wisconsin. Jose Carlos Navarro contends that Article 36 of the Vienna Convention bestows a judicially enforceable individual right upon foreign nationals who have been detained by police to consult with the consular officials of their country. He argues that because the police failed to notify him of this right at the time he was arrested, the police violated his right to consular notification and his potentially incriminating post-arrest statements should have been suppressed. We conclude that the Vienna Convention does not create a private right that a foreign national can enforce in a state criminal proceeding and therefore Navarro has no standing to assert any remedy pursuant to the Vienna Convention. We therefore affirm the judgment of conviction and sentence entered. International treaty law is not by any means limited to the Vienna Convention, or even to arcane rulings from The Hague -- see, e.g., Benitez v. Garcia, 9th Cir. No. 04-56231, 7/16/07 (discussing possibility of treaty/extradition-enforced sentencing limitations ["Agreed-upon sentencing limitations are generally enforceable"], though denying relief on particular facts). The Supreme Court has now weighed in, with Sanchez-Llamas v. Oregon, 04–10566, and Bustillo v. Johnson, 05-51, 6/26/06 (assuming without deciding that Art. 36 encompasses individually enforceable rights, suppression of statement not remedy for VC violation; and, claim of VC violation is subject to procedural default). Though a VC violation does not, by itself, support suppression, it may be raised "as part of a broader challenge to the voluntariness of [the] statement to the police," Sanchez-Llamas; see also Sierra v. State, TX Crim App No. PD-453-05, 3/21/07. Background discussion previously posted at this site, now available here, including 4/30/07 cert grant in No. 06-984, Jose Ernesto Medellin v. Texas. VCCR non-conferral of individually-enforceable rights extended to US-Canda Exradition Treaty: State v. Link, OR App No. A123223, 7/11/07. BUT: Johnbull K. Osagiede v. USA, 7th Cir No. 07-1131, 9/9/08 holds that a VCCR violation does confer rights that are individually enorceable; and, that although “direct” violation of the Vienna Convention doesn’t support suppression of evidence or dismissal of charge, other possible remedies may be fashioned: ... As the Court noted in Sanchez-Llamas, if a defendant “raises an Article 36 violation at trial, a court can make the appropriate accommodations to ensure that the defendant secures, to the extent possible, the benefits of consular assistance.” Sanchez-Llamas, 548 U.S. at 350, 126 S. Ct. 2669. After being apprised of a potential violation, “a court might . . . inquire as to whether a defendant knows that he may contact his consulate; it might even order that the prosecuting authority allow a foreign national to contact his consulate.” Mora v. New York, 524 F.3d 183, 200 n.24 (2d Cir. 2008). ...

ARREST

Authority of Sheriff, in Municipality

Arrest -- Authority of Sheriff to Arrest in Municipality

State v. Rodney G. Zivcic, 229 Wis.2d 119, 598 N.W.2d 565 (Ct. App. 1999)

For Zivcic: John J. Carter.

Issue/Holding: A sheriff's deputy has authority to arrest in a city located in the county.

Easy enough. Plus, there's significant authority allowing a an officer to peform an out-of-jurisdiction arrest under a "citizen's arrest" rationale: see State v. James W. Keith, 2003 WI App 47 (discussion of point, albeit without reaching it under facts), summarized above.

Arrest -- Legislator's Exemption

Legislator's Exemption -- State v. Brian B. Burke, 2002 WI App 291, PFR filed 11/29/02 For Burke: Robert H. Friebert Issue/Holding: ¶22. We conclude that the members of the Wisconsin Constitutional Convention did not intend to create a legislative privilege from criminal arrest and prosecution when they included article IV, section 15 in the Wisconsin Constitution. The phrase "treason, felony and breach of the peace" in that section was intended to mean "all crimes." We therefore agree with the trial court that Burke is not privileged from criminal prosecution. Accordingly, the trial court correctly denied his motion for a stay of proceedings.

Arrest -- Probable Cause

Arrest -- Probable Cause -- Specific Examples

Arrest – Probable Cause – Specific Examples: Traffic Violation – Deviating from Center Line, § 346.05

State v. Michael L. Popke, 2009 WI 37, reversing unpublished opinion

For Popke: John Miller Carroll, Aaron W. Schenk

Issue/Holding: Police had probable cause to believe Popke violated § 346.05, driving on right-side of highway: ¶16      In this case, the officer testified that he was sitting at a stop sign when the defendant turned left onto the road directly ahead of where the officer was sitting. The officer immediately began following the car and his view was not obstructed at any time. The defendant initially turned into the correct lane of traffic. However, the defendant subsequently "swerved" into the left lane of traffic and that resulted in the defendant's vehicle being three-quarters left of the center of the road, which was identified by a black strip of tar. ¶17      Based on this testimony, we conclude that the police officer had probable cause to believe a traffic code violation had occurred, namely operating left of center pursuant to Wis. Stat. § 346.05, and therefore, the traffic stop was reasonable. The officer watched as the defendant drove left of center, and as a result, the officer had probable cause to believe a traffic violation was being committed. Moreover, the circuit court concluded, and we agree, that none of the exceptions to this statute apply. See Wis. Stat. § 346.05(a)—(f). That is, there was nothing that required the defendant to drive left of center. The court rejects the idea that “momentarily” crossing the center line is not “driving”: ¶18      Wisconsin Stat. § 346.63(3)(a) provides: "'Drive' means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion." The defendant's actions are consistent with this definition, and thus, he was driving left of the center of the road in violation of Wis. Stat. § 346.05(1). The State posits an interesting question with regard to the defendant's claim that he was not driving; if the defendant was not driving in the left lane, what was he doing? This question itself reflects the inherent flaw with the defendant's argument.

Arrest – Probable Cause – Specific Examples: Disorderly Conduct

State v. Tanya L. Marten-Hoye, 2008 WI App 19, (AG’s) PFR filed 2/20/08; prior history: Certification, rejected 9/10/07

For Marten-Hoye: Lora B. Cerone, SPD, Madison Appellate

Issue/Holding: ¶31      Wisconsin Stat. § 947.01 prohibits “violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance.” Ben-Ami observed Marten-Hoye walking away from Ben-Ami and using profane language in a loud voice. Marten-Hoye was also waving her arms around. It was nighttime on State Street and about ten to fifteen people stopped and watched Marten-Hoye’s actions. We conclude that Ben-Ami had reasonable grounds to believe that Marten-Hoye was engaging in unreasonably loud and profane language under circumstances in which she was likely to cause a disturbance. …

Arrest -- Probable Cause -- Specific Examples: Seatbelt Violation

State v. Pedro L. Nieves, 2007 WI App 189, PFR filed 7/6/07

For Nieves: Ralph Sczygelski

Issue/Holding: ¶9 For purposes of this appeal, the propriety of the initial traffic stop is not challenged. Rather, Nieves argues that he should not have been arrested for his “innocuous seatbelt violation.” He was not. Indeed, Wis. Stat. § 347.48(2m)(gm) expressly forbids an arrest based solely on a seatbelt violation. The sole issue, therefore, is whether there existed probable cause to arrest Nieves for obstructing an officer, thus legitimizing the ensuing search. Knowles v. Iowa, 525 U.S. 113 (1998), distinguished on basis that there, search was conducted incident to mere “citation” rather than, as here, criminal arrest, ¶¶15-16.

Arrest -- Probable Cause -- Specific Examples: Drug Activity

State v. Dwight M. Sanders, 2007 WI App 174, affirmed on different ground, 2008 WI 85

For Sanders: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding: Police lacked probable cause to arrest for a drug offense under the following circumstances: ¶15 At the time the officers pursued Sanders into his home, the officers knew that the residence was located in an area known for drug trafficking and that Sanders was holding in his hands folded-up money and a canister that appeared to be of the type typically used to transport drugs. Further, Sanders refused to cooperate with their investigation and retreated to the inside of his home when the police ordered him to stop. However, neither of the officers actually saw drugs on Sanders or any of the other individuals in the backyard for that matter. The officers had no prior history with Sanders and no knowledge of any previous participation in drug-related activity. The residence was not known as a drug house. Further, the canister Sanders held in his hand was a beef jerky can and the officers did not see any drugs. Given this absence of evidence specifically connecting Sanders to illegal drugs, we conclude that the officers could not have reasonably believed that Sanders was committing or had committed a drug crime. The supreme court affirmed on review, but didn't reach the issue summarized above, 2008 WI 85, ¶25 ("Assuming without deciding that the warrantless entry into the defendant's home was justified under the Fourth Amendment ....").

Arrest -- Probable Cause -- Specific Examples: Obstructing

State v. Pdero L. Nieves, 2007 WI App 189, PFR filed 7/6/07

For Nieves: Ralph Sczygelski

Issue/Holding: ¶13 We conclude that probable cause to arrest for obstruction existed. An accumulation of factors contributed to Olsen’s suspicion that “Anthony Otero” was a false name which, in turn, led to the search. Olsen had been maintaining surveillance on a known drug house and a vehicle bearing plates registered to a known drug dealer’s vehicle. The vehicle, a different make than the one to which the plates were issued, already had aroused his suspicions when, upon following it, Olsen observed some interchange between Batteast’s car and the Taurus occupied by Green and Nieves. The Taurus’ dark window tint prompted Olsen to stop that vehicle. Green, a known associate of Batteast, and the Taurus’ temporary license plates further raised Olsen’s suspicions. Adding those facts to the inability to verify Nieves’ identity and Olsen’s knowledge that people sometimes give false names when they have outstanding arrests, a reasonable police officer would have believed that Nieves was guilty of obstruction. ¶14 Granted, there may have been an innocent explanation as to why the name “Anthony Otero” yielded no results when Olsen ran it through the database. However, an officer is not required to draw a reasonable inference that favors innocence when there also is a reasonable inference that favors probable cause. … In other words, the police stopped Nieves on suspicion of drug activity and, when he couldn’t produce an ID but instead provided a name that the police ran for a warrant check without result, he was arrested for … providing a false name. One way or another, if you don't have an ID you're going to end under arrest, either for a warrant under the name you provide or for obstructing if there's no warrant. Talk about damned if you do, damned if you don’t. Because the police had probable cause, they were entitled to conduct a search of his backpack, on a search-incident-to-arrest theory (the court is vague about this, but it’s nonetheless obviously the theory relied on). Very strong dissent by Judge Brown, ¶¶18 et seq. which, distilled, makes the point that, sure, the cops had reasonable suspicion for the stop and even if there is no clear line between reasonable suspicion and probable cause, “(t)he officer … could have held Nieves on a Terry stop until the identity problem had been resolved,” ¶26. Judge Brown’s conclusion is well worth repeating: ¶27 I fully realize that, while courts often opine that “reasonable suspicion” is a less demanding standard than “probable cause,” there is no clear sense and no offered guidance as how to differentiate between the two in a mathematically finite way. The difference between the two standards seems to move along a spectrum that defies fixed points. I am convinced that this inability to clearly define “probability” with any certainty is what gives succor to the majority’s view that the facts in this case allowed the “inference” of obstructing. But I am not so satisfied. I dispute the relationship of the premises (Nieves was at a possible drug scene and his name was not in the database) to the conclusion drawn by the officer (Nieves was probably lying about his identity). ¶28 If we are to allow officers to arrest persons who are suspected of being at a drug-related scene simply because a name given to the officer is not in a database, officers can use that database failure to search a car, search a person, search a home, all without a warrant. It is my view that the inferences an officer draws from the facts must be of reliable vitality before privacy interests entirely give way. If the facts are less reliable, the government’s interest in stopping illegal drug activity must be measured against existing privacy interests. Here, the governmental interest in ferreting out the true information as to Nieves’ identity could have been accomplished without intruding into the private realm of Green’s automobile. It is unreasonable to entrust freedom from unreasonable search and seizure to an unknown computer database. I respectfully dissent. The implications go well beyond the immediate facts, though they give rise to concern as well. (If there’s no warrant under a given name, the name isn’t in the government “database” and is therefore problematic?) The urge to categorize is nothing more or less than an attempt to derive an orderly view of a messy if not chaotic world. And what better way to impose order than in binary form: Reasonable suspicion or probable cause. Yet, as Judge Brown recognizes, this is an often notional exercise, because there simply is no marker telling you when you’ve gone past the one into territory occupied by the other. There are surprisingly few Wisconsin cases on the point, but as other courts mention, “the line between a lawful Terry stop and an unlawful arrest is not bright,” U.S. v. Vega, 72 F.3d 507, 515 (7th Cir. 1995) (drawing guns on suspect and “asking” (!) him to get into a police car for transport to another site didn't amount to arrest). Perhaps the clearest expression of this tension is (as might be expected) Judge Posner’s, in United States v. Burton, 441 F.3d 509, 511-512 (7th Cir. 2006), therefore quoted at length: The principle that emerges from the cases is that the less protracted and intrusive a search is, the less suspicion the police need in order to be authorized by the Fourth Amendment to conduct it, and vice versa. As we explained years ago in United States v. Chaidez, 919 F.2d 1193, 1197-98 (7th Cir. 1990) (citations omitted), It is "common sense that if the Fourth Amendment is intended to strike a balance between the interest of the individual in being left alone by the police and the interest of the community in being free from the menace of crime, the less the interest of the individual is impaired the less the interest of the community need be impaired to justify the restraint." Consideration of the extent of intrusion abounds in modern Fourth Amendment doctrine. Stops that do not entail detention need not be justified by any suspicion. Searches incident to arrest may be justified by the reduced marginal intrusion of searching a defendant already in custody. The Court based Terry itself on the fact that a protective search is a "brief, though far from inconsiderable, intrusion upon the sanctity of the person." Recently the Court upheld automobile checkpoints where the police made stops without any individual suspicion, in part because of the minimal "intrusion resulting from the brief stop at the sobriety checkpoint.". . . The scale extends in both directions. If an intrusion is greater than a traditional arrest, probable cause is not enough. These cases describe a continuum in which the necessary degree of confidence increases with the degree of intrusion. A "stop" without limiting the suspect's freedom requires no suspicion; a brief detention calls for reasonable suspicion; an arrest requires probable cause; invasive techniques such as surgery require more. What if the intrusion lies somewhere between Terry and arrest, neither a "brief, investigatory" stop nor a traditional arrest, where the defendant is handcuffed, trundled into a paddy wagon, carted to the station, fingerprinted, and held in a 12' x 8' cell? One answer would be to deny that there is a "between"--to insist that all encounters must be either Terry stops or arrests. Yet circumstances defy such simple categorization, and if a line must nonetheless be drawn it will be arbitrary, with nearly identical cases on opposite sides. Trying to force a continuous world into two categories is not only impossible but also unnecessary when the text of the Constitution calls for inquiry into "reasonableness". Why abandon the search for reasonableness when the intrusion falls between arrest and stop? Pigeonholing is no boon for defendants: it has put considerable pressure on the limits of the Terry doctrine. Both the permissible reasons for a stop and search and the permissible scope of the intrusion have expanded beyond their original contours, in order to permit reasonable police action when probable cause is arguably lacking. That last paragraph brings us right back to Judge Brown’s dissent: the police could have held Nieves under Terry “until the identity problem had been resolved.” One might ask, What identity problem? Nieves was a passenger not a driver; we don’t have a requirement that we carry IDs. No matter: Judge Brown’s suggestion is preferable to the majority’s solution to the problem, which is simply to translate the “problem” into probable cause. But the dissent’s solution itself neatly exemplifies Judge Posner’s astute point that pigeonholing greatly pressurizes the Terry doctrine. Interesting discussion in In re Antonio B., Cal App No. B203662, 8/28/08 (handcuffing during investigation of minor, non-violent offense tantamount to arrest; court drawing useful distinction to circmustance where "the officer had a reasonable basis to believe the detainee presented a physical threat to the officer or would flee").

Arrest -- Probable Cause -- Specific Examples: Obstructing

State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227

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

Issue/Holding: By fleeing from a police command to stop, the defendant provided probable cause to arrest for obstructing, and the officer therefore was acting with “lawful authority” under § 946.41(1), ¶¶77-78.

Arrest -- Probable Cause -- Specific Examples: Homicide -- Husband's Involvement in Wife's Disappearance State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03 For Kutz: T. Christopher Kelly Issue/Holding: The police had probable cause to arrest Kutz for involvement in his wife's disappearance where: there was reason to believe that she had suffered serious harm given that she hadn't returned to her mother's house as expected, her family had unsuccessfully looked for her, and it was unlike her not to notify her family of a change in plans, ¶14; Kutz was the last person known to have seen her, he gave an implausible account, he seemed indifferent to her disappearance, and he was "obsessed" about a possible affair she was having, and "distraught" about her decision to leave him, ¶¶15-16.

Arrest -- Probable Cause -- Mistaken View of Law

Arrest - Probable Cause - Predicated on Officer's Mistaken View of Law

State v. Christopher M. Repenshek, 2004 WI App 229, PFR filed 12/17/04

For Repenshek: Stephen E. Mays

Issue/Holding: The test for probable cause is purely objective, so that the arresting officer’s intent to arrest for a crime that is in fact non-existent is irrelevant. Because in Repenshek’s instance probable cause to arrest indisputably existed, his arrest was not illegal even though the officer thought he was arresting Repenshek for a crime that, it turns out, doesn’t exist. ¶¶9-12.

Not exactly ground-breaking. Indeed, the Supreme Court recently made the same point, in Devenpeck v. Alford, 03-710, 12/13/04 [“Our cases make clear that an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.”] That said, the test certainly presents the opportunity for mischief; among other things, it makes it very difficult if not impossible to argue that a given arrest was an invalid “pretext.” But this isn’t to say that police intent is never relevant; subjective inquiry is certain to come up where the issue relates to an “emergency” search or seizure, which in theory at least requires that the police be motivated by intent to aid rather than gather evidence; see discussion below, scrolling down to Leutenegger summary.

Arrest - Probable Cause - Predicated on Mistake of Law.

State v. Michael M. Longcore (I), 226 Wis. 2d 1, 594 N.W.2d 412 (Ct. App. 1999), affirmed by equally divided vote, 2000 WI 23, 233 Wis. 2d 278, 607 N.W.2d 620.

For Longcore: William E. Schmaal, SPD, Madison Appellate.

Issue/Holding: An officer stopped Longcore's car because his back window had been replaced with a plastic covering. The trial court ruled that this was a permissible temporary stop but the court of appeals holds that the officer wasn't conducting a temporary, "investigative" stop. Rather, the officer knew the window was covered with plastic, and he believed this to constitute an equipment violation; he thought, that is, that a crime was being committed in his presence. The court  "conclude[s] that when an officer relates the facts to a specific offense, it must indeed be an offense; a lawful stop cannot be predicated upon a mistake of law."

The court doesn't order suppression outright: "While this court cannot embrace the circuit court's rationale, that does not mean the principal issue is settled." The "principal issue" is the construction of the safety statute - if the state is correct, then the officer had probable cause to seize Longcore. "(H)owever, the State's brief does not sufficiently develop this issue, and we therefore decline to do so." The court of appeals "must resolve issues independently and cannot serve as both advocate and judge. ... Therefore, this court has no recourse but to remand the matter to the circuit court to determine whether the facts proven at the hearing constitute a violation of § 347.43(1)."

Go To Brief

Appeal after remand: State v. Michael M. Longcore (II), 2001 WI App 15 (holding that Longcore in fact violated safety statute, therefore officer had probable cause). Longcore I thus remains technically viable, given the ultimate resolution of a true safety violation as ground for the stop, but its rationale is unfortunately suspect, at least in part. That is, the court's conclusion that a mistaken view of the law cannot support a stop because Wisconsin does not acknowledge the good-faith rule has been unsettled by subsequent adoption of that rule. However, that was only part of the rationale, the other part being: ... The issue is, then, whether an officer has probable cause that a law has been broken when his interpretation of the law is incorrect. If the facts would support a violation only under a legal misinterpretation, no violation has occurred, and thus by definition there can be no probable cause that a violation has occurred. We conclude that when an officer relates the facts to a specific offense, it must indeed be an offense; a lawful stop cannot be predicated upon a mistake of law. There is no reason to doubt that conclusion, with an important caveat: the police may be mistaken as to the fact of a violation, as opposed to mistaken as to the law. See,e.g. State v. Wimberly, FL App No. 5D07-3444, 7/21/08 ("A traffic stop based on an officer’s incorrect but reasonable assessment of the facts does not violate the Fourth Amendment. ... If an officer makes traffic stop based on a mistake of fact, the court must determine whether the officer’s mistake of fact was reasonable. ... The same would not be true with respect to an officer’s mistake of law."); People v. Cole, Ill App No. 4-05-0672, 1/9/07 ("We agree with the majority of federal courts of appeal that a traffic stop based on a mistake of law is generally unconstitutional, even if the mistake is reasonable and made in good faith. ... [T]raffic stops based on an officer's objectively reasonable mistake of fact rarely violate the fourth amendment. ... However, a police officer who mistakenly believes a violation occurred when the acts in question are not prohibited by law is not acting reasonably."); U.S. v. McDonald , 453 F.3d 958 (7th Cir 2006) ("We agree with the majority of circuits to have considered the issue that a police officer’s mistake of law cannot support probable cause to conduct a stop."); U.S. v. Tibbetts , 396 F.3d 1132 (10th Cir 2005) (stop may be based on reasonable mistake of fact, but mistake of law is impermissible); U.S. v. Cole , 5th Cir No. 05-50686, 3/30/06 (extending good-faith rule to traffic stop would violate holding of Whren v. U.S., 517 U.S. 806 (1996) that officer's subjective beliefs irrelevant to question of whether police action objectively justifiable); U.S. v. Gross, 6th Cir No. 07-5971, 12/22/08 (fn 2: collecting federal cases). But see, U.S. v. Delfin-Colina , 464 F.3d 392 (3rd Cir 2006) (mistake of law doesn't render traffic stop per se unreasonable, and despite trooper's misconstruction of applicable law stop upheld; however, the case certainly seems more like mistake-of-fact than law: "an objective review of the facts shows that an officer who correctly interpreted § 4524(c) and was in Trooper Wagner’s position would have possessed reasonable suspicion to believe that Delfin-Colina was in violation of § 4524(c)"); U.S. v. Rodriguez-Lopez , 8th Cir No. 05-3139, 4/24/06 ("the resolution of the case turns upon whether Detective Bandy's belief that the statute was violated was objectively reasonable not whether it was in fact violated"; thus, even though defendant's failure to signal may not have violated traffic law, officer's belief that it was a violation wasn't unreasonable); U.S. v. Washington , 8th Cir No. 06-1220, 8/1/06 (same; contrary authority recited, fn. 1). This could be a cert-worthy split of authority. Keep in mind, too, that the perception must at least be a reasonably mistaken fact, U.S. v. Chantasouxat, 342 F.3d 1271, 1281 (11th Cir. 2003) ("if an officer makes a traffic stop based on a mistake of fact, the only question is whether his mistake of fact was reasonable").

Arrest -- Probable Cause -- Citizen Informant

Arrest -- Probable Cause -- Citizen-Informant -- Connection Between Defendant and Deceased

State v. Joel L. Ritchie, 2000 WI App 136, 237 Wis.2d 664, 614 N.W.2d 837

For Ritchie: Stephen G. Bauer

Holding: Various informants were sufficiently reliable to support probable cause: though they weren't expressly identified as citizen informants, they wree not suspects but, rather, "were ordinary persons who answered questions and provided information in response to a police investigation of a crime." ¶15. (Note: though not mentioned by the court, the principle -- citizen informants are presumptively reliable as a practical matter -- is obvious. See State v. Williams, 225 Wis.2d 159, 176, 591 N.W.2d 823 (1999): "the test of a citizen-informant's reliability is less strict than the test applicable to the police-informant"). Circumstantial evidence supported probable cause for homicide, including defendant's relationship with the deceased, her having being found dead in his apartment, and his having been seen with her shortly before she died.

Arrest -- Probable Cause -- Collective Knowledge

Arrest -- Probable Cause -- Collective Knowledge Doctrine, Applied to Informant

State v. Eddie McAttee, 2001 WI App 262

For McAttee: Russell D. Bohach

Issue: Whether McAttee's arrest was supported by probable cause.

Holding: ¶11. First, Detective Kuchenreuther was entitled to rely on Officer Smith's knowledge of the confidential informant. See State v. Black, 2000 WI App 175, ¶17 n.4, 238 Wis. 2d 203, 617 N.W.2d 210 (arresting officer may rely on collective knowledge of police force conveyed to the officer prior to arrest), review denied, 2000 WI 121, 239 Wis. 2d 310, 619 N.W.2d 93, cert. denied, 121 S. Ct. 1166 (2001). And Officer Smith had ample reason to rely on the information provided by this informant.... ¶12. Second, for purposes of probable cause to arrest, the police were entitled to rely on information from a known and reliable informant without independently determining the reliability of the informant's source or the source's information.... ¶14. McAttee cites no authority requiring police to gain additional information, corroborating that received from a reliable informant, before making an arrest. Here, clearly, the information disclosed by the informant was vital; it established probable cause to arrest McAttee for the homicide...." Lengthy discussion of collective knowledge doctrine in U.S. v. Ramirez, 9th Cir No. 05-50165, 1/16/07, crux of which is that officer requesting that stop or arrest be made need not explain factual basis for that determination.

Arrest -- Probable Cause -- Drug Odor

Arrest -- Probable Cause -- "Unmistakable" Drug Odor, Single-Occupant Automobile

State v. Timothy M. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387, cert. denied, __ U.S. __ (1999), reversing, 218 Wis.2d 508, 582 N.W.2d 37 (Ct. App. 1998).

For Secrist: Patrick M. Donnelly, SPD, Madison Appellate.

Issue/Holding: The issue presented to the court is whether the odor of a controlled substance may provide probable cause to arrest, and, if so, when. We conclude that the odor of a controlled substance provides probable cause to arrest when the odor is unmistakable and may be linked to a specific person or persons because of the circumstances in which the odor is discovered or because other evidence links the odor to the person or persons. In this case, a police officer detected the strong odor of marijuana coming from the direction of the defendant inside an automobile. The defendant was the operator and sole occupant of the automobile. In these circumstances, the strong odor of marijuana provided probable cause to arrest the defendant. Accordingly, we reverse the court of appeals. (Court stresses that it "is imperative ...  that the officer be able to link the unmistakable odor of marijuana or some other controlled substance to a specific person or persons. The linkage must be reasonable and capable of articulation.")

Go To Brief

Note that the odor was "unmistakable"; where the state neglects to show that the officer "is qualified by training or experience to detect the odor of raw marijuana," the search is unsupported, State v. Holley, Ind App No. 02A03-0808-CR-406, 12/23/08. The Supreme Court has ruled that police have probable cause to arrest all occupants when contraband is found hidden in the car. Maryland v. Pringle, 02-809, 12/15/03; decision below: State v. Pringle, 370 Md. 525 (Md. Ct. App. 2002). Pringle is, however, fact-specific; most importantly: the contraband (large amount of cash and cocaine) was "accessible to all three men," and none of them admitted possession. And, of course, "a relatively small auotmobile" rather than public place was involved. Under this circumstance it was reasonable to infer "that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine." It remains to be seen whether this logic would apply equally to presence of mere odor of contraband. For one thing, it's not clear that the presence of an odor implies joint accessibility (so to speak) or, therefore joint dominion and control. As a result, there is no reason to think that Pringle necessarily invalidates Secrist. Variant, suggesting that Pringle is best read as fact-specific: State v. Morales, 2008 NCMA 102, 5/15/08 (passenger's mere presence in car from which drugs were sold earlier insufficient under "mere propinquity" rule of Di Re and Ybarra). Secrist followed, State v. Guzman, 2008 VT 118, ¶¶13-16 (single-occupant car; Pringle, oddly, unmentioned). U.S. v. Humphries, 372 F.3d 653, 659 (4th Cir. 2004) (also followed by Guzman): While the odor of marijuana provides probable cause to believe that marijuana is present, the presence of marijuana does not of itself authorize the police either to search any place or to arrest any person in the vicinity. Additional factors must be present to localize the presence of marijuana such that its placement will justify either the search or the arrest. In the case of a search, when the odor emanates from a confined location such as an automobile or an apartment, we have held that officers may draw the conclusion that marijuana is present in the automobile or the apartment. See Scheetz, 293 F.3d at 184; Cephas, 254 F.3d at 495. But probable cause to believe that marijuana is located in an automobile or an apartment may not automatically constitute probable cause to arrest all persons in the automobile or apartment; some additional factors would generally have to be present, indicating to the officer that those persons possessed the contraband. See Pringle, 124 S. Ct. at 800-01 (holding that the presence of cocaine and a roll of money in the passenger area of an automobile gave officers probable cause to believe that the automobile’s occupants jointly committed the crime of possession of cocaine). Thus, if an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana. But see Wilson v. State, MD. Ct. Spec. App. No. 2185, 5/2/07 (odor of burnt marijuana alone enough to trigger "automobile exception and therefore permit search of vehicle's trunk; split in authority cataloged); State v. Gonzales, 2009-Ohio-168, ¶18 (smell of marijuana alone supports search), and ¶¶21-22 (distinguishing between odor raw and burnt marijuana: latter supports only search of passenger compartment while former allows search of trunk). See also U.S. v. Ramos, 3rd Cir No. 05-1169, 4/5/06 (smell of marijuana alone may establish probable cause to believe marijuana is present); State v. Jennings, Fl App 4D06-3618, 11/21/07 ("smell of marijuana coming from an occupied vehicle provides probable cause" to search vehicle and its occupants); Dunn v. Commonwealth, KY App No. 2005-CA-000468-MR, 3/31/06, and cases cited n. 6 (smell of mariuana provides probable cause to search both car and occupant); Johnson v. State, Tex App. No. 06-04-00027-CR, 9/9/04 (smell of marijuana coming from single-occupant car, coupled with officer's knowledge that driver "had been involved with illegal drugs for some time, gave the officer probable cause to search Johnson"); nonetheless, court's stress on fact of single occupant, along with effort to distinguish multiple-occupant (residence) case of State v. Steelman, 93 S.W.3d 102 (Tex.Cr.App. 2002), especially as explained by Estrada v. State, TX Crim App No. PD-1629-03, 1/26/05 ("In other words, just because the officers in the Steelman case smelled marijuana, without any other evidence, they did not have probable cause to suspect that the defendant, one of four people in the house, was committing the offense of possession of marijuana in their presence so that they could arrest him without a warrant"), suggests single occupancy as fault line. For an interesting variation on this theme, see State v. Gibson, 141 Idaho 277, 108 P.3d 424 (no link available) ("The alert of a drug dog on a car seat where an occupant had previously been seated does not, standing alone, give police probable cause to believe that the occupant had drugs on his or her person."); like effect: State v. Harris, TN Cr App 2/6/08 (probable cause to search car, based on drug-dog sniff, "did not in and of itself justify" search of driver's person; court stresses, though, that passenger was in seat near door where dog reacted). Seemingly different situation where drugs merely found on passenger, State v. Patterson, 2006-NMCA-037, ¶28 ("no facts beyond Defendant Patterson's mere presence that could justify individualized suspicion of possession of contraband"); But compare, State v. Funderburg, NMSC No. 30,180, 4/15/08 (lawful seizure of drug paraphernalia from passenger authorized officer to question driver about possible presence of drugs in car).

Arrest -- Probable Cause -- Drug Odor, Multiple Possible Sources, Emanating from Home

State v. Michael Wilson, 229 Wis.2d 256, 600 N.W.2d 14 (Ct. App. 1999).

For Wilson: Martha A. Askins, SPD, Madison Appellate.

Issue/Holding: Ison lacked probable cause to arrest Wilson when he refused to allow Wilson to use the bathroom because at that time, Ison could not identify Wilson as the source of the marijuana odor emanating from the basement. The Wisconsin Supreme Court recently held that “the odor of a controlled substance provides probable cause to arrest when the odor is unmistakable and may be linked to a specific person or persons because of the circumstances in which the odor is discovered or because other evidence links the odor to the person or persons.” State v. Secrist, 224 Wis.2d 201, 204, 589 N.W.2d 387, 389 (1999). Although Ison had identified the odor of marijuana, he acknowledged that several people could be heard in the basement. There was no greater basis to believe that Wilson was the source of the odor than any of the other individuals present in the basement. Applying Secrist, because there was no way Ison could identify the source of the odor from among those individuals in the basement, he was without probable cause to arrest Wilson when Wilson was detained. Consequently, because Ison was unlawfully arrested prior to the search, the search cannot be justified as contemporaneous to the arrest. Swanson, 164 Wis.2d at 450-51, 475 N.W.2d at 155.

Go To Brief

UPDATE: The Supreme Court has since ruled that the police have probable cause to arrest all occupants when contraband is found hidden in the car. Maryland v. Pringle, 02-809, 12/15/03; decision below: State v. Pringle, 370 Md. 525 (Md. Ct. App. 2002). Under the facts of that case, the police had probable to cause to believe that all the car's occupants had dominion and control over the jointly accessible contraband. But the situation is at least arguably different when dealing with odor (which makes applying the concept of dominion and control fragile to the breaking point) emanating from a residence (rather than a car which contrastingly suggests both ready accessibility of secreted items and lessened expectation of privacy).

Arrest -- Probable Cause -- Drug Odor: "raw" marijuana -- Search of Passenger.

State v. Mata, 230 Wis.2d 567, 602 N.W.2d 158 (Ct. App. 1999).

For Mata: Daniel P. Murray.

Issue: Whether the police had probable cause to search the passenger of a stopped car, based on the odor of "raw" marijuana.

Issue/Holding: The odor of marijuana was sufficiently linked to the passenger to justify the search.

Analysis: The police stopped a car because it didn't have a front plate. There were three occupants. A strong odor of "raw" marijuana was detected. The driver was frisked when it appeared he didn't have a driver's license; no marijuana. One passenger was arrested on an outstanding warrant and searched; same result. A search of Mata then produced marijuana. This case arguably falls at the intersection of State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387, cert. denied, __ U.S. __ (1999) (probable cause if odor of marijuana in car linked to "specific" person(s)); and State v. Mitchell, 167 Wis. 2d 672, 482 N.W.2d 364 (1992) (fact of multiple passengers not fatal to probable cause based on odor of marijuana and smoke in car). The court of appeals determines that it need not resolve the potential conflict between these holdings, because elimination of the other two occupants provided the necessary linkage to Mata. This was not, the court stresses, merely a frisk, but a full-blown search properly supported by probable cause, but alternatively, a frisk would have been permissible - the officer felt a hard object (block of marijuana) while patting Mata down; Mata gave a palpably false explanation about the object; it was a high-crime area; the police reasonably feared for their safety. State v. Ford, 211 Wis. 2d 741, 565 N.W.2d 286 (Ct. App. 1997) and State v. Swanson, 164 Wis. 2d 437, 475 N.W.2d 148 (1991) distinguished.

Note: The court declines to decide whether "the mere odor of raw marijuana [suffices] to establish probable cause." But also note that where the state neglects to adduce evidence of the officer's training and experience with respect to identifying marijuana, probable cause isn't supported. State v. Bradley, 2003-Ohio-5419. See, however, State v. Reha, 12 Neb. App. 767, 8/24/04 (odor of burnt marijuana provides probable cause to search not only car but both driver and passenger, at least given that both possessed cigarette lighters; Pringle followed, essentially).

Arrest -- Probable Cause -- OWI

Arrest - Probable Cause – OWI

State v. Mitchell A. Lange, 2009 WI 49, reversing unpublished opinion

For Lange: Steven M. Cohen

Issue/Holding: Probable cause to arrest for OWI was based on the following factors: ¶24      First, the driving that Officer Hoffman and Officer Penly witnessed is relevant. The driving was not merely erratic and unlawful; it was the sort of wildly dangerous driving that suggests the absence of a sober decision maker behind the wheel. … … ¶30      Second, the officers' experience is a consideration. … ¶31      Officer Penly and Officer Hoffman discussed their observations, as well as the question whether they had probable cause to arrest the defendant for operating while under the influence at the hospital. Officer Penly informed Officer Hoffman that in his opinion, probable cause existed to arrest the defendant for operating while under the influence. ¶32      Third, the time of night is relevant. Officer Hoffman's and Officer Penly's uncontroverted testimony was that they encountered the defendant about when Saturday night bar-time traffic arrives in Maple Bluff from downtown Madison. It is a matter of common knowledge that people tend to drink during the weekend when they do not have to go to work the following morning. ¶33      Fourth, by the time of the arrest, Officer Hoffman had discovered that the defendant had a prior conviction for operating a motor vehicle while under the influence of an intoxicant. Officer Hoffman could take this evidence into account when determining whether she had probable cause to believe that the defendant was under the influence of an intoxicant while operating his vehicle. [14] ¶34      Fifth, the defendant's collision with the utility pole cut off the law enforcement officers' opportunity for further investigation. The defendant was unconscious, bloody, and lying amid a gasoline-soaked crash scene when Officer Hoffman discovered him. It is neither surprising nor significant that Officer Hoffman failed to detect any odors of intoxicants, to ascertain whether the defendant's speech was slurred or his balance impaired, to obtain an admission that the defendant had been drinking, to administer a field sobriety test to the defendant, or to discover any empty cans or bottles in the defendant's compacted and evidently flammable vehicle. Typical indicia of usage—odors, admissions, etc.—may strengthen probable cause but aren’t necessary to its existence, ¶36. But, the court also emphatically rejects Lange’s claim that refusal to suppress will mean that any accident in and of itself furnishes probable cause; instead, there must be “totality-of-the-circumstances” support, evidenced in this case by the factors listed above, ¶39. The fact that Lange couldn’t be questioned because he was unconscious at the scene, and remained so at the hospital, appears to be significant, but how much so is left unsaid, ¶36. A 3-Justice concurrence spills a bit of ink stressing a point that doesn’t seem to be in dispute, namely that a field sobriety test isn’t a prerequisite for OWI probable cause, ¶¶42-43.

Arrest - Probable Cause - OWI

Waukesha County v. Eric D. Smith, 2008 WI 23, affirming unpublished decision

For Smith: Kirk B. Obear

Issue/Holding: ¶36 We conclude that under the circumstances of the present case, the Deputy's knowledge at the time of the arrest would lead a reasonable law enforcement officer to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant. At the time of the arrest, the Deputy knew that the defendant had been driving well in excess of the speed limit late at night on a two-lane highway; that the defendant delayed pulling over after the deputy activated his emergency lights; that the defendant had twice driven across the centerline before pulling over; that the defendant had an odor of alcohol on his breath; that the defendant had admitted to consuming alcohol over a period of more than ten hours ending just prior to his encounter with the deputy; and that the defendant had supplied inconsistent and equivocal information regarding the amount of alcohol that he had consumed during that period of time. The state has met its burden of presenting evidence sufficient to establish that the Deputy had probable cause to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant and had probable cause to arrest him for this offense.

Arrest -- Probable Cause -- OWI

State v. Gregg A. Pfaff, 2004 WI App 31 For Pfaff: Rex Anderegg Issue/Holding: Probable cause to arrest for OWI upheld on following facts as found by trial court: ¶20. … Metzen's decision not to perform field sobriety testing was reasonable in light of Pfaff's injuries. Metzen is an experienced officer and has processed many defendants for OWI. Metzen was at the scene of the accident and, at the hospital, Metzen observed Pfaff to have an odor of intoxicants on his breath and red, watery eyes. Metzen had information from Jordan that the accident took place in a distress lane off the roadway and, in his opinion, he believed Pfaff was unable to safely control his vehicle. After making these findings, Judge Kieffer stated, "[T]he Court looks at the totality of all these circumstances, and the Court believes that based upon these particular circumstances, that there did exist probable cause to believe that Mr. Pfaff was under the influence." …

Arrest -- Probable Cause -- OWI

State v. Cara A. Erickson, 2003 WI App 43.

Issue/Holding: The following facts established probable cause to arrest, hence to take a warrantless blood draw, for OWI: ¶15. In this case, the officer knew the following information when he ordered the blood draw. At about 5:40 a.m. on August 27, 2000, less than two hours prior to the blood draw, Erickson crashed her pickup truck into a vehicle with sufficient force to set the vehicle on fire. One occupant in the vehicle was killed and the other was seriously injured. Erickson told the officer she remembered waking up and crashing into the vehicle. Erickson said she was returning home from dropping off a friend after a party. While at the scene, Erickson told the officer that she had drunk one beer around 1:00 a.m., but she later told medical personnel she had had three beers, the last one at 1:00 a.m. In addition, while standing about three to four feet from Erickson at the scene, the officer did not smell an odor of intoxicants. However, three emergency medical technicians who treated Erickson at the scene and transported her to the hospital reported that they smelled a strong odor of alcohol on Erickson.

Arrest -- Probable Cause -- OWI

State v. James L. Larson, 2003 WI App 150

For Larson: Rex Anderegg

Issue/Holding: ¶16. To determine if probable cause exists, the court must consider whether "the totality of the circumstances within the arresting officer's knowledge at the time of the arrest would lead a reasonable police officer to believe ... that the defendant was operating a motor vehicle while under the influence of an intoxicant." State v. Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300 (1986). At the time of his arrival, Zuhlke knew only that two tipsters had called dispatch, alleging that the driver of the maroon and silver truck parked outside the apartment building was driving while intoxicated. Zuhlke had not yet smelled the odor of intoxicants on Larson's breath, detected his slurred speech, or even obtained his concession that he had been driving the maroon and silver truck. Consequently, we do not believe that it can be reasonably maintained that at the moment Zuhlke put his foot inside the doorway he had probable cause to arrest Larson.

Arrest -- Probable Cause -- Preliminary Breath Test

Arrest -- Probable Cause -- Preliminary Breath Test -- OWI

State v. Ibrahim Begicevic, 2004 WI App 57

For Begicevic: Donna J. Kuchler

Issue/Holding: ¶9. When Kennedy initially made contact with Begicevic, he appeared confused on how to get to Milwaukee. She immediately noticed a strong odor of intoxicants and that his eyes were bloodshot and glassy. … Because Kennedy was giving Begicevic the benefit of the doubt, she had him perform a fourth field sobriety test, the finger-to-nose test. After she explained and demonstrated the test, Begicevic tried it unsuccessfully three times. Based upon all of her observations, Kennedy asked Begicevic to submit to a PBT. ¶10. This case presents the very kind of situation for which the PBT was intended because it aided Kennedy in determining whether probable cause to arrest existed. … If, under the facts, there are reasonable grounds to believe that the person has violated the OWI laws, the officer may arrest the driver under Wis. Stat. §§ 345.22 or 968.07(1)(d). Renz, 231 Wis. 2d at 311. Kennedy's use of the PBT in this case is supported by probable cause and is consistent with its intended purposes

Arrest - Probable Cause - Preliminary Breath Test - OWI

County of Jefferson v. Renz, 231 Wis.2d 293, 603 N.W.2d 541 (1999), reversing 222 Wis. 2d 424, 588 N.W.2d 267 (Ct. App. 1998)

For Renz: Stephen E. Mays.

Issue/Holding: ¶33 ... “(P)robable cause to believe,” indicates different levels of proof at different stages of proceedings. It is therefore reasonable to conclude that the legislature intended the language “probable cause to believe” in the first sentence of Wis. Stat. § 343.303 to mean a level of proof appropriate to that stage in the proceedings and less than that required to establish probable cause for arrest. The Chief Justice, concurring, supplies an interesting chart depicting what is now a hierarchy of various types of probable cause, and questions "the usefulness of our jurisprudence regarding degrees of proof of probable cause," ¶59.

Arrest -- Search Incident to Arrest

Arrest -- Search Incident to Arrest -- Generally

Arrest, Search Incident to - Timing

State v. Jordan A. Denk, 2008 WI 130, on certification

For Denk: Lora B. Cerone, SPD, Madison Appellate

Issue/Holding: ¶33      We note at the outset that Officer Hahn testified he did not place Pickering under arrest until after he had performed searches of the eyeglass case and Denk's clothing. This fact does not alter our analysis. In State v. Sykes, 2005 WI 48, ¶15, 279 Wis. 2d 742, 695 N.W.2d 277, we agreed with the United States Supreme Court that “where a ‘formal arrest followed quickly on the heels of the challenged search of petitioner's person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.’” ( Quoting Rawlings v. Kentucky, 448 U.S. 98, 111 (1980)). We concluded that a warrantless search “may be incident to a subsequent arrest if the officers have probable cause to arrest before the search.” Id. (internal quotations omitted). Pickering was the driver; the cop indisputably had PC to arrest him, ¶34.

Arrest – Search-Incident, Generally

State v. Michael D. Sykes, 2005 WI 48, affirming unpublished decision of court of appeals

For Sykes: Jeffrey J. De La Rosa

Issue/Holding: Where the police had probable cause to arrest for criminal trespass, they did not have to subjectively intend to arrest the person for that offense in order to perform a search incident to arrest. And, though the search must be “contemporaneous” with the arrest (relatedly: probable cause must exist independent of the fruits of the search), it is not necessarily fatal that the search-incident preceded formal arrest.

This lesson has been drummed into our heads for decades now: arrest is determined under purely objective standards; long as the officer did something that can be characterized as tantamount to arrest, and long as that act was supported by probable cause, it just doesn’t matter s/he thought s/he was doing. The matter of timing of search in relation to arrest might be more complex, but the court doesn’t have much beyond abstract principle to say on this subject anyway, so we ought simply note it as a potential problem area and let it pass. Still … there is indeed more to be said, and the Chief says it in dissent, in a typically efficient and elegant manner, ¶¶37-48. Search-incident is circumscribed by the wonderfully self-descriptive “wing-span” rule. The dissent argues persuasively that Sykes’ property was well outside the reach of his wing-span, and thus searching it can’t possibly be justified under a search-incident rationale. The majority determines that it need not reach this issue, ¶21 and id., n. 6; whether or not that determination is procedurally sound is of no moment: just be sensitive to this rule and assert it when necessary.

Arrest -- Search Incident to Arrest -- Chimel “Immediate Control” Rule – Inapplicable Where Defendant Removed from Scene

State v. Dwight M. Sanders, 2008 WI 85, affirming as modified, 2007 WI App 174

For Sanders: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding: Where the defendant had already been removed from the premises following his arrest, a search of his bedroom couldn’t be justified under a search-incident rationale: ¶51      The State contends that Officer Garcia's second search of the defendant's bedroom was justified as a search incident to arrest under the Chimel standard because the bedroom was "within [the defendant's] immediate presence or control when he barricaded himself in the bedroom and was out of the police officers' sight." [28] ¶52      Although the bedroom might be considered within the defendant's immediate presence or control for Chimel purposes, we do not agree with the State that the second search of the bedroom was a search incident to arrest under the circumstances of the present case. The second search occurred after the defendant had been removed from the home. [29]  The defendant could not have gained possession of a weapon or destructible evidence from his bedroom when the defendant was not even inside the home when the bedroom and canister were searched and the contents of the canister seized. The court distinguishes State v. Murdock, 155 Wis. 2d 217, 227, 455 N.W.2d 618 (1990),  but in the process stresses that the Chimel rule remains available even when the arrestee is handcuffed; the line is drawn when the defendant is removed from the scene: “The purposes of the search incident to arrest were achieved by removing the defendant from his home. By removing the defendant from the home, the officers eliminated the need to detect and remove any weapons that the arrestee might try to use to resist arrest or escape or to prevent the destruction or concealment of evidence,” ¶56. Like effect: People v. Leal, Cal App No. H031174, 2/28/08 ("In sum, Thornton is limited to automobile-involved police action. (¶) For Fourth Amendment purposes, the difference between an automobile and one’s private residence is significant.").

Arrest -- Search Incident to Arrest -- Probable Cause but No Arrest in Fact

Arrest – Test for Custody, Generally

State v. Tanya L. Marten-Hoye, 2008 WI App 19, (AG’s) PFR filed 2/20/08; prior history: Certification, rejected 9/10/07

For Marten-Hoye: Lora B. Cerone, SPD, Madison Appellate

Issue/Holding: Where the officer handcuffed the defendant and told her she was under arrest for an ordinance violation, but also told her that she would “be released if she continued to be cooperative,” there was no arrest in fact and therefore the fruits of an ensuing search incident to (a non-existent) arrest were suppressible: ¶27      In sum, neither party has cited to a case sufficiently analogous to the facts of this case to guide its outcome. [11] Contrary to the parties’ assertions, no case establishes a bright-line rule as to when an arrest has been effected. Instead, each case focuses on the totality of the circumstances in the record to determine whether a reasonable person in the defendant’s position would have believed he or she was under arrest. Here, the record reveals conflicting circumstances: Ben-Ami told Marten-Hoye she was under arrest, but also that she would be issued a citation for a municipal ordinance violation and would be free to go. She placed Marten-Hoye in handcuffs but did not place her in a squad car, instead conducting the entire interaction in public. While Ban-Ami searched Marten-Hoye, another officer was writing out the citation that would have ended in Marten-Hoye’s release. ¶28      Considering all of the circumstances of the situation, we conclude that a reasonable person in Marten-Hoye’s position would not have believed he or she was “in custody” given the circumstances present here. First, we do not agree with the State that the fact that Ben-Ami told Marten-Hoye that she was under arrest necessarily establishes an arrest. Ben-Ami did not unequivocally tell Marten-Hoye that she was under arrest. Significantly, immediately after Ben-Ami told Marten-Hoye that she was under arrest, she also told her that she would be issued a citation and then would be free to go. [12] Although the statements by Ben-Ami are contradictory, we conclude that the assurance by Ben-Ami that Marten-Hoye would be issued a citation and released would lead a reasonable person to believe he or she was not in custody, notwithstanding the early statement that he or she was “under arrest.” ¶29      Next, we do not agree that police use of handcuffs transformed the interaction here into an arrest. In this case, Marten-Hoye’s being placed in handcuffs is associated with the fact that she was being loud and uttering profanities rather than indicating that she was being placed in police custody. Additionally, the entire interaction between Ben-Ami and Marten-Hoye was in public and Marten-Hoye was never transported to any other location. Although Ben-Ami’s statements conflict, we are persuaded that in their totality they would not lead a reasonable person to believe he or she was “in custody.” Accordingly, the search of Marten-Hoye is not justified as a search incident to an arrest. A bit of chicken-roosting: over the years a sort of elastic test has evolved for determining when an arrest has occurred, typically when a Terry stop has evolved into a full-blown arrest. An all-time Case Summaries favorite exemplar is U.S. v. Vega, 72 F.3d 507, 515 (7th Cir. 1995), which in the process of observing that “the line between a lawful Terry stop and an unlawful arrest is not bright,” holds that drawing guns on a suspect and “asking” him to get into a police car for transport to another site didn't amount to an arrest. Nor, similarly, is handcuffing someone necessarily enough to establish an arrest, U.S. v. Stewart, 388 F3d 1079 (7th Cir. 2004) (“The permissible scope of a Terry stop has expanded in recent years to include the use of handcuffs and temporary detentions in squad cars.”); Jewett v. Anders, 7th Cir No. 06-2982, 4/11/08 (using force to bring suspect to ground, handcuffing him and detaining him in squad car 20 minutes or longer didn't transform stop into arrest). And, if the detention, intrusive though it might be, doesn’t amount to an arrest then a search of the person more intensive than a pat-down can’t be justified as incident-to, which is the essence of the current case -- those are the chickens coming home to roost. What takes the case somewhat out of the norm is the idea that no arrest occurred even though Marten-Hoye was expressly told she indeed was under arrest. However, she was simultaneously told that her status as an arrestee was entirely conditional; if she continued to be cooperative she would not in fact be arrested. (A slight stretch of an analogy: it’s almost as if the cop imposed a sort of remedial contempt, whereby Marten-Hoye herself held the keys to her potential incarceration; cooperative behavior and she walks.) The court’s holding, in short, represents a narrow, fact-specific result. The State has an elegant solution to this little dilemma, ¶15 n. 9: “The State asserts that to answer whether a defendant was arrested, we must look to who is asserting that an arrest occurred, the State or the defendant, citing 3 Wayne R. Lafave, Search & Seizure § 5.1(a) (4th ed. 2004).” This approach strikes Case Summaries as what we like to term, “result-oriented.” Nor does LaFave seem to support the State’s unqualified view that the court must (which is to say, always) take into account who is arguing what. In any event, the court goes on to suggest that Knowles v. Iowa, 525 U.S. 113 (1998) (search incident to mere non-criminal traffic citation impermissible) takes this case out of that context. Does it matter that Marten-Hoye’s “arrest” was not only conditional but was for a local ordinance violation? You can perhaps make that argument, stressing that concerns for officer safety are much different in that context than arrest for a crime. It may also be that, as a practical matter, you’re much more likely to get a catch-and-release in the context of citation-offenses than where a criminal offense is involved. But: it is settled nonetheless that Wisconsin law does allow arrest (and search-incident) on a noncriminal offense such as an ordinance violation, State v. Robert J. Pallone, 2000 WI 77, ¶43 (“arrests for civil forfeitures are not per se unconstitutional. … Consequently, the Fourth Amendment does not preclude searches incident to arrests for noncriminal violations.”). A policy-based argument, then, that arrest is unsupported for an ordinance violation would seem to be an exercise in futility. It may be that Knowles has changed this landscape, but recall that in that case there was no attempt to arrest on the traffic violation, instead an unsuccessful attempt to create a search incident to mere citation rationale. More: Pallone (¶46) seems to have explicitly rejected such a possibility (“Because this was a search incident to an arrest [for an ordinance violation], not a search incident to the issuance of a traffic citation with no arrest, the Knowles rule does not apply to this case.”) The particular facts, that is, very much matter. If Marten-Hoye had been told unconditionally she was under arrest, the court presumably would have perceived no impediment to an ensuing search. But that is not what happened. Just because the cop could have effectuated an arrest doesn't mean that she in fact did. Though the court of appeals’ rationale leaves a bit to be desired, the result as indicated above is best seen narrowly: once the cop in effect told Marten-Hoye that she would not remain under arrest but instead would be released with issuance of a citation, the situation became controlled by Knowles. If the cop is going to issue a citation for an ordinance violation without an arrest, a search-incident isn't permissible. This isn't to say questions don't remain. The Certification perceived the following doctrinal tension: As we previously explained, the facts in this case meet at the intersection of Knowles and Swanson, and highlight a possible overlapping of the bright-line rules established in these cases. Were the police prohibited from performing a full field search of Marten-Hoye based on the search incident to arrest exception to the warrant requirement because they told her that she was going to be given a citation and released (Knowles)? Were the police allowed to perform a full search incident to arrest because they handcuffed Marten-Hoye and told her she was under arrest, circumstances under which a reasonable person may have believed they were under arrest (Swanson)? Perhaps. If so, the tension is relieved simply by saying that a reasonable person wouldn't see him or herself as being under arrest if told a release is imminent. In other words, there's no arrest under the Swanson test. But this isn't to say that significant underlying tension is indeed absent. To see the source of this tension, though, take a look at U.S. v. Powell, DC Cir No. 05-3047, 4/17/07, which concludes, after elaborate discussion, that a search-incident may precede an arrest, so long as the arrest is effectuated straight-away: Powell and our dissenting colleague also contend our decision is inconsistent with Knowles v. Iowa, 525 U.S. 113 (1998) (holding an officer may not conduct a search incident to arrest when, although the officer has probable cause to make an arrest, he issues a citation instead of arresting the suspect). But that is not correct either. Had the officers failed to arrest Powell and merely issued him a citation, then indeed the search would be invalid under Knowles. 525 U.S. at 117 (“The threat to officer safety from issuing a traffic citation ... is a good deal less than in the case of a custodial arrest”). That, of course, is not what happened, and we do not say that having probable cause to arrest is by itself sufficient to bring a search within the Belton exception to the warrant requirement. Rather, it is the “fact of the arrest” that makes all the difference. Id. (quoting United States v. Robinson, 414 U.S. 218, 234 n.5 (1973) (“The danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty”)); see also Washington v. Chrisman, 455 U.S. 1, 7 (1982) (“Every arrest must be presumed to present a risk of danger to the arresting officer”). As we have recently noted: “The key point in Knowles ... was not that the officer had a lawful ground for arrest upon which he did not rely, but that he did not arrest the defendant at all.” United States v. Bookhardt, 277 F.3d 558, 566 (D.C. Cir. 2002). Note that Wisconsin caselaw seems to be to aligned with Powell, State v. Michael D. Sykes, 2005 WI 48; that is, search-incident need only be "contemporaneous" with, as opposed to preceding, arrest. Powell’s analysis is entirely unconvincing, because the plain fact is that the cop did arrest Knowles, albeit after conducting a search (taking into account the court’s big production of saying that it simply doesn’t matter that the search precedes the arrest). Some other point of distinction, then, must be found. Powell (Sykes, too, for that matter) had been detained though not under arrest prior to the search. But Knowles of course had also been detained, so the mere fact of detention can't be meaningful either. Perhaps the point of departure is that without some explicit statement from the cop, Knowles (the subject of a simple traffic stop) could clearly assume that he would be released; neither Powell nor Sykes could say the same. Traffic stops thus might be seen as a subset of Terry-type detentions, in that without more there is a presumption of release (though to be sure Knowles doesn’t explicitly say as much). Perhaps that distinction also informs the Powell court's otherwise inexplicable idea that Knowles wasn't arrested “at all.” And if that is so, then M-H can say the same, albeit in a non-traffic setting: she wasn't arrested “at all,” because she had been bluntly told that continued cooperation would lead to her immediate release. She no less than Knowles could assume imminent release from custody without arrest. But the only thing that might be said with confidence is that we probably haven't seen the end of this discussion. Contrast Virginia v. Moore, USSC No. 06-1802, 4/23/08 (arrest for minor offense based on probable cause but prohibited under state law nonetheless supports search-incident; in other words, mere violation of state arrest law doesn't ipso facto violate 4th A).

Arrest -- Search Incident to Arrest -- Probable Cause to Arrest Exists, but Officer Exercises Discretion Not to Arrest

State v. Robert F. Hart, 2001 WI App 283

For Hart: John Deitrich

Issue: Whether seizure of evidence may be sustained on a search-incident-to-arrest rationale, where the officer had probable cause to arrest, but was not going to arrest.

Holding: ¶11. What happens, however, when the police officer does not intend to make an arrest? Here, it is clear there was no intent on the part of the police officer to search Hart incident to the inevitable formal arrest for OWI. Indeed, although there may have been probable cause, both parties were operating under the assumption that no arrest would occur. Therefore, none of the concerns that justify prearrest searches would come into play. The police officer had no reasonable belief that Hart would be motivated to conceal evidence or harm the officer. ¶12. On this interpretation of the facts and the case law, the attorney general cannot successfully argue that the subjective intent of the police officer is irrelevant. His intent not to arrest as he communicated it by words and deeds removed the Cupp concerns which traditionally justify the search as incident to arrest. We determine with respect to the formal arrest for drug paraphernalia, which occurred after the pipe was discovered, probable cause rests entirely on the pipe itself, which as fruit of an unlawful search must be suppressed. Take note, however, of State v. Michael D. Sykes, 2005 WI 48, ¶33: "Any discussion in Hart that could be interpreted to invalidate a search incident to an arrest for which arrest the officer has probable cause is overruled."

Arrest -- Search Incident to Arrest -- Protective SweepSee also "Frisk -- Residence" below

Arrest -- Search Incident to Arrest -- "Protective Sweep" Doctrine: Generally

State v. Dwight M. Sanders, 2008 WI 85, affirming as modified, 2007 WI App 174

For Sanders: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding: ¶32      The protective sweep doctrine applies once law enforcement officers are inside an area, including a home. Once inside an area a law enforcement officer may perform a warrantless "protective sweep," that is, "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." [14] Under Buie, a law enforcement officer is justified in performing a warrantless protective sweep when the officer possesses "a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others." [15] Because the protective sweep exception authorizes only a limited intrusion, Buie requires the officer to have only reasonable suspicion that the area poses a danger to the officer or others; the test is not probable cause. [16] ¶33      The protective sweep extends "to a cursory inspection of those spaces where a person may be found" [17] and may last "no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." [18]

Arrest -- Search Incident to Arrest -- "Protective Sweep" Doctrine: Search of Canister

State v. Dwight M. Sanders, 2008 WI 85, affirming as modified, 2007 WI App 174

For Sanders: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding: ¶35      Accepting for the moment the State's position that articulable facts exist to demonstrate that the officer had reasonable suspicion that other persons may be lurking in the defendant's bedroom who would pose a danger to the officers and that a protective search of the bedroom was therefore justified, we nevertheless must conclude that Officer Garcia's search of the canister and seizure of its contents clearly were not within the purpose of the protective sweep. The search of the canister and seizure of its contents were not part of a search for persons who might pose a danger to law enforcement officers or to others. No person could be hiding in the canister. Furthermore, the officers had no articulable suspicion that weapons were involved in the instant case. The search of the canister and seizure of its contents therefore do not fall within the "protective sweep" exception to the search warrant requirement. "No person could be hiding in the canister.” That about sums it up, doesn’t it? Of note, though: the court draws an analogy to Arizona v. Hicks, 480 U.S. 321, 324-25 (1987), to draw a larger principle: ¶39      Hicks teaches that even in the face of a lawful entry and reasonable suspicion that an object is evidence of a crime, a slight movement of the object is an impermissible search whenever it is "unrelated to the objectives of the authorized intrusion." [23] A lengthy, 3-Justice concurrence (¶¶61-136) joins the majority, making the holding unanimous, but would decide an issue not reached by the majority, “namely, whether warrantless police entry into a home under the exigency of "hot pursuit" to arrest a person for a misdemeanor violates the Fourth Amendment, as stated in State v. Mikkelson, 2002 WI App 152, 256 Wis. 2d 132, 647 N.W.2d 421.” The concurring Justices would overrule that case, so as to allow warrantless hot pursuit entry into a home to arrest on probable cause for any “jailable offense.”

Arrest -- Search Incident to Arrest -- "Protective Sweep" of Residence

State v. Edward Garrett, 2001 WI App 240, PFR filed

For Garrett: Michael P. Sessa

Issue:Whether entry into a closet, after defendant was arrested in his residence, was justified under the "protective sweep" doctrine.

Holding: Under Maryland v. Buie, 494 U.S. 325 (1990), the police may conduct a "protective sweep" of premises, incident arrest, of spaces immediately adjoining the place of arrest, or if they have reasonable belief the place harbors an individual posing a danger. ¶21. Here, the police entered a closet at least 32 feet from the place defendant was arrested; this is too far to be considered in the immediate vicinity. ¶24. However, the facts support the alternative basis for a sweep, reasonable belief: ¶27. The facts surrounding the instant case include: (1) the officers were investigating a drug transaction; (2) information consisting of people buying drugs from Garrett's building suggested drug dealing was occurring; (3) the closet door was slightly ajar; (4) the closet was large enough to hide a person; (4) the suspect had just fled from the living room, where the closet was located; and (5) the space between the couch and the door was large enough for a person to gain access to the closet. Based on these facts, Detective Kaltenbrun testified that he had a reasonable suspicion that the closet harbored a dangerous individual. We conclude that the protective sweep of the closet was reasonable in that Detective Kaltenbrun could have reasonably believed that an individual was hiding in the closet, the search was narrowly confined to the closet where such an individual could be found, and the sweep was narrowly confined to a brief visual inspection of the closet. Note, first, that the sweep followed a warrantless entry (under exigent circumstances rationale): there is a split of federal authority (and thus a potentially cert-worthy issue) on the question of whether Buie "authorize(s) protective sweeps even when officers have not entered a suspect's home pursuant to an arrest warrant," U.S. v. Gandia, 2nd Cir No. 04-6477-cr, 9/19/05 (collecting cases -- the majority of which, including Leaf v. Shelnutt, 400 F.3d 1070, 1086-88 (7th Cir. 2005), favor expansion of Buie to warrantless situations); permutation: U.S. v. Miller, 2nd Cir No. 04-2637-cr, 11/16/05 ("an officer in a home under lawful process, such as an order permitting or directing the officer to enter for the purpose of protecting a third party, may conduct a protective sweep"). Garrett was a warrantless sweep, and thus supports placement of Wisconsin within the majority camp. However, Garrett's brief simply did not raise this issue of authority to conduct the sweep, arguing simply instead that on the facts the police didn't have cause to believe another person was present. The case therefore isn't controlling -- but an earlier case, State v. Walter Horngren, 2000 WI App 177, ¶20, 238 Wis.2d 347, 617 N.W.2d 508, did permit a sweep in a warrantless (indeed, non-arrest: community caretaker) entry. Still: the Wisconsin supreme court has never discussed authority to conduct a Buie sweep following warrantless entry; moreover, given the national split, the issue remains viable pending definitive resolution by the Supreme Court. Finally, authority to conduct a sweep following a warrantless, consenusual entry raises different considerations from those discussed by Garrett or Horngren, and likely isn't controlled by them. That threshold probelm aside, it might be wise to keep in mind that this doctrine is fact-intensive, and ought not support categorical rules, such as a "drug house" exception -- see, e.g., U.S. v. Hauk, 10th Cir No. 04-3113, 6/24/05. That said, the protective sweep doctrine isn't quite settled. There is, for one thing, authority for the idea, "that arrest is not always, or per se, an indispensable element of an in-home protective sweep," U.S. v. Gould, 5th Cir. No. 02-30629 (en banc), 4/12/04: Rather, the sweep in Buie was evaluated on a general Fourth Amendment reasonableness standard, and was justified, in reliance on the principles of Terry v. Ohio, 88 S.Ct. 1868 (1968), and Michigan v. Long, 103 S.Ct. 3469 (1983), where there was reasonable suspicion that the area swept harbored a person posing a danger to the officers present and the sweep was limited to a cursory inspection of places where a person may be found and lasted no longer than necessary to dispel the reasonable suspicion of danger nor longer than what it takes to complete the arrest and leave the house. Wisconsin has similarly extended the protective sweep authority in at least one instance to a non-arrest context, entry based on community caretaker rationale, State v. Walter Horngren, 2000 WI App 177, ¶20, 238 Wis.2d 347, 617 N.W.2d 508. (See summary, below.) But it should be kept in mind that nationally it remains an open question just how far the protective sweep doctrine extends -- see, e.g., U.S. v. Vargas, 2nd Cir. No. 03-1535, 7/16/04 (holding open question whether "a protective sweep under Buie is constitutional only when conducted in the course of arresting someone on the premises"; noting further that "whether Buie established such a bright-line rule is an issue upon which circuit courts have differed"; and collecting cases on both sides of split); U.S. Walker, 10th Cir No. 05-2287, 1/31/07 (10th Cir limits sweep of home as incident to arrest, as opposed to exigent circumstances related solely to officer safety; however, sweep can be justified in non-arrest situation by concerns for citizen safety). Note that the requirements of a sweep haven't really been fleshed out in Wisconsin; Gould articulates these as follows: First, it is at least implicit in Buie that although the protective sweep may extend to areas of the home where the police otherwise (i.e., apart from the protective sweep doctrine) then have no right to go, nevertheless when undertaken from within the home, the police must not have entered (or remained in) the home illegally and their presence within it must be for a legitimate law enforcement purpose. Further, the protective sweep must be supported “by a reasonable, articulable suspicion”, Buie at 1099, “that the area to be swept harbors an individual posing a danger to” those on the scene. Id. at 1100. Next, the legitimate protective sweep may not be “a full search” but may be no more than “a cursory inspection of those spaces where a person may be found.” Id. at 1099. Finally, the sweep is subject to two time limitations. First, it may “last[] no longer than is necessary to dispel the reasonable suspicion of danger,” id.; and, second, it may last no longer than the police are justified in remaining on the premises. See id. (“and in any event no longer than it takes to complete the arrest and depart the premises”); see also id. at 1098 (police permitted “to take reasonable steps to ensure their safety after, and while making, the arrest”). And, when there has been a sweep not preceded by arrest, "the government [is] obligated to establish specific and articulable facts that warranted the agents' belief that there was someone hiding ... who posed a danger to them," Vargas. See also U.S. v. Waldner, 8th Cir No. 04-3415, 10/10/05: courts which have extended the protective sweep doctrine do so "only under the second prong of Buie, which requires a showing of a reasonable suspicion of dangerous individuals in the house. [Cites]" (refusing to permit sweep, in absence of reasonable suspicion of dangerous individuals in house, in non-arrest situation involving service of domestic violence protective order). Similarly, Horngren, ¶21, the community caretaker case, seems to require for a cursory inspection sweep a reasonable belief by the police that someone on the premises posed a danger to them or to herself. A separate problem: Does the protective-sweep doctrine limited to in-home detention (and frisk), or does it authorize such action immediately outside a home in which an arrest is effected? According to U.S. v. Maddox, 10th Cir. No. 03-2311, 11/15/04, "the officer-safety interests at issue in Buie" attach to the area immediately outside the home, and therefore "the same reasonableness test employed in Buie for the protective sweep of the broader arrest area applies to this protective detention." (But: the facts in that case are fairly extreme; the court's analysis, not to say result itself, seems more a straightforward application of Terry itself than its permutation in Buie.) More recent authority suggests growing support for the idea that a Buie sweep extends to "an arrest made just outside of the home" given, that is, "sufficient facts" in favor of a potential threat coming from inside the home, U.S. v. Lawlor, 1st Cir No. 04-2044, 4/27/05; U.S. v. Paopao, 9th Cir No. 05-10653, 10/10/06. And for a related theme, see "Frisk -- Residence," below.

Arrest -- Search Incident to Arrest -- "Protective Sweep" of Residence

State v. Antonion Blanco, Nora M. Al-Shammari, 2000 WI App 119, 237 Wis.2d 395, 614 N.W.2d 512

For Blanco: Michael P. Jakus

Issue: Whether the police were justified, under "protective sweep" rationale, to search a crawl space in a bathroom ceiling.

Holding: Though narrowly confined to cursory inspection of places where a person might be hiding following an arrest inside of a residence, the protective-sweep doctrine in this case justified search of a crawl space bolted in place by four screws.

Following in-home arrest, the police are allowed to make a limited protective sweep of the premises, if there's reason to believe that the area to be swept contains a potentially dangerous individual. Maryland v. Buie, 494 U.S. 325 (1990). Just what was swept here? A crawl space in the bathroom ceiling, tightened down with four screws. The defendants' claims of foul "do not fall on deaf ears"; the search "may raise an eyebrow." ¶26. Nonetheless, the situation was potentially "explosive," an inordinate amount of noise had come from the area near the crawl space, the panel appeared to have recently been removed, and so on. ¶¶26-29. And if the officers had paused momentarily to open the bathroom medicine cabinet? See State v. Zamora, 2005-NMCA-039 ("The search of the medicine cabinet cannot be upheld as a protective sweep.').

Arrest - Search of Automobile Incident to Arrest Also see cases under "Drug Odor," above.

Search-Incident to Arrest - Search of Automobile - Belton/Thornton Rule

State v. David A. Dearborn, 2008 WI App 131, PFR filed 8/21/08

For Dearborn: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: Search of the driver’s car, incident to his arrest, was permissible notwithstanding that he was by then handcuffed in the squad car, ¶¶43-48.

Long and short of it is that the court simply follows State v. Michael A. Littlejohn, 2008 WI App 45 (¶46: “We conclude our decision in Littlejohn, 747 N.W.2d 712, is controlling and resolves this issue against Dearborn.”). Which is fine, except that, as the court notes, ¶1 n. 3: “A petition for review was filed in State v. Littlejohn, 2008 WI App 45, ___ Wis. 2d ___, 747 N.W.2d 712, but the petition was placed on hold pending the supreme court’s resolution of State v. Denk, 2006AP1744-CR (cert. accepted Mar. 18, 2008. Wisconsin Supreme Court and Court of Appeals Case Access, http://wscca.wicourts.gov/index.xsl.” In other words, the issue remains open. State v. Jordan A. Denk, 2008 WI 130, it should be noted, has now been decided (scroll down for summary); whether it impacts Dearborn remains to be seen. And if that weren’t interesting enough, the Supreme Court has the same issue on its docket, Arizona v. Gant, 07-542 (search-incident case where Gant was locked up and in police car at time of search of car), on review of: State v. Gant, 216 Ariz. 1, 162 P.3d 640 (2007). Certiorari question, as specifically framed by Court: DOES THE FOURTH AMENDMENT REQUIRE LAW ENFORCEMENT OFFICERS TO DEMONSTRATE A THREAT TO THEIR SAFETY OR A NEED TO PRESERVE EVIDENCE RELATED TO THE CRIME OF ARREST IN ORDER TO JUSTIFY A WARRANTLESS VEHICULAR SEARCH INCIDENT TO ARREST CONDUCTED AFTER THE VEHICLE'S RECENT OCCUPANTS HAVE BEEN ARRESTED AND SECURED?

Search-Incident to Arrest -- Search of Automobile -- Belton/Thornton Rule

State v. Michael A. Littlejohn, 2008 WI App 45,  PFR filed 2/7/08

For Littlejohn: William E. Schmaal, SPD, Madison Appellate

Issue/Holding: Search of car incident to (unchallenged) arrest of driver first encountered outside the car is permissible under New York v. Belton, 453 U.S. 454 (1983), Thornton v. United States, 541 U.S. 615 (2004), and State v. Fry, 131 Wis. 2d 153, 388 N.W.2d 565 (1986), even though the driver has been handcuffed and placed in a squad car. Although the vehicle doesn't literally have to be within the arrestee's “immediate control,” the search may nonetheless turn on the arrestee's “spatial relationship” to it. Because there was no plausible inference that Littlejohn "was a significant distance away from his car," the Belton-Thornton rule applies, ¶¶17-18.

This isn't the final word on search-incident in such circumstances. The Supreme Court on February 25, 2008, granted cert in  Arizona v. Gant,  07-542, a search-incident case which came to a much different conclusion on indistinguishable facts, namely that Gant was locked up and in a police car at the time of the search. (The state court decision is  State v. Gant, 216 Ariz. 1, 162 P.3d 640 Ariz. 2007).) Doesn’t mean, of course, that the Court will agree, only that it will have the final say. The cert question, more specifically is: DOES THE FOURTH AMENDMENT REQUIRE LAW ENFORCEMENT OFFICERS TO DEMONSTRATE A THREAT TO THEIR SAFETY OR A NEED TO PRESERVE EVIDENCE RELATED TO THE CRIME OF ARREST IN ORDER TO JUSTIFY A WARRANTLESS VEHICULAR SEARCH INCIDENT TO ARREST CONDUCTED AFTER THE VEHICLE'S RECENT OCCUPANTS HAVE BEEN ARRESTED AND SECURED? On a separate point, note that Fry interprets Belton to permit the search of a locked glove compartment, incident to the driver's arrest; this is also the majority rule, see, e.g., Hamel v. State, MD Ct Spec App No. 2129, 3/6/08.

Arrest -- Search Incident to Arrest -- Passenger's Property, Driver's Arrest

Arrest, Search Incident to - Automobile Passenger's Property Incident to Arrest of Driver

State v. Jordan A. Denk, 2008 WI 130, on certification

For Denk: Lora B. Cerone, SPD, Madison Appellate

Issue: Whether the police may search, incident to the arrest of the driver, a passenger’s personal belongings (in this instance: an eyeglass case) found outside the vehicle.

Holding: ¶56      The record indicates that Officer Hahn was concerned about the possible threat posed by Denk as well. In a situation where two men were alone in a car permeated with the smell of burning marijuana, it is reasonable for an officer to be concerned that Denk could attempt to assist Pickering, either by endangering the officer or by concealing evidence of his friend's crime. [10] ¶57      Officer Hahn's suspicions were further aroused when he arrived at the passenger side of the car. There, he noticed a hard, opaque container large enough to conceal a small weapon or further evidence related to the possession or distribution of narcotics. The eyeglass case was positioned on the ground, just underneath the car and accessible from the passenger seat. The very presence of the container on the ground, in that spot, was suspicious. ... ¶61      We determine that the warrantless search here was incident to the arrest and was supported by both of the historical rationales at the heart of that exception, namely the safety of the arresting officer and the need to discover and preserve evidence. In this situation, Office Hahn was outnumbered at a late night arrest involving two men and knew that narcotics were present. The proximity of the eyeglass case to the car, to Denk, and to Pickering, as well as its unexplained location at Denk's feet, raised questions about the danger Denk posed acting alone or in concert with Pickering. Thus, we conclude that based on the reasoning in State v. Pallone, the search of the eyeglass case was a permissible search incident to the arrest of the driver of the vehicle. ¶62      Lest our discussion be misconstrued, we reiterate the bright-line rule that unarrested passengers cannot themselves be searched based solely on the arrest of the driver. [11] In order to search the body of a passenger, the arresting officer must have individualized cause to justify the search. For example, “protective frisks are justified when an officer has a reasonable suspicion that a suspect may be armed. The reasonable suspicion must be based upon specific and articulable facts, which, taken together with any rational inferences that may be drawn from those facts, must establish that the intrusion was reasonable.” State v. McGill, 2000 WI 38, ¶22, 234 Wis.  2d 560, 609 N.W.2d 795 (citations and quotations omitted). In a sense, the court’s expression is backward: it’s not so much that there is a bright-line rule, but that there isn’t: to uphold the search of a passenger incident to arrest of the driver, the police must have “individualized cause,” determined case-by-case same as a Terry-type frisk. And such cause was abundant, the car exuding the smell of marijuana, ¶9, among other things. Although the court doesn’t go so far as to say (and it’s certainly not clear the particular facts would have supported the result), at least in some instances the odor of burning marijuana may itself justify PC-based search of a passenger, State v. Mitchell, 167 Wis. 2d 672, 482 N.W.2d 364 (1992). In any event, the odor alone certainly provided probable cause to search the car—and, under Pallone, passenger property within it. Of course, in this instance the property was found outside the car, but the court links it closely to the car, ¶¶51-52, and thus this distinction becomes in effect a mere detail. But none of this background should obscure the idea that search of passenger property must be supported by individualized cause, whether found inside or out of the car. (Is something like “reasonable suspicion” required? The court doesn’t quite say, but arguably so.)

Arrest -- Search Incident to Arrest -- Automobile Passenger's Property Incident to Arrest of Driver

State v. Robert J. Pallone, 2000 WI 77, 236 Wis. 2d 162, 613 N.W.2d 568, affirming State v. Pallone, 228 Wis. 2d 272, 596 N.W.2d 882

For Pallone: Steven J. Watson

Issue: Whether the search of a vehicle passenger's duffel bag, following the driver's arrest for the forfeiture offense of having open intoxicants, was proper.

Holding: The search was justified as both incident to arrest and as based on probable cause.

Analysis: Pallone was a passenger in a pickup truck that had open intoxicants. The officer didn't like the way Pallone eyed his duffel bag, and he therefore searched it, turning up cocaine. The supreme court upholds the search, on two distinct bases, search incident to arrest, and probable cause (auto exception). Search-incident requires at the threshold an arrest in fact, not merely some likelihood that an arrest will occur. The trial court made an express finding on disputed facts that an arrest had occurred and the supreme court defers to that finding. ¶¶43-45. The search-incident rationale (in part, concern for safety of the police) applies equally to a non-arrested passenger. ("An occupant, no less than an arrestee, can pose a danger to officer safety, see Robinson, 414 U.S. at 228, and a passenger, no less than an arrestee, can seize weapons or objects to assault an officer or effect an escape.") ¶47. The other rationale (discovery of evidence) is also present here: the vehicle's occupants might have concealed open bottles in the zippered duffel bag. ¶51. (But the cited portion of Robinson is simply irrelevant to, and therefore does not support, the cited principle. For authority, albeit without much analysis, to effect that frisk of passenger following driver's arrest requires Terry analysis, see People v. Staple, Ill. App. 4th Dist. No. 4-02-0272, 1/15/04.)

The leading case on search of a car incident to arrest of an occupant is New York v. Belton, 453 U.S. 454 (1981), and Pallone certainly relies heavily on that case (¶¶31-42). Belton has given rise to a great of litigation, such that generalization might be unwise, but for a very succinct summary, see U.S. v. Barnes, 8th Cir. No. 03-2501, 7/6/04: "The organizing principle of these cases, with which we agree, is that areas reachable by an occupant without exiting the automobile may be searched incident to arrest, but an area that is outside any occupant's reach or that could be reached only through an elaborate dismantling of the vehicle may not be searched."

In what is surely dicta (though not acknowledged as such), Pallone proceeds to uphold the search under the distinct rationale of probable cause to search an automobile. Where the police have probable cause to conduct a warrantless search of a vehicle, they also may conduct a warrantless search of all containers in it capable of holding the object of the search. ¶64. Probable cause means "fair probability" the evidence will be found in a particular place. ¶74. Here, the officer had probable cause to look through the vehicle for additional bottles of open beer, and the duffel bag "had the capacity to hold additional open or closed bottles of beer," making it fair game. ¶77. The dissent expresses concern that "any violation of a civil state or municipal traffic law, no matter how minor, can result in a driver's arrest and the search of every piece of luggage and any container in a car, no matter to whom it belongs and no matter whether there is any reason to believe such a container holds a weapon or evidence. ... The law relating to the scope of warrantless automobile searches has reached a shockingly low standard ...." ¶¶98-99.

(The U.S. Supreme Court subsequently upheld the state's authority to arrest for violation of a mere forfeiture offense. Atwater v. Lago Vista, 532 U.S. 318 (2001).) Note that the court of appeals certified the question whether Pallone permits the police to search a passenger's personal belongings found outside a motor vehicle incident to the arrest of the driver. State v. Jordan A. Denk , 2006AP1744-CR, Certification, 1/31/08; the supreme court subsequently upheld the search, 2008 WI 130, as summarized elsewhere on this page. UPDATE: A Supreme Court plurality has held that Belton applies even where the first contact between police and occupant occurs outside the vehicle. Thornton v. United States, 03-5165, 5/24/04: "while an arrestee’s status as a 'recent occupant' may turn on his temporal or spatial relationship to the car at the time of the arrest and search, it certainly does not turn on whether he was inside or outside the car at the moment that the officer first initiated contact with him." That said, a majority (three concurring and two dissenting Justices express dissatisfaction with extending Belton this far, so this issue is far from resolved. E.g., State v. Gant, AZ App 2-CA-CR 2000-0430, 9/20/06 (seemingly adopting Scalia concurrence). Note that the Belton rationale permits a very intrusive search; see, e.g., U.S. v. Poggemiller, 8th Cir. No. 03-3216, 7/13/04 (Belton search extended to trap door compartment, and collecting federal authority to effect that passenger compartment construed broadly, without regard to likelihood that arrestee could actually reach part of compartment searched). It should be mentioned, to avoid possible confusion, that the Belton rule, whatever limits are ultimately imposed, applies only to searches of vehicles. E.g., State v. LaMay, 2004 Op. No. 126, Idaho SCt, 12/2/04 (No link available) (Belton test not applicable to search of backpack in hotel room where defendant arrested). What about search of the car incident to arrest of a passenger? Seems to be a split of authority: People v. Mungo, MI App No. 269250, 1/17/08 (permissible); State v. Bradshaw, 99 S.W.3d 73 (Mo App 2003) (impermissible). Apparent refusal to apply Belton under state constitution, see State v. Newport, OR App A123949, 3/8/06 (search of container inside car, incident to arrest of driver outside car, suppressed).

Arrest -- Search Incident to Arrest -- Blood Test

Arrest - Search Incident - Search Incident to Arrest – Warrantless Blood Test – Generally

State v. Mitchell A. Lange, 2009 WI 49, reversing unpublished opinion

For Lange: Steven M. Cohen

Issue/Holding: ¶2       We are asked to determine whether a law enforcement officer complied with the Fourth Amendment to the United States Constitution when obtaining a blood sample from the defendant without a warrant to do so. Our prior cases establish that a warrantless blood sample taken at the direction of a law enforcement officer is consistent with the Fourth Amendment under the following circumstances: "(1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw." [3]

Arrest - Search Incident - Blood Test - Non-Drunk Driving Offense

State v. Christopher M. Repenshek, 2004 WI App 229, PFR filed 12/17/04

For Repenshek: Stephen E. Mays

Issue/Holding: Warrantless blood draw incident to arrest is authorized by State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993) and State v. Seibel, 163 Wis. 2d 164, 471 N.W.2d 226 (1991), even if the arrest is for a non-drunk-driving offense (if the police reasonably suspect that the defendant’s blood contains evidence of a crime). ¶¶13-18.

Arrest - Search Incident - Blood Test, Reasonable Suspicion for, Based on Refusal to Submit to PBT

State v. Christopher M. Repenshek, 2004 WI App 229, PFR filed 12/17/04

For Repenshek: Stephen E. Mays

Issue/Holding: Refusal to submit to a PBT may support a conclusion of reasonable suspicion for a blood draw: ¶25. Key to understanding our analysis is understanding that Wis. Stat. § 343.303 does not contain a general prohibition on police requesting a PBT. Rather, the statute only imposes a limitation on the use of a PBT result in a particular situation, that is, where the requesting officer wants to use the PBT result to support a drunk driving arrest or to support a non-consent blood draw. For example, do police officers act illegally when they "bust" a teenage drinking party and ask attendees to take PBTs? This is a routine procedure and the results are used to make a preliminary determination about which teens may have been drinking. We can discern no reasonable argument that police are acting illegally because they do not, under § 343.303, have "probable cause" to believe the teens have violated a drunk driving statute. ¶26. Accordingly, we conclude that Wis. Stat. § 343.303 does not prohibit the consideration of Repenshek's refusal to submit to a PBT for purposes of determining whether Repenshek's blood draw was supported by reasonable suspicion. The court goes on to find reasonable suspicion, stressing Repenshek’s PBT refusal, along with the facts of the accident itself which suggested negligent operation, ¶¶29-30. In effect, the court’s conclusion is premised on the idea that § 343.303 doesn’t safeguard any right to refuse a PBT, see ¶24; otherwise, allowing a refusal to factor into reasonable suspicion would exact a penalty for an exercise of right. The reference to teenage drinking parties is interesting, if not downright odd, because it’s so far afield from notions of implied consent and the traffic code. Perhpas the analogy shows how willing the court might be to apply this case beyond its factual moorings; there certainly seems to be a good deal of ferment in the area of exigent circumstances, of which warrantless entry to investigate teenage drinking is a species -- for discussion on that topic, see below, scrolling down to State v. Shane M. Ferguson, 2001 WI App 102, summary. Note, though, that it’s not just the facts whose bounds the court has slipped, it’s also the statutory language itself which, as the concurrence cogently points out, ¶¶33-34, explicitly conditions the officer’s authority to request a PBT on probable cause (“If a law enforcement officer has probable cause … the officer, prior to arrest, may request …”).

Arrest -- Search Incident -- Implied Consent, Driver’s Request for Additional Test, §§ 343.305(4) and (5)

State v. James A. Schmidt, 2004 WI App 235

For Schmidt: Daniel S. Diehn

Issue: Whether § 343.305(5)(a) requires that the driver request an additional test after the police have administered the primary test and, if not, whether Schmidt’s pre-blood draw request for a breathalyzer was properly rejected. Holding: ¶11. Although Wis. Stat. § 343.305(4) and (5) use the term "alternative test," it is clear from these provisions that the accused does not have a right to choose a test instead of the one the officer asks him or her to take; rather, the "alternative test" is in addition to that test. It is for this reason that the case law sometimes refers to the "alternative test" as the "second" or "additional" test. See, e.g., State v. Piddington, 2001 WI 24, 51, 241 Wis. 2d 754, 623 N.W.2d 528 ("second, alternative test"); State v. Renard, 123 Wis. 2d 458, 460, 367 N.W.2d 237 (Ct. App. 1985) ("additional test"). We will use the term "additional test" in this opinion. … ¶31. Although we agree with Schmidt that Wis. Stat. § 343.305(5)(a) does not impose a timing requirement on the request for an additional test, we do not agree that he was therefore entitled to an additional test. The circuit court found that Schmidt repeatedly requested a breathalyzer test "rather" than a blood test: indeed, this was the wording of Schmidt's testimony as well as the officer's. The circuit court also found Schmidt did not request a breathalyzer test after he took the blood test. Based on these factual findings, we conclude as a matter of law that Schmidt did not request a test in addition to the blood test. The repeated requests Schmidt made before taking the blood test were for a breathalyzer test instead of the blood test, not in addition to the blood test; and, based on the circuit court's findings, Schmidt made no later request. ¶32. Because Schmidt did not request a test in addition to the blood test, the officer did not violate Wis. Stat. § 343.305(5)(a) by not giving him a breathalyzer test after the blood test. Therefore, although we have arrived at a different construction of the statute than did the circuit court, we affirm the circuit court's denial of Schmidt's motion to suppress the results of the blood test.

Arrest -- Search Incident to Arrest -- Warrantless Blood Test -- Person Offers to Take Breath Test State v. Jay D. Krajewski, 2002 WI 97, affirming unpublished decision of court of appeals For Krawjewski: Christopher A. Mutschler Issue/Holding: ¶3. ... (A) warrantless nonconsensual blood draw from a person arrested on probable cause for a drunk driving offense is constitutional based on the exigent circumstances exception to the warrant requirement of the Fourth Amendment, even if the person offers to submit to a chemical test other than the blood test chosen by law enforcement, provided that the blood draw complies with the factors enumerated in Bohling [,173 Wis. 2d 529, 494 N.W.2d 399 (1993)]. We conclude that the warrantless blood draw in this case was properly based on exigency and complied with factors enumerated in Bohling. Accordingly, we affirm the decision of the court of appeals.

Arrest -- Search Incident to Arrest -- Warrantless Blood Test

State v. Robert W. Wodenjak, 2001 WI App 216, PFR filed 8/31/01

For Wodenjak: Rex Anderegg

Issue: Whether administration of a blood test, following OWI arrest, was reasonable under the fourth amendment, where the police first rejected the driver's request for a (less invasive) breath test.

Holding: As long as the standard for warrantless blood draw established by State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), State v. John C. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240 is met, "a forcible warrantless blood draw does not violate the Fourth Amendment ... (a)nd it makes no difference whether the suspect refuses the primary breath test and then submits to the blood test (Bohling) or the suspect submits to the primary blood test (Thorstad)." ¶10. Unlike the defendants in those cases, Wodenjak asked for the alternative breath test first, but this factual distinction is insignificant: dissipation of blood alcohol constitutes an exigency that in and of itself justifies the draw under Bohling-Thorstad. ¶13. In summary, both the United States Supreme Court and the Wisconsin Supreme Court have put their constitutional stamp of approval on the warrantless taking of a blood draw subject to certain conditions and controls. Those conditions and controls do not require the police to consider alternate tests. Therefore, Wodenjak's request for the less invasive breath test and the availability of such a test did not deprive Berg of his authority to obtain a blood sample from Wodenjak under Bohling. (Court noting, id. n. 8, that the implied consent law, § 343.305(2), doesn't provide the arrestee with the option of selecting the test; Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998) distinguished).

Arrest -- Search Incident to Arrest -- Warrantless Blood Test

State v. John C. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240

For Thorstad: Ralph A. Kalal

Issue: Whether the warrantless blood draw complied with State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993).

Holding: The four-part Bohling test -- lawful arrest; reasonable suspicion that draw will show intoxication; method of drawing blood reasonable; no reasonable objection by arrestee to blood draw -- was satisfied, and the blood test result therefore isn't suppressible. ¶¶12-17. (Note: Thostad's principal argument seems to be that Bohling is wrong and/or that the implied consent statue, § 343.305, is unconstitutional, under Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998), but the court of appeals says it doesn't have the authority to reach such an argument. ¶¶9-10.)

Arrest - Search Incident to Arrest - Cell Phone

State v. Jermichael James Carroll, 2008 WI App 161, affirmed, other grounds, 2010 WI 8

For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding: The police may, incident to lawful arrest for drug use, answer an incoming call on the arrestee’s cell phone, ¶¶27-29.

Note that supreme court affirmed on different grounds, namely the exigent-circumstances need to preserve evidence that would otherwise be lost if the call weren't answered. The rationale assumes, of course, lawful seizure of the cell phone.

Arrest -- Search Incident to Arrest -- "Laxative Search"

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

For Payano-Roman: Timothy A. Provis

Issue: Whether post-arrest administration of a laxative, in order to recover a substance the arrestee had swallowed was an unreasonable intrusion, such that the result was suppressible.

Holding: ¶36      More helpful than border search jurisprudence is Winston v. Lee, 470 U.S. 753 (1985), the case under which the State makes its backup argument. … ¶37      In Winston, the United States Supreme Court applied a three-factor balancing test to determine the reasonableness of a search involving a medical procedure that intruded on a criminal suspect's bodily integrity.  Under that test, courts examine (1) the extent to which the procedure may threaten the safety or health of the individual and (2) the extent of the intrusion upon the individual's dignitary interests in personal privacy and bodily integrity.  Winston, 470 U.S. at 761-62.  They then weigh these two factors against (3) the community's interest in fairly and accurately determining guilt or innocence.  Id. at 762.[10]  The balance "is a delicate one admitting of few categorical answers."  Id. at 760. ¶38      We agree with the court of appeals, Payano-Roman, and the State in its backup argument that Winston provides a useful framework for the case at bar. … ¶42        … The State bears the burden of proof as to the reasonableness of the search. … The court concludes that this laxative search was reasonable: medical staff, not police, made the decision, and its administration was medically acceptable, ¶¶44-46; though the “laxative procedure” was indeed “a significant intrusion on his dignitary interests,” his bodily integrity would have been compromised had the baggie with the substance the police wanted to recover ruptured before being passed, ¶52; and, “there was a clear indication that administration of the laxative would produce evidence of a crime,” ¶54. Of note: “courts should generally not assume, without evidence, that a particular procedure is medically indicated in a given case. A review of the case law suggests that what is medically indicated may, as one might expect, vary under the circumstances. … Thus, in many cases, it may be necessary for the State to call one or more appropriate medically qualified witnesses,” ¶¶47-48. Though no such medical evidence was produced in this instance, the record nonetheless demonstrated that administering the laxative was both medically appropriate and also presented “no appreciable risk” to safety or health, ¶48. Whether this will be taken to mean that giving a laxative is always and necessarily appropriate remains to be seen. The dissent stresses that 6 hours elapsed between arrest and administration of the laxative—plenty of time to get a warrant, ¶64. This is a point not discussed by the majority. Instead, the majority simply seems to assume that reasonableness of the procedure provides its own justification for avoiding warrant procedure. (More accurately, the majority just doesn’t address the problem, so one can only assume that this is what the majority is saying.) Winston v. Lee, it is worth mentioning, involved a court order authorizing the intrusion, in that instance surgical retrieval of a bullet. It is true that the exigent circumstances / emergency doctrine is an exception to the warrant requirement, but the majority does no more than briefly allude to that doctrine and then press on under the distinct search-incident rationale, ¶¶32-33. To the extent that he majority is saying that a bodily intrusion, incident to arrest, may be deemed reasonable without regard to whether a search warrant could have been obtained, a cert-worthy issue may be presented. (As for definitional distinctions between “emergency” and “exigent circumstances”—not raised directly by this case but recurrent nonetheless—see discussion here.) And for the related problem of body-cavity searches, there’s some discussion here.

Arrest -- Search Incident to Arrest -- Test for Custody

Various cases collected throughout this topic, relative to when interaction sufficiently intrusive to amount to arrest.

Arrest - Search Incident to Arrest - Test for Custody

State v. Jermichael James Carroll, 2008 WI App 161, affirmed on other grounds, 2010 WI 8

For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding: ¶26      While a person is not necessarily under arrest just because the officers display their weapons and place the individual in a squad car, those facts can support a determination that an arrest occurred. In this case, the most pertinent facts that lead us to conclude that Carroll was under arrest include: Carroll was driving with a suspended license and the police learned of his status shortly after he stopped the car; Carroll led Belsha on a high-speed chase that reached speeds of up to sixty miles per hour in a residential zone; Carroll pulled into a gas station and stopped his car abruptly; Carroll immediately exited the vehicle; Belsha pointed his gun at Carroll and “ordered him to drop what was in his hand and get down on the ground”; Carroll dropped the object, was handcuffed and remained on the ground while Belsha retrieved the cell phone and asked Carroll for identification, which Carroll could not provide; An unknown number of police squads arrived on the scene; and Carroll was placed in the back of Belsha’s vehicle, still handcuffed. We conclude that at this point, a reasonable person in Carroll’s position would have considered himself to be “in custody,” given the degree of restraint under the circumstances.  See Swanson, 164 Wis. 2d at 446-47. The facts that one may not generally be arrested for speeding and that there is no evidence Carroll was told he was under arrest do not dissuade us from this conclusion because of the substantial show of force and physical restraint present in this case. See id. (objective test to determine if person has been arrested considers officer’s communications by words and actions).

That the supreme court affirmed on different grounds, without having to find occurrence of an arrest doesn't mean that the court of appeals' holding on this point loses precedential impact; hence, the following discussion.

After a high-speed chase, the cop trained a gun on Carroll, handcuffed and frisked him (and apparently—the opinion isn’t explicit on the point—put him in the squad car). Of course it was an “arrest”; what else could it possibly be? Funny you should ask. Turns out that “we have over the years ‘witnessed a multifaceted expansion of Terry . . . For better or for worse, the trend has led to the permitting of the use of handcuffs, the placing of weapons and other measures of force more traditionally associated with arrest than with investigatory detention.’ … ‘Unfortunately, the line between a lawful Terry stop and an unlawful arrest is not bright.’” U.S. v. Vega, 72 F.3d 507, 515 (7th Cir. 1995). “Unfortunately” is one way of putting it. “Conveniently” is another. Search/seizure taxonomy very much matters: obviously, if Carroll’s detention is deemed a Terry stop, then a search-incident rationale isn’t available to justify the seized evidence. The flip side, though, is that in any given case the police may have reasonable suspicion but lack probable cause, so an “arrest” wouldn’t be supportable. And so (“unfortunately” or “conveniently” depending on your perspective), the trend is to make the border between arrest and “temporary” stop wondrously elastic. Flowers v. Fiore, 359 F.3d 24 (1st Cir. 2004) (no arrest despite handcuffing and placing in squad, given that suspect neither “relocated” nor read Miranda rights); U.S. v. Stewart, 388 F3d 1079 (7th Cir. 2004) (“The permissible scope of a Terry stop has expanded in recent years to include the use of handcuffs and temporary detentions in squad cars”); U.S. v. Jacob, 377 F.3d 573  (6th Cir. 2004) (investigatory stop didn't ripen into arrest despite suspect's being ordered out of his car, handcuffed, and placed in squad car). You get the drift. In those sorts of cases, the defendant wants the detention to be an arrest and the government doesn’t; Carroll wants his to be a Terry stop. Guess who wins. There’s at least another side to the problem: if the detention is considered tantamount to arrest, then the person under detention is entitled to Miranda warnings. Not relevant to Carroll’s particular situation, but one the practitioner must be sensitive to—the holding in this case can be used in support of a Miranda argument for a similarly detained suspect. See generally, State v. Zan Morgan, 2002 WI App 124, and State v. Gruen, 218 Wis. 2d 581, 594, 582 N.W.2d 728 (Ct. App. 1998). And sensitive as well to the idea that a Terry stop is not inconsistent with triggering Miranda rights, Morgan (¶16), so that a court’s disinclination to label a given detention tantamount to arrest isn’t determinative. The point is made fairly forcefully by U.S. v. Newton, 369 F.3d 659 (2nd Cir. 2004) (handcuffing of suspect may have been reasonable under 4th amendment but for Miranda purposes established “custody”). For recent discussion of caselaw split on question of when Terry-stop becomes sufficiently coercive to require Miranda warnings, see cert petition in New Mexico v. Snell, 08-196; lower court opinion: here. How or even whether these doctrinal tensions get resolved remains to be seen, but it’s hard to see how Carroll helps.

Arrest – Test for Custody, Generally

State v. Tanya L. Marten-Hoye, 2008 WI App 19, (AG’s) PFR filed 2/20/08; prior history: Certification, rejected 9/10/07

For Marten-Hoye: Lora B. Cerone, SPD, Madison Appellate

Issue/Holding: ¶14      In Wisconsin, the test for whether a person has been arrested is whether a reasonable person in the defendant’s position would have considered himself or herself to be “in custody,” given the degree of restraint under the circumstances. The circumstances of the situation including what has been communicated by the police officers, either by their words or actions, shall be controlling under the objective test. Swanson, 164 Wis. 2d at 446-47 (citations omitted). The question, then, is whether a reasonable person in Marten-Hoye’s position would have considered himself or herself “in custody.” [8] As the court notes elsewhere, ¶3 n. 3, Swanson was abrogated on other grounds by State v. Sykes, 2005 WI 48, ¶27, 279 Wis. 2d 742, 695 N.W.2d 277. The latter case says, id., “we withdraw any language from Swanson that could be interpreted to limit the lawfulness of the search to requiring an arrest for the same crime for which probable cause existed prior to the search.” In other words, if probable cause exists for crime X, it doesn’t matter that the arrest is actually for crime Y.

Arrest – Test for Custody – Suspect Held in Locked Room More Than Five Hours

State v. Cesar Farias-Mendoza, 2006 WI App 134

For Farias-Mendoza: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding: A suspect who had agreed to be transported to police headquarters for questioning was arrested within the meaning of the fourth amendment once the police left him unattended for over five hours in a locked room: ¶23      We disagree with the State’s conclusion. While a defendant is not automatically seized anytime he is taken to a police station for questioning, see State v. Kramar, 149 Wis. 2d 767, 782-84, 440 N.W.2d 317 (1989), the United States Supreme Court has recognized that an initially consensual encounter can be transformed into a seizure or detention under the Fourth Amendment, Kaupp v. Texas, 538 U.S. 626, 632 (2003). Assuming Farias-Mendoza’s initial trip to the station was consensual, we nonetheless conclude that when Farias-Mendoza was left in a locked room for five hours, he was “seized” within the meaning of the Fourth Amendment. Under these circumstances, a reasonable person would not have believed that he was “free to leave.” See Mendenhall, 446 U.S. at 554. ¶24      The State contends that Farias-Mendoza could have knocked on the door, asked to be let out and escorted from the building. Not only do we doubt that a reasonable person would think to do that after having been transported to the police station, questioned for thirty minutes about a homicide, and left in a locked room, we question the State’s suggestion that it was Farias-Mendoza’s duty to try to get out of the locked room. The State cites no authority for such a proposition, and we are unconvinced that Farias-Mendoza was required to seek to leave. A reasonable person who is locked in an interview room for five hours would not believe that he was free to leave. Accordingly, we conclude that Farias-Mendoza was illegally seized. a defendant is not automatically seized anytime he is taken to a police station for questioning -- no, but it sure is a crucial factor, see, e.g., A.M. v. Butler, immediately below; and, U.S. v. Shaw, 6th Cir No. 05-6110, 9/26/06 (frisk, handcuffing, and transport of defendant to CID office for questioning amounted to arrest, facts deemed indistinguishable from Dunaway, and similar to Kaupp; and perhaps more to the point of the block quote above, the court summarily rejects the government contention that he voluntarily accompanied the police).

Arrest -- Test for Custody -- Dunaway v. New York A.M. v. Butler, 360 F3d 787 (7th Cir. No. 2004) Issue/Holding: We see no meaningful distinction between Dunaway and this case. Like the defendant in Dunaway, Morgan was taken directly to an interrogation room in the police station. He was never told he was free to go. Cassidy, moreover, testified that he would not have allowed Morgan to leave even if Morgan said he wanted to go home. In fact, the only significant difference here is that, while Dunaway was an adult, Morgan was, at best, a sixth-grader. … The Illinois court’s conclusion that Morgan was not under arrest was also objectively unreasonable. … The court did not mention that Morgan was alone, his age, his prior inexperience with the criminal justice system, or the fact that the interrogation took place in a closed police room. Nor did it acknowledge that Morgan was dependent on the police for transportation home, and Cassidy testified that he would not have let Morgan go. And, while Morgan was never told he was not free to leave, he was also not told he was free to leave, either. All these factors lead to only one conclusion—on the basis of this record, Morgan was, for all practical purposes, under arrest within the meaning of the Fourth Amendment when he made his inculpatory statements. See also State v. McCoy, Iowa SCt No. 02-1655, 2/4/05 (stopping defendant's car and then transporting him to police station for interrogation implicated Dunaway). There is, to be sure, 7th Circuit caselaw for the idea that "the line betweeen a lawful Terry stop and an unlawful arrest is not bright," U.S. v. Vega, 72 F.3d 507, 515 (7th Cir. 1995) (drawing guns on suspect and "asking" (!) him to get into a police car for transport to another site didn't amount to arrest). But any analysis must take into account the Dunaway line of cases, which now includes Kaupp v. Texas, 538 U.S. 626 (2003), per curiam (transport from home to police station, in handcuffs, for interrogation was tantamount to arrest requiring probable cause, notwithstanding state court ruling "that Kaupp consented to go with the officers when he answered ‘Okay’ to Pinkins’s statement that ‘we need to go and talk’").

Arrest -- Test for Custody -- Traffic Offense: Temporary Stop Not Converted to Arrest

State v. Dale Gruen, 218 Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998)

For Gruen: Scott F. Anderson

Issue/Holding: Temporary detention of Gruen based on reasonable suspicion that he had caused an automobile accident while intoxicated was not converted into arrest, where the 1st officer detained him for no more than 15 minutes until a 2nd officer, from the appropriate jurisdiction could arrive; and, Gruen consented to sit in the police van to get out of the cold until the 2nd officer arrived. Nor did the 2nd officer's separate investigation covert the stop into an arrest: he "was entitled, indeed, obligated, to conduct his own independent investigation of the accident." (Citing State v. Quartana, 213 Wis.2d 440, 570 N.W.2d 618 (Ct. App. 1997).)

Arrest -- Test for Custody -- Temporary Stop Not Converted to Arrest by Moving Suspect

State v. Quartana, 213 Wis.2d 440, 570 N.W.2d 618 (Ct. App. 1997)

For Quartana: Donal L. Connor II

Issue/Holding: ... Thus, when a person under investigation pursuant to a Terry stop is moved from one location to another, there exists a two-part inquiry. First, was the person moved within the "vicinity?" Second, was the purpose in moving the person within the vicinity reasonable? "Vicinity" is commonly understood to mean "a surrounding area or district" or "locality." ... We are satisfied that the legislature's use of the term "vicinity" comports with the dictionary definition. We are further convinced that the accident scene, only one mile from Quartana's house, was in the "surrounding area" or "locality." As evidenced by Quartana's own actions, it was within walking distance even in the winter. Therefore, Quartana was moved within the vicinity. ... ... Quartana argues that the conditions of his transportation amounted to an arrest. Quartana argues that the restraint of his liberty proves he was under arrest. He is wrong. A restraint of liberty does not ipso facto prove that an arrest has taken place. ... We conclude that a reasonable person in Quartana's position would not have believed he or she was under arrest. Quartana was not transported to a more institutional setting, such as a police station or interrogation room. ... See also, e.g., U.S. v. Martinez, 8th Cir No. 05-4275, 9/11/06 (neither handcuffing nor transport to scene for show-up ID procedure established arrest, court carefully distinguishing transport for purpose of interrogation: "In Hayes v. Florida, the Supreme Court held that transporting a suspect from his home to a police station for questioning goes beyond the scope of a Terry stop and effects an arrest for which there must be probable cause.").

Arrest -- Search Incident to Arrest -- Test for Custody

State v. Michael Wilson, 229 Wis.2d 256, 600 N.W.2d 14 (Ct. App. 1999).

For Wilson: Martha A. Askins, SPD, Madison Appellate.

Holding: After unlawfully intruding on a home's curtilage and smelling marijuana burning inside the home, an officer approached Wilson and wouldn't let him go to the bathroom without first patting him down. This, the court says, amounted to an arrest under State v. Swanson, 164 Wis. 2d 437, 446-47, 475 N.W.2d 148 (1991), because a reasonable person would have believed s/he had been placed in police custody.

UPDATE: For a more recent case, implicitly adopting a Swanson-type rationale, albeit in a different context, see Ochana v. Flores, 7th Cir. 02-2227, 10/17/03: Generally, it is legal to search a vehicle incident to a lawful custodial arrest, including the contents of any closed containers found inside, in order to disarm the suspect or preserve evidence of a crime. See New York v. Belton, 453 U.S. 454, 460 (1981). It is not, however, permissible to conduct a Belton search pursuant to a traffic citation alone. Knowles v. Iowa, 525 U.S. 113 (1998). In Knowles, the Court underscored that a Belton search may not be conducted as part of a mere traffic stop, even if there is probable cause for the traffic stop, or probable cause to arrest the driver for the traffic violation. In order to conduct a Belton search, the occupant of the vehicle must actually be held under custodial arrest. Id. at 118. Construing the record in the light most favorable to Ochana, we find insufficient evidence that Ochana was under custodial arrest at the time of the search. A suspect is under custodial arrest when "a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest." United States v. Ienco, 182 F.3d 517, 523 (7th Cir. 1999). For example, in Smith v. Ball State Univ., 295 F.3d 763, 768-69 (7th Cir. 2002), we found that the removal and detention of an unconscious person at the wheel of a running vehicle was merely investigatory and was not equivalent to a custodial arrest, even if the officers reasonably believed that the person was impaired by drugs or alcohol. Similarly, in this case, even if Officers Flores and Schwocher reasonably believed that Ochana was intoxicated, a reasonable person in Ochana's shoes would have thought that he was merely being detained for a traffic citation. Ochana had no reason to believe that he was under custodial arrest for any offense. He was not told that he was under arrest; he was not handcuffed or frisked; and no sobriety test was conducted. Officers Flores and Schwocher did not ask Ochana any questions that would signal to a reasonable person that he was suspected of having committed any other offense. For these reasons, we find insufficient evidence in the summary judgment record to support a conclusion as a matter of law that this search was incident to a custodial arrest. See also State v. Radka, Wash. App. No. 21823-6-III, 2/3/04 ("only an actual custodial arrest provides the authority to justify a search incident thereto"; though defendant told he was under arrest and placed in squad car, other circumstances indicated that the arrest wasn't custodial: defendant neither handcuffed nor frisked, and was allowed to make cell calls from the squad "presumably to arrange transportation"). And for other authority discussing "whether the officers' actions amounted to an investigatory stop or was so intrusive as to constitute a de facto arrest," see Flowers v. Fiore, 1st Cir. No. 03-1170, 2/25/04 (no arrest despite handcuffing and placing in squad, but "noteworthy" that suspect neither "relocated" nor read Miranda rights); U.S. v. Stewart, 7th Cir. No. 03-2377, 11/9/04 ("The permissible scope of a Terry stop has expanded in recent years to include the use of handcuffs and temporary detentions in squad cars."); and U.S. v. Jacob, 6th Cir. No. 03-3348, 7/26/04 (investigatory stop didn't ripen into arrest despite suspect's being ordered out of his car, handcuffed, and placed in squad car where these actions were reasonably related to officers' concern for safety after "the defendants' vehicle lunged forward as if they were attempting to escape"; court further took note of connection between drug trafficking and weapons). But see U.S. v. Keenan L. Jackson, 7th Cir. No. 02-4385, 7/28/04 (motorist stopped for traffic offense handcuffed and placed in squad until identity could be determined, but told was not under arrest: court deems person to be under arrest so as to support search-incident rationale -- a cynic might say that whether or not a person is deemed under arrest turns on what the defendant seeks; certainly, there seems to be little predictability on any given set of facts). Compare People Celis, Cal SCt No. S107885, 7/26/04 (no hard and fast line between detention and arrest, determination made case by case; here, concern that suspects might flee during investigatory frisk for drugs justified intrsuive actions without converting stop into arrest): With regard to the scope of the police intrusion, stopping a suspect at gunpoint, handcuffing him, and making him sit on the ground for a short period, as occurred here, do not convert a detention into an arrest. ... Of significance too are the facts known to the officers in determining whether their actions went beyond those necessary to effectuate the purpose of the stop, that is, to quickly dispel or confirm police suspicions of criminal activity. ... Although a routine traffic stop would rarely justify a police officer in drawing a gun or using handcuffs, such actions may be appropriate when the stop is of someone suspected of committing a felony. But, although the panel in U.S. v. Powell, 451 F.3d 862 (DC Cir 2006) held that in order to justify a Belton-type search-incident, there must first be an arrest, that holding was reversed by the en banc court, No. 05-3047, 4/17/07 (search-incident may precede arrest; and, taking issue with Ochana, which is described as the only federal decision to reach a contrary result). A suspect's entitlement to Miranda rights similarly turns on whether he or she is in custody tantamount to formal arrest; for discussion of that principle, see here.

Go To Brief

Arrest -- Traffic Offense

Arrest -- Traffic Offense -- Duration -- Effect on Consent to Search

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

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

Issue: Whether an arrest for a traffic stop, lawful at inception, was unlawfully prolonged in order to obtain the driver's consent to a strip search not reasonably related to the traffic violation.

Holding: This issue is "closely related" to one raised in State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996): ¶12. Similarly, we conclude here that the officers' request for consent to conduct a strip search did not unreasonably prolong Wallace's detention. The circuit court's findings based on the evidence at the suppression hearing support this conclusion. The strip search was conducted within thirty minutes of Wallace's arrival at the police station. The officers made their request before Wallace's bond was posted. Because Wallace was still waiting for his bond to be posted, the officer's request for consent did not prolong his detention at all. Nor does it matter that the officers were subjectively motivated by an intent to ferret out drugs, rather than investigate the minor traffic offense, ¶13; or that the police didn't inform Wallace that he'd be free to go after bond had been posted, ¶14. (Note: Wallace had been arrested for the traffic offense, ¶3, so this isn't the usual, prolonged Terry stop case, though the court seems to apply the same sort of analysis. The wrinkle is that Wallace had been frisked, without result, and would have been released under posted bond, but for the police request for a strip search. ¶10. The opinion stresses that the request was made before bond was posted -- "Because Wallace was still waiting for his bond to be posted, the officer's request for consent did not prolong his detention at all." ¶12. The holding, then, is fairly narrow.) Go to Brief

Arrest -- Traffic Offense -- Safety Glass Law

State v. Michael M. Longcore II, 2001 WI App 15, on appeal after remand of State v. Longcore I, 226 Wis. 2d 1, 594 N.W.2d 412 (Ct. App. 1999).

For Longcore: William E. Schmaal, SPD, Madison Appellate

Issue: Whether replacing a vehicle's glass window with a plastic sheet violates the safety glass statute, § 347.43(1), so as to provide probable cause to arrest.

Holding: ¶11 We do not perceive any ambiguity in WIS. STAT. § 374.43(1). It mandates that wherever glass is used on the particular vehicle being operated, it must be safety glass. It is undisputed that glass is used in the windows of Longcore's vehicle. He therefore was required to replace a broken window with safety glass.... ¶14 The attorney general put it succinctly sixty-three years ago when he said that the safety glass statute "makes it unlawful for any person to operate an automobile ... unless it is equipped with safety glass." See 26 Wis. Op. Att'y Gen., supra, at 138. Longcore violated the statute. Therefore, the officer had probable cause to stop the vehicle at which time he determined that Longcore was operating after revocation. Longcore's conviction for operating after revocation is affirmed.

Arrest -- Warrant

Arrest -- Warrant, Based on Criminal Complaint -- Standard of Review

State v. Joel L. Ritchie, 2000 WI App 136, 237 Wis.2d 664, 614 N.W.2d 837

For Ritchie: Steven G. Bauer

Issue: What is the standard of review for an arrest warrant based on a criminal complaint?

Holding: Although review of probable cause to support a complaint is independent, review of probable cause to support an arrest warrant based on a complaint is greatly deferential (same as review of a search warrant). ¶¶10-13.

Arrest -- In Residence, Based on Search Warrant

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

For Cash: Lynn M. Bureta

Issue/Holding: ¶26. Cash also argues that Grable was ineffective for failing to seek suppression of certain statements he made on the basis that his arrest in his home was accomplished without an arrest warrant. Cash argues that his arrest was unlawful pursuant to Payton v. New York, 445 U.S. 573, 590 (1980), which prohibits a warrantless arrest in the home. Payton, however, is not an ironclad rule. In United States v. Winchenbach, 197 F.3d 548 (1st Cir. 1999), the court held that where the police are lawfully on the suspect's premises by virtue of a valid search warrant, they may make a warrantless arrest of the suspect prior to the search if the arrest is supported by probable cause. Id. at 554. The court stated: A search warrant represents a judicial determination that there is probable cause to invade the privacy of the suspect's home. The impartial determination that supports the issuance of a search warrant justifies a greater intrusion than that supporting the issuance of an arrest warrant. Thus, once an officer has procured a search warrant, the privacy interests that led to the imposition of an arrest warrant requirement in Payton have been protected. Winchenbach, 197 F.3d at 553, (quoting from Jones v. City of Denver, 854 F.2d 1206, 1209 (10th Cir. 1988)). The Winchenbach court went on to explain that Payton, although addressing the validity of an arrest, was essentially grounded on the "physical integrity of the home." Winchenbach, 197 F.3d at 553. The court concluded that this interest was sufficiently addressed and protected by the existence of a valid search warrant. Id. at 553-54. ¶27. We agree with Winchenbach and we adopt it for purposes of Wisconsin law. Here, the police were lawfully present on Cash's premises by virtue of a valid search warrant.9 And based on our earlier discussion, Cash's warrantless arrest in his home was supported by probable cause. We therefore reject Cash's assertion that Grable was ineffective for failing to challenge his warrantless arrest.10

ATTENUATION OF TAINT

Attenuation of Taint -- Abandonment of Property -- Thrown to Ground during Illegal Patdown

State v. Robert F. Hart, 2001 WI App 283

For Hart: John Deitrich

Issue: Whether a person voluntarily abandons property when throwing it to the ground during an illegal pat-down.

Holding: ¶24. Our own research has uncovered cases that are fatal to the district attorney's contention. In Lawrence v. Henderson, 478 F. 2d 705, 708 (5th Cir. 1973), the court held that drug evidence found in a police car after an unlawful arrest could not have been voluntarily abandoned because the 'abandonment' was compelled by the police misconduct. Two Indiana cases have concluded that where an improper frisk forced the defendant to abandon drugs, the evidence was not admissible. See Swanson v. State, 730 N.E.2d 205, 210 (Ind. Ct. App. 2000), transfer denied by 741 N.E. 2d 1253 (Ind. Sept. 5, 2000); State v. Pease, 531 N.E.2d 1207, 1210-12 (Ind. Ct. App. 1988); cf. In re Welfare of M.D.B., 601 N.W.2d 214, 218 (Minn. Ct. App. 1999) (where during course of illegal frisk defendant's gun fell to the ground, such evidence was suppressed), review denied (Jan. 18, 200). ¶25. We conclude that Hart acted in response to the illegal pat-down. There was no distinct, separate crime or intervening illegal activity which attenuated the link between the discovery of the marijuana pipe and the illegal search. Therefore, the district attorney's abandonment theory cannot stand under these facts. (However, a chemical test for blood is upheld, even though conducted after the illegal pat-down, because the police already had probable cause to believe the person was drunk; the test, that is, was based on evidence not connected to the pat-down. ¶27.) For additional authority re: property not considered abandoned when left in squad by someone illegally seized, see, State v. Askerooth, MN SCt No. C6-02-318, 6/17/04: The record is silent as to exactly when Askerooth placed the methamphetamine under the seat of the squad car. But we do know from the complaint and from the district court’s findings of fact in the bench trial that Askerooth abandoned it because he was scared that the police would find it and thus the abandonment was not accidental. There appears to be no feasible way the methamphetamine would have been discovered but for the illegal seizure. Because Askerooth’s abandoning of the methamphetamine is the result of an illegal seizure, we conclude that the methamphetamine must be suppressed. Therefore, we hold that the district court erred when it denied Askerooth’s motion to suppress the methamphetamine discovered in the back seat of Schmidt’s squad car. There is to be sure contrary authority, e.g., State v. Knox, 160 Or App 668, 676, 984 P2d 294 (1999), but the rationale ("His transportation to the police station during which his alleged deposit occurred was an event that intervened between the illegal search and seizure and the seizure at issue here") is unconvincing: transport is a continuation of the illegal seizure. The larger principle may be efficiently expressed this way: "An abandonment that results from police misconduct is not valid," U.S. v. McDonald, 100 F.3d 1320, 1328 (7th Cir. 1996); and: "abandonment ... is considered involuntary if it results from a violation of the Fourth Amendment," U.S. v. Flynn, 309 F.3d 736, 738 (10th Cir 2002). Thus, immediately tossing contraband "en route to the officer" who without cause ordered him to "come here" wasn't mediated by anything that would remove the taint of the illegal order, State v. Crandall, Or App No A119207, 2/16/05. It should also be kept in mind that abandonment occurring before the person has been "seized" by the police (which in turn means that the person must have submitted to assertion of police authority) is not subject to suppression; see below on this point.

Attenuation of Taint – Arrest in Home, Payton Violation

State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion

For Ferguson: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Where the police had undisputed probable cause to arrest Ferguson for disorderly conduct outside her apartment, but entered her apartment without a warrant to arrest her, they acted with “lawful authority” for purposes of obstructing, § 946.41, when transporting her away from the apartment, whether or not the entry was supported by exigent circumstances: ¶39      The reasoning and conclusions of Harris are applicable to Ferguson's struggles while the police were escorting her down the apartment stairs and placing her into the squad car. This is so because the police had probable cause to arrest Ferguson for disorderly conduct so that she was lawfully in their custody. Once Ferguson was removed from her house, the police were not required to re-arrest her for disorderly conduct in order to make her continued custody lawful. Therefore, her continuing struggles outside of her home occurred when the police were lawfully transporting her to the station house. ¶40      Our conclusion in this regard is supported by other courts that have considered the issue of whether continued custody subsequent to an arrest based on probable cause is lawful, even though the defendant was not arrested in a lawful manner. See United States v. Hudson, 405 F.3d 425, 439 (6th Cir. 2005) ("[Harris] emphasized that although the manner of the defendant's arrest was unconstitutional, his continued custody——supported by probable cause——was not unlawful and he could not claim 'immunity from prosecution because his person was the fruit of an illegal arrest.'"); United States v. Villa-Velazquez, 282 F.3d 553, 556 (8th Cir. 2002) (holding that, because law enforcement officers had probable cause to arrest the defendant, "the evidence obtained during the time that [the defendant] was in lawful custody" should not be suppressed because of "the earlier unlawful entry into his residence"); Torres v. State, 619 A.2d 566, 569 (Md. Ct. Spec. App. 1993) ("Once the suspect is outside the protected premises, . . . the initially invalid restraint ripens into valid restraint."); Roberson, 287 Wis. 2d 403, ¶16 (noting that "the Harris court distinguished Payton as protecting the home itself, not the defendant's person, and, as a result, Harris' confession made outside of the home was admissible"). In other words, the Payton-Dunaway rule is limited to entries lacking probable cause. Entry based on probable cause but lacking exigent circumstances nonetheless supports lawful “continued custody.” Thus, statements made at the station house are admissible notwithstanding violation of the warrant (as opposed to probable cause) requirement. But this does not diminish the principle, recognized by one of the cases cited by the majority, Hudson, that “evidence the police obtained by virtue of their arresting … in an illegal manner be suppressed.” It’s probably obvious anyway, but evidence obtained during and as a result of a violation of the warrant requirement is suppressible.

Attenuation of Taint – Arrest in Home, Payton Violation

State v. David J. Roberson, 2005 WI App 195, affirmed on other grounds, 2006 WI 80

For Roberson: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding: “(E)vidence acquired outside of the home after an in-home arrest in violation of Payton is not a product of the illegal governmental activity, if officers had probable cause to arrest developed apart from the illegal entry,” ¶23; therefore, police identification of defendant, developed by interaction and observation prior to and apart from their illegal entry of his home is not suppressible: ¶16      Under New York v. Harris, 495 U.S. 14, 19, 110 S. Ct. 1640 (1990), the remedy for a warrantless arrest in violation of Payton is suppression of any evidence that “bear[s] a sufficiently close relationship to the underlying illegality.” Id. ….   ¶17      Thus, Harris established the following per se rule: “[W]here the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton.” Harris, 495 U.S. at 21. LaFave’s Search and Seizure, 4th Ed. § 11.4(4), citing Bryant v. United States, 599 A.2d 1107 (D.C. 1991), adds the following common-sense clarification: “Actually, this [rule] should be read as meaning probable cause developed apart from the illegal entry.” (Emphasis added.) … ¶19      We agree that when, as in Bryant, the defendant’s location in the home at the time of the illegal arrest provides the legal basis for an arrest, officers must develop an evidentiary basis to arrest apart from the illegal entry for evidence acquired outside of the home to be admissible. To determine whether officers had probable cause to arrest the suspect, the evidentiary significance of the suspect’s presence in the home must be subtracted from the accumulated evidence supporting an arrest. The question then is whether the remaining evidence, developed apart from and untainted by the illegal entry, adds up to probable cause. … ¶21      … Unlike in Bryant, the undisputed facts here show that officers had a sufficient evidentiary basis to arrest Roberson developed apart from the evidence of his location in the home. … Detective Wagner’s extended observation of Roberson and Terrell’s up-close contact with him during the drug buy were enough to develop probable cause necessary for an arrest apart from Roberson’s location in the home. The court, interestingly, first granted relief but then withdrew that opinion by order dated 10/21/04. That withdrawn opinion relied on People v. Gethers, 86 N.Y.2d 159, 654 N.E.2d 102 (1995) for the idea “that an in-court identification by an officer cannot be ‘purged from the primary taint’ of the illegal arrest if that officer also participated in the "buy and bust" operation that led to the arrest of the defendant.” Though the 1st Roberson opinion has been swept into the memory hole by the withdrawal order‘s iron broom, there is nothing to say that Gethers can’t be invoked in the right circumstance. The court, that is, now distinguishes Gethers, but it hardly rejects the underlying principle: ¶23      Roberson cites People v. Gethers, 654 N.E.2d 102 (N.Y. 1995), a case in which the New York Court of Appeals excluded an undercover officer’s showup identification following an arrest. Gethers is inapposite, however, because the court applied the exclusionary rule after concluding that the arresting officer lacked probable cause to arrest.  Id. at 161.  Gethers’ result is unsurprising because “the challenged evidence … [was] unquestionably the product of [the] illegal governmental activity— i.e., the wrongful detention.” Harris, 495 U.S. at 18. In contrast, evidence acquired outside of the home after an in-home arrest in violation of Payton is not a product of the illegal governmental activity, if officers had probable cause to arrest developed apart from the illegal entry.  In short, the result appears to be something along the line of the independent source doctrine, even if the analysis isn’t expressed in those terms. Update: The subsequent affirmance (see summary below) is indeed on independent-source ground. What, then, of the court of appeals' probable cause discussion? Because of something in the nature of a quirk, the court of appeals lacks authority to withdraw or modify language from its own published decisions, e.g., State v. Andre Bolden, 2003 WI App 155, ¶¶9-10; State v. William L. Morford, 2004 WI 5, ¶40. That principle is worth noting here, because the court of appeals’ decision was not overruled in any respect; rather, the court of appeals derived one approach and the supreme court another. More specifically: the court of appeals held that the warrantless entry was based on probable cause, 2005 WI App 195, ¶¶16-21, while the supreme court simply assumed without deciding that the warrantless entry was illegal, 2006 WI 80, ¶31. Is, then, the court of appeals’ holding still viable? Hard to say. But to the extent you can argue that the supreme court analysis in effect renders the court of appeals’ holding dicta you can argue that it is no longer binding, see e.g., State v. Steven A. Harvey, 2006 WI App 26, ¶¶18-19. On the larger question, whether a Payton violation is even deemd to have occurred when the evidence (of whatever stripe, statement or physical evidence, or ID) is obtained outside the illegally home, see, e.g., Mosby v. Senkowski, 2nd Cir No. 05-1122-pr, 11/30/06, esp. fn. 4 (as federal matter, does not apply).

Attenuation of Taint (Unlawful Entry) - Consent

State v. Robert L. Artic, Sr., 2009 WI App 12, PFR granted 2/10/09

For Artic: James D. Cooley

Issue/Holding: Assuming that the warrantless police entry of the duplex was unlawful, the consensual search of the upstairs unit was sufficiently attentuated from the initial illegality: ¶25      As to the first of the three Richter factors, the temporal relationship between the unlawful downstairs entry and the upstairs seizure of evidence, we look at the succession of events between those two points. There is no precise testimony as to exact length in minutes. But, there is a description of all of the events that transpired. The totality of those events show that the time between entry and consensual search in this case was more than the few minutes present in State v. Phillips, 218 Wis. 2d 180, 577 N.W.2d 794 (1998), where the court found that the short passage of time was not dispositive and ultimately found the search sufficiently attenuated. Id. at 207. Here, the number of events that transpired from the entry—start of the search downstairs, knocking at the upstairs door, waiting, entry upstairs, more waiting and talking at the kitchen table—constitute a significant temporal distance from the unlawful downstairs entry. ¶26      The second Richter factor is the presence of intervening circumstances. Id., 235 Wis.  2d 524, ¶45. Here there are many intervening circumstances, but the most significant intervening circumstance is the consensual opening of the door by Artic. … ¶27      The third Richter factor is the purpose and flagrancy of the official misconduct. Id., 235 Wis.  2d 524, ¶45. … ¶30      There was no evidence in the record that the police entered with an ulterior motive. There was no evidence of any bad faith on the part of the police. In their manner they were open, clearly identified themselves, explained the reason they wanted to search—due to the arrest of Artic’s son—and asked for consent. There was nothing in the record to show any attempt at trickery or pressure. Wagner holstered his gun right after entry and never brought it out again. The kitchen table conversation was not contentious. The police and Artic were seated and conversing. Like the circumstances in Phillips, the police conduct, although in error, did not rise to a level of “conscious or flagrant misconduct.” On balance it cannot be said that the police exploited their unlawful entry. All three attenuation factors favor the conclusion that the consensual search was sufficiently attenuated from the initial illegal entry. Accordingly, we hold that the consensual search of Artic’s residence was sufficiently attenuated from the initial entry so as to dissipate the taint of the unlawful entry.

Attenuation of Taint -- Consent

State v. David L. Munroe, 2001 WI App 104

For Munroe: Peter Koneazny, SPD, Milwaukee Appellate

Issue: Whether consent to search was valid notwithstanding illegal police activity.

Holding: ¶13. The three factors that help to determine whether the taint of earlier illegal police activity has been attenuated by the time a consent to search is granted are: "(1) the temporal proximity of the official misconduct and seizure of evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct." Phillips, 218 Wis. 2d at 205, 577 N.W.2d at 805. Applying them here, we see that, first, the officers' search of Munroe's room was contemporaneous with their unlawful continued presence in his room. There was thus 'temporal proximity.' Second, unlike the situation in Phillips, where the officers honestly "explained that [suspected drug dealing was] the purpose of the visit," and thus provided Phillips "with sufficient information with which he could decide whether to freely consent to the search of his bedroom," 218 Wis. 2d at 208-209, 577 N.W.2d at 807, the officers here continued to mislead Munroe about their real reason for being in his room right up to the time that he finally agreed to let them search. Third, persons in our society have a right founded in deep and abiding constitutional principles 'to dwell in reasonable security and freedom from surveillance.' Johnson, 333 U.S. at 14... Sadly, the officers here used their ruse about wanting to check Munroe's identification to mimic those myrmidons of King George who bedeviled the colonists with their General Warrants and Writs of Assistance, which gave the king's agents license to search everywhere and everyone. Unlike the situation in Phillips, 218 Wis. 2d at 185, 577 N.W.2d at 797, the officers here were not investigating information that the object of their search was involved in any illegal activity; they were doing a general sweep. Their violation of Munroe's constitutional rights was purposeful and flagrant. Go to Brief

Mentioned but in passing by the court (¶3), "Shortly before knocking on Munroe’s door, the officers checked the motel’s register of guests and ascertained that Munroe had paid cash for his room and did not show a photo identification when he registered." For authority that a "random check of [a] motel registry revealing [a guest's] whereabouts constitutes a violation of his privacy rights" under the state constitution, see State v. Jorden, Wash SCt No. 76800-5, 4/26/07.

Attenuation of Taint -- Consent Following Illegal Entry

State v. Patrick E. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, reversing 224 Wis. 2d 814, 592 N.W.2d 310 (Ct. App. 1999)

For Richter: Susan Alesia, SPD, Madison Appellate

Issue: Whether consent to search, immediately following warrantless entry of the home, sufficiently attentuated any taint from that entry.

Holding: Consent was freely given and therefore sufficiently attenuated from the entry to purge any taint of illegality.

Analysis: Having ruled that the entry was legal, the court nonetheless discusses attenuation. This discussion is clearly dicta, but the court treats it as binding. ¶¶44-55. (The three attenuation factors are temporal proximity, intervening circumstances, flagrancy of misconduct. ¶45.) Though the discussion is somewhat involved, the most important factor seems to be that "Richter was not the target of the officer's investigation and search. ... This is not the sort of 'purposefulness' that defeats attenuation." ¶54. (Note: the dissent says that this discussion "risks making a mockery of the attenuation doctrine," and laments that this is "just one more in a line of recent cases in which the court has not been sufficiently protective of the privacy of the home." ¶65.

Go To S Ct Brief

Attenuation of Taint -- Consent - Following Illegal Entry

State v. Kenneth M. Herrmann, 2000 WI App 38, 233 Wis. 2d 135, 608 N.W.2d 406

For Herrmann: Peter J. Morin

Issue: Whether consent to search was valid, immediately following unlawful entry of the occupant's apartment.

Holding: Given the "coercive circumstances" - entry in middle of night, with officers yelling "search warrant" - any consent Herrmann may have given was neither voluntary nor attenuated from the illegal entry. ¶20.

Attenuation of Taint -- Consent -- Following Illegal Entry.

State v. Jason Phillips, 209 Wis.2d 559, 563 N.W.2d 573 (1997), reversing 209 Wis. 2d 559, 563 N.W.2d 573

For Phillips: Arthur B. Nathan

Issue/Holding: Entry into defendant's bedroom was preceded by a concededly illegal entry into defendant's living area, in basement of house. The court holds that any taint was dissipated by the time consent was given, though "only a few minutes [had] elapsed." The court emphasizes "the non-threatening, non-custodial conditions surrounding the search." The court also relies on "intervening circumstances," namely defendant's brief conversation with an agent, during which he learned that the agents had no warrant. For a 7th Circuit holding, that "temporal poximity" between unlawful entry and putative consent weighs heavily in favor of taint, see U.S. v. Robeles-Ortega, 02-3365, 11/7/03: That, however, is not the proper application of that factor. The question is whether the causal connection between the illegality and the consent was broken, and the government has the burden of persuasion on that issue. Kaupp v. Texas, 123 S. Ct. 1843, 1847 (2003); United States v. Liss, 103 F.3d 617, 623 (7 th Cir. 1997) (Ripple, J. concurring) (quoting Brown, noting that the taint analysis applies whether the antecedent Fourth Amendment violation is an illegal seizure or an illegal search). The temporal proximity is relevant because a consent obtained immediately after an illegal entry is less likely to be unconnected to that entry. In this case, the court found that the consent was obtained within a few minutes of the illegal entry. It is difficult to imagine a shorter time frame between the unconstitutional action and consent. Therefore, as a matter of law this factor weighs against a determination that the causal connection was broken. The court's reliance of evidence of the voluntariness of the consent is misplaced in considering this factor. As Valencia held, the voluntariness of the consent is only the first step, and the next inquiry is whether the consent was tainted by the entry, in other words, whether it was the product of that illegal entry. In considering that issue, the temporal proximity in this case strongly favors the defendant and the district court erred as a matter of law in applying this factor. Robeless-Ortega found that consent was tainted by the illegal entry, but the use of force was coercive, making the case distinguishable from Phillips on that basis. For authority that span of 15 minutes between unconstitutional seizure and consent "weighs heavily in favor of suppressing," along with suggestion that even a lapse of several hours isn't weighed against the defendant, see U.S. v. Washington, 9th Cir. No. 02-10526, 11/2/04.

Attenuation of Taint -- Consent -- Following Illegal Entry

State v. Matthew J. Trecroci, Ryan J. Frayer, Ronnie J. Frayer, Scott E. Oberst, Amy L. Wicks, 2001 WI App 126

For defendants: Robert R. Henak

Issue: Whether unlawful police conduct coerced subsequent consent to search so as to make the fruits of that search suppressible.

Holding: Because the owner's consent to search his apartment was given only after, and in response to, police seizure of evidence after an unlawful entry, it was coerced: "The fruits of the illegal entry and search were the tools employed by the police to obtain Trecroci's consent and they were the catalysts for giving consent." ¶50. State v. Phillips, 218 Wis. 2d 180, ¶.W.2d 794 (1998) distinguished. (Court also stresses, ¶50, that consent was involuntary because of police threat to obtain a warrant, but this is explicitly an independent basis for suppression, ¶52.)

Attenuation of Taint -- Consent - Following Illegal Entry

State v. Luis E. Bermudez, 221 Wis. 2d 338, 585 N.W.2d 628 (Ct. App. 1998)

For Bermudez: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: Consent given following illegal entry was, though, voluntary, the fruit of the illegality: When applying the attenuation theory, the following must be considered: (1) the temporal proximity of the misconduct and the subsequent consent to search, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. See id. We conclude that the instant case fails to provide sufficient indicia of attenuation, and the trial court's determination that the evidence seized during the search of the motel room was admissible must fail. ... In the span of a few minutes, Lisa had emerged from the bathroom only to be confronted by five or six officers in her motel room. She was then informed that her husband had been arrested and that "drug paraphernalia" had been found in her husband's vehicle. On the heels of receiving this information, she was asked to consent to a search of the motel room. ... The passage of a few minutes cannot be said to remove the taint of the warrantless entry. ... Intervening factors were "aggravating," not attenuating; flagrancy of the misconduct (pretextual traffic stop and apparently "ulterior motive") is also emphasized. State v. Phillips, 218 Wis.2d 180, 577 N.W.2d 794 (1998) distinguished, largely on basis that officer informed Phillips he had no warrant, did not surprise or mislead him, and gave him enough information to decide whether to consent.

Attenuation of Taint -- In-Court Identification, Witness’s Independent Recollection

State v. David J. Roberson, 2006 WI 80, affirming 2005 WI App 195

For Roberson: Richard D. Martin, SPD, Madison Appellate

Issue/Holding: ¶34      An in-court identification is admissible, therefore, if the court determines that the identification is based on an independent source. … In other words, the in-court identification must rest on an independent recollection of the witness's initial encounter with the suspect. Walker, 154 Wis.  2d at 188. … ¶36      The in-court identifications by Wagner and Terrell were based on their independent recollections of their observations of and encounters with Roberson outside the liquor store prior to the drug transaction, as well as during the drug transaction, and were not related to the identification of Roberson outside of his home.  This determination finds ample support in the record. Both Wagner and Terrell's in-court identifications followed their testimony regarding their observations of Roberson in full daylight outside the liquor store and during the drug buy. Their in-court identifications were made prior to any testimony about the out-of-court identifications. These in-court identifications occurred less than three months after the officers' observations of and interaction with Roberson.

Attenutation of Taint - Inevitable Discovery – Existence of Probable Cause Alone Insufficient

State v. Sameeh J. Pickens, 2010 WI App 5, reconsideration denied 1/20

For Pickens: Eileen A. Hirsch, SPD, Madison Appellate

¶1   The State’s inevitable discovery argument is simple: because, by the time police illegally searched the safe, they had enough information to obtain a search warrant for the safe, it follows that the police would have inevitably acquired a warrant and legally obtained the contents of the safe. The State does not, however, explain how its theory satisfies the requirement that police be actively pursuing the legal alternative—here, a warrant—prior to the unlawful search. See State v. Lopez, 207 Wis. 2d 413, 427-28, 559 N.W.2d 264 (Ct. App. 1996) (the inevitable discovery doctrine includes the requirement that “prior to the unlawful search the government ... was actively pursuing some alternate line of investigation”). If the existence of probable cause for a warrant excused the failure to obtain a warrant, the protection afforded by the warrant requirement would be much diminished. See United States v. Cherry, 759 F.2d 1196, 1205-06 (5th Cir. 1985) (explaining that application of the inevitable discovery doctrine, where agents “could have obtained a warrant but had made no effort to do so,” undercuts the warrant requirement).

Attenuation of Taint – Search Warrant: Independent Source Doctrine, Generally

State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161

For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding: ¶44      The independent source doctrine derives from the principle that "'[w]hen the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.'" Murray, 487 U.S. at 537 (quoting Nix v. Williams, 467 U.S. 431, 443 (1984)). As applied to circumstances where an application for a warrant contains both tainted and untainted evidence, the issued warrant is valid if the untainted evidence is sufficient to support a finding of probable cause to issue the warrant. See id. at 542; State v. O'Brien, 70 Wis.  2d 414, 424, 234 N.W.2d 362 (1975). Indeed, "[s]o long as a later, lawful seizure is genuinely independent of an earlier, tainted one … there is no reason why the independent source doctrine should not apply."  Murray, 487 U.S. at 542. Thus, our next task is to determine whether the untainted evidence——i.e., evidence Belsha obtained from the incoming phone call——is "genuinely independent" of the earlier tainted evidence——here, Belsha's viewing of the image gallery. ¶45      For courts determining whether untainted evidence provides an independent source, the United States Supreme Court in Murray set forth a standard requiring the state to bear the burden of "convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers' decision to seek a warrant or the magistrate's decision to grant it." 487 U.S. at 540. The court of appeals has articulated the test to be a two-pronged approach: First, the court determines whether, absent the illegal entry, the officer would have sought the search warrant. Second, it asks if information illegally acquired influenced the magistrate's decision to authorize the warrant.  State v. Lange, 158 Wis.  2d 609, 626, 463 N.W.2d 390 (Ct. App. 1990). Holding of State v. Kenneth M. Herrmann, 2000 WI App 38, specifically approved, as “consistent with the principles set forth” by the court, ¶46.

Attenuation of Taint – Search Warrant for Cell Phone, Supported by Probable Cause Independent of Tainted Evidence

State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161

For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding: Untainted evidence supported probable cause for warrant to search cell phone, independent of tainted evidence. ¶51      We are satisfied, based on our analysis above, that the circumstances here permit such an inference to be drawn from which we can conclude that Belsha, despite the improper viewing of the image gallery, would have sought the warrant. First, we can reasonably infer that Belsha would have sought the warrant based on his plain view of the marijuana image, combined with his knowledge acquired from his training and experience that drug traffickers commonly use such images to personalize their cell phones. Second, we can reasonably infer that Belsha would have sought the warrant based on the information that he intercepted when he answered the phone call, coupled with his knowledge of Carroll's juvenile record. In short, these circumstances compel us to conclude that a clear inference can reasonably be determined to exist here that Belsha would have sought the warrant even if he had not browsed through the image gallery.8 … ¶54      As stated above, we are satisfied that the evidence that Belsha viewed while scrolling through the image gallery was tainted and cannot form the basis for the warrant. Thus, of the above facts in the affidavit, the following are proper considerations in assessing whether to authorize the warrant: the first and second, setting forth Belsha's knowledge of the typical ways in which drug dealers personalize and use their cell phones, such as displaying an image like the marijuana image that Belsha saw in plain view; the third, explaining that Carroll had been adjudicated delinquent for a felony, possession of cocaine with intent to deliver; and the fifth, detailing the incoming phone call and the order for drugs. ¶55      We conclude that that evidence, like the untainted storage closet evidence observed in Herrmann, is sufficient to find probable cause to authorize the warrant. … Keep in mind that the trial court suppressed the evidence seized under the search warrant and conducted no fact-finding on what impelled the police to seek the warrant. The upshot, as the dissent warns: ¶79      The majority opinion reaches a conclusion of law——whether the affidavit stripped of the unlawful "gallery images" is genuinely independent of the unlawfully obtained evidence——by impermissibly making a factual inference about the Detective's decision to seek the warrant and the magistrate's decision to issue it. ¶80      The majority opinion's logic permits an officer who has already obtained sufficient evidence for a search warrant to proceed nevertheless without one, confirming that the suspected evidence actually exists and thus avoiding the need to apply for a warrant until the suspicions have already been confirmed. … The long and short of it seems to be that the appellate court will be strongly tempted simply to find attenuation as a matter of law, purely on the basis of untainted probable cause—something that increases the pressure to convince the trial court if at all possible to hold an evidentiary hearing on whether “information gained from the illegal[ity] affected … the law enforcement officers' decision to seek a warrant,” 487 U.S. at 540; “whether, absent the illegal[ity], the officer would have sought the search warrant,” ¶45.

Attenutation of Taint - Search Warrant

State v. Eric Dwayne Rogers, 2008 WI App 176, PFR filed 12/12/08

For Rogers: Mark D. Richards

Issue/Holding: Although warrantless entry of and remaining in a home while a warrant was prepared was illegal, the warrant wasn’t based on any information turned up by this illegality and evidence seized during its execution was therefore admissible:   ¶21      Still, “evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint.’” Segura v. United States, 468 U.S. 796, 805 (1984) (citation omitted); see State v. Simmons, 220 Wis. 2d 775, 780, 585 N.W.2d 165 (Ct. App. 1998). Three factors are relevant to our inquiry: (1) the temporal proximity of the unlawful entry to the search, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. See State v. Walker, 154 Wis. 2d 158, 187-88, 453 N.W.2d 127 (1990). Importantly for this case, when the police have an “independent source” for their discovery, such as a warrant based on wholly unconnected information, the evidence seized is not to be excluded. Segura, 468 U.S. at 805, 814. ¶22       Based on the circumstances of the entire evening, the State has met all three factors. The officers’ good police work and prior drug seizure led them to apply for an additional search warrant based on that contraband. Then the officers waited two hours to search the residence with a valid warrant, albeit while waiting inside watching television. True, they did also perform a protective sweep, but they did not base their search or warrant on the unlawful entry or protective sweep. Instead, the officers obtained the search warrant for Rogers’ residence based entirely on an independent source—their prior search and seizure of Rogers’ car and person. Thus, the search of Rogers’ residence was sufficiently attenuated from the unlawful entry to permit the search and seizure of evidence of unlawful drug dealing. Had the search been conducted as a result of the illegal entry or had the protective sweep been just a pretext for a search for contraband, or had the police used information from the illegal entry to obtain the search warrant, this would be a different case.

Attenuation of Taint -- Search Warrant

State v. Kenneth M. Herrmann, 2000 WI App 38, 233 Wis. 2d 135, 608 N.W.2d 406

For Herrmann: Peter J. Morin

Issue: Whether the search warrant for Herrmann's apartment was supported by evidence sufficiently untainted by an illegal entry into his apartment.

Holding: The untainted discovery of nine marijuana plants, prior to the occurrence of the illegal police action, provided probable cause to believe that other contraband would be found in the apartment, and the warrant was therefore lawful. ¶23.

Attenuation of Taint -- Statements -- After Illegal Arrest

State v. Cesar Farias-Mendoza, 2006 WI App 134

For Farias-Mendoza: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding: The “causal chain” between the defendant’s illegal arrest and his statement wasn’t attenuated where: he gave the statement within 25 minutes of the circumstance establishing the arrest, ¶¶28-29; there were no intervening circumstances, ¶¶30-31; and, there were suggestions of purposeful misconduct, ¶¶32-34.

Attenuation of Taint -- Statements

State v. Scott Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997)

For Kiekhefer: Linda Hornik

Issue/Holding1: Our inquiry does not end here, however. Because the agents' entry constituted a violation of Kiekhefer's Fourth Amendment protections, the question remains whether all of the seized evidence should be suppressed utilizing the attenuation doctrine articulated in Wong Sun v. United States, 371 U.S. 471, 488 (1963). This is also a question of constitutional fact that we review independently of the trial court. See State v. Anderson, 165 Wis.2d 441, 447, 477 N.W.2d 277, 280 (1991). ... Wong Sun not only requires that the statement meet the Fifth Amendment standard of voluntariness, but it must also be "`sufficiently an act of free will to purge the primary taint.'" See Phillips, 209 Wis.2d at 568, 563 N.W.2d at 576 (quoted source omitted). The concern in attenuation cases is whether the connection between the illegal police activity and a later statement has "`become so attenuated as to dissipate the taint.'" See id. (quoted source omitted). If a defendant's statement and consent to search were obtained by exploitation of prior illegal police activity, then any statements and evidence obtained during a search must be excluded. See id. at 569, 563 N.W.2d at 576. The following factors must be considered under an attenuation theory: (1) the temporal proximity of the official misconduct and the subsequent statements by a defendant; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. See id. We conclude that this case fails under the application of each of these factors. Issue/Holding2: Statements after illegal entry weren't attenuated from that primary illegality, given: temporal proximity (10 minutes) to entry; absence of any intervening circumstances such as Miranda warnings, and flagrancy of police misconduct.

Attenuation of Taint -- Statements

State v. Wilfed E. Tobias, 196 Wis.2d 53, 538 N.W.2d 843 (Ct. App. 1995)

For Tobias: Barbara A. Cadwell

Issue/Holding1: The primary concern in attenuation cases is whether the evidence objected to was obtained by exploitation of a prior police illegality or instead by means sufficiently attenuated so as to be purged of the taint. Anderson, 165 Wis.2d at 447-48, 477 N.W.2d at 281. In Anderson, our supreme court reaffirmed that the analytical framework to apply in attenuation cases was set forth in Brown. Anderson, 165 Wis.2d at 447, 477 N.W.2d at 281. Under Brown, the threshold requirementis the voluntariness of the challenged statements. United States v. Patino, 862 F.2d 128, 132 (7th Cir. 1988). The remaining factors bearing on admissibility are the temporal proximity of the illegal conduct and the confession, the presence of any intervening circumstances, and the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 603-04. The burden of showing admissibility rests on the prosecution. Id. at 604. Whether evidence should be suppressed because it was obtained pursuant to a Fourth Amendment violation is a question of constitutional fact. Anderson, 165 Wis.2d at 447, 477 N.W.2d at 280. We independently review constitutional fact questions. Id. Issue/Holding2: Statement sufficiently attenuated from illegal arrest, where: (1) "The nonthreatening conditions of the interrogation support our conclusion that the one and one-half hours that elapsed between Tobias's arrest and his statements weighs in favor of attenuation." (2) "Tobias's confrontation with untainted evidence legally obtained from his stepfather's apartment was an intervening circumstance that purged the taint of his illegal arrest. Tobias ... incriminated himself not because of the illegal arrest, but because he was confronted with information pointing toward his involvement in the crime.... Because Tobias's incriminating statements were an act of free willinduced not by the illegal arrest but by the confrontation with untainted evidence, we conclude this Brown factor weighs in favor of attenuation." (3) The illegality didn't amount to flagrant misconduct, in that probable cause was "a close call," the police didn't simply arrest Tobias in the hope something would turn up.

Temporal proximity language in Tobias seems to blithely suggest that 90 minutes is a short enough time to dissipate the taint of an illegal arrest, at least where the "interrogation was nonthreatening." For a case taking a somewhat different view, see, U.S. v. Reed, 7th Cir. 02-2378, 11/13/03: Temporal proximity factor isn't susceptible to an "bright-line" test, although Supreme Court has ordered suppression of statements made up to 6 hours after illegal arrest. And, largely because of inherent ambiguity of this factor, "we must consider the temporal proximity factor in conjunction with the presence of intervening circumstances." Here, too, the court's analysis diverges from Tobias, holding that Miranda waringings don't by themselves purge the taint of an illegal arrest and, more importantly, that "non-confrontational interviews" by the police and periods in which the suspect enjoys "solitary reflection" do not amount to intervening circumstances sufficient to purge taint. The most critical factor is "the purpose and flagrancy of the official misconduct." Note that application of these factors in the manner ordered by the 7th Circuit would still probably yield the same result in Tobias -- there was simply no flagrant misconduct (the most important factor) and there is no reason to doubt that exploiting untainted evidence is a valid intervening circumstance. See, e.g., U.S. v. Paradis, 1st Cir. 03-1643, 11/18/03 (confronting arrestee with legally seized ammunition "truncated" the role played by illegally seized gun in eliciting statement). But Tobias's uncritical consideration of temporal proximity as militating in favor of admissibility should not be taken as the last word.

CONSENT

(See also Attenuation of Taint -- Consent)

Consent -- Acquiescence

Consent -- Acquiescence -- Generally

State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15

For Johnson: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: ¶16      When the purported legality of a warrantless search is based on the consent of the defendant, that consent must be freely and voluntarily given. State v. Phillips, 218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998) (citations omitted). "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548 (1968). "Acquiescence to an unlawful assertion of police authority is not equivalent to consent." State v. Wilson, 229 Wis. 2d 256, 269, 600 N.W.2d 14 (Ct. App. 1999) (citing Bumper, 391 U.S. at 548-49). This includes when the police incorrectly assert that they have a right to conduct a warrantless search, or indicate that they are going to search absent legal authority to do so, as opposed to asking for permission to search. [6]  [6]  See Johnson v. United States, 333 U.S. 10, 12-13 (1948) (officer did not gain defendant's consent to enter defendant's home when the officer knocked on the door, asserted that he wanted to talk to the defendant, the defendant stepped back from the door and the officer walked in, as entry was granted in submission to authority as opposed to an understanding and intentional waiver of a constitutional right); See also United States v. Morales, 171 F.3d 978, 982-83 (5th Cir. 1999) (suspects' opening door upon an order of officers did not constitute consent to search premises); United States v. Pena-Saiz, 161 F.3d 1175, 1177 (8th Cir. 1998) (where suspect believed that she was under arrest, her submission to a request to conduct a pat-down search was not consent); United States v. Baro, 15 F.3d 563, 566-67 (6th Cir. 1994); (suspect did not consent to seizure of his person and of suspected drug money when officer, who lacked probable cause to execute a seizure, informed suspect that he was being taken to a DEA office and suspect acquiesced to the seizure); State v. Wuest, 190 Wis. 251, 255, 208 N.W. 899 (1926) (an otherwise illegal search of a suspect was not authorized when suspect failed to object to an officer's assertion of authority); State v. Johnson, 177 Wis. 2d 224, 228, 234, 501 N.W.2d 876 (Ct. App. 1993) (defendant's failure to object to officer's entry into home did not constitute consent to search, noting that "consent cannot be found by a showing of mere acquiescence") (citation omitted); 4 Wayne R. LaFave, Search and Seizure § 8.2(a), at 58-59 (4th ed. 2004).

Consent -- Acquiescence -- Generally

State v. Jed A. Giebel, 2006 WI App 239

For Giebel: Robert E. Bellin, Jr.

Issue/Holding: ¶12   The test for voluntariness asks whether consent was given in the “absence of actual coercive, improper police practices designed to overcome the resistance of a defendant.” State v. Clappes, 136 Wis.  2d 222, 245, 401 N.W.2d 759 (1987). In making this determination, no single factor is dispositive. State v. Hughes, 2000 WI 24, ¶41, 233 Wis.  2d 280, 607 N.W.2d 621. Rather, we examine the totality of the circumstances and place special emphasis on the circumstances surrounding the consent and the characteristics of the defendant. Id. The State has the initial burden to show that the defendant’s consent was voluntary. Id., ¶42. To do so, the State must demonstrate by clear and convincing evidence that the defendant gave consent, without any duress or coercion, express or implied. State v. Phillips, 218 Wis.  2d 180, 197, 577 N.W.2d 794 (1998). In Wisconsin, the State need not prove that the defendant knew of the right to refuse consent. See State v. Xiong, 178 Wis.  2d 525, 532, 504 N.W.2d 428 (Ct. App. 1993).

Consent -- Acquiescence – Response to Stated Intent to Search

State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15

For Johnson: Eileen A. Hirsch, SPD, Madison Appellate

Issue: Whether Johnson’s statement, “I don’t have a problem with that,” made in response to an officer’s assertion that they were “going to search the vehicle” was voluntary consent or mere acquiescence.

Holding: ¶19      As the record indicates, neither Stillman nor Dummer asked for Johnson's permission to search the car. Stillman did not recall asking for consent, but indicated he would have noted that fact in his report if he had. Dummer clarified that Stillman advised Johnson that "we were going to search the vehicle." Johnson's response to that command must consequently be construed as acquiescence. On the basis of the undisputed testimony of Stillman and Dummer, we therefore conclude that the circuit court's statement that Stillman obtained Johnson's consent to search the vehicle was against the great weight and clear preponderance of the evidence, and was, therefore, clearly erroneous. … The dissent draws a distinction between “voluntary acquiescence,” which it characterizes as consistent with valid consent and “involuntary acquiescence,” which isn’t. See ¶¶66-76. The dissent construes the majority opinion as: “a verbal, but positive, response to a request to search or a statement that a search will be conducted, … is always ‘acquiescing’ to law enforcement,” ¶71, emphasis supplied. That construction vastly overstates the holding: for one thing, the disjunctive “or” makes all the difference in the world. You don’t acquiesce to “a request” but you certainly do to the inevitability of a command. The majority recites the facts in some detail, which include the construction by an officer on the scene that Johnson’s statement meant “he wasn’t going to do anything to stop you,” ¶18. It is quite novel, then, that asserted police intent to search without offering a choice in the matter and eliciting a response of, OK, I won’t interfere, is something other than mere acquiescence to the stated intent. Point is, the holding certainly represents a nice restatement of the mere acquiescence principle but it isn’t nearly as dramatic a statement as the dissent would have it. The State conceded error on the issue, for good reason.

Consent -- Acquiescence -- Assertion of Subpoena

State v. Jed A. Giebel, 2006 WI App 239

For Giebel: Robert E. Bellin, Jr.

Issue: Whether Giebel's “consent” to a search of his computer, in response to a police claim of a subpoena and accompanied by an expression that Giebel assumed he had no choice, was voluntary or mere acquiescence to asserted police authority.

Holding: ¶17   Three considerations weigh heavily in our decision. First, Giebel, whom the circuit court found to be of average intelligence, was unlikely to know that a subpoena is significantly different from a search warrant. Second, the officers lent legal significance to the subpoena by telling Giebel that it was “a subpoena from Judge Carver.” Finally, Giebel’s response to the subpoena indicated that he believed resistance was futile. ¶18   Consent must be more than mere acquiescence to a claim of lawful authority. See Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968). In State v. Kiekhefer, 212 Wis. 2d 460, 471-74, 569 N.W. 2d 316 (Ct. App. 1997), we held that where the police represented that they could obtain a search warrant when in fact they could not, that misleading statement of authority led to consent that was not the product of free and unconstrained choice. Orderly submission to law enforcement officers who, in effect, incorrectly represent that they have the authority to search and seize property, is not knowing, intelligent and voluntary consent under the Fourth Amendment. See United States v. Elliott, 210 F.Supp. 357, 360 (D. Mass 1962).  ¶19   Subtle suggestions, strategically made, may amount to deception or trickery where the intent is a misrepresentation of authority. Here, we cannot fathom any other reason for Lewis’ display of the subpoena. The subpoena simply showed Giebel’s address as the one associated with an email account. Had Giebel asked Lewis how the investigation led to his home, perhaps the subpoena would have been relevant. Here, the subpoena simply had no application to the conversation as it occurred. ¶20   Like the circuit court, we ascertain no outright deceit or blatant misrepresentation by Lewis or Mack; however, we believe that a reasonable police officer would understand, appreciate, and anticipate that a person of average intelligence would not grasp the distinction between a subpoena and a warrant. We are convinced that when the officers offered Giebel a fleeting glimpse of the subpoena signed by a judge, they suggested authority they did not possess. It was this suggestion of authority that led Giebel to believe he could not refuse consent for the officers to search his room and seize his computer. Though it should be obvious anyway, keep in mind that threat to obtain warrant for which probable cause does exist doesn't vitiate consent,U.S. v. Hicks, 7th Cir No. 07-3613, 8/20/08.

Consent -- Acquiescence -- Request Itself Unlawful Assertion of Authority

State v. David L. Munroe, 2001 WI App 104

For Munroe: Peter Koneazny, SPD, Milwaukee Appellate

Issue: Whether Munroe's acquiescence, under false pretenses, to police entry of his motel room vitiated any consent for their subsequent search of that room, where Munroe refused their initial request to search.

Holding: ¶11 The officers entered Munroe's room for, ostensibly, one purpose: to check his identification. This stated purpose was not true (the officer admitted that they were on a drug, gun, and prostitution interdiction; certainly two armed officers were not dispatched to see who was either paying cash without showing a photo identification or registering under an alias), but it was the reason Munroe acquiesced to their entry and cooperated with them. They checked his identification and determined that he did not violate the Glendale ordinance that prohibits someone from registering in a motel under an assumed name. Once the officers were assured that Munroe had not violated the ordinance -- again, this was the proffered but false reason for their having knocked on his door at 7 a.m. -- their 'license' granted by Munroe's acquiescence to their presence in his room vanished, because the lawfulness of an officer's actions turns on the officer's role or function at the time. State v. Dull, 211 Wis. 2d 652, 659, 663, 565 N.W.2d 575, 578-579, 580 (Ct. App. 1997) (officer's shift from community-caretaker function to that of law-enforcement). Thus, they had no authority to use their continued presence in his room to conduct a general search, and Munroe denied their first request to do so. Their continued questioning and their renewed request to search made Munroe's 'consent' not voluntary. See Bermudez, 221 Wis. 2d at 348, 585 N.W.2d at 633 (consent granted only in acquiescence to unlawful assertion of authority is invalid). Go to Brief

See also Hadley v. Williams, 7th Cir. No. 03-1530, 5/14/04 (where police misrepresented existence of warrant, consent to enter residence "was procured by an outright and material lie, and was therefore ineffectual"). This acquiescence-under-false-pretenses principle isn't limited to entry of residence -- see, e.g., U.S.v. Escobar, 8th Cir. No. 03-4046, 11/18/04 (officer's lie that drug-sniffing dog alerted to luggage amounted to "false claim of legal authority" to search by communicating that there was probable cause to, and no right to resist a, search; ensuing "consent" was but acquiescence).

Consent -- Acquiescence

State v. Vanessa D. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621, reversing unpublished decision, cert. denied, __ U.S. __ (2001).

For Hughes: Andrea Taylor Cornwall, SPD, Milwaukee Appellate.

Issue: Whether Hughes voluntarily consented to a search of her person.

Holding: By verbally consenting and affirmatively assisting the police by lifting her skirt, Hughes did more than merely acquiesce to the search. ¶¶41-44. Go to Brief

Consent -- Acquiescence -- Strip Search

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

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

Issue: Whether Wallace voluntarily consented, or merely acquiesced, to a strip search following arrest for a minor traffic violation.

Holding: ¶19. The police made their request during the booking process and before Wallace's bond had been posted. We concur with the circuit court's conclusion that thirty minutes, devoted as it was to legitimate custodial activities, does not represent an unreasonably lengthy period of custodial detention so as to vitiate the voluntariness of Wallace's consent. The record before us contains no evidence that police created a coercive atmosphere in order to obtain Wallace's consent, nor is there any evidence that they misrepresented their purpose or authority in making the request to search. See, e.g., Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) (where consent to search a home was obtained as a result of a police officer's false claim of lawful authority, that consent is invalid). Furthermore, there is no evidence, nor does Wallace contend, that the officers used force, threats or coercion to obtain Wallace's consent to the search.... ¶21. Wallace also contends that he was not specifically asked if he would consent to the search but was told that the police 'would like [him] to consent to a strip search.' The trial court specifically found, however, that '[t]he Police asked Wallace if he would consent to a strip search' (emphasis added). This finding is supported by testimony at the suppression hearing that an officer 'asked [Wallace] specifically if he would allow us to strip search him, if he would consent.' ¶22. Finally, in considering Wallace's personal characteristics, we are not persuaded that his age (twenty) and his having a 'minimal prior record' rendered Wallace particularly vulnerable to police intimidation, and therefore susceptible to consenting against his will, as he argues. Wallace presented no evidence that he lacked education or was cognitively deficient. Neither does it appear that Wallace was particularly anxious or frightened by his circumstances. Wallace did not testify at the suppression hearing, but the police noted Wallace's demeanor as being 'calm' in the arrest report following his strip search. Go to Brief

Consent -- Acquiescence -- Entry to Residence State v. John Tomlinson, Jr., 2002 WI 91, affirming 2002 WI App 212, 247 Wis. 2d 682, 635 N.W.2d 201 For Tomlinson: John J. Gray Issue: Whether the actions of the defendant's minor daughter, in opening the door to the police and then walking back into the house when they asked for permission to enter, amounted consent for the police to enter. Holding: ¶36. Whether an individual in fact gives consent is a question of historical fact. Phillips, 218 Wis. 2d at 196-97. Thus, we will uphold the trial court's finding on this issue unless it is against the great weight and clear preponderance of the evidence. Id. at 197. Here, although Tomlinson's formulation of the events is one possible characterization of events, the finding of the circuit court on this issue was not against the great weight of the evidence, and we uphold the circuit court's conclusion that the girl's actions were sufficient to give consent to enter. ¶37. Consent to search does not have to be given verbally. Consent may be given in non-verbal form through gestures or conduct. Id. (citing United States v. Griffin, 530 F.2d 739, 741-42 (7th Cir. 1976)); see also United States v. Walls, 225 F.3d 858, 862-63 (7th Cir. 2000). The girl who answered the door turned to enter the house upon the officer's request to enter--this could reasonably have been interpreted as an invitation to follow her inside. Additionally, Tomlinson was present and apparently said nothing when this occurred. Under the totality of the circumstances, the circuit court did not err when it held that the girl gave consent for the officers to enter the house. But alter the facts a bit and the result may well be altered, see e.g., U.S. v. Poe, 8th Cir No. 06-1730, 9/19/06 (no implied consent where door opened in response to demand under color of authority); State v. Martin, OR App No. A131591, 9/3/08 ("In short, whether a defendant consents to police entry when she opens a door and then retreats depends on the particular facts in each case"; no consent on the facts in that case)

Consent -- Acquiescence

State v. Michael Wilson, 229 Wis.2d 256, 600 N.W.2d 14 (Ct. App. 1999).

For Wilson: Martha A. Askins, SPD, Madison Appellate.

Holding: Consent to search was mere acquiescence and therefore involuntary. ("Depriving a defendant of necessities is an indicia that consent is involuntary.")

Go To Brief

Consent -- Authority to Give

Consent to Search – Apparent Authority: Hotel Guest – Shared Authority to Consent to Search Room

State v. Sameeh J. Pickens, 2010 WI App 5, reconsideration denied 1/20

For Pickens: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: An individual with apparent common authority over premises may consent to their search. Thus, someone in a hotel room, who said she was staying in the room with the person who had the key and who appeared to have been sleeping when the police went to the room, had apparent shared authority over the room so as to support her consent to search the room, ¶¶39-42.

Consent to Search – Apparent Authority: Hotel Guest – No Authority to Consent to Locked Safe

State v. Sameeh J. Pickens, 2010 WI App 5, reconsideration denied 1/20

For Pickens: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: Though a hotel room occupant had apparent authority to consent to a search of the room, she had neither actual nor apparent authority to consent to search of a locked safe within the room, ¶¶44-47.

Cases involving “implied consent” to search containers within area to which consent to search has been given, distinguished in that issue here is scope of authority, not scope of consent, ¶¶45-46.

Consent to Search – Apparent Authority: Owner of Residence, Allowing Search of Renter’s Room

State v. Roemie T. St. Germaine, 2007 WI App 214, PFR filed 9/27/07

For St. Germaine: Rex Anderegg

Issue: Whether the owner of the residence (Briseno) had apparent authority to consent to police search of renter St. Germaine’s room, at least where St. Germaine was present was consent was sought and never objected.

Holding: ¶17 St. Germaine argues that there was no reasonable basis for the officers to search his room because they knew it was rented and that Briseno could not consent. However, “in order to satisfy the ‘reasonableness’ requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government … is not that they always be correct, but that they always be reasonable.” Rodriguez, 497 U.S. at 185 (emphasis added). ¶18 To support his position, St. Germaine relies on State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998). In so doing, however, St. Germaine overlooks a critical difference between the facts of the instant matter and the facts at issue there. … ¶19 Unlike the circumstances in Kieffer, St. Germaine was present in the kitchen and overheard the entire exchange that took place between the officers and Briseno, during which Briseno told the police officers that St. Germaine rented a room (without identifying which room) and consented to a search of the entire premises without limitation. See United States v. Elam, 441 F.3d 601, 604 (8th Cir. 2006) (where “a third party with apparent authority gives unequivocal consent, and the defendant is present and fails to disclose a superior privacy interest and object to a search,” the silence makes it “objectively reasonable” for the officers to believe that they had consent); cf. State v. Matejka, 2001 WI 5, ¶37, 241 Wis. 2d 52, 621 N.W.2d 891 (concluding that the owner of a vehicle had the capacity to consent not only to a search of the vehicle but also to the search of a jacket that a passenger had brought into the vehicle, and finding support for its conclusion based on the fact that the passenger was present and aware that the owner had consented to a search of the interior of the vehicle and yet, the passenger “made no attempt to circumscribe the scope of the search to exclude her jacket”). ¶20 In further support of the State’s position that Briseno had apparent authority to authorize the search of the entire house, including St. Germaine’s room, there is nothing in the record to indicate that St. Germaine’s room was identified for the officers. … Consequently, there was no way for the police officers to distinguish St. Germaine’s room from the rest of the house for which they had consent to search. Based on these circumstances, we conclude that St. Germaine’s silence served as a tacit affirmation supporting the police officers’ reasonable belief that Briseno had the apparent authority to provide such consent.

Consent -- Authority -- Common Authority over Premises

State v. Matthew J. Knapp, 2003 WI 121, on certification; vacated and remanded on other grounds (for further consideration in light of United States v. Patane, 542 U. S. ____ (2004), Wisconsin v. Knapp, No. 03-590)

For Knapp: Robert G. LeBell

Issue1: Whether the search of Knapp's bedroom was properly consented to by his brother (George), with whom Knapp shared the apartment and to whom Knapp paid rent. Holding: Third-party consent to search may be given by someone with common authority over the premises. ¶138, quoting United States v. Matlock, 415 U.S. 164, 171 n. 7 (1974). Under the facts found by the trial court (Knapp had his own key to the apartment, his bedroom door had a lock, George would not go into the bedroom without first asking, etc.), Knapp had "a clear expectation of privacy." ¶145. Thus, "there was no 'mutual use' of the bedroom or 'joint access for most purposes' as required by Matlock." Id. ¶146. Based upon these facts, the Kieffer court stated: "This testimony is indicative of a respect for the expectations of privacy held by the defendant and his wife, and not a mere 'habit' of the property owner." Kieffer, 217 Wis. 2d at 546. The testimony in Kieffer allowed that court to distinguish it from United States v. Duran, 957 F.2d 499 (7th Cir. 1992). ¶147. We agree with Knapp's assertion that George did not have actual authority to consent to a search of Knapp's bedroom. Knapp and George did not have "mutual use for most purposes." Matlock, 415 U.S. at 172. For Knapp the room was his place of residence; for George it was, at most, a place where he and his wife incidentally continued to store some hunting equipment and other personal property. ¶148. In reaching that conclusion, we note that this case is substantially similar to Kieffer in that Knapp's expectation of privacy in the bedroom was superior to George's, thus obviating George's authority to consent to the search. ¶149. Additionally, Knapp's plans to continue to reside at George's apartment and pay rent for his use of the bedroom were sufficiently open-ended to establish that he was a permanent resident....

Issue/Holding2: A consent search may be valid notwithstanding absence of actual authority to consent if the police reasonably believe that such authority did exist. ¶152, citing Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990). When insufficient information exists to make such a determination, the police must inquire further until authority is clarified. Id. ¶155. Under the essential facts of this case, which appear to be undisputed, and applying the objective standard set forth in Rodriguez, 497 U.S. at 181, we hold that an officer "of reasonable caution" could reasonably conclude that George apparently had authority over the entire apartment. We are satisfied that the State met its burden of proof in that regard. The majority in Rodriguez stated: The Constitution is no more violated when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises, than it is violated when they enter without a warrant because they reasonably (though erroneously) believe they are in pursuit of a violent felon who is about to escape. Rodriguez, 497 U.S. at 186 (citation omitted). Here, of course, the person who consented was a resident, and it was reasonable to conclude that he had full authority to consent to the search. To sum up, at the time of the search of the apartment, George was paying the rent for "my house," and he and his fiancŽe were keeping several items of their personal property in the bedroom Knapp was using. Before signing the consent form, George was told of the nature of the search, he had the opportunity to confer with Knapp, and he made no attempt to limit the scope of the search by the officers. George and Helen were the "keepers of that residence." That is enough to establish apparent authority under the Rodriguez objective standard. The dissent makes the point that the police are obligated to clarify whether authority to consent exists in fact, and that these "officers made no inquiry of George at all." ¶205. The majority seems to agree with the operative legal principle -- inquiry is required, ¶152 -- so the dispute may be a narrow one of what the police knew before the search. The majority's construction is summarized this way: "Thus, it appeared to the officers that George was in control of the premises and could make decisions whether or not to allow the police to search his residence." ¶154. (Not raised by these facts, but of potentially recurrent interest: as to apparent authority of 3rd party to consent to search of closed container, see, U.S. v. Waller, 6th Cir No. 04-5204, 10/24/05.) Interesting factual variation is presented by Georgia v. Randolph, No. 04-0167, 3/22/06 (in absence of exigent circumstances, where “physically present cooccupant” refuses to give consent to search, but search nonetheless proceeds under consent given by other occupant, search is invalid as to refusing cooccupant; holding appears limited to instances where the person is both actually present and also objects), decision below: State v. Randolph, 604 S.E.2d 835 (GA 2004). Indeed a case decided very shortly after Randolph held "that a warrantless search of a residence is valid based on the consent of one occupant where the other occupant fails to object," Casteel v. State, Nev No. 42436, 3/30/06 (no link available). Similar authority, to effect that Matlock remains viable such that co-tenant's failure to object not tantamount to refusal to consent: U.S. v. Parker, 7th Cir No. 05-3330, 12/1/06. Matlock rather than Randolph held applicable where co-tenant not physically present at search but expressly refuses consent prior to police successfully seeking consent from on-site tenant, U.S. v. Hudspeth, 8th Cir No. 05-3316, 3/11/08, en banc ("Fourth Amendment was not violated when the officers sought Mrs. Hudspeth’s consent despite having received Hudspeth’s previous refusal"). But see State Brunetti, CT SC No. 16788, 11/1/05 ("the Connecticut constitution requires that the police must obtain the consent of all joint occupants who are present when consent is sought in order for a search by consent to be valid").

Consent -- Authority -- Driver's Consent to Search Passenger's Property

State v. Jennifer K. Matejka, 2001 WI 5, 621 N.W.2d 891, affirming unpublished decision of court of appeals.

For Matejka: James B. Connell

Issue: "(W)hether, under the consent exception to the Fourth Amendment's warrant requirement, a driver's consent to a police officer's search of a vehicle extends to a passenger's jacket left in the vehicle at the time of the search."

Holding: ¶35 Here, the state trooper received consent to search the van from Miller, who, as the owner and driver of the vehicle, had obvious possessory authority over the vehicle and therefore the capacity to consent to its search. This authority extended in common to the jacket that Matejka brought on board and then left behind in the van, by virtue of the joint access and mutual use of the interior of the van shared by the driver and his passengers. Under Matlock, and by implication Schneckloth, Miller's consent to search the van encompassed Matejka's jacket, found inside it.

As usual in 4th amendment cases, this one is fact-intensive. Read it closely. This was a routine traffic stop (no front plate). After to-ing and fro-ing (nonproductive frisks of the driver and a backpack), the trooper said he was going to issue a warning for the plate violation. ¶7. The issue wasn't raised, but from that moment on the detention at least arguably was prolonged unnecessarily and the ensuing "consent" coerced as the product of that unlawful detention. See, e.g., State v. Christopher Gammons, 2001 WI App 36. Arguably so, neither more nor less: again, the issue simply wasn't raised. This is merely a reminder that prolonged detention is one of the most vexing (and, not coincidentally, most-litigated) facets of routine traffic stop cases -- cases are collected here. But does one occupant have "standing" to challenge another's consent as the product of an unnecessarily prolonged stop? Yes, see State v. Kothe, TX Crim App No. 1738-03, 10/20/04 (footnotes omitted): Both Mr. Kothe and Ms. Brantley had a reasonable expectation of privacy in not being detained beyond the time necessary for Officer Forslund to complete his investigation. Thus, Mr. Kothe has standing to complain about any illegally prolonged detention. If Officer Forslund's conduct in awaiting the results of the computer license and warrant check was "unreasonable" under the Fourth Amendment, Mr. Kothe has standing to complain about the subsequent search of Ms. Brantley. That search is "fruit of the poisonous tree" if it constituted an exploitation of the illegal detention." To avoid possible confusion on the matter of "standing": "A third party may give consent to search a place in which both she and the defendant have legitimate expectations of privacy, and the defendant can challenge the validity of the consent given by the third party," U.S. v. Cellitti, 7th Cir. No. 03-3777, 10/19/04. Voluntariness of 3rd-party consent can be challenged; it's just that Kothe presents a somewhat interesting factual variant of this principle, namely prolonged detention during routine traffic stop. But even so, that is merely a subset of the larger idea (again, from Cellitti), "Consent given during an illegal detention is presumptively invalid." Note, too, that this approach is but a slight extension of and therefore wholly consistent with the settled principle "that when police stop a vehicle, all of the occupants of that vehicle are seized and thus have standing to object to the seizure," State v. Anthony Harris, 206 Wis. 2d 243, 557 N.W.2d 245 (1996) (Harris, as passenger, had standing to challenge illegal stop of car in which he was riding and thus to obtain suppression of evidence seized from him): once the seizure of the vehicle and its passengers is prolonged beyond lawful limits, the passengers' prolonged seizure is necessarily unlawful; and if they have standing to challenge 3rd party consent obtained after an illegal stop, then they should also have standing to challenge it on the basis of an illegally prolonged stop. But see, U.S. v. Pulliam, 9th Cir No. 03-50550, 4/21/05 (where "nothing in the record to suggest that the continued detention of the vehicle would have prevented [passenger] Pulliam from leaving if he was permitted to do so," nor possessory interest by Pulliam in vehicle, he had no standing to challenge post-stop detention of vehicle; court notes that standing might be shown if some connection between his detention and evidence recovered from car). Returning to Matejka: Keep in mind that the issue reached by the court -- driver's authority to consent to a search of a passenger's belongings -- has led to a significant split of authority. See ¶18 n. 3, and cases cited. This, in other words, is a cert-worthy issue.

Consent – Authority: Driver, for Passenger

State v. Jordan A. Denk, 2008 WI 130, on certification

For Denk: Lora B. Cerone, SPD, Madison Appellate

Issue/Holding: ¶20 n. 4: … While Pickering could consent to a search of the vehicle, he could not consent to a search of his passenger. See State v. Matejka, 2001 WI 5, 241 Wis.  2d 52, 621 N.W.2d 891 (driver's consent to search of a car extended to passenger items in the car, but not to passengers). Further, the record does not support a finding that Denk consented to the search. Merely placing a container in view of an officer does not constitute consent to search it. Matejka confers authority on a driver to consent to search of a passenger’s property in the car (notwithstanding acknowledged significant split of authority, ¶18 n. 3); the passage quoted immediately above makes clear that this authority doesn’t extend to search of a passenger’s person – a point that is probably self-evident anyway.

Consent -- Authority -- Minor Child -- Entry of Residence State v. John Tomlinson, Jr., 2002 WI 91, affirming 2002 WI App 212, 247 Wis. 2d 682, 635 N.W.2d 201 For Tomlinson: John J. Gray Issue: Whether the police had consent from a minor to enter the defendant's home in order to arrest him. Holding: Warrantless entry of a home to effectuate an arrest requires probable cause and exigent circumstances or consent. ¶20. Probable cause and lack of exigent circumstances are conceded, leaving consent as the crucial issue. The court finds consent, for the following reasons.  The police were let into the defendant's home by a teenager. In such instances of third-party consent, the police may rely on either actual authority (which turns on mutual use of the property by someone having joint control for most purposes) or apparent authority (which requires reasonable reliance on the ability to control access to the property). The court draws a conclusion of apparent authority and therefore doesn't reach actual authority. ¶26. The decisive factors are as follows. The police had descriptions of the defendant's teenage daughters and could reasonably believe that one of them answered the door. ¶28. Although a parent's interest in the home is generally superior to his or her minor child's, there are situations where the child may reasonably consent to police entry; this depends on the child's age, intelligence and maturity, and scope of the search or seizure. ¶30-31. (The older the child, the greater the responsibility. ¶32, citing Laasch v. State, 84 Wis. 2d 587, 593-94, 267 N.W.2d 278 (1978) (five-year old son didn't possess authority to consent to enter).) ¶33. In the present case, given the age of the girl who answered the door, the limited scope of the entry, and the surrounding circumstances, the officers could have reasonably concluded that the consent to enter the house was valid. A high school-aged child will likely have at least some authority to allow limited entry into the home. Courts that have addressed this issue are generally in agreement on this point. See, e.g., Doyle v. State, 633 P.2d 306, 309 (Alaska 1981); Mears v. State, 533 N.E.2d 140, 142 (Ind. 1989); State v. Folkens, 281 N.W.2d 1, 4 (Iowa 1979); State v. Griffin, 756 S.W.2d 475, 484-85 (Mo. 1988). There is no evidence here that the girl who answered the door lacked the intelligence or maturity such that the officers' reliance on the consent would have been called into question. Court also emphasizes, ¶34, limited scope of consent -- into entryway and kitchen; time of day -- early evening; and defendant's standing nearby when the door was opened, and failing to object when the police entered, along with the daughter's failing to ask her father's permission for police entry. Though there may not be a per se rule under the fourth amendment with respect to age and capacity to consent, for authority that under an "enhanced right to privacy" state constitutional provision "a youth under the age of sixteen does not have the capacity or the authority to relinquish her parents' privacy rights," see State v. Schwarz, 2006 MT 120.

Consent -- Coercion

Consent -- Lawful Seizure Alone Isn’t Coercive

State v. John J. Hartwig, 2007 WI App 160, PFR filed 5/22/07

For Hartwig: Wright C. Laufenberg

Issue/Holding: The trial court misread State v. Reginald Jones, 2005 WI App 26, to hold that consent to search is invalid whenever the person has been seized; rather, that case holds only that consent may be invalid when made following illegal seizure of the person. Consent following lawful seizure must be measured by the settled totality-of-circumstances test for voluntariness: ¶13 Here, the court concluded Hartwig had been seized, even suggesting that an arrest had been effectuated, but that the seizure was lawful. [4] Thus, the holding of Jones is inapplicable. Rather, the court should have applied the totality of the circumstances test. See Wallace, 251 Wis. 2d 625, ¶17. Under that test, “custody is one factor to be considered in determining voluntariness, [but] it is not in itself dispositive.” Id., ¶18. ¶14 The trial court concluded as a factual matter that Hartwig gave consent. The remaining question, a question of law, is whether that consent was voluntary. See id., ¶16. The undisputed facts of record indicate that it was. The wardens made no misrepresentations of their purpose or authority. … Hartwig’s consent was “given in the absence of duress or coercion, either express or implied.” [5] See Phillips, 218 Wis. 2d at 197. Evidence from the truck should not have been suppressed. So you can give valid consent while in custody. Who knew? If you’re thinking this isn’t exactly an earth-shaking development you’d be right.

Consent -- Absence of Coercion

State v. Philip R. Bons, 2007 WI App 124, PFR filed 4/24/07

For Bons: Vladimir M. Gorokhovsky

Issue/Holding: ¶18      The State has satisfied its burden to show the consent was voluntary. There is no suggestion of misrepresentation, deception, trickery or intimidation. The officers did not use weapons or force or otherwise take custody of Bons. Bons testified that Ramstack told him that he could be arrested, but the court did not accept this testimony. The court did accept the officers’ testimony that when Bons said he did not have a choice but to acquiesce in the search, Ramstack informed him that he did have a choice in the matter and he could say “no.” Finally, the court chose to believe the officers’ testimony that Bons not only agreed to the search, but actually cooperated and even affirmatively assisted with the search by providing the keys to his car and opening the trunk. See id. at 201 (noting that a defendant’s cooperation with police is a consideration when evaluating voluntariness of consent).

Coercion -- Police Failure to Inform of Real Purpose of Search

State v. Shaun E. Kelley, 2005 WI App 199

For Kelley: Gregory Bates

Issue/Holding: ¶12      Kelley contends that the police should have disclosed that they had reason to believe he had child pornography in his apartment. We are not persuaded that the detectives’ failure to disclose all their suspicions invalidated an otherwise validly obtained consent. This was not a case of deception or false pretext. The detectives went to search Kelley’s apartment because they were investigating a murder. They had legitimate suspicions based on the circumstances present that he may have been involved in the murder. They disclosed the purpose of this investigation. This was not a case where the officers fabricated a story about a non-existent murder to sneak their way into Kelley’s apartment in order to look for child pornography. They had valid reasons to believe a search of his apartment was pertinent to the actual murder investigation. Thus, the failure of the officers to disclose secondary suspicions did not result in coercion or an involuntary consent.

Coercion -- Threat to Obtain Warrant

State v. Matthew J. Trecroci, Ryan J. Frayer, Ronnie J. Frayer, Scott E. Oberst, Amy L. Wicks, 2001 WI App 126

For defendants: Robert R. Henak

Issue: Whether an apartment owner's consent to search his apartment, given in response to police threat to obtain a search warrant even though no probable cause existed, was involuntary.

Holding:: ¶54 The police may not threaten to obtain a search warrant when there are no grounds for a valid warrant. State v. Kiekhefer, 212 Wis. 2d 460, 473, 569 N.W.2d 316 (Ct. App. 1997). The trial court's findings establish that when the police threatened Trecroci with a search warrant, they did not, as yet, have probable cause. Therefore, under Kiekhefer, Trecroci's consent was not voluntary.

Coercion -- Threat to Obtain Warrant

State v. Scott Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997)

For Kiekhefer: Linda Hornik

Issue/Holding: "Police may not threaten to obtain a search warrant when there are no grounds for a valid warrant, but `[w]hen the expressed intention to obtain a warrant is genuine ... and not merely a pretext to induce submission, it does not vitiate consent.'" United States v. Evans, 27 F.3d 1219, 1231 (7th Cir. 1994) (quoted source omitted). Arguably the agents had probable cause for a search warrant. At the time of Carlson's statements, he had confiscated Kiekhefer's marijuana cigarette and the baggie contained in the dresser drawer. (Ignoring, of course, the fact that whatever cause they gained at the scene was tainted by their warrantless entry). Nevertheless, the agents had no right to imply that they could sit in Kiekhefer's home for two hours while a warrant was obtained. The agents did not have a valid warrant permitting them to be in Kiekhefer's home and they had no right to remain in the home, absent a valid warrant, especially if consent was revoked. See United States v. Kelly, 913 F.2d 261, 265-66 (6th Cir. 1990) (consent terminated when previous consent revoked). It was simply a misrepresentation to imply that they could remain in Kiekhefer's home, keeping him in custody, while a warrant was obtained. See 3 Wayne R. LaFave, Search and Seizure § 8.2(c) at 654-55 (3rd ed. 1988). Clearly, Carlson intended to lead Kiekhefer to believe that resistance was futile and that he had lawful authority to search Kiekhefer's home or room, with or without Kiekhefer's consent. Based on these circumstances, considered in their totality, we hold that Kiekhefer's statements and subsequent consent were obtained in a coercive manner and were not freely and voluntarily given. Accordingly, the physical evidence derived from those statements and the consent to search must be suppressed.

Coercion -- Submission to Chemical test -- Threat to Revoke Driver's License, OWI Arrest Village of Little Chute v. Todd A. Walitalo, 2002 WI App 211, PFR filed 8/1/02 For Walitalo: Ralph A. Kalal Issue/Holding: ¶11. However, the arresting officer, by reading the informing the accused form, simply stated the truth: If Walitalo refused to submit to a chemical test, his driving privileges would be revoked. This statement did not involve any deceit or trickery, but instead accurately informed Walitalo of his precise legal situation. See 3 Wayne R. LaFave, Search and Seizure, § 8.2(c) at 652-53 (3d ed. 1996). While police cannot use deceit or trickery, they are entitled to make true statements. Gautreaux v. State, 52 Wis. 2d 489, 494, 190 N.W.2d 542 (1971). Had Walitalo refused to submit to a blood test, he would have been subject to the penalties under Wis. Stat. § 343.305(10). Because there was no actual coercion or improper police conduct, we conclude that Walitalo's consent was voluntary. (Note: This holding can, and will, be extended beyond OWI testing, most likely in the situation where the police threaten to get a warrant. LaFave (in the cite mentioned above) makes the point that a threat to obtain a warrant where one could not in fact be obtained (for example, where there's no probable cause, e.g., State v. Trecroci , 2001 WI App 126) is indeed coercive.)

Coercion -- Number of Officers -- Police Policy of Situating Officers on Both Sides of Stopped Car

State v. Timothy R. Stankus, 220 Wis. 2d 232, 582 N.W.2d 468 (Ct. App. 1998)

For Stankus: Steven J. Watson

Issue/Holding: The number of officers present does not, by itself, conclusively demonstrate coercion, but is a factor to consider among others. Thus, consent was validly given following a valid traffic stop that had lasted only 5 to 10 minutes before the police sought consent to search the car. Nor did the police policy of situating one officer on each side of the car establish coercion. Not raised by this case, but a recurrent issue: whether consent was the product of an unreasonably prolonged traffic stop, discussed below.

Consent -- Scope

Coercion -- Scope

State v. Shaun E. Kelley, 2005 WI App 199

For Kelley: Gregory Bates

Issue/Holding: ¶13      Kelley also argues that the search violated the scope of consent. He contends that an accelerant and phone handset could not have been found under his bed and therefore that place should not have been searched. We disagree. … ¶14      Here, the police were searching for a telephone handset and an accelerant. Certainly, either object could be easily hidden beneath a bed. Moreover, Kelley did not limit the scope of his consent––rather, he authorized a general consent to search the entire apartment. He could have limited the scope of the consent immediately or at any time thereafter. He could have said, you can look everywhere except under the bed. The consent to search here was unqualified. Kelley was present when Quist was searching in the bedroom and discovered the photos under the bed. He made no objection. The failure to object further supports our conclusion that the detective did not exceed the scope of the consent when he searched under the bed.

Consent: Scope – Authority to Question Young Child

State v. Robert A. Ragsdale, 2004 WI App 178, PFR filed 8/5/04

For Ragsdale: Timothy T. Kay

Issue: Whether an occupant’s consent to search his home “as long as he was present” limited an officer’s authority to question the occupant’s three-year-old son apart from his father, and thus inhibit the officer’s recovery of an illicit weapon based on information received from the child.

Holding: ¶10. Here, Ragsdale contends that questioning his three-year-old son outside of his presence violated the scope of his consent and amounted to coercion. We disagree. Ragsdale consented to permit the search of his home as long as he was present. Ragsdale took one of the officers into the bedroom, leaving the other officer in the living room with his three-year-old son. One who consents to a search "may of course delimit as he chooses the scope of the search to which he consents." Jimeno, 500 U.S. at 252. Ragsdale did not make any attempt to prevent Stein from speaking with his son. He did not tell Stein not to talk to the boy. He did not take the boy with him into the other room. Quite the opposite, he left Stein alone with the boy without any restrictions or conditions at all. Such conduct suggests that Ragsdale did not assert any reasonable expectation of privacy prohibiting Stein from speaking with his son. ¶11. Moreover, we are not convinced that Stein's question to the three-year-old even constituted a search. Rather, the question constituted on-the-scene questioning of a potential witness in an ongoing investigation. Ragsdale has not provided, nor are we able to find, any authority prohibiting Stein from speaking with the boy about whether a gun was in the house. Ragsdale limited the scope of his consent to searching the premises only with Ragsdale present. He did not limit the police officers from speaking to his son while he was present. If Stein had asked the boy to show him where the gun was or to get the gun, our conclusion would be quite different because such questions would have necessarily implicated the scope of Ragsdale's consent. Stein, however, did not conduct any search outside of Ragsdale's presence. Emphasis supplied. After Ragsdale gave his limited consent, he and an officer went into one room. His son stayed behind with another officer. Big mistake. The officer asked the child if there were any guns in the house, and the obliging youngster opened a register, which exposed the gun. ¶¶2-3. The italicized portion suggests a limited holding: Stein didn’t ask the kid where the gun was, he merely asked if there was a gun. Seems like a fairly hypertechnical distinction. Still, it shows the court’s sensitivity to the issue. Note that the court doesn’t say that the hypothetically posed situation “might” cause a different result; it would cause one. The court does leave a bit unsaid – which is not necessarily to suggest that the court is wrong. The issue is consent, and Ragsdale argues coercion but why is it necessary to go that far? A three year-old doesn’t have the capacity to consent to a search. See Laasch v. State, 84 Wis. 2d 587, 593-94, 267 N.W.2d 278 (1978) (five-year old son didn't possess authority to consent to enter home). No wonder, then, that the court takes the trouble to say that this wasn’t a search. But justification for seizing the gun is ultimately left hanging. Ragsdale did tell the cops that any search outside his presence was unauthorized; and a cop did seize a gun outside his presence. Apparently, this was a “plain view” seizure, though the court doesn’t put it in those terms. The cop just happened to question the child about guns and the child just happened to take him to the item; inadvertence squared. Note that the court stresses that Ragsdale “did not limit the police officers from speaking to his son while he was present.” But the court also says that talking to the child was “on-the-scene questioning of a potential witness in an ongoing investigation.” Is that something that Ragsdale had the power to prevent? Possibly so: otherwise, why would the court mention it?

Consent -- Scope -- Body Cavity Search

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

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

Issue: Whether Wallace's consent for a strip search encompassed the more intrusive body cavity search that ensued (Wallace bent over and spread his buttocks).

Holding: ¶29. We have concluded that Wallace voluntarily consented to a strip search, and the parties agree that a visual body cavity search was ultimately conducted. Given the conceded distinction between the two types of searches, as well as the heightened level of scrutiny with which we are to view police conduct involving highly intrusive body cavity searches, we are unwilling to hold that a valid consent to the former always suffices as a consent to the latter. Thus, two inquiries remain: First, did the scope of Wallace's initial consent to be strip-searched include consent to the visual body cavity search that was actually conducted? If not, did Wallace subsequently consent to the visual body cavity search during the process of being strip-searched? We conclude that we must answer no to the first question, and that we cannot answer the second without further factual findings by the circuit court.... ¶34. Given the degree of the invasion of Wallace's privacy, if the officers intended to have Wallace bend over and spread his buttocks as a part of their search, they should have asked him to specifically consent to that level of intrusiveness. Put another way, it was not 'objectively reasonable' for police to conclude that the consent they obtained from Wallace for a strip search included anything beyond the removal of Wallace's clothes in order to inspect his naked body, but 'without any scrutiny of his body cavities.' See Hughes, 524 S.E.2d at 159, 161 (holding that a defendant who consented to a pat-down search and a search of his underwear to 'check further,' did not thereby consent to a visual inspection of his anus). Because the trial court's findings are equivocal, ¶¶35-36, remand is necessary, ¶37: for a factual determination regarding whether Wallace, at some point during the consensual strip search, gave his further consent to the more intrusive search which ensued. In making this determination, the court should consider both the wording of the officers' requests and Wallace's responses to them in order to determine whether what transpired was the giving of consent or acquiescence to police orders. We leave it to the court's discretion to make the necessary determination on the present record if it can do so, or to take additional testimony on the issue if it deems that to be advisable.

Go to Brief

The distinction between strip and body cavity searches is meaningful because, as suggested by the passages above, the latter are more instrusive and are tested by a heightened need for exigency to overcome need for warrant: Undoubtedly, body cavity searches incident to an arrest are at least as intrusive as blood test procedures. This Court has referred to them as "invasive" and "degrading" (People v Luna, 73 NY2d 173, 178 [1989]), and other courts have similarly described them (see, Mary Beth G. v City of Chicago, 723 F2d 1263, 1272 [7th Cir 1983]; see also, Arruda v Fair, 710 F2d 886, 887 [1st Cir], cert denied 464 US 999 [1983]). On the suppression record before us, we conclude that the body cavity search of defendant incident to his arrest was unreasonable and invalid. Even assuming that the extraction of the drugs satisfied all of Schmerber's other requirements, the People failed to offer any evidence of exigent circumstances to justify dispensing with the warrant requirement -- that a neutral, detached magistrate determine that the search is justified and will be conducted in a reasonable manner. This record is devoid of any evidence from which an officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant" posed a threat to the officer's personal safety or of the destruction of the evidence (Schmerber v California, 384 US, at 770, supra). Notably, no police officer testified that, despite the available means of incapacitating defendant and keeping him under full surveillance, an immediate body cavity search was necessary to prevent his access to a weapon or prevent his disposing of the drugs. Nor was there any evidence the police were concerned that the drugs -- which were wrapped in plastic -- could have been absorbed into defendant's body. The absence of exigent circumstances dictates the conclusion that the body cavity search here was unreasonable. People v. More, 2002 NY Int 20, 97 NY2d 209, 764 N.E.2d 967 (but: court expressly limits holding to body cavity searches at scene of arrest, as opposed to station house or other custodial location; and declines to reach inevitable disovery, due to waiver). Also see Amaechi v. West, 237 F.3d 356, 364 (4th Cir. 2001) (fact that, absent clear justification or exigent circumstances, an officer is not allowed to strip an arrestee on a public street pursuant to a search incident to an arrest necessarily means that an officer cannot go even further than simply disrobing the arrestee by actually touching and penetrating the arrestee’s exposed genitalia on the public street"). For other cases delineating the distinction between strip and body cavity searches, see Evans v. City of Zebulon, 351 F.3d 485 (11th Cir. 2003) ("Courts considering the reasonableness of the manner in which strip searches and body cavity searches of arrestees and prison inmates are conducted have looked at factors including the degree of privacy afforded the person subjected to the search, whether the search was performed by someone of the same sex as the person searched, the hygienic conditions of the search, whether the search involved physical contact, and whether the search was performed in a professional manner."), and cases stirng cited thereafter. Note, though, that this panel decision was vacated, and supplanted by an en banc decision, which noted the intrusion as a "disturbing" aspect of the search, but added in a footnote (n. 17), "we do not sat that body cavity searches that penetrate orifices are per se unconstitutional." And for basic definitions, distinguishing strip searches from body cavity searches, see Hughes v. Commonwealth, 31 Va App. 447, 524 S.E.2d 155 (2000) (en banc): A search of the person may range from a Terry type pat down to a generalized search of the person to the more intrusive strip search or body cavity search. "A strip search generally refers to an inspection of a naked individual, without any scrutiny of his body cavities. A visual body cavity search extends to a visual inspection of the anal and genital areas." Commonwealth v. Thomas, 708 N.E.2d 669, 672 n.4 (Mass. 1999). "A 'manual body cavity search' includes some degree of touching or probing of body cavities." Cookish v. Powell, 945 F.2d 441, 444 45 n.5 (1st Cir. 1991). Accord, McGee v. State, 105 S.W.3d 609 (Tex. Cr. App. 2003) ("The term 'strip search' generally refers to an inspection of a naked person, without any scrutiny of the person's cavities. A 'visual body-cavity search' includes a visual inspection of a person's anal or genital areas. A 'manual body-cavity search' involves some degree of probing or touching a person's body cavities.") See also