SEARCH & SEIZURE
Usage note: The case summaries are organized topically in the outline immediately below this note. Links are provided by all major topics and for many sub-topics. Of course, you may also scroll through the case summaries, which are immediately below the outline.

Updated 2/3/10

TOPICAL OUTLINE
ADMINISTRATIVE SEARCHES
APPLICABILITY OF EXCLUSIONARY RULE
ARREST
ATTENUATION OF TAINT
CONSENT
EXIGENCY
EXPECTATION OF PRIVACY
FORFEITURE
PLAIN VIEW
REASONABLE SUSPICION ISSUES
SUPPRESSION HEARING PROCEDURE
WARRANTS
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 Sweep
See 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.

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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.)
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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).
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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.
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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.

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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.")
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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 People v. Barnhill, 2005 NY Slip OP 25074, 2/23/05 (inspection of anal area "far greater intrusion than" strip search, which generally does not involve visual examination of anal or genital areas; and: validity of body cavity search incident to arrest requires satisfying 3-part test of Schmerber v. California, 384 U.S. 757, 770 (1966), such that "(a) policy requiring a visual examination of the anal area of every person arrested on a narcotics charge without considering the arrestees' particular circumstances is unconstitutional").

Test for body cavity search is reasonable suspicion, but not found on facts (anonymous tip that arrestee was "known to 'cheek' drugs"): U.S. v. Barnes, 1st No. 01-2129, 10/29/07.

Necessity for warrant: People v. Hall, NY (2008) ("a visual body inspection may be conducted if the police have a factual basis supporting a reasonable suspicion that the arrestee has evidence concealed inside a body cavity and the search is conducted in a reasonable manner. If the visual inspection reveals the presence of a suspicious object, the police must obtain a warrant authorizing the object's removal unless there are exigent circumstances."); cert petition here.

Consent -- Scope -- Search of 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: Telling the officer that the trunk did not open failed to limit the scope of consent to search the trunk when the driver also said, "you can even look in the trunk":
His statement that the trunk did not open in no way restricted his initial consent. Instead, his statement can easily be interpreted as informing the police that the normal method of entry was unavailable, but if they could figure out a way into the truck, they were free to search. The trial court's finding that Stankus gave the police permission to search the trunk is not clearly erroneous.

Consent -- Miscellaneous

Consent -- Entry of Residence -- Reasonable Suspicion as Precondition
State v. Jeffrey Stout, 2002 WI App 41, PFR filed 2/21/02
For Stout: James L. Fullin, Jr., SPD, Madison Appellate
Issue: Whether the police must have reasonable suspicion before seeking consent to enter a residence.
Holding:
¶17. We hold that there is no Fourth Amendment requirement of reasonable suspicion as a prerequisite to seeking consent to enter a dwelling. We find support for this holding in federal automobile search cases. In Ohio v. Robinette, 519 U.S. 33, 39-40 (1996), the United States Supreme Court held that as a matter of Fourth Amendment jurisprudence, the voluntariness of a driver's consent to search, requested without articulable suspicion, cannot be made to depend upon his or her being told by the police that if he or she refuses to consent to the search, he or she will be free to go. The proposition that reasonable suspicion is not required as a basis for seeking consent is apparently the majority view respecting the mandate of the Fourth Amendment of the Federal Constitution. State v. Carty, 753 A.2d 149, 153 (N.J. Super. Ct. App. Div. 2000); see also 3 Wayne R. LaFave, Search and Seizure § 8.1 n.8, at 597 (3rd ed. 1996). In Wisconsin, our supreme court has stated that the law of search and seizure under the state constitution conforms to that developed by the United States Supreme Court under the Fourth Amendment. State v. Phillips, 218 Wis. 2d 180, 195, 577 N.W.2d 794 (1998). We therefore apply the federal approach to our state law and conclude that reasonable suspicion is not a prerequisite to an officer's seeking consent to enter a private dwelling.
(The court remands for further fact-finding as to consent. ¶18.)
Consent -- Independent Appellate Review -- Voluntariness.
State v. Jason Phillips, 209 Wis.2d 559, 563 N.W.2d 573 (1997), reversing State v. Phillips 209 Wis. 2d 559, 563 N.W.2d 573.
For Phillips: Arthur B. Nathan
Holding: Consent to search is question of constitutional (as opposed to historical) fact, and therefore subject to independent review on appeal. Defendant consented to warrantless search of bedroom: agents went to house to investigate drug transaction; one asked deft. If they could enter bedroom and collect the drugs, & deft. opened door & walked inside. Agents followed him, assuming from this conduct that they permission to enter. Deft. retrieved drugs & handed them to agent. Court stresses absence of trickery or coercion in sustaining entry & search.
Consent -- Preliminary Breath Test
County of Jefferson v. Renz, 231 Wis.2d 293, 603 N.W.2d 541 (1999), reversing Jefferson Co. v. Renz, 222 Wis. 2d 424, 588 N.W.2d 267 (Ct. App. 1988).
For Renz: Stephen E. Mays.
Issue: Whether an officer is required to have probable cause to arrest before asking a suspect to submit to a preliminary breath test.
Holding: The "overall scheme" allows an officer to use a PBT to determine whether to arrest a suspect, and to establish probable cause for arrest, if challenged. That is, the officer may request a PBT before establishing probable cause for arrest. ¶22. In this case, the defendant consented to the PBT; as a result, the court does not reach the issue of whether probable cause to arrest would be necessary for nonconsensual administration of a PBT. 231 Wis. 2d at 311 n. 14.)

EXIGENCY

Exigency -- General

Warrantless Entry – Exigent Circumstances, Generally
State v. Antonio K. Phillips, 2009 WI App 179, PFR filed 11/25/09
For Phillips: Michael J. Backes
Issue/Holding:
¶8        There are four exigent circumstances that may justify a warrantless search: “(1) an arrest made in ‘hot pursuit,’ (2) a threat to safety of a suspect or others, (3) a risk that evidence will be destroyed, and (4) a likelihood that the suspect will flee.” State v. Kiekhefer, 212 Wis. 2d 460, 476, 569 N.W.2d 316 (Ct. App. 1997) (citations and one set of internal quotation marks omitted). The test for determining whether the requisite exigent circumstances existed to justify the warrantless search is an objective one, with the focus on “whether a police officer, under the facts as they were known at the time, would reasonably believe that delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of the suspect’s escape.” Hughes, 233 Wis. 2d 280, ¶24. Our review of the exigent circumstances is “directed by a flexible test of reasonableness under the totality of the circumstances.” State v. Smith, 131 Wis. 2d 220, 229, 388 N.W.2d 601 (1986). “However, the government cannot justify a search on the basis of exigent circumstances that are of the law enforcement officers’ own making.” Kiekhefer, 212 Wis. 2d at 476; see also Hughes, 233 Wis. 2d 280, ¶28 n.7. Here, the State relies on both the first and third exceptions for a warrantless entry, namely, an arrest made in hot pursuit and the risk that evidence will be destroyed.
Warrantless Entry of Residence – Exigent Circumstances, Generally
State v. Kevin Raphael Lee, 2009 WI App 96, PFR filed 7/1/09
For Lee: Robert E. Haney
Issue/Holding: Warrantless entry of residence is supported when the State demonstrates both probable cause and exigent circumstances, ¶7. Exigent circumstances include: (1) hot pursuit of suspect; (2) threat to someone’s safety; (3) risk of evidence destruction; and (4) likelihood suspect will flee, ¶9.
The court goes on to collapse the 2nd and 3rd categories of exigencies, in that “a threat to safety also implicates … the destruction of evidence,” ¶10 n. 5. More particularly, the court essentially holds that during a destruction-of-evidence entry the police may conduct a “protective sweep”—activity which is clearly appropriate incident to arrest but unsettled beyond that specific context, see here (scroll down to discussion under State v. Garrett).
Warrantless Entry of Residence – No Exigent Circumstances
State v. Eric Dwayne Rogers, 2008 WI App 176, PFR filed 12/12/08
For Rogers: Mark D. Richards
Issue/Holding: Warrantless entry of Rogers’ home, following seizure of contraband from his car, was unlawful:  
¶19      In this case, the police entered Rogers’ residence after seizing contraband from his car and person and then seeing Rogers’ brother and others at the scene talking on their phones. This triggered the officers’ entry into Rogers’ residence, upon the silence of Rogers’ elderly mother, and their protective sweep of the residence. The officers did not find or seize any contraband during their protective sweep. Still, they remained in the residence for two more hours, monitoring the inhabitants’ movements, but not otherwise searching the residence. Then, after the warrant arrived, the officers searched Rogers’ residence and seized contraband.

¶20      We hold that the initial entry and protective sweep of Rogers’ residence was an unlawful, warrantless entry because no exigent circumstances were present.[5] The officers’ hunch, after seeing Rogers’ brother and others on their cell phones, that someone would destroy evidence at Rogers’ residence was just that—a guess that someone might be calling Rogers’ home. The officers actually had no idea who Rogers’ brother or the other persons were calling, and probably to this day, do not know for sure who they were calling. Nonetheless, the officers figured that one of them might be calling the residence, that more drugs might be located in that residence and that they better get over to the residence and secure it before the drugs disappeared. This is not enough information to qualify as exigent circumstances. To constitute exigent circumstances, the officers would have needed knowledge that someone would in fact destroy evidence at a specific place. They would have had to actually overhear one of those phone calls, and hear that one or more of them was attempting to get to Rogers’ residence before the police or was directing someone to destroy evidence at that residence. Entering Rogers’ residence based on just that guess, after confronting an elderly woman who needs oxygen and uses a walker, and seeing no other person in the residence, was not warranted. The officers could have used a less intrusive method by controlling who entered and exited the residence without actually entering and remaining in the residence. See Illinois v. McArthur, 531 U.S. 326, 336 (2001).  

The police, however, didn’t seize anything at this time but, rather, simply stayed in the house for 2 hours while a search warrant was prepared based on information not related to the entry. Ah, you’re probably wondering, just how did they while away the time during this brief sojourn? “The officers proceeded to wait inside the residence and watch their television show for about two hours,” ¶6? Their show? “Cops”? “Dog, The Bounty Hunter”? Wonder why the court left us guessing. Was it a premium channel? We’ll never know. In any event, seizure of evidence during execution of that warrant was, the court separately holds, sufficiently disconnected from the illegal entry to be admissible.
Warrantless Entry of Residence – Generally
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: To overcome its presumptive prohibition, warrantless entry of a residence must be supported by both probable cause and exigent circumstances (the latter including hot pursuit, threat to safety, risk of destroyed evidence, and likelihood of flight), ¶¶10-13.
Exigency -- In General
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/Holding:
¶25 In Smith, we recognized four circumstances which, when measured against the time needed to obtain a warrant, constitute the exigent circumstances required for a warrantless entry. Id. at 229. Those circumstances are (1) an arrest made in "hot pursuit," (2) a threat to safety of a suspect or others, (3) a risk that evidence will be destroyed, and (4) a likelihood that the suspect will flee. Id.
For foreign authority to like effect, see U.S. v. Williams, 2003 FED App 0456A, __ F.3d __ (6th Cir., #02-5001, 12/29/03)
Exigent circumstances are situations where "'real immediate and serious consequences'" will "certainly occur" if a police officer postpones action to obtain a warrant." Ewolski, 287 F.3d at 501 .... "The government bears the burden of proving [that] exigent circumstances existed." Bates, 84 F.3d at 794. This Court has explained that the following situations may give rise to exigent circumstances: "(1) hot pursuit of a fleeing felon; (2) imminent destruction of evidence; (3) the need to prevent a suspect's escape; and (4) a risk of danger to the police or others." United States v. Johnson, 22 F.3d 674, 680 (6th Cir. 1994) (internal citations omitted); see Minnesota v. Olsen, 495 U.S. 91, 100 (1990).
(Court, incdentally, goes on to hold, on facts of the case, that danger of water leak, and consequent property damage, couldn't support exigent warrantless entry of house upon landlord's complaint.)

Exigency -- Automobile

Exigency -- Automobile Exception to Warrant Requirement -- Probable Cause, Based on Anonymous Tip
State v. Tabitha A. Sherry, 2004 WI App 207, PFR filed 11/19/04
For Sherry: Craig R. Day
Issue/Holding:
¶15 Sherry next argues that, regardless whether the officer legally stopped her car, the subsequent warrantless non-consent search of her car was illegal. An automobile may be searched without a warrant if there is probable cause to search the vehicle and the vehicle is readily mobile. State v. Marquardt, 2001 WI App 219, ¶¶31-32, 247 Wis. 2d 765, 635 N.W.2d 188. Sherry does not dispute that her car was readily mobile. Rather, she contends the officer lacked probable cause. We disagree.

¶17. As in Gates, here we address the existence of probable cause in the context of information provided by an anonymous tipster. Thus, we look to Gates for guidance.

¶19. A recognized "indicia of reliability" of an anonymous tip is police corroboration of details, particularly details involving predicted behavior. …

¶20. Finally, probable cause may exist even if the predicted behavior corroborated by the police is, when viewed in isolation, innocent behavior.

¶23. We conclude that the information provided by the anonymous caller, and corroboration of several details by the police officer, demonstrate that a reasonable police officer could believe that the anonymous caller was a person familiar with Sherry's activities. The caller accurately predicted that Sherry would soon be traveling in her car with a man named Ryan Saint from Readstown toward Soldiers Grove. The caller not only predicted that Ryan Saint might be present in the car, but that, if he was, he would be driving Sherry's car. This predictive information indicates that the caller was a person with knowledge of Sherry, her activities, and her plans. The information was sufficient for an officer, applying the common-sense probable cause standard, to believe there was a fair probability that Sherry was transporting marijuana in her car.

Amidst this talk about predictions and corroboration you’d be forgiven for overlooking the tip’s fundamental premise, that “a large amount of marijuana” was being transported, and that the search yielded all of “about 170 grams,” ¶3. “About 170 grams”: now, isn’t that much more impressive-sounding than “about 6 ounces,” the equivalent? More interestingly, what was the purpose of the reasonable suspicion discussion? If the police had probable cause to search the car, then they obviously – on the same facts – had cause to stop it.
Exigency -- Automobile Exception to Warrant Requirement -- Probable Cause Required
State v. Timothy T. Clark
, 2003 WI App 121
For Clark: Rodney Cubbie
Issue/Holding: Although warrantless automobile searches aren't presumptively unreasonable, the automobile exception to the warrant requirement is inapplicable in the absence of probable cause to search the automobile. ¶18.
Exigency -- Automobile Exception to Warrant Requirement
State v. Bill Paul Marquardt , 2001 WI App 219, PFR filed 9/20/01
For Marquardt: James B. Connell
Issue: Whether the automobile exception allowed the warrantless search of defendant's car.
Holding: A warrantless search of a vehicle requires two showings: probable cause; and "ready" mobility of vehicle. ¶¶31-32. Because the defendant did not contest probable cause until his reply brief, that issue is taken as conceded. ¶39. Because the car was indisputably in working order, its mobility is established. (That defendant was under arrest affected only the car's accessibility to him, and not its mobility.) ¶¶40-43. Nor does it matter that the car was in a private driveway: the Wisconsin Constitution doesn't limit the automobile exception to public places. ¶¶43-49.
Exigency - Automobile Exception to Warrant Requirement - Probable Cause, Dog Sniff
State v. Tina M. Miller, 2002 WI App 150, PFR filed 6/3/03
For Miller: Timothy A. Provis
Issue/Holding: Based on evidence that the dog had been trained in drug detection, the police had probable cause to search the automobile once the dog alerted them, including probable cause to search a purse within the car. ¶¶12-15
But, keep in mind this potentially important limitation:
Although a drug’s odor detected by a dog alerting on a vehicle provides probable cause to believe that the drug is present and authorizes the search of the vehicle, the mere existence of the drug in an automobile does not of itself authorize the police either to search any other place or provide probable cause to arrest any person in the vicinity. Humphries, 372 F.3d at 659. Probable cause to believe that drugs are located in an automobile may not automatically constitute probable cause to arrest all persons located in the vehicle; some additional factors would generally have to be present, indicating to the officer that those persons possessed the contraband. Id. It has been noted that a dog has the ability to detect very small traces of odors but the existence of a drug’s odor at an intensity detectable by the dog does not definitely establish that the drug itself is present. Matheson v. State, 870 So. 2d 8, 13 (Fla. Dist. Ct. App. 2003). Thus, the dog’s superior ability to detect odors is both a strength and weakness as to establishing probable cause. 3 Id.
State v. Gibson, 141 Idaho 277, 108 P.3d 424 (no link available). (Incidentally, the footnote, which is not reproduced here, contains useful cites relating to "conditioning and certification programs for drug-detection dogs."). See also State v. Barbee, 2008-Ohio-3587, ¶20 (to effect that court may find dog reliable from training and certification alone); U.S. v. Nelson, 11th Cir No. 08-12930, 2/4/09 (discussion re: training). It should follow that documentation of a dog's erroneous hits are highly relevant on the question of reliability, an idea embodied by Commonwealth v. Ramos, 894 N.E.2d 611 (Mass App 10/7/08) (false positives militate against PC).

As for the idea that drug odor emanating from car not only establishes probable cause to search, but also basis for intrusive search including air bag compartment, see State v. Harding, Md. App. No. 637, 12/7/05, and cites therein; 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).

Exigency -- Automobile Exception to Warrant Requirement
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.
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. ¶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. In what is surely dicta (though not acknowledged as such), the court 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 duffelbag "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, citing State v. Fry, 131 Wis. 2d 153, 388 N.W.2d 565 (1986), and State v. King, 142 Wis. 2d 207, 418 N.W.2d 11 (Ct. App. 1987), for the idea that mere civil infraction supports full-blown arrest.

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). See also U.S. v. Choudry, 9th Cir No. 05-10810, 8/25/06 (principle that traffic violation alone supports reasonable suspicion to stop extended to mere parking violations enacted under civil-adminstrative enforcement scheme).

Pallone certainly illustrates the general principle that the automobile exception applies to containers within the vehicle, but the exception is not withoutlimits: "personal searches of vehicle occupants are not authorized under the automobile exception as a result of the occupant’s mere presence within a vehicle, which there is probable cause to search," State v. Gibson, 141 Idaho 277, 108 P.3d 424 (no link available) (refusing to allow search of occupant -- his wallet, in particular -- under automobile exception).

Exigency -- Automobile Exception to Warrant Requirement -- Probable Cause: White Powder
State v. Timothy R. Stankus, 220 Wis. 2d 232, 582 N.W.2d 468 (Ct. App. 1998)
For Stankus: Steven J. Watson
Issue/Holding: Though the officer had never touched cocaine before, his discovery of a white, flour-like susbtance in clear plastic bags under the seat supported probable cause. And, because he therefore had probable cause to believe the vehicle contained evidence of a crime, he was entitled to search every part of it, including the trunk, without a warrant.

Exigency -- Blood Alcohol

Exigency -- OWI Investigation, Entry of Home
State v. James L. Larson, 2003 WI App 150
For Larson: Rex Anderegg
Issue/Holding: Exigent circumstances weren't present to justify police entry of a residence to arrest a suspected drunk driver, Welsh v. Wisconsin, 466 U.S. 740 (1984) controlling. ¶¶17-22.
Exigency -- Blood Alcohol
State v. Jacob J. Faust, 2004 WI 99, reversing 2004 WI App 243, 267 Wis. 2d 783, 672 N.W.2d 97
For Faust: Stephen M. Seymour
Issue: “(W)hether, under the Fourth Amendment to the United States Constitution and Article I, Section 11 of the Wisconsin Constitution, exigent circumstances exist for a nonconsensual warrantless blood draw after the police have obtained what the arresting officer believes to be a voluntary, satisfactory, and useable chemical breath test indicating that the individual arrested was operating a motor vehicle with a prohibited level of alcohol concentration.” (¶2)>
Holding:
¶16 In Bohling … We determined that the more reasonable interpretation of Schmerber was the former one: that exigent circumstances exist "based solely on the fact that alcohol rapidly dissipates in the bloodstream." Id. at 539.7 In other words, we determined in Bohling that Schmerber stands for the proposition that the fact that alcohol rapidly dissipates in the bloodstream justifies an officer's belief that he is faced with "an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threaten[s] 'the destruction of evidence[.]'" Schmerber, 384 U.S. at 770 (citation omitted).

¶18. Therefore, we concluded that exigent circumstances exist based solely on the rapid dissipation of alcohol from a person's bloodstream, such that a warrantless blood sample could lawfully be taken 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.
Bohling, 173 Wis. 2d at 533-34.

¶19. In Krajewski, we determined that the exigency justifying a warrantless blood draw--the fact that evidence is likely to be destroyed--does not disappear "as soon as a person agrees to submit to a breath test as opposed to a blood test." Krajewski, 255 Wis. 2d 98, ¶36. …

¶22. The fact that the police have obtained a presumably valid chemical sample of the defendant's breath indicating the defendant's level of intoxication does not change the fact that the alcohol continues to dissipate from the defendant's bloodstream….

¶23. Thus, we conclude, based on the rationale of Bohling and Krajewski, that the presence of one presumptively valid chemical sample of the defendant's breath does not extinguish the exigent circumstances justifying a warrantless blood draw. "[T]he relevant basis for exigency here is that evidence is likely to be destroyed." Krajewski, 255 Wis. 2d 98, ¶36. Regardless of whether the police had obtained a breath sample from Faust, the evidence of intoxication revealed by the blood test was on a course towards destruction. The nature of the evidence sought, not the existence of other evidence, determines the exigency. We have found no authority that stands for the proposition that the police are limited to obtaining only a single piece of evidence under the exigent circumstances doctrine.9

The court goes on to say that “reasonableness” also operates to limit police activity, in other words that the “holding does not mean that the police have carte blanche to take an unlimited number of tests as long as alcohol continues to dissipate from the bloodstream.” ¶31. However, the court declines to “determine the outer boundaries of the exigent circumstances exception to the warrant requirement and draw a bright line in order to answer questions such as whether the police may constitutionally take multiple blood tests or a combination of chemical breath samples, urine tests, and blood tests all without a warrant, for these are not the facts before us.” Id.
¶33 … Here, the police obtained a chemical breath sample, the testing of which indicted that Faust possessed an alcohol concentration of 0.09. As noted supra, while the police were made aware after this test was performed that Faust had incurred two previous alcohol-related driving convictions, they could not know whether one or both of these convictions would ultimately be admitted at trial. If either of them were ultimately determined to be inadmissible, the State would be required to prove that Faust was operating his vehicle with an alcohol concentration of 0.1 or higher. See Wis. Stat. § 885.235(1g)(c). The preliminary breath test that indicated Faust possessed an alcohol concentration of 0.13 would not have been admissible for this purpose. Wis. Stat. § 343.303. Additionally, the police had no way of knowing at the time the test was administered whether the chemical analysis of Faust's breath sample would be useable at trial. Given the strong state interest in removing drunk drivers from Wisconsin's roadways (especially reoffending drunk drivers), Faust's two apparent drunk driving related convictions, and the results of the initial chemical breath test, we cannot say that requiring Faust to submit to a single warrantless blood draw was unreasonable.16
Exigency -- Blood Alcohol -- Probable Cause as Substitute for Actual Arrest
State v. Cara A. Erickson, 2003 WI App 43, PFR filed arrest.
Issue: Whether a warrantless draw of blood satisfies State v. Bohling, 173 Wis. 2d 529, 533- 34, 494 N.W.2d 399 (1993) where there is probable cause but not an actual arrest.
Holding:
¶12. .. (I)n the absence of an arrest, probable cause to believe blood currently contains evidence of a drunk-driving-related violation or crime satisfies the first prong of Bohling. Furthermore, this same probable cause necessarily satisfies the second prong of Bohling, that "there is a clear indication that the blood draw will produce evidence of intoxication," Bohling, 173 Wis. 2d at 534, because the probable cause standard used in Bentley is more demanding than the "clear indication" standard. See State v. Seibel, 163 Wis. 2d 164, 173, 471 N.W.2d 226 (1991) ("clear indication" is the equivalent of "reasonable suspicion").
(State v. Bentley, 92 Wis. 2d 860, 286 N.W.2d 153 (Ct. App. 1979) (probable cause to arrest substitutes for the predicate act of lawful arrest) followed; State v. Swanson, 164 Wis. 2d 437, 449-50, 475 N.W.2d 148 (1991),distinguished: "Swanson does not address the situation before this court in Bentley, the admissibility of evidence resulting from a search based on probable cause that evidence will be found and exigent circumstances. Thus, Swanson did not overrule Bentley." ¶10. The quoted sentence is awkwardly worded, but the import is plain nonetheless; it's exigent circumstances that take you out of Swanson, and dissipation of blood alcohol is certainly an exigency. So, the formulation should be, Probable cause to arrest and probable cause to believe an exigency is present substitute for formal arrest.)
Exigency -- Blood Alcohol -- Reasonableness of Procedure
State v. James S. Riedel, 2003 WI App 18, PFR filed 1/27/03
For Riedel: Ralph A. Kalal
Issue/Holding: Police not required to obtain warrant in order to test blood seized pursuant to Implied Consent Law; State v. VanLaarhoven, 2001 WI App 275 extended (VanLaarhoven consented to initial seizure, Riedel didn't). ¶¶11-16.
Exigency -- Blood Alcohol -- Reasonableness of Procedure
State v. Dennis L. Daggett, 2002 WI App 32, PFR filed 1/10/02
For Daggett: Julie A. Smith
Issue: Whether a warrantless draw of blood, following OWI arrest, is necessarily unreasonable if performed at the jail rather than hospital.
Holding: There is no bright-line rule that a blood draw must be made in a hospital setting to be constitutionally reasonable. Instead, there is "a spectrum of reasonableness": blood withdrawn by a medical professional in a medical setting is generally reasonable; blood withdrawn by a non-professional in a non-medical setting is problematic. ¶¶14-15. Here, the procedure was performed by a doctor and there was no evidence that the procedure fell outside norms: "In the absence of any evidence to the contrary, it is unreasonable to conclude that a medical professional authorized to draw blood under Wis. Stat. § 343.305(5)(b) would perform his or her duties in a manner that would endanger the health of the blood donor." ¶17. Nor is there any evidence that the jail, though non-sterile, posed any risk. ¶18. The blood test result is therefore admissible.
Exigency -- Blood Alcohol
State v. Paul J. VanLaarhoven, 2001 WI App 275
For VanLaarhoven: Michele Anne Tjader
Issue: Whether a blood sample, properly obtained under the Implied Consent law, may be analyzed without a warrant.
Holding: The Implied Consent law requires that all who apply for a driver's license consent not only to provide a sample, but also a chemical analysis of the sample. ¶¶7-8. More broadly: "the examination of evidence seized pursuant to the warrant requirement or an exception to the warrant requirement is an essential part of the seizure and does not require a judicially authorized warrant." ¶16. Thus, "law enforcement was permitted to conduct an analysis of VanLaarhoven's blood to determine if it contained evidence of a blood alcohol concentration in excess of the legal limit." ¶17.
Exigency -- Blood Alcohol
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, ¶10:
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).
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).

Exigency -- Cell Phone

Detention of Personal Property of Suspect not in Custody: Probable Cause + Exigency – Cell Phone Displaying Evidence of Drug Trafficking
State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding: Continued possession of Carroll’s cell phone justified, though Carroll not in custody. Expectation of privacy in cell phone analogous to that attending “closed container” such as luggage, as to which detention of container must be supported by probable cause to believe it contains evidence of crime and by exigent circumstances, ¶¶25-27.
¶29      Here, Belsha legally viewed the marijuana image; we consider that fact along with his testimony that he knew, based on his training and experience, that drug traffickers frequently personalize their cell phones with images of themselves with items acquired through drug activity. Furthermore, it is those personalized cell phones on which drug traffickers commonly make many of their transactions. Carroll did not introduce evidence suggesting that Belsha's testimony in that regard was inaccurate or not credible, and we see no reason to discount it. We are satisfied, under all of the circumstances here, that that information, taken as a whole, gave Belsha probable cause to believe that the phone contained evidence of illegal drug activity.

¶32      Given that Belsha had probable cause to believe that a search of the phone would produce evidence of illegal drug activity, his continued possession of the phone while he sought a warrant was permissible. The same reasons that permitted Belsha to seize the phone in the first instance permitted him to continue to possess it in the short time after Carroll was secured. Exigent circumstances further justify that continued possession. Had Belsha returned the phone to Carroll and released him, Carroll could have deleted incriminating images and data, such as phone numbers and calling records stored in the phone. Hence, Belsha's continued possession of the phone was permissible.

Exigency – Browsing through Image Gallery of Lawfully Cell Phone Unsupported
State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding: Exigent circumstances did not support browsing through image gallery of lawfully seized cell phone:  “That data was not in immediate danger of disappearing before Belsha could obtain a warrant,” ¶33.
The court of appeals had merely assumed that such browsing was improper on the facts, but the supreme court now distinctly holds “that that search was indeed improper and that the evidence obtained from that search at that time was tainted,” ¶33.
Exigency – Answering Incoming Call, Lawfully Seized Cell Phone Image Supported
State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding: Answering call on lawfully seized cell phone proper, given existence of “probable cause to believe that the cell phone was a tool used in drug trafficking,” plus exigent circumstances (danger of evidence destruction), ¶¶35-42.
Probable cause, of course, is typically fact-specific and in that sense the court’s discussion (¶¶25-29) is mundane. The impact of this case will be felt relative to exigent circumstances: the court’s analytical approach applies at a fairly high level of generality, not merely to other sorts of electronic devices such as pagers, ¶36 (though the court does caution that “cell phones and pagers are not interchangeable,” ¶38), but more importantly to devices seized outside of the arrest context, ¶35 n. 7. In other words, the result is not dependent on a search-incident rationale.
¶41      The consistent approach taken in these cases is that the courts scrutinized the nature of the evidence obtained, i.e., numeric codes on a pager, stored text messages, and incoming phone calls, and balanced that with an inquiry into whether the agent reasonably believed that the situation required a search to avoid lost evidence. Based on that assessment, it appears that the courts then reserved the exigent circumstances exception for searches directed at the type of evidence that is truly in danger of being lost or destroyed if not immediately seized. That approach is consistent with Wisconsin case law addressing exigent circumstances. See Faust, 274 Wis. 2d 183, ¶12 (stating that the rule for determining whether exigent circumstances are present requires an inquiry into whether the officer reasonably believed that the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence).

¶42      Hence, we are satisfied that exigent circumstances justified Belsha's answering Carroll's cell phone. The fleeting nature of a phone call is apparent; if it is not picked up, the opportunity to gather evidence is likely to be lost, as there is no guarantee——or likelihood——that the caller would leave a voice mail or otherwise preserve the evidence. Given these narrow circumstances, Belsha had a reasonable belief that he was in danger of losing potential evidence if he ignored the call. Thus, the evidence obtained as a result of answering that phone call was untainted.


Exigency -- Community Caretaker, etc.

Community Caretaker – Investigation of Stopped Car Late at Night
State v. Lance F. Truax, 2009 WI App 60, PFR filed 5/4/09
For Truax: Kiley Zellner
Issue/Holding: Largely on community caretaker rationale of State v. Todd Lee Kramer, 2009 WI 14, the court upholds seizure of car observed pulling over on the shoulder late at night. The cop didn’t suspect any traffic violation, but simply thought that a driver who’d pulled off the roadway and remained parked for about 15 seconds merited concern for his well-being. Turns out Truax was drunk, though the cop didn’t know as much beforehand and the trial court suppressed evidence of Truax’s intoxication, but the court of appeals reverses, applying the 3-part (with multiple sub-parts) test of State v. Anderson, 142 Wis. 2d 162, 417 N.W.2d 411 (Ct. App. 1987). Roughly: Truax was seized when the cop activated his lights, ¶11; objective basis for “bona fide” community caretaker activity was supported by “Truax’s abrupt departure from the roadway” thereby prompting concern about a mechanical problem or the driver’s well-being, ¶16; the time (post-midnight) and place (unpaved shoulder of the road) “increased the need for safety precautions,” ¶19. And, consideration of the “feasibility and availability of alternatives” weighed in favor of the intrusion:
 ¶21   … Truax argues that Hansen should have observed his vehicle for a longer period of time to determine whether the vehicle had problems or whether the driver was in distress. This argument was rejected in Kramer for good reason. Kramer, 2009 WI 14, ¶45. If the officer had left the vehicle and the driver had stopped abruptly for health reasons, it might have been too late for effective assistance at a later time. See id. Nor does it make sense for an officer to abandon a vehicle that may be experiencing mechanical difficulties, thereby risking the driver exiting the vehicle in the dark and walking along the roadway. See id. The alternatives suggested by Truax would have prevented Hansen from rendering effective aid under the community caretaker function had it been needed. The fourth factor favors a finding of reasonableness, and therefore, the third and final step of Anderson is satisfied.
All in all the result amounts to pretty broad-based authorization for caretaker stops of cars pulled of the road. Indeed, Truax gave no cause for concern other than pulling onto the shoulder. If you put on your hazard lights, as Kramer did, then you’re signaling distress; but, like Truax, failing to do so is an insignificant detail (¶16). Nonetheless, the court marshals time of night, unpaved condition of the shoulder, and “abrupt departure from the roadway” as support, so those are where the points of distinction might be made, if possible.
Community Caretaker – Test – Generally
State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62
For Kramer: Stephen J. Eisenberg, Marsha M. Lysen
Issue/Holding: The 3-factor test for determining validity of community caretaker intervention, as articulated by State v. Anderson, 142 Wis.  2d 162, 167, 417 N.W.2d 411 (Ct. App. 1987), and the lead opinion of State v. Kelsey C.R., 2001 WI 54, is adopted:
¶21      Subsequently, the court of appeals set out a three-step test for evaluating claims of police community caretaker functions in Anderson I, which we conclude provides a satisfactory analysis. Anderson I explained this test:
[W]hen a community caretaker function is asserted as justification for the seizure of a person, the trial court must determine: (1) that a seizure within the meaning of the fourth amendment has occurred; (2) if so, whether the police conduct was bona fide community caretaker activity; and (3) if so, whether the public need and interest outweigh the intrusion upon the privacy of the individual. [8]
Anderson I, 142 Wis.  2d at 169. This three-step test was applied in the lead opinion in Kelsey C.R., 243 Wis.  2d 422, ¶35, and it has been applied in subsequent court of appeals opinions. See, e.g., Ziedonis, 287 Wis.  2d 831, ¶14; State v. Paterson, 220 Wis.  2d 526, 533-34, 583 N.W.2d 190 (Ct. App. 1998).
Footnote 8 is explicit: “… we choose to expressly adopt the lead opinion in Kelsey C.R. and the three-step test Kelsey C.R. employed.”
Community Caretaker – Test – Officer’s Subjective Intent
State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62
For Kramer: Stephen J. Eisenberg, Marsha M. Lysen
Issue/Holding:
¶25      Kramer argues that the "totally divorced" language from Cady means that the officer must have ruled out any possibility of criminal activity before the community caretaker function is bona fide. The State, on the other hand, acknowledges that while the subjective intent of the officer may be relevant, it is not dispositive, constituting merely one factor among many to be considered in the totality of the circumstances. We conclude that the State's view better comports with the requirements of the Fourth Amendment and Article I, Section 11.
The test, the court clarifies, is not always and necessarily wholly objective:
¶27      … That is, when an officer's Fourth Amendment search and seizure conduct is supported by an objectively ascertainable basis for probable cause or reasonable suspicion, the police conduct meets the Fourth Amendment's requirement of reasonableness, thereby causing subjective motivations to be of little concern. However, when a search or seizure is not supported by probable cause or reasonable suspicion and it is contended that the reasonableness of police conduct stands on other footing, an officer's subjective motivation is a factor that may warrant consideration. See 2 Wayne R. Lafave et al., Criminal Procedure § 3.1(d) (3d ed. 2007) (noting that the pretextual, subjective motivations of police officers may be considered when the police conduct takes place in the absence of probable cause) (citing Whren, 517 U.S. at 811); cf 1 Wayne R. Lafave et al., Criminal Procedure § 1.4(f) (3d ed. 2007) (generally criticizing the Whren decision).

¶30      When evaluating whether a community caretaker function is bona fide, we examine the totality of the circumstances as they existed at the time of the police conduct. Cady, 413 U.S. at 440; Kelsey C.R., 243 Wis.  2d 422, ¶37. In so doing, we conclude that the "totally divorced" language from Cady does not mean that if the police officer has any subjective law enforcement concerns, he cannot be engaging in a valid community caretaker function. Rather, we conclude that in a community caretaker context, when under the totality of the circumstances an objectively reasonable basis for the community caretaker function is shown, that determination is not negated by the officer's subjective law enforcement concerns.

¶36      Therefore, we conclude that a court may consider an officer's subjective intent in evaluating whether the officer was acting as a bona fide community caretaker; however, if the court concludes that the officer has articulated an objectively reasonable basis under the totality of the circumstances for the community caretaker function, he has met the standard of acting as a bona fide community caretaker, whose community caretaker function is totally divorced from law enforcement functions. Furthermore, applying an objective standard, while considering subjective concerns, is consistent with our past jurisprudence in determining the reasonableness of an officer's actions in regard to a protective frisk for weapons:

The officer's [subjective] fear or belief . . . is but one factor in the totality of the circumstances that a court may consider in determining whether an [officer's conduct was objectively reasonable].
State v. Kyles, 2004 WI 15, ¶39, 269 Wis.  2d 1, 675 N.W.2d 449. [9] We now consider whether Wagner conducted a bona fide community caretaker function in this case.
Community Caretaker – Investigation of Stopped Car with Hazard Lights on
State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62
For Kramer: Stephen J. Eisenberg, Marsha M. Lysen
Issue/Holding:
¶37      We conclude that Wagner had an objectively reasonable basis for deciding that a motorist may have been in need of assistance when he stopped behind Kramer's vehicle. Kramer was parked on the side of a highway after dark with his hazard flashers operating. It was Wagner's experience that when a vehicle is parked on the side of the road with its hazard flashers operating, typically there is a vehicle problem. His first contact with Kramer was to offer assistance. He said, "Hi. Can I help you with something?" and "Just making sure no vehicle problems."

¶38      Wagner also acknowledged that he did not know what was going on inside the vehicle, or whether there was a driver present. He approached the vehicle with caution, but to do so was standard police procedure, designed to protect an officer who was entering upon an unknown situation. It was only after Kramer spoke that Wagner's concern shifted from his community caretaker function to a law enforcement function.

The court then employs the community caretaker “balancing test” (public interest vs. individual’s liberty), comprised of four factors, and concludes that it favors the caretaker function on the particular facts, ¶¶40-46 (largely turning on the idea that the interaction involved a potentially stranded motorist).
Emergency Exception to Warrant Requirement -- Kidnapping: Heightened Need to Search for Children
State v. David M. Larsen, 2007 WI App 147, PFR filed 5/31/07
For Larsen: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶20 Larsen first contends that because the officers had already conducted a thorough search of the home, they had no reason to believe that there was anyone inside in need of immediate assistance. We disagree.

¶21 When the officers and emergency personnel conducted the first search, they knew only that a woman at the residence who was having difficulty breathing had called 911. This search lasted only fifteen to twenty minutes and ended when the police did not locate the caller. The additional information received after the entry heightened the emergency and revealed the involvement of children. … It was entirely reasonable for the police to conclude from this information that the children were not with Jendusa-Nicolai and Larsen, that they may have been left behind somewhere in the residence and that their lives were in danger. These changed circumstances therefore reasonably demanded a different and more thorough search of the residence, this time for small children who potentially needed immediate aid.

Emergency Exception to Warrant Requirement -- Kidnapping: Search for Evidence Leading to Victim’s Location
State v. David M. Larsen, 2007 WI App 147, PFR filed 5/31/07
For Larsen: Jefren E. Olsen, SPD, Madison Appellate
Issue: Whether the emergency doctrine supports warrantless entry of a residence not merely to look for the victim but also to search for evidence that would lead to her location.
Holding:
¶22 Larsen next contends that even if the emergency doctrine justified a search for the children, the officers exceed the scope of a permissible emergency doctrine search when they searched the residence for information on the whereabouts of Jendusa-Nicolai and her two children. We are not aware of any Wisconsin case addressing the question Larsen presents—whether the emergency exception to the warrant requirement permits not only a search for the kidnap victim, but also for evidence that might lead to his or her location. Courts in other jurisdictions have considered this very issue and have approved warrantless searches of premises for evidence of the whereabouts of a kidnap victim who was reasonably believed by the police to be in imminent danger of harm.

¶27 We find these cases persuasive. The very nature of kidnapping investigations present “unusually compelling circumstances for emergency analysis…. The life, freedom and future of a human being [are] at stake. The victim, even if presently being adequately cared for and safe, could at any moment be harmed or be absconded to a point beyond discovery.” Oliver v. United States, 656 A.2d 1159, 1167 (D.C. 1995). Thus, it only makes sense that if it is permissible “to enter premises to rescue a threatened kidnap victim thought to be within, then surely it must likewise be permissible to make an immediate warrantless entry upon a reasonable belief that information therein will disclose where that victim is being held.” 3 Wayne R. LaFave, Search and Seizure § 6.5(d) (4th ed. 2004). Accordingly, we hold that the emergency doctrine permits officers investigating a kidnapping case to conduct a warrantless search if the officers possess an objectively reasonable belief that the particular search will result in finding the victim or evidence leading to the victim’s location.

The emergency didn’t end until the victim and her children were found, ¶30: “Further, it would have been unreasonable for the officers to cease their emergency efforts to locate the three potential kidnap victims in order to obtain a warrant. As noted, a kidnap victim is placed in continuing danger of harm at the hands of his or her captor. … Police need not delay rescue, where as here, they reasonably believe that a kidnap victim is being held and a search of the premises will lead to the victim or to information about the victim’s whereabouts.”
Community Caretaker Exception to Warrant Requirement – Generally
State v. George Toland Ziedonis, 2005 WI App 249
For Ziedonis: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶14      One such exception is the community caretaker function, which arises when the actions of the police are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” State v. Anderson, 142 Wis. 2d 162, 166, 417 N.W.2d 411 (Ct. App. 1987), rev’d on other grounds, 155 Wis. 2d 77, 454 N.W.2d 763 (1990) (citing Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). To determine whether a particular activity qualifies under the community caretaker exception, the following three-step test must be used: (1) whether a search or seizure, within the meaning of the Fourth Amendment, has taken place; (2) if the Fourth Amendment is implicated, whether “the police conduct was bona fide community caretaker activity;” and (3) if the conduct was bona fide community caretaker activity, “whether the public need and interest outweigh the intrusion upon the privacy of the individual.” Id. at 169. In evaluating the third factor, the following four considerations should be taken into account: “(1) the degree of public interest and exigency of the situation; (2) the attendant circumstances surrounding the seizure, including time, location and degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished.” Id. at 169-70.

¶15      The State bears the burden of proving that the community caretaker exception applies. See Boggess, 115 Wis. 2d at 449. This court has cautioned against taking a too-narrow view in determining whether the community caretaker function is present ….

Community Caretaker Exception to Warrant Requirement – Entry of Residence to Check on Occupant
State v. George Toland Ziedonis, 2005 WI App 249
For Ziedonis: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: Police, responding to a “loose animal” complaint became sufficiently alarmed by the possibility the dogs’ owner was in need of assistance that their warrantless entry was justified under the community caretaker doctrine:
¶27      Like in Ferguson, the police “utilized alternative methods of confirming whether anyone was in the [residence] before entering.” 244 Wis. 2d 17, ¶21. In fact, it appears as though the officers did everything they could to avoid entering the house. …

¶28      Regarding the amount of time that passed, much like Ferguson, where police waited for approximately half an hour before entering, the police here too gave Ziedonis more than enough time, indeed as much as an hour-and-a-half, to appear before entering. See 244 Wis. 2d 17, ¶5. Conversely, in Paterson, the officers appeared to have entered after finding out that there was no answer to a phone call.  See 220 Wis. 2d at 530.

¶29      Most importantly, … it was reasonable for the officers to conclude that there was a serious concern for the safety of the person inside. The officers’ observation that the back door to the residence was open at 2:00 a.m. clearly concerned them and made them feel as though there could be something wrong with the person inside. Not only did the officers face a situation where they had received no response from the occupant, even though they had reason to believe someone was present, and despite all of their attempts, the events also transpired in the early morning hours, in a high-crime area, by a residence where a door was open and the lights were on, and where the occupant’s dogs were running loose in the neighborhood. The situation was hence decidedly different from Paterson where the incident took place in the afternoon, in an area not considered high-crime, and where the only indication that something could be wrong was a vague phone call from a neighbor. See 220 Wis. 2d at 529. Adding to the inapplicability of Paterson, as the State points out, in Paterson the suspicion that a burglary was in progress implied only a concern for the property inside, whereas here the concern was about the physical well-being of the occupant. See id. at 530.

Exigency: "Safety Exception"
State v. Robert A. Ragsdale, 2004 WI App 178, PFR filed 8/5/04
For Ragsdale: Timothy T. Kay
Issue/Holding:
¶14. Moreover, the questioning of the boy here presents a situation analogous to the safety exceptions set forth in New York v. Quarles, 467 U.S. 649, 654-60 (1984), and its progeny. Quarles set forth a public safety exception to the requirement for Miranda warnings. Id. The Supreme Court held that police were not required to give Miranda warnings to a person whom they reasonably suspect may have access to a weapon before they ask questions designed to locate the weapon and neutralize its danger. Id. at 657. Wisconsin extended the exception to include both a private safety situation and the safety of the police. See State v. Kunkel, 137 Wis. 2d 172, 189, 404 N.W.2d 69 (Ct. App. 1987) ("rescue doctrine"); State v. Camacho, 170 Wis. 2d 53, 72, 487 N.W.2d 67 (Ct. App. 1992) (Quarles exception applies to safety of police involved), rev'd on other grounds, 176 Wis. 2d 860, 501 N.W.2d 380 (1993). The public policy supporting the safety exceptions rests in the logic that the need to protect life and neutralize volatile situations outweighs the need for the Miranda rules. Camacho, 170 Wis. 2d at 71-72.

¶15. Although the instant case does not involve a Miranda challenge, the reasoning underlying the exception still applies. Like Quarles, where the suspect hid the gun, the police here were confronted with a situation where, moments before they arrived, Ragsdale had pointed a shotgun at his neighbor threatening to shoot. They were told by the victim that Ragsdale was in his home, probably trying to hide the gun. When the police went to question Ragsdale, they discovered the young child. Thus, they conducted a search and investigation to determine whether a weapon was present. These circumstances clearly present a public and private safety concern-both for the safety of the victim neighbor and the minor child. It was not unreasonable or improper for Stein to ask the child if there were any guns in the house. This questioning did not constitute a search, did not exceed the scope of Ragsdale's consent, and did not constitute coercion, deceit or trickery.

“Thus, they conducted a search and investigation to determine whether a weapon was present. … This questioning did not constitute a search[.]” Was or wasn’t the gun seized as product of a “search"? Can't tell. Nor does it seem wise, or necessary, to begin importing Miranda exceptions into fourth amendment analysis. We’re running into enough definitional problems in this area as it is, without throwing more hair-splitting doctrines into the mix. Couldn’t the court have just said “community caretaker,” and let it go at that?
Emergency Exception to Warrant Requirement -- Officer's Subjective Intent
State v. Walter Leutenegger, 2004 WI App 127
For Leutenegger: Bill Ginsberg
Issue/Holding:
¶12. A warrantless home entry is presumptively unreasonable under the Fourth Amendment. Richter, 235 Wis. 2d 524, ¶28. The government bears the burden of establishing that a warrantless entry into a home occurred pursuant to a recognized exception to the warrant requirement. See State v. Hughes, 2000 WI 24, ¶17, 233 Wis. 2d 280, 607 N.W.2d 621; State v. Milashoski, 159 Wis. 2d 99, 110-11, 464 N.W.2d 21 (Ct. App. 1990). "[W]e weigh the urgency of the officer's need to enter against the time needed to obtain a warrant." Richter, 235 Wis. 2d 524, ¶28.

¶13. Whether a warrantless entry into a home is justified by the exigent circumstances exception is a mixed question of fact and law. Id., ¶26. A circuit court's findings of evidentiary or historical fact will not be overturned unless they are clearly erroneous. Id. This court independently determines whether facts establish exigent circumstances sufficient to justify a warrantless entry. Id.

¶14. If we stopped our legal discussion here, a reader might erroneously conclude that an officer's subjective belief regarding exigency is irrelevant. However, our supreme court recently held, in the Fourth Amendment context, that evidence of an officer's subjective belief is admissible because such evidence may assist a court in analyzing whether facts known to an officer meet the objective standard. State v. Kyles, 2004 WI 15, ¶39, 269 Wis. 2d 1, 675 N.W.2d 449. We perceive no reason why this rule should not apply to a court's determination of whether exigent circumstances justify a warrantless entry.

¶19. To summarize, whether a warrantless home entry is justified based on the need to render assistance or prevent harm is judged by an objective test. "The test is '[w] hether a police officer under the circumstances known to the officer at the time [of entry] reasonably believes that delay in procuring a warrant would gravely endanger life ....'" Richter, 235 Wis. 2d 524, ¶30 (quoting Smith, 131 Wis. 2d at 230). In addition to the circumstances known to police at the time of entry, a court may consider the subjective beliefs of police officers involved, but only insofar as such evidence assists the court in determining objective reasonableness. See Kyles, 269 Wis. 2d 1, ¶¶23, 37, 39.

Similar, detailed discussion in Brigham City v. Stuart, 2005 Utah 13 --
¶29 The primary rationale for permitting police officers greater latitude in justifying an exigent circumstances intrusion than an emergency aid intrusion flows from the different role assumed by officers acting in the face of exigent circumstances. Officers who act in the face of exigent circumstances are pursuing a law enforcement mission, not acting as caretakers....

¶31 ... The degree of potential harm to an officer that is necessary to create an exigent circumstance is minimal, reflecting the high value we place on the security of peace officers. ...

¶33 ... Consequently, the difference between the quantum of harm necessary to invoke the emergency aid and exigent circumstances doctrines is greatest when probable cause is present and a law enforcement officer is exposed to risk, but is of lesser magnitude when the threat of harm is to the inhabitant of the dwelling.

-- but the subsequent reversal in Brigham City v. Stuart, USSC No. 05-502, 5/22/06, eviscerates the distinction:
Our cases have repeatedly rejected this approach. An action is “reasonable” under the Fourth Amendment, regardless of the individual officer’s state of mind .... The officer’s subjective motivation is irrelevant. ... It therefore does not matter here—even if their subjective motives could be so neatly unraveled—whether the officers entered the kitchen to arrest respondents and gather evidence against them or to assist the injured and prevent further violence.
Also see, e.g., U.S. v. Snipe, 9th Cir No. 06-30215, 1/28/08.

Note, however, that Stuart failed to raise a state constitutional claim, an omission which the Utah supreme court noted with regret (¶14). For trends in Wisconsin state constitutional litigation go here. The issue having now been definitively resolved under the fourth amendment, the following discussion relates to a potential state constitutional argument.

For an interesting discussion of the emergency and exigency doctrines, see Kyer v. Commonwealth, Va App No. 2200-03-2, 8/17/04:

In fact, the only true distinction between these two doctrines is whether the search at issue related to a criminal investigation. ... When applied as a “complement” to investigatory functions of the police, the emergency exception becomes subsumed within the doctrine of exigencies and must therefore, satisfy the requirements of warrantless entry under those circumstances. ...

However, when applied independently of police investigatory functions (in the “non-exigent” context), the emergency exception becomes the functional equivalent of that portion of the community caretaker doctrine recognizing that, independent from their duties of investigating crimes, “police owe ‘duties to the public, such as rendering aid to individuals in danger of physical harm, reducing the commission of crimes through patrol and other preventive measures, and providing services on an emergency basis.’” ...

For that reason, this Court has consistently required that any warrantless search, pursuant to either the community caretaker exception or the “non-exigent” form of the emergency exception, be factually unrelated to an intent to search for evidence of illegal activity....

For additional foreign authority distinguishing "exigent circumstances" from "emergency," see State v. Horn, KS SCt No. 90,066, 6/18/04:
As the Jones court further observed: "It is important to keep in mind that reasonable grounds under the emergency doctrine differs from the probable cause required under the more familiar crime-related exigent circumstances exception." 24 Kan. App. 2d at 414. It quoted from State v. Fisher, 141 Ariz. 227, 240-41, 686 P.2d 750, cert. denied 469 U.S. 1066 (1984), regarding this crucial difference:

"'The exigent circumstances exception is triggered when the police, with probable cause but no warrant, enter a dwelling in the reasonable belief that the delay necessary to obtain a warrant threatens the destruction of evidence, [citations omitted], or when they have a reasonable belief that a crime is in progress or has just been committed in a dwelling and the delay attendant to obtaining a warrant endangers the safety or life of a person therein. [Citations omitted.] . . . .

"'Conversely, the emergency aid doctrine is triggered when the police enter a dwelling in the reasonable, good-faith belief that there is someone within in need of immediate aid or assistance. In cases in which this doctrine applies there is no probable cause which would justify issuance of a search warrant, . . . and the police are not entering to arrest, search, or gather evidence.'" (Emphasis added.) 24 Kan. App. 2d at 414.

Exigency distinguished from emergency, in that former relates to need to seize contraband or evidence of crime, and latter to immediate need to protect life or property: U.S. v. Martinez, 9th Cir No. 04-30098, 5/16/05. Lengthy discussion, distinguishing "community caretaker," "emergency," and "exigent circumstances" doctrines, in State v. Ryon, 2005-NMCA-005, ¶¶ 21, et seq.; and, State v. Gill, 2008 ND 152 (warrantless entry of home may not be supported by community caretaker rationale but may be under distinct test of emergency doctrine). The distinctions, of course, may be arbitrary in any given case, and would certainly seem so in Leutenegger’s instance. Did the police enter the garage to prevent harm from Leutenegger? Or to render aid to him? Indeed, the court itself combines the inquiries: "¶4. The question in this case is whether the officer's warrantless entry into Leutenegger's attached garage was lawful because of a possible need to render assistance or prevent harm." It may be that Wisconsin doesn't recognize a distinction between the exigent circumstances and emergency doctrines; but it might be wise to keep it in mind, in terms of developing a state constitutional argument. In any event, Horn requires that under the emergency doctrine the police "must not be primarily motivated by intent to arrest and seize evidence," -- Kyer is to like effect; Ryon, ¶27, says an emergency may coexist with a criminal investigation, but "the motivation ... must be a strong sense of emergency."

This point of potential definitional dispute should not distract from the principle -- not necessarily raised by Leutenegger -- that the State can't avoid the dictates of Terry simply by labelling the police activity as "community caretaking." This point is exemplified under facts somewhat similar to this case (police checking on someone in parked car, apparently unconscious), State v. Boblick, 2004-NMCA-078, ¶11, New Mexico App. No. 23,160, 5/10/04:

More important, regardless of whether the community caretaker doctrine justified the officers' actions beyond the initial contact with Defendant, an officer who acts in the community caretaker capacity is still subject to state and federal constitutional constraints with respect to a weapons frisk because it is distinct from a welfare check. See id. ¶ 10 (drawing the distinction between a community caretaker encounter and an investigatory stop, which is a type of seizure); see also Nemeth, 2001-NMCA-029, ¶ 27 ("[I]t is clear that many community caretaker actions can and do implicate the Fourth Amendment."). In order to subject a citizen to a protective frisk for weapons, the officer "must have a sufficient degree of articulable suspicion that the person being frisked is both armed and presently dangerous." State v. Vandenberg, 2003-NMSC-030, ¶ 22, 134 N.M. 566, 81 P.3d 19 (emphasis added).
Or, for that matter, avoid other requirements simply by refusing to assign the community caretaker label (Leutenegger, ¶10 n.3: "We stress that we do not address the community caretaker doctrine and, therefore, do not address whether the distinctions among the situations discussed in the text matter for purposes of that doctrine"), see discussion below.

Leutenegger goes on to uphold warrantless police entry into a home (more precisely: the attached garage, where the hapless Leutenegger lounged in his car, possibly too drunk to get out and insensible to the officer waiting to pounce; or perhaps afraid to get out because a strange figure was lurking menacingly in the shadows. Who knows?). As with all S & S cases, this one’s fact-specific, and these facts seem to be the most vital:

¶28. … The facts would have led a reasonable officer to conclude that Leutenegger was in his seventies or eighties and highly intoxicated. As the circuit court explained, this age, combined with a high degree of intoxication, would lead a reasonable officer to be concerned about Leutenegger's health.

¶29. The officer also observed that Leutenegger delayed leaving his car for no apparent reason. The officer knew that the citizen had followed Leutenegger to Leutenegger's home and returned a short distance to a main street where the citizen made contact with the officer. After driving a short distance to Leutenegger's house, the officer stood in the street for about a minute. Combining these time periods, it is apparent that, after driving into his garage, Leutenegger sat in his car for at least two to three minutes before the officer entered the garage. This might seem like a short time, unless one looks at a clock, watches two or three minutes go by, and considers the normal time it takes to get out of a car after parking.

¶30. The circuit court credited the officer's testimony that she was subjectively motivated, in part, by a concern for Leutenegger's safety. Part of this testimony provides some assistance. The officer said she was concerned because "[m]ost people when they pull their car into the garage they exit their vehicle and go into their house." The obvious inference is that the officer thought Leutenegger might be experiencing a physical problem related to his intoxication that was preventing him from taking the normal action of exiting his car and entering his home. We agree with the officer that most people exit their cars shortly after parking at their homes. We also assume, as we infer the circuit court assumed, that it appeared to the officer that Leutenegger was simply sitting in the driver's seat, as opposed to moving about gathering items or engaging in some other activity.7 To this extent, the officer's testimony reflects that her subjective belief was based on a common-sense assumption regarding normal human activity. We agree with the circuit court that this circumstance, combined with other information, suggested a current intoxication-related health problem.

The elephant in the room seems to be Welsh v. Wisconsin, 466 U.S. 740 (1984) (warrantless entry of residence to investigate minor offense unjustifiable). But to be fair, it is distinguishable: Welsh had left his car and gone home on foot, so he couldn’t have posed a threat to anyone by the time the police entered his home. Leutenegger by contrast remained a potential imminent threat [at least if you credit the court’s determination [judicial notice?] that an elderly, inscrutable driver who tarries in his car poses an emergency]. If you limit Leutenegger to its facts it might not be so bad, let alone a broad exception to Welsh.
Also see People v. Thompson, Cal. App. 2nd Dist No. B176808, 11/17/04, for suggestion that evidence the suspect is "likely to flee and again drive while intoxicated" supports entry under Welsh, reversed on other grounds, People v. Thompson, Cal No. S130174, 6/1/06. Certainly, Leutenegger's remaining in the car could suggest a flee-and-drive-again justification for warrantless emergency (or is it exigent circumstances?) entry.
Emergency Exception to Warrant Requirement -- Officer's Subjective Intent
State v. David M. Larsen, 2007 WI App 147, PFR filed 5/31/07
For Larsen: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶18 The parties express some confusion over whether an officer’s subjective motivations are relevant in determining whether his or her actions violate the Fourth Amendment in emergency doctrine matters. Recent cases from our supreme court and the United States Supreme Court clarify that whether a warrantless home entry is justified based on the need to render assistance or prevent harm is judged by an objective test. State v. Leutenegger, 2004 WI App 127, ¶19, 275 Wis. 2d 512, 685 N.W.2d 536; Brigham City, Utah v. Stuart, 126 S. Ct. 1943, 1948 (2006).

¶19 In Leutenegger, an “exigent circumstances” case, we formulated the test as “‘[w]hether a police officer under the circumstances known to the officer at the time [of entry] reasonably believes that delay in procuring a warrant would gravely endanger life ….” Leutenegger, 275 Wis. 2d 512, ¶19(citations omitted). Although we also suggested that an officer’s subjective beliefs still may play a role in determining objective reasonableness, id., the United States Supreme Court recently flatly rejected the argument that an officer’s subjective motivations are in any way relevant to the inquiry. Brigham City, 126 S.Ct. at 1948. The objective test alone controls. See id.

All the more reason to recall that in the state court proceedings of Brigham City v. Stuart, 2005 Utah 13, the state court noted with obvious regret the litigant’s failure to raise a state constitutional claim:

 ¶14 The debate over the proper relationship between the Bill of Rights and Declaration of Rights has lain dormant for almost a decade. This lull does not signal resolution of the matter. The mere passage of time and the accumulation of decisions issued by this court on appeals brought solely on Fourth Amendment grounds may, however, ultimately overpower the merits of an independent analysis of search and seizure law under our Declaration of Rights. It would be unfortunate, indeed, if such a de facto abdication of our responsibility as guardians of the individual liberty of our citizens were to occur. Because we are resolute in our refusal to take up constitutional issues which have not been properly preserved, framed and briefed, State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346; State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994), we are once again foreclosed from undertaking a principled exploration of the interplay between federal and state protections of individual rights without the collaboration of the parties to an appeal. This collaborative effort should be renewed.

 

Reported Crime in Progress -- Warrantless Entry
State v. Scott Michael Harwood, 2003 WI App 215
For Harwood: Pat J. Schott, Margaret G. Zickuhr
Issue: Whether warrantless entry was supported by both probable cause and exigent circumstances, as required by State v. Hughes, 2000 WI 24, ¶17, 233 Wis. 2d 280, 607 N.W.2d 621, based upon a tenant's reporting a break-in at another apartment within the complex. Holding1 (probable cause):
¶15. Unlike the officers in Paterson who knew only that the lights in the residence had been turned on and off and nobody was answering the phone, the officers in this case had decidedly more suspicious information. Here, a resident of the apartment complex had reported a burglary in progress based upon his observation of one man boosting another onto the patio of an upper level apartment. The reporting resident did not identify either man as a resident of the apartment complex. When the police encountered Harwood and Van Hoorbeck in the building, Harwood appeared to be nervous and possibly concealing something in Van Hoorbeck's apartment. Although claiming to live in the apartment in question, Harwood could not recall the address of the apartment, could not recall his social security number, could not produce the keys to the apartment that he had just entered to retrieve, and his name did not match the name observed by the officers on the buzzer to the apartment. While a female occupant of Van Hoorbeck's apartment later produced keys and indicated they belonged to Harwood, the officers did not know the female occupant or her relationship to Harwood. Moreover, the female's production of Harwood's keys conflicted with Harwood's statement to the officers that his keys were in his apartment. We conclude that the totality of these observations established a "fair probability" that evidence of a crime would be found in Harwood's apartment. See Hughes, 233 Wis. 2d 280, ¶17 (citing Gates, 462 U.S. at 238).

...

¶18. Harwood also argues that the officers should have attempted to contact his apartment manager or check the license plate registration on his vehicle prior to entering the apartment. In support, Harwood again relies on Paterson, a community caretaker case. One of the factors to be considered in assessing community caretaker activity is the availability and effectiveness of alternatives to intrusion. Paterson, 220 Wis. 2d at 533-34. However, Paterson did not involve a claim of probable cause, which requires a wholly different inquiry-whether there is a "fair probability" that contraband or evidence of a crime will be found in a particular place. Hughes, 233 Wis. 2d 280, ¶17 (citing Gates, 462 U.S. at 238). Here both Glider and Herbst testified that they were concerned with the possibility that a crime could be ongoing in Apartment 206. As discussed above, the facts within the officers' knowledge at the time of the entry supported that determination.

Holding2 (exigent circumstances):
¶24. The facts confronting the police and the police reaction are similar to those of the officers in Richter. Glider received a dispatch to a possible burglary in progress. He arrived at Coachlight Apartments and organized police efforts to secure the building. He immediately entered the building in search of Apartment 206 and the suspect. Although Glider encountered Harwood while attempting to collect information about the suspect, as the State points out, this encounter did nothing to assuage Glider's concerns but rather exacerbated them.

¶25. Harwood argues that the officers could have done more to ascertain his identity prior to entering the apartment. However, this argument overlooks that, at the time, the officers believed that a burglary was possibly in progress and therefore time was of the essence. By definition, exigent circumstances require a prompt response by officers. "[W]e do not apply hindsight to the exigency analysis; we consider only the circumstances known to the officer at the time he [or she] made the entry and evaluate the reasonableness of the officer's action in light of those circumstances." Id., ¶43. That Glider later discovered that Harwood did reside in Apartment 206 does not negate the exigency prior to ascertaining that information

Other courts stress that the general rule is that the police may enter where there is reason to believe a burglary is in progress, e.g., State v. Simmons, n. 7, and cases cited, Mo App. No. 2591, 3/31/05; in other words, "there is a need that will not brook the delay incident to obtaining a warrant," id. And, courts that explicitly recognize the imperatives of timely action nonetheless tend to subject the facts to relatively exacting scrutiny -- e.g., Simmons; State v. Ryon, 2005-NMCA-005, ¶¶40-41 ("Many people purposely leave on a light even when they are away. An open door ought not be viewed as a general invitation to enter."); U.S. v. McClain, 6th Cir No. 04-5887, 12/2/05 (no probable cause where neighbor reported owners had moved out several weeks earlier, and now was light on in house plus police found front door very slightly ajar but no signs of forced entry; court noting: "our precedent has required more—namely, the existence outside the searched premises of some physical signs of a burglary or some direct evidence of a home invasion"); State v. Christenson, 181 Or App 345, 350-52, 45 P3d 511 (2002) (absent indications of forced entry, a medical emergency, or "other signs of trouble," that dogs were running loose, front door was open and house seemed silent did not constitute a "true emergency"). But see U.S. v. Brown, 6th Cir. No. 05-5437, 5/31/06 (responding to activated burglar alarm officer found basement door ajar and was justified in entering; McClain distinguished, under general rule that warrantless entry permissible when police reasonably believe burglary in progress).

Of course, some courts instead may be inclined to give benefit of doubt to the police in ambiguous circumstances, though by definition there must be at least some apparent need for immediate assistance, see, e.g., State v. Torres, Or App No A120024, 8/17/05 ("The circumstances known to the officers suggested that a burglary had just taken place at the house, that an innocent occupant of the house might have been present at the time of the incident, and that such a person might now be in the garage behind a locked door and in need of immediate assistance."), withdrawing earlier opinion in same case, 198 Or App 218, 108 P3d 69 (2005) (which had held that the entry into the locked garage wasn't justified because a police sweep of house following break-in revealed no further danger) -- on reconsideration, the court determined that it had given insufficient deference to a trial court finding that the police heard apparently human noises coming from garage, suggesting that someone was inside.

Compare, State v. Pierce, OR App No. A131475, 3/4/09 ("the crime of disorderly conduct--based merely on people loudly 'having an argument' in the middle of the night--did not" amount to exigency so as to justify warrantless entry).

Reported Crime in Progress -- Warrantless Entry
State v. Jeffrey D. Paterson, 220 Wis. 2d 526, 583 N.W.2d 190 (Ct. App. 1998)
For Paterson: John O. Olson
Issue/Holding: Report of possible break-in did not, under community caretaker doctrine, justify warrantless police entry:
... The neighbor reported that lights were going on and off in the upstairs portion of the residence, consistent with someone moving from room to room. Although perhaps unusual, this activity alone does not suggest criminal activity nor the need for police intrusion to protect the occupant’s property. A more reasonable deduction is that a person legitimately on the premises was simply moving from room to room. The same is true of the unanswered telephone call reported by the neighbor. A person legitimately in the residence may be preoccupied or otherwise simply choose to not answer a call. Or, if a child is home alone, the child may have been instructed to not answer the telephone. In short, the information provided by the neighbor did not present an overly worrisome situation.

In addition, the time of day regarding the incident did not aggravate the situation. The neighbor reported the matter at approximately 5:30 p.m. Although it was dark, this was not a time of the day when a residential burglary would normally occur.

Next, we consider the other facts observed by the police upon their arrival and prior to their entry into the residence. Mehling observed a truck parked in an open garage. ... Even with greater public awareness about crime in these times, we do not deem it remarkable that a person would leave a garage door open or a residential door unlocked.

Community Caretaker -- Automobile Towed for Safekeeping
State v. Timothy T. Clark
, 2003 WI App 121
For Clark: Rodney Cubbie
Issue/Holding: Police tow of an automobile for "safekeeping," even though "none of the typical public safety concerns illustrated by Opperman are at issue," but rather on the ground that the vehicle was unlocked and therefore potentially at risk of theft, was unreasonable because effective alternatives to police seizure were available:
¶21. A three-step test is used to evaluate the reasonableness of such a seizure: "(1) that a seizure within the meaning of the fourth amendment has occurred; (2) if so, whether the police conduct was bona fide community caretaker activity; and (3) if so, whether the public need and interest outweigh the intrusion upon the privacy of the individual." State v. Anderson, 142 Wis. 2d 162, 169, 417 N.W.2d 411 (Ct. App. 1987). With respect to the second step, a bona fide community caretaker activity is one that is divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. See State v. Dull, 211 Wis. 2d 652, 658, 565 N.W.2d 575 (Ct. App. 1997). The third step requires us to consider four additional factors:
1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the seizure, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished.
Anderson, 142 Wis. 2d at 169-70 (footnotes omitted). "Overriding this entire process is the fundamental consideration that any warrantless intrusion must be as limited as is reasonably possible, consistent with the purpose justifying it in the first instance." Id. at 169. ...

¶27. Because Detective McKee neither: (1) locked the vehicle and walked away; nor (2) attempted to contact the owners of the vehicle in light of his belief that the vehicle or its contents may be stolen, we conclude that, absent these safeguards, the public need in towing the unlocked vehicle did not outweigh the intrusion upon Clark's privacy. Furthermore, although an automobile was involved and individuals generally have a lesser expectation of privacy in an automobile, see Anderson, 142 Wis. 2d at 169 n.4, we conclude that Clark's reasonable expectation of privacy included the expectation that he could leave his vehicle parked legally on the street, albeit unlocked, without it being towed. Accordingly, the circuit court erroneously denied Clark's suppression motion.

See also Taylor v. State, Ind SC No. 49S04-0410-CR-457, 2/14/06 (simply because car parked illegally doesn't justify impoundment; must be showing that "vehicle posed some threat or harm to the community or was itself imperiled was consistent with objective standards of sound policing"); Miranda v. City of Cornelius, 9th Cir No. 04-35940, 11/17/05 (impoundment of car from owner's driveway, after officer observed unlicensed driver learning how to drive "was an unreasonable seizure not justified by the community caretaking doctrine because the police have no duty to protect a vehicle parked on the owners’ property and there was no reason to believe that impoundment would prevent any threat to public safety from its unlawful operation beyond the brief period during which the car was impounded").
Community Caretaker -- Juvenile in High-crime Area
State v. Kelsey C.R., 2001 WI 54
For Kelsey C. R.: Susan Alesia, SPD, Madison Appellate
Issue: Whether, if a seizure did occur when the police told a potentially vulnerable juvenile girl in a high crime area to "stay put," it was justified under the community caretaker doctrine.
Holding: (Lead, three-vote opinion:) Given the "strong public interest in locating runaway children and juveniles," along with the perception that "(a) juvenile [such as Kelsey], alone in a dangerous neighborhood, is vulnerable to kidnappers, sexual predators, and other criminals," the minimal police intrusion in this case was a justifiable community caretaker function. ¶¶34-37. (Because the lead opinion has only three votes, and because its conclusion on this point does not seem pertinent to the conclusions embodied by the remaining four justices, this is not necessarily a binding, precedential holding.)

Exigency -- Community Caretaker -- Underage Drinking
State v. Shane M. Ferguson, 2001 WI App 102
For Ferguson: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether the warrantless, forced police entry of a locked closet was justified under the community caretaker doctrine.
Holding:
¶12 After applying the Anderson test, we are satisfied that the police actions here qualified as 'community caretaker.' A search, to qualify as a community caretaker exception, requires an examination of three factors: 'We conclude that when a community caretaker function is asserted ... the trial court must determine: (1) that a seizure within the meaning of the fourth amendment has occurred; (2) if so, whether the police conduct was bona fide community caretaker activity; and (3) if so, whether the public need and interest outweigh the intrusion upon the privacy of the individual.' "Anderson, 142 Wis. 2d at 169, 417 N.W.2d at 414. 'As to the last factor-weighing the public need and interest against the intrusion-relevant considerations include: (1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the seizure, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished.' "Id. at 169-70.

¶13 It is conceded that a seizure occurred within the meaning of the Fourth Amendment. Therefore, we address the last two Anderson factors. First, we conclude that the police were engaged in a 'bona fide community caretaker activity' when they found the marijuana. The police were called to a fight when they went to Apartment 3. Someone in Apartment 3 made the complaint about the alleged fight in Apartment 2. Thus, the police were unaware of any wrongdoing in Apartment 3 when they arrived. Further, the police were not investigating a crime after encountering several underage drinkers in the apartment.

¶14 ... Further, it was established that the only purpose in opening the closet door was to confirm that no highly intoxicated person was hiding there....

¶16 Finally, in examining the last factor in the Anderson test, the public need versus Ferguson's interest against the intrusion, again we are satisfied that the search undertaken by the police was appropriate and outweighed any intrusion into Ferguson's privacy. The police, sent to investigate a complaint of a fight, were suddenly confronted with four intoxicated teenagers, two of whom were highly intoxicated. Contrary to Ferguson's contention that the police rendered no aid, the record reveals that the police quieted down Foster and assisted the other teenager in walking to the bathroom on several occasions. Thus, in applying the balancing test, we determine, under the exigent circumstances presented here, that the officers' reasons for entry outweighed Ferguson's privacy rights. Thus, under the Anderson test, we are satisfied that the officers were engaged in a community caretaker function when the search was conducted.

For a similar result under a somewhat different rationale, see Radloff v. City of Oelwein, 8th Cir. No. 03-3493, 8/17/04 (warrant exception where probable cause and exigent circumstances, which may exist "when there is a compelling need for official action and there is no time to secure a warrant"):
...Exigent circumstances existed both because of the loud noise created by the party and because of the threat to public safety if the juveniles left the house in cars while under the influence of alcohol. Michigan, 436 U.S. at 509. It would have been unreasonable to subject the neighbors to the loud noise or to require the officers to quarantine the juveniles' cars during the period of time it would have taken to obtain a warrant....
Similar result: Commonwealth v. Robinson, on rehearing en banc, VA App No. 2474-03-2, 1/31/06 (reasonable belief "that mulitple, underage individuals had gathered at a party in the country and consumed significant quantities of alcohol" constituted exigency).

But, for authority to effect that underage drinking on private premises, coupled with sounds of individual vomiting in bathroom, did not give police sufficient basis under community caretaker doctrine to enter bathroom on belief that person vomiting was in need of immediate assistance, see State v. Smith, 2004 MT 234, 8/31/04. And: State v. Ealum, 2007 Ga. App. LEXIS 190 (no entry-justifying exigency where officers merely observed underage drinking but not involving anyone apparently under 18, court suggesting that safety of child would present different question; similar results from number of courts string-cited, fn. 5).

Go to Brief
Exigency -- Warrantless Entry to Investigate Suspected Burglary
State v. Dennis Lee Londo , State v. Richard John Vernon, 2002 WI App 89, PFR filed 4/2/02
For Londo: Michael B. Plaisted
For Vernon: Dennis P. Coffey, Seth P. Hartigan
Issue: Whether the police were justified in warrantless entry and search of a residence, during which they seized contraband, in order to investigate a reported burglary.
Holding: The police had probable cause, under the following facts, to search the house without a warrant, ¶9:
  • A citizen witness, whose reliability the defendants do not challenge, told the officers that she heard the breaking of glass and saw a man near the back door of a house from which the sound came;
  • The officers went to the house and saw a broken pane in the back door
  • The officers saw broken glass near the back door;
  • The back door was locked;
  • After they searched the neighborhood, they returned to the house where they saw that a window that had been closed five minutes earlier was open by approximately three feet; and
  • No one answered an officer’s knock on the door.
And, based on the same facts and reasonable inferences, exigent circumstances were present, namely "the possible grave danger to the occupants of the house [which] outweighed the intrusive aspects of the officers' warrantless entry." ¶10. Finally, the police "looked only in places where someone could hide, and were not searching for contraband," and therefore didn't exceed the permissible scope of their search. ¶11.

The court's justification is largely policy driven ("Household burglaries present real and grave risks." The police would have shirked their duty to protect the public if they hadn't gone in.) This sounds an awful lot like a community caretaker rationale, but the court says only that an exigency was presented. Nothing necessarily wrong with that, but definitional pigeon-holing certainly drives search & seizure analysis and with that in mind .... The court relies heavily on Richter, an exigent circumstances case, more latterly construed to mean:

¶ 10 Thus, in Richter a stand-alone justification for the warrantless entry was the prevention of possible harm to the occupants of the mobile home. ... In these situations, it is the urgent need to enter because of the possible need to render immediate assistance or prevent harm that justifies the warrantless entry.3
3 We stress that we do not address the community caretaker doctrine and, therefore, do not address whether the distinctions among the situations discussed in the text matter for purposes of that doctrine.
State v. Walter Leutenegger, 2004 WI App 127. The doctrine that dare not speak its name: this diffidence would puzzle, except that Leutenegger holds that the subjective beliefs of the police are irrelevant in this context except "insofar as such evidence assists the court in determining objective reasonableness," ¶19. Thus, the State need not show that the officer genuinely intended to prevent harm rather than merely investigate criminal activity. Indeed, Leutenegger seemingly overrules a long line of cases holding that "a warrantless entry based on a safety concern is illegal unless the entering officer subjectively believes that entry is necessary to render assistance or prevent harm," ¶6. But by definition community caretaker functions are "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski, 413 U.S. 433 (1973). (And, indeed, the principle of irrelevance of police state of mind has received a powerful boost from Brigham City v. Stuart, USSC No. 05-502, 5/22/06 ("The officer's subjective motivation is irrelevant"), at least in the exigent-circumstances context.) At some point, identifying the correct rationale does matter. For a much more refined discussion of the community caretaker rationale as authority to investigate a potential burglary, along with the nature and distinctiveness of the emergency and exigency doctrines (although it must be said that the basis for this belief on the given facts is quite thin), see Kyer v. Commonwealth, Va App No. 2200-03-2, 8/17/04 ("when applied independently of police investigatory functions [in the 'non-exigent' context], the emergency exception becomes the functional equivalent of" at least a "portion" of the community caretaker doctrine) -- despite expressly eradicating any distinction between community caretaker and emergency rationales related to warrantless entry, that court significantly required proof that "it was reasonable for the officer to believe that his or her actions were necessary," and not a pretext for conducting a criminal investigation; U.S. v. Johnson, 4th Cir No. 04-4376, 6/8/05 ("If [officer's] stated reasons for the search were pretextual, the community-caretaking exception would not apply."); State v. Ryon, 2005-NMCA-005, ¶36; Gonzales v. State, Tex App 3rd Dist No. 03-04-00005-CR, 10/28/04 (emergency doctrine is aspect of community caretaking function and when asserted as justification for entry must be "totally divorced" from investigation of crime; court goes on to rule against police entry after responding to 911 call and finding bleeding and agitated resident who attempted to bar entry before transport to hospital).

For other, fact-specific authority see also U.S. v. Jenkins, 329 F.3d 579 (7th Cir. 2003): "Police received a 911 emergency call of an assault, possibly in progress. Such calls, by themselves, 'can be enough to support warrantless searches under the exigent circumstances exception, particularly where . . . the caller identified himself.' Richardson, 208 F.3d at 630." And, for a contrasting situation, where the 911 call was too ambiguous, see U.S. v. Deemer, 9th Cir. No. 03-30034, 1/20/04.


Exigency -- Emergency Doctrine -- Warrantless Entry to Check on Welfare of Child
State v. Rick R. Rome, 2000 WI App 243, 239 Wis.2d 491, 620 N.W.2d 225
For Rome: William E. Schmaal, SPD, Madison Appellate
Issue/Holding: Police entry into a home and subsequent seizure of drugs in a closet was justified under the emergency doctrine:
¶12 In State v. Pires, 55 Wis. 2d 597, 201 N.W.2d 153 (1972), the Wisconsin Supreme Court approved the emergency rule as an exception to the warrant requirement, ... based upon the idea that “the preservation of human life is paramount to the right of privacy protected by the fourth amendment.” Id.

¶13 The test for a valid warrantless search under the emergency doctrine necessitates a two-step analysis. See id. First, the searching officer must be actually motivated by a perceived need to render aid or assistance. See id. Second, even if the requisite motivation exists, it must be found that, under the circumstances, a reasonable person would have thought an emergency existed. See id. at 450-51. In other words, the search was valid if the officers subjectively observed a need to provide immediate assistance and intended to do so when they entered the home and the facts, viewed objectively, sustain the conclusion that the officers had probable cause to believe that there was an emergency and immediate action was necessary for the protection of life or property. See State v. Kraimer, 99 Wis. 2d 306, 316-17, 298 N.W.2d 568 (1980). Both the subjective and objective components of this test must be met for the warrantless search to be valid. See Boggess, 115 Wis. 2d at 451.

...

¶16 The objective component of the emergency rule requires that the officer “point to specific facts that, taken with the rational inferences from those facts, reasonably warranted the intrusion into an area in which a person has a reasonable expectation of privacy.” Boggess, 115 Wis. 2d at 451....

This test is met on the following facts: A woman, walking late at night with an infant, told the police she'd left her home after an argument with her husband, and she expressed concern about the 2 year-old she'd left behind with him. She asked the police to check on the child, but refused to give them permission to go in. The police went to the home and yelled inside for 10 minutes without response. They couldn't call in, because the phone had been disconnected. They finally went in, and found Rome asleep in bed. They opened his closet door, thinking the child might be in there, and found a marijuana plant, leading to conviction for manufacturing marijuana. The belief that the 2 year-old might need help was both genuine and reasonable. ¶¶17-24. "(T)he officers' concurrent suspicion of a doemstic abuse incident ... would not have neutralized the genuineness of their aid and assistance concerns regarding the two-year-old child." ¶23.
For an alternative statement of the test , see U.S. v. Cervantes, 219 F.3d 882, 888-90 (9th Cir. 2000), adopting People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607 (1976) (1. reasonable grounds to believe emergency exists; 2. search not primarily motivated by intent to arrest / seize evidence; 3. reasonable basis, approximating probable cause, to associate emergency with area to be searched). Indeed, this very test was explicitly cited, with apparent approval, in State v. Shane M. Ferguson, 2001 WI App 102, ¶17. Of particular note is the reference to "probable cause," often absent in Wisconsin caselaw discussion of the emergency doctrine, but a requirement the court ought to be reminded of when the issue of warrantless entry of a home is litigated -- see also, e.g., State v. Jeffrey Stout, 2002 WI App 41, ¶15 ("For private residences and hotels, in the absence of a warrant, the police must have probable cause and exigent circumstances or consent to justify an entry.").

U.S. v. Martins, 1st Cir No. 04-1474, 6/27/05 (emergency etsablished where police encountered "young boy in an apartment filled with thick marijuana smoke"; relevant cases, pro and con, canvassed): "To rely upon the doctrine, the government must show a reasonable basis, approximating probable cause, both for the officers' belief that an emergency exists and for linking the perceived emergency with the area or place into which they propose to intrude." Riggs v. State, FL SCt No. SC05-133, 12/15/05 (4-year old child found wandering around apartment complex, naked and alone; police justified entering the one apartment with an ajar door, under medical emergency rationale).

Police, contrastingly, did not have grounds to believe a child was in need of immediate assistance: State v. Vanslyke, FL App No. 2D05-2380, 9/13/06 (no probable cause for warrantless entry, distinguishing Boggess: no showing of informant's personal knowledge of matter reported); U.S. v. Gillespie, 2004 U.S. Dist. Lexis (W.D. Va. 8/12/04), no non-commerical link (notably, police actions were inconsistent with the idea that they themselves thought an emergency was genuinely presented); Robbins v. State, Ark App CACR05-717, 3/8/06 (similar: no exigency found where officer claimed to be concerned with the welfare of a child in the home, but "he took no actions that were tantamount to a response to those exigent circumstances he thought existed"). See also U.S. v. McGough, 11th Cir. No. 04-12077, 6/15/05.

Going a bit farther afield, for authority re warrantless emergency search relative to animals in distress, see State v. Bauer, 127 Wis. 2d 401, 379 N.W.2d 895 (Ct. App. 1985), discussed in State v. Stone, 2004 MT 151.

Go To Brief
Exigency -- Community Caretaker Entry of Residence, Suicide Prevention -- "Protective Sweep"
State v. Walter Horngren, 2000 WI App 177, 238 Wis.2d 347, 617 N.W.2d 508
For Horngren: James M. Weber
Issue/Holding1:
¶10 Horngren contends that the police entry, in response to a suicide threat, was made pursuant to WIS. STAT. § 51.15, “Emergency detention.” Therefore, he argues that the entry occurred while the officers were “engaging in traditional law enforcement duties,” not community caretaker duties. We disagree.

...

¶12 Here, the police were dispatched to a home after a report that an individual there was threatening to commit suicide. The police were advised that two previous suicide attempts had occurred and that there were several guns in the home. Truly, the motivation in investigating the complaint was to render aid, not to investigate any criminal activity. As evidenced during the suppression hearing testimony, the officers’ actual motivation was to render immediate assistance, not to obtain evidence for a possible prosecution.

...

... After applying the four factors that offer us guidance, we are satisfied the entry was justified. These four factors include: (1) the degree of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding the search, including time, location, the degree of overt authority and force displayed; (3) whether an automobile is involved; and (4) the availability and effectiveness of alternatives to the type of intrusion actually accomplished. See Paterson, 220 Wis. 2d at 533-34 (citation omitted).

Issue/Holding2:
¶19 Horngren contends that, even if the entry was permitted pursuant to the community caretaker function, the initial cursory search of the other rooms, which resulted in Detective Bruno’s discovery of the marijuana, was unconstitutional. He claims that the “protective sweep” doctrine does not apply here because it authorizes a brief search, incident to an arrest, of the areas immediately adjoining the place of arrest. See State v. Kruse, 175 Wis. 2d 89, 95, 499 N.W.2d 185 (Ct. App. 1993). He points out that there was no arrest and, therefore, no justification to conduct a protective sweep. We disagree.

¶20 “A protective sweep is a brief search of the premises, ordinarily occurring during an arrest, to ensure the safety of those on the scene.” Guseman v. Martinez, 1 F. Supp. 2d 1240, 1254 (D. Kan. 1998) (emphasis added). An arrest, however, does not define the sole context in which a protective sweep can constitutionally occur. Rather, within the purview of a bona fide community caretaker activity, the reasonableness of an officer’s actions, evaluated under the totality of the circumstances, determines the constitutionality of the officer’s conduct. See Dull, 211 Wis. 2d at 658. Thus, the question is whether the “sweep” that occurred here was reasonable under the circumstances. We conclude that it was.

There is considerable doubt as to whether the "protective sweep" doctrine applies to a non-arrest situation (such as Horngren's); even so, courts which have extended the 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]," U.S. v. Waldner, 8th Cir No. 04-3415, 10/10/05 (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). Horngren, then, might not necessarily be the final word, and in any event too much shouldn't be read into allowing community caretaker to serve as the basis for warrantless entry. First, the opinion does at least seem to require something in the nature of reasonable suspicion that someone else in the residence poses a danger (see ¶21). And on a more theoretical level, the community caretaker function must be totally divorced from any effort to investigate crime, see, e.g., U.S. v. Gillespie, 2004 U.S. Dist. Lexis (W.D. Va. 8/12/04), no non-commerical link, citing Cady v. Dombrowski, 413 U.S. 433 (1973) -- why, then, wouldn't an actual intent to investigate crime defeat a community caretaker rationale? Indeed, "the few cases where courts have applied this rationale to justify the warrantless earch of home ... have emphasized that the entry was unrelated to the investigation of criminal activity." Gillespie. That may certainly be an apt characterization of Horngren, which may readily be seen as an emergency doctrine case and which indicates if nothing else that in many instances the attempt at precise pigeon-holing is futile -- see, e.g., Kyer v. Commonwealth, Va App No. 2200-03-2, 8/17/04, to the effect that there is no distinction between emeregency and community caretaker rationales in relation to warrantless entry. And contrast, Wood v. Commonwealth, 27 Va. App. 21, 497 S.E.2d 484 (1998) (rejecting argument that following warrantless entry officers went upstairs to look for missing teenager to fulfill community caretaker function, on basis that officers' activities were part of criminal investigation).

Exigency -- Destruction of Evidence

Exigency – Destruction of Evidence (Drugs) – Entry of Residence – Following Controlled Buy
State v. Antonio K. Phillips, 2009 WI App 179, PFR filed 11/25/09
For Phillips: Michael J. Backes
Issue/Holding: Warrantless entry of residence, following controlled buy within it, was justified by the threat of destruction of evidence, given that, “after seeing the police outside the residence, Phillips retreated into the residence and shut the door after the police ordered him to stop,” ¶11.
State v. Vanessa D. Hughes, 2000 WI 24; and State v. Edward Garrett, 2001 WI App 240, followed, as to idea that knowledge of police presence incentivizes imminent destruction of contraband.
Elephant in the room: “knock and talk.” After the controlled buy inside the house, the police determined to follow through with a knock and talk rather than a warrant. To their good fortune, Phillips happened to be in view, in the doorway, and when he saw them he retreated inside. He argues on appeal that the police thus created their own exigency, but the court holds that Phillips himself created the exigency by retreating inside; therefore, the court “need not delve into the” propriety of the knock and talk strategy, ¶11. Interesting dissent, ¶¶20-30, which essentially makes the point that the knock and talk strategy was unreasonable in the first place, that its purpose of circumvent the warrant requirement. Nonetheless, the majority usefully catalogs a severe split among federal circuits on “whether the police impermissibly create exigent circumstances by knocking on the door,” ¶11 n. 5. Indeed, this is a recurrent issue—and, for those keeping score at home, whenever mention is made of a deep split among the circuits, think: “cert-worthy”—and for a few other cases, see here. For a recent example of just how enthusiastically the police sometimes employ the practice, see Hardin v. State, 2009 Fla. App. LEXIS 15198 (Fla. 2d DCA October 9, 2009) (consent following knock and talk deemed coercive on somewhat extreme facts).
Incidentally, the fact that Phillips was standing in his doorway, not outside the house, when he spotted the police is irrelevant to the analysis, ¶19 n. 9. It’s a destruction-of-evidence, not hot pursuit, case, ¶19. Hard to see, though, how Phillips’ placement in the threshold of the doorway makes any difference anyway, so long as he was exposed to public view, United States v. Santana, 427 U.S. 38 (1976).
Exigency – “Protective Sweep” as Incident of Destruction of Evidence
State v. Kevin Raphael Lee, 2009 WI App 96, PFR filed 7/1/09
For Lee: Robert E. Haney
Issue/Holding: Police investigating complaint of drug dealing were entitled to enter apartment and conduct “protective sweep” when they saw, through the open front door, clear evidence of drugs:
¶13      The officers who presented themselves at Lee’s front door were investigating a complaint of drug activity at Lee’s address. After gaining entry to the common area of the building by virtue of the consent given by the occupant of the downstairs unit, [7] they came upon the open front door of Lee’s apartment, with drugs in plain view inside. Officer Scott Iverson testified that the door to the apartment was “wide open” at a ninety degree angle. He stated further that “[w]e yelled Milwaukee police and there was no answer and we did it again….” Iverson also testified that “[w]e did a protective sweep to make sure there wasn’t anybody in there.” Officer Phillip Simmert, who responded with Iverson to Lee’s residence, testified that after the officers received no response when they announced their presence, they “cleared the unit to make sure nobody was hiding, [sic] jump out on us.”

¶14      We conclude that these facts would allow a reasonable police officer to believe that entry into Lee’s apartment in order to perform a protective sweep was necessary due to a potential threat to the officers’ safety. In light of the wide open door, the officers could reasonably believe that someone was likely inside. People do not customarily leave the front door to their residences open when they leave, especially when illegal narcotics are easily seen through the open door. The officers announced their presence and received no response. From this, the officers could reasonably believe that persons inside the apartment were aware that police officers were outside the open door, that controlled substances and other evidence of criminal activity were visible to the officers, that the occupants were the subject of police suspicion, and that a raid may be imminent. The officers could also reasonably believe that the occupants were, under these circumstances, nervous and agitated, and would take the steps necessary to evade apprehension.

¶15      Further, the officers could reasonably believe that the occupants were connected with drug activity and may be dangerous. Felony drug investigations may frequently involve a threat of physical violence and the likelihood that evidence will be destroyed. …

Protective sweep doctrine, in other words, extended beyond incident-to-arrest to destruction-of-evidence context. State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997), distinguished, ¶¶17-19: Kiekhefer possessed a large quantity of drugs, minimizing the potential for evidence destruction; and, there was no indication he was aware of the police presence, minimizing the potential threat to their safety.
Exigency - Destruction of Evidence (Drugs) - Entry of Residence - Odor of Burning Marijuana
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.
Issue1: Whether "the combination of the strong odor of marijuana coming from the apartment, and the knowledge on the part of the occupants that the police are standing outside, amount to exigent circumstances justifying the warrantless entry and subsequent search".
Holding: The odor gave the police probable cause to believe that the apartment contained evidence of a crime; the occupants' knowledge of the police presence established an exigency, namely risk of destruction of the evidence; together, these factors justified warrantless entry. ¶¶22, 26.
Analysis: The police went to Hughes' apartment to investigate various complaints. They smelled marijuana when the door opened, and they entered, ostensibly to prevent destruction of drug evidence. ¶¶3-5. Warrantless police entries are presumptively prohibited, but justifiable if based on probable cause to believe the residence contains evidence of a crime as well as exigent circumstances. ¶18. "The unmistakable odor of marijuana coming from Hughes' apartment provided" probable cause. ¶22. (The court also mentions the "high drug activity" known to go on at the site, ¶23, but odor alone seems to be enough in the court's view.) The court also finds exigent circumstances in the danger of evidence destruction: "It is not unreasonable to assume that a drug possessor who knows the police are outside waiting for a warrant would use the delay to get rid of the evidence." ¶26.

The court is careful to note that exigent circumstances are not based on odor of the drug alone, but on the additional fact that "the suspects here were fully aware of the presence of the police." ¶27. (This additional fact distinguishes the case from prior precedent, most prominently Johnson v. United States, 333 U.S. 10 (1948), and State v. Scott Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997) -- "the apartment occupants had every incentive to intentionally destroy evidence once they knew the police were present outside. Had the officers stayed outside and called for a warrant, the evidence very likely would have been lost." ¶¶27-28.) The court also stresses "that this is not a situation in which the exigency was created by the police themselves, which would generally not justify a warrantless search of a home." ¶28 n. 7.

Probable cause, of course, is also required; the court had no difficulty determining that the smell of burning marijuana (coupled with the fact that "the building was an area of high drug activity") created a "fair probability" that marijuana was present in the apartment, ¶¶22-23. However, there is contrary authority for the idea that the smell of the drug alone is enough for probable cause: State v. Steelman, 93 S.W.3d 102, 108 (Tex. Crim. App. 2002) ("The mere odor of burning marijuana did not give the officers probable cause to believe that [defendant] had committed the offense of possession of marijuana in their presence. The odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home."); State v. Huff, Kansas SCt No. 90,850, 6/25/04 ("Moreover, few jurisdictions have held that the smell of marijuana emanating from a private residence alone is sufficient to establish probable cause to support a search warrant .... Generally something more than 'plain smell' is required." [Cites.]). The Steelman result, it should be noted, was later qualified in Estrada v. State, TX Crim App No. PD-1629-03, 1/26/05, which reaffirms Steelman's principle that mere odor of burning marijuana doesn't provide probable cause to arrest a specific individual, where several people are present, but then suggests that a warrantless search of a residence might be something else. Nonetheless, the court isn't entirely clear on this point, because although it did find probable cause it was on the basis of facts additional to odor, including specific information received by the police that minors were inside the house drinking alcohol and smoking marijuana. And still further qualified, in Parker v. State, TX Cr App No. PD-0250-05 ("the odor of marihuana emanating from a residence, by itself, is insufficient to establish both the probable cause and statutory authority required for a warrantless arrest of a particular person inside"; court apparently means that notwithstanding probable cause from odor, other factors must support exigency required for warrantless entry).

Contrast, Commonwealth v. Hatcher, KY SCt No. 2004-SC-0242-DG, 5/18/06 (observation of pipe alone didn't amount to probable cause, even though in officer's experience and training its predominant use was for smoking marijuana, where officer couldn't actually see any marijuana or residue in pipe from his vantage point in doorway).

See State v. Rodriguez, NH SCt No. 2007-107, 4/8/08 (smell of burning, as distingusihed from burned, marijuana created exigency; Hughes followed).

Issue2: Whether possession of marijuana is a serious enough crime to justify warrantless entry under the rationale of Welsh v. Wisconsin, 466 U.S. 740 (1984).
Holding: Welsh establishes no categorical rule, except "that the minor, noncriminal, nonjailable traffic violation in that case (first offense drunk driving) was" insufficient serious to justify warrantless entry. ¶31. While Welsh does require analysis of the gravity of the offense at issue, "evaluation of the overall penalty structure for marijuana offenses," including the graduated scale of potential penalties for marijuana possession, indicates that marijuana possession "is treated significantly more seriously than the noncriminal, nonjailable first offense drunk driving violation involved in Welsh[.]" ¶¶36-39.
Analysis: As suggested immediately above, Welsh v. Wisconsin bars warrantless entry, on an exigency basis, to investigate nonserious crimes. While certainly part of the exigency analysis, this doctrine imposes a distinct bar, and therefore should be discussed separately. The court, without quite saying so, in effect limits Welsh to its precise facts. ¶30.Welsh cautions that a "minor offense" would ordinarily not generate "exigent circumstances" justifying warrantless entry:
Our hesitation in finding exigent circumstances, particularly when warrantless arrests in the home are at issue, is especially appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. When the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.
466 U.S. at 750. So, what's a "minor offense"? Welsh approvingly cites the dissent in Payton v. New York, 445 U.S. 573 (1980), for recognizing that it is "(t)he felony requirement (that) guards against abusive or arbitrary enforcement and ensures that invasions of the home occur only in case of the most serious crimes". Welsh, id. The Court also quotes with approval a concurring opinion in McDonald v. United States, 335 U.S. 451, 459-60 (1948):
It is to me a shocking proposition that private homes, even quarters in a tenement, may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it.... When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant.
Welsh, 466 U.S. at 750-51. How likely is it that the United State Supreme Court meant to limit its holding to the exact penalty scheme presented by Wisconsin's drunk driving legislation? See this canvass of relevant caselaw from other jurisdictions, derived by State v. Holland, 328 N.J. Super. 1, 744 A.2d 656, 661 (2000) (subsequent appeal, discussing independent-source doctrine, reported at State v. Holland, 176 N.J. 344, 823 A.2d 38 (2003)):
Nonetheless, there are reported cases from other jurisdictions which hold that because the smell of burning marijuana is itself proof that evidence of criminal conduct is being destroyed, the detection of that smell establishes 'exigent circumstances.' See State v. Decker, 119 Ariz. 195, 580 P.2d 333 (1978); State v. Kosman, 181 Ariz. 487, 892 P.2d 207 (Ct.App.1995); Mendez v. People, 986 P.2d 275 (Colo.1999); People v. Baker, 813 P.2d 331 (Colo.1991); Joseph v. State, 3 S.W.3d 627 (Tex.App.1999). These cases, however, fail to cite Welsh, supra, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732. The cases from other jurisdictions which cite Welsh hold that the smell of burning marijuana does not evidence an offense which is sufficiently grave to justify entering a residence without a warrant. See State v. Curl, 125 Idaho 224, 869 P.2d 224 (1993), cert. denied, 510 U.S. 1191, 114 S.Ct. 1293, 127 L.Ed.2d 646 (1994); Haley v. State, 696 N.E.2d 98 (Ind.Ct.App.1998); State v. Beeken, 7 Neb.App. 438, 585 N.W.2d 865, 872 (1998) (dictum); State v. Wagoner, 126 N.M. 9, 966 P.2d 176 (Ct. App.), certif. denied, 125 N.M. 654, 964 P.2d 818 (1998); State v. Ackerman, 499 N.W.2d 882 (N.D.1993); State v. Robinson, 103 Ohio App.3d 490, 659 N.E.2d 1292 (1995); State v. Ramirez, 49 Wash. App. 814, 746 P.2d 344 (1987). In our view, it is this latter group of cases that correctly interpret the decision of the United States Supreme Court in Welsh, which, of course, is binding on us under the Supremacy Clause of the United States Constitution.
See also:
  • People v. Hua, Cal App No. A116578, 1/11/08 ("California has chosen to treat the offense of possession of less than 28.5 grams of marijuana as a minor offense that is nonjailable even for repeat offenders. Under Welsh, McArthur and Thompson, one consequence of that decision is to preclude officers who see this offense being committed from entering a home without a warrant or consent to seize the offender or the contraband, in order to prevent the imminent destruction of evidence of the offense.");
  • State v. Duran, 2007 UT 23, ¶9 ("We decline to pare back a fundamental constitutional guarantee where the commission of an offense--in this case, smoking marijuana--involves as its incidental but inevitable consequence the destruction of evidence.");
  • Commonwealth v. Demshock, 2004 PA Super 263, ¶16, 7/8/04 (to effect that smell of burnt marijuana "represents a considerably less serious offense than the grave offense (particularly one of violence)" which dispenses with need for warrant);
  • State v. Huff, Kansas SCt No. 90,850, 6/25/04 (exigent circumstances justification for warrantless entry of home requires violent offense: "Loud music and the smell of marijuana do not indicate that any suspect is likely to be charged with a violent offense").

But for contrary authority see: State v. Rodriguez, NH SCt No. 2007-107, 4/8/08 (marijuana possession jailable, hence sufficiently serious to support warrantless entry); Posey v. Commonwealth, KY SCt No. 2004-SC-0060-DG, 2/23/06 (simple possession sufficiently serious under Welsh -- because it carries a penalty of 12 months imprisonment -- such that smell of burning marijuana and consequent imminent destruction of crime evidence justifies warrantless entry; cases collected); Estrada v. State, TX Crim App No. PD-1629-03, 1/26/05 (where police did have probable cause to believe that marijuana was being consumed inside house, warrantless entry justifed by exigent-circumstance need to prevent destruction of evidence; a very sloppy opinion which among other things mentions that the occupants were minors but then fails to factor that into the determination of exigency); State v. Rideout, 2005 WY 141 (smell of burning marijuana from inside residence supports both probable cause to arrest or search and exigent circumstances for warrantless entry; Welsh limited to nonjailable offenses); People v. Thompson, Cal No. S130174, 6/1/06 (Welsh limited to nonjailable offenses, hence doesn't bar warrantless entry to effecuate arrest and blood test of DUI suspect, where jail was potential penalty for DUI offense).

For authority that the odor of a substance (ether) associated with manufacture of methamphetamine, along with probable cause to believe that methamphetamine is indeed being manufactured, does not establish an exigency justifying warrantless entry of a private residence, see People v. Gott, Ill. App. No. 5-02-0580, 1/24/04; State v. Hemphill, LA App No. 41,526-KW, 11/17/06 (like effect). That result, however, seems uncommon; for survey of "(n)umerous cases [which] have upheld limited searches conducted by officers without a warrant to eliminate the potential hazards of a methamphetamine lab when the officers had probable cause to believe they had discovered an ongoing methamphetamine lab," see State v. Simmons, Iowa SCt, No. 25 / 04-1327, 5/19/06. Like effect: State v. Meeks, TN SCt No. 34,241, 9/2/08; State v. White, 2008-Ohio-2432; Holder v. State, IN SCt No. 87S05-0505-CR-194, 5/18/06 ("Several courts have concluded that a belief that an occupied residence contains a methamphetamine laboratory, which belief is found on probable cause based largely on observation of odors emanating from the home, presents exigent circumstances permitting a warrantless search for the occupants' safety."); U.S. v. Elder, 7th Cir No. 05-3106, 11/1/06 (entry to investigate meth lab, following 911 call, proper: "that drug dealers often use guns and knives to protect their operations created a possibility that violence had been done"). But see, State v. Lawson, WA App No. 33401-1-II, 10/10/06 (strong ammonia odor insufficient to trigger emergency doctrine: "We are unwilling to extend the doctrine to authorize warrantless entries where the officers express only a generalizedfear that methamphetamine labs and their ingredients are dangerous to people who might live in the neighborhood"; dissent string cites cases to the contrary, such as Gott, fn. 6).

Compare U.S. v. Gomez-Moreno, 5th Cir No. 05-20921, 2/12/07 (can't use kock and talk to create exigency); U.S. v. Coles, 3rd Cir No. 04-2134, 2/9/06 (police may not impermissibly create the very exigency on which they rely for nonconsensual entry; thus, court must look to reasonableness and propriety of police tactics leading to the exigency on which the warrantless entry relies); U.S. v. Mowatt, 4th Cir No. 06-4886, 1/25/08 (same effect; and this: argument that "Mowatt’s smoking the marijuana was itself destruction of evidence ... is clearly foreclosed by Johnson, in which illegal drugs were also being smoked, but in which the Supreme Court held there were no exigent circumstances justifying a warrantless entry.").

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Warrantless Entry of Residence – Exigency -- Destruction of Evidence (Drugs)
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:
¶32 In both Hughes and Garrett, the police officers actually detected the presence of drugs within the residence before they entered without a warrant. In Hughes, the officers smelled the “unmistakable odor of marijuana coming from [the defendant’s] apartment.” Hughes, 233 Wis. 2d 280, ¶¶5, 22. In Garrett, the officers knew that an individual had purchased cocaine from inside of the defendant’s apartment and observed the defendant standing in the doorway “holding a clear plastic bag containing a white substance that the officer believed to be cocaine.” Garrett, 248 Wis. 2d 61, ¶¶2-3. Furthermore, in both Hughes and Garrett, the defendants lived in apartment complexes with heavy drug activity. Hughes, 233 Wis. 2d 280, ¶¶2, 3; Garrett, 248 Wis. 2d 61, ¶¶2-3. Here, as we have explained, the officers had no such evidence of the presence of drugs either on Sanders’ person or, more importantly for this inquiry, in his residence. Furthermore, the officers had no information linking Sanders’ residence to previous drug activity. Sanders’ failure to cooperate with police and his holding a canister in one hand and money in the other, without more direct evidence connecting drug activity to the residence, falls far short of raising a “fair probability” that evidence of illegal drug activity would be found in Sanders’ home. The State cannot justify the police entry on the third exigent circumstances factor.
Exigency -- Destruction of Evidence (Drugs) -- Entry of Residence
State v. Edward Garrett, 2001 WI App 240, PFR filed
For Garrett: Michael P. Sessa
Issue: Whether warrantless entry of defendant's apartment was justified under the exigent circumstances doctrine (risk that evidence -- drugs -- will be destroyed).
Holding: Warrantless entry of a residence may be justified where both probable cause and exigent circumstances are shown. Probable cause is conceded, leaving exigent circumstances -- in this instance, risk of destruction of drugs. ¶¶9-11. The court finds exigent circumstances, based on: Garrett's having been seen, several minutes after an undercover cocaine purchase and arrest in his building, standing in his doorway holding what appeared to be cocaine; his "flight" into his apartment; and his subsequent failure to answer the door when the police knocked. ¶13. State v. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621, extended. ¶18 (doesn't matter whether, as in Hughes and unlike here, officer in uniform; on-line brief in Hughes.)
Destruction of Evidence (Drugs) -- Entry of Residence
State v. Daniel Rodriguez, 2001 WI App 206, PFR filed 9/19/01
For Rodriguez: Diana Felsmann, SPD, Milwaukee Appellate
Issue: Whether warrantless police entry of a residence was justified under the following circumstances: the location was a drug "hot spot"; before entry, undercover officers saw three people enter and quickly leave; drug arrests had been made at the home two months earlier; and, when the undercover officers approached defendant, he fled into the house.
Holding: The government has the burden of showing both probable cause to believe that the house contained drugs, and also the existence of exigent circumstances.
¶10. Neither showing is made here: Though flight may establish reasonable suspicion, "it does not rise to the level of probable cause." ¶13. The officers never identified themselves as the police; they did not observe any actual drug activity; they knew nothing about defendant: "Fleeing from strangers into the safety of a home does not constitute a 'fair probability' that drugs will be found." ¶15.
Nor, for much the same reasons, can the government show exigent circumstances:
¶19. ... There was no evidence that the officers had reason to believe that Rodriguez was a drug dealer or user. The officers had never seen him before. There is no evidence that the officers saw any known or suspected drug dealer or user enter or exit the residence. There is no evidence that the officers saw any illegal drugs.

¶20. Moreover, the State cannot rely on the 'hot pursuit' exception because 'hot pursuit' is defined as an immediate or continuous pursuit of [a suspect] from the scene of a crime.' State v. Kryzaniak, 2001 WI App 44, ¶17, 241 Wis. 2d 358, 624 N.W.2d 389. There is nothing in the record to indicate that Rodriguez was a suspect being chased from the scene of a crime....

¶22. Thus, the question becomes whether the warrantless entry into a home is justified when an individual flees from an officer attempting to conduct an investigative stop. As in most Fourth Amendment cases, we cannot set forth a bright-line rule, but must examine each case under its particular facts and circumstances.... Here, the officers did not have probable cause to believe any offense had been committed. Rather, at best, the information they had supplied only reasonable suspicion.

¶23. Thus, Rodriguez is entitled to the 'special protection' afforded by the Fourth Amendment in guarding against unreasonable searches into private homes. In that respect, if an officer is going to enter a private residence without a warrant, the exigency factors must rise well above the facts and circumstances presented here. If we sanction a warrantless entry based upon bicycle riding, three visitors in and out of the home, and Rodriguez retreating into the home when asked, 'What's up?' by strangers in an unmarked police car, we may as well grab a toboggan and start sliding because the revered privacy of an individual in his/her own home will become a slippery hill.

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Destruction of Evidence (Drugs) -- Entry of Bedroom
State v. Scott Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997)
For Kiekhefer: Linda Hornik
Issue/Holding: The odor of burning marijuana from within a closed bedroom did not create exigent circumstances for the police, who did have permission to be in the house, to enter the bedroom:
According to Londre, they believed Kiekhefer was in possession of a large amount of marijuana. However, the presence of contraband without more does not give rise to exigent circumstances. See United States v. Rodgers, 924 F.2d 219, 222 (11th Cir. 1991). In addition, a large quantity of marijuana, unlike other contraband, could not be easily or quickly destroyed in Kiekhefer's bedroom. When police know that the drugs being searched for are of a type or in a location that makes them impossible to destroy quickly, "the asserted governmental interests in preserving evidence and maintaining safety may not outweigh the individual privacy interests intruded upon a no-knock entry." Richards v. Wisconsin, ___ U.S. ___, 117 S. Ct. 1416, 1421 (1997). The scales tip even less in favor of the governmental interests in an unannounced warrantless entry.

Moreover, the agents were not confronted with the sounds of destruction emanating from within Kiekhefer's room so as to excuse the warrantless entry. See, e.g., United States v. Frierson, 299 F.2d 763, 766 (7th Cir. 1962) (exigency exists where officers heard "get rid of the stuff"). In fact, the agents took the time to discuss obtaining a search warrant, but decided to simply enter the room.

Although the agents smelled an odor of burning marijuana, this does not justify the warrantless entry either. Rather, the agents had probable cause to secure a search warrant, but they had no right to make a warrantless entry into Kiekhefer's room. See Johnson v. United States, 333 U.S. 10, 13 (1948); see also State v. Brockman, 231 Wis. 634, 641, 283 N.W. 338, 342 (1939). In this case, the agents' warrantless entry into Kiekhefer's room was not justified by exigent circumstances founded on fear of destruction of evidence.


Exigency -- Domestic Violence

Exigency -- Domestic Violence -- Entry of Residence
State v. Mark S. Mielke, 2002 WI App 251, PFR filed 10/3/02
For Mielke: David J. Van Lieshout
Issue/Holding: Warrantless entry of a residence by the police, to investigate a domestic violence report concededly providing probable cause, was supported by exigent circumstances where the police could reasonably conclude that the safety of the reported victim was being compromised.
Note: This terse little opinion (4+ pp) bids to do for DV cases what California v. Carney, 471 U.S. 386, 388 (1985) did for vehicles -- make the circumstance (whether DV or automobile) its own exigency. Of course, in one instance you're talking about a vehicle and in the other a home, but the distinction is in danger of being blurred. That said, probable cause, necessary for warrantless entry in addition to exigency, was conceded. ¶7. Second, the police were responding to a (presumably) reliable report that someone had been struck and was spitting blood. Significantly, one of the officers had previously responded to DV reports at this home. Moreover, the reported victim, though she denied any problems, "was crying, shaking and cowering," and as a result the police could reasonably believe that her safety was threatened. ¶10. The court could -- make that, should -- have stressed the fact-specific nature of the result; instead, it tosses off a casual aside to the effect that DV victims are inclined to falsely deny harm, ¶10, and id. n. 2, as if a judicially-noticed fact. But it's the totality of the circumstances, as grudgingly recited in ¶10 that should control, and those circumstances may be meaningfully distinguished in the proper case.
A potentially pernicious aspect of the decision, though, may be its blithe promulgation of a standard of review that virtually compels judicial obeisance to police discretion. This is a state's appeal -- meaning, of course, that the trial court made findings of fact favorable to the defendant. The trial court, for example, found that when the police arrived, the scene was calm, with no sign of domestic violence. ¶9. This is, or should be, a finding entitled to deference, which the court of appeals nonchalantly sweeps aside: "When a police officer is confronted with two reasonable competing inferences, one that would justify the search and another that would not, the officer is entitled to rely on the reasonable inference justifying the search. See State v. Tompkins, 144 Wis. 2d 116, 124-25, 423 N.W.2d 823 (1988)." ¶8. But this threatens to turn appellate review in search cases into something resembling the rubber-stamp formula used in bindover, State v. Dunn, 121 Wis. 2d 389, 359 N.W.2d 151 (1984).
UPDATE: But see U.S. v. Davis, 290 F.3d 1239, 1244 (10th Cir. 2002):
As contended by Mr. Davis, granting unfettered permission to officers to enter homes, based only upon a general assumption domestic calls are always dangerous, would violate the Fourth Amendment. See Stewart, 867 F.2d at 584-85 (observing facts particular to the specific case bear on the validity of the exigency). Keeping in mind a warrantless search is more intrusive than the failure of police to comply with the knock-and-announce rule, as an analogy, the Supreme Court has already rejected categoric exclusion of drug cases from knock-and-announce compliance. Richards v. Wisconsin, 520 U.S. 385, 396 (1997) ("[W]e reject the blanket exception to the knock-and-announce requirement for felony drug investigations."). Similarly, we hold an officer's warrantless entry of a residence during a domestic call is not exempt from the requirement of demonstrating exigent circumstances.
Similarly: Brigham City v. Stuart, 2005 Utah 13, ¶44 ("We are also unwilling to replace the reasonableness requirement with a per se rule concerning domestic violence that disregards other factors in the totality of the circumstances. Our rejection of a rule that would grant a suspicion of domestic violence the status of a per se exigent circumstance does not render considerations of domestic violence irrelevant."), reversed, other grds., Brigham City v. Stuart, USSC No. 05-502, 5/22/06; People v. Ormonde, Cal App No. H028471, 9/25/06 ("Nevertheless, to say that the warrantless entry into defendant’s home in this case was justified because of a police officer’s past experiences with domestic violence arrests would be tantamount to creating a domestic violence exception to the warrant requirement. This we cannot do.").

On the other hand, see State v. Vallasenor-Meza, 2005 UT App 65 (and esp., ¶16) for an intimation that a DV complaint (at least when supported by probable cause) is virtually by definition a warrantless-entry justifying exigency. That said, the court does stress that the police had reason to believe "the fight was ongoing and the victim's abuse was severe." If limited to those facts, the result isn't surprising. Like effect, U.S. v. Martinez, 9th Cir No. 04-30098, 5/16/05 ("The volatility of situations involving domestic violence make them particularly well-suited for an application of the emergency doctrine"; also noting other courts' recognition "the combustible nature of domestic disputes" and thus need to afford "great latitude" to police belief exigency present); U.S. v. Black, 9th Cir No. 05-10640, 10/26/06 (recognizing "exigencies" of DV cases; but see dissent for collection of cases requiring clear showing that victim still in vicinity and in danger); see also dissent from en banc hearing, 4/10/07 ("The problem with this approach is that the government has any number of such crises-du-jour").

And for a case which upholds the seizure of contraband under a domestic violence statutory scheme meant to protect DV victims, but which nonetheless suppresses use in a criminal prosecution, see State v. Perkins, 358 N.J. Super 151, 817 A.2d 364 (2003).) But for authority noting "the legitimate concern that the exigencies of domestic abuse cases present dangers that, in an appropriate case, may override considerations of privacy," see U.S. v. Brooks, 9th Cir. No. 02-50539, 5/13/04 (911 call from identified caller, reporting sounds of woman being beaten; police investigation provided at least some corroboration, and therefore probable cause; note court's stress on nature of DV victims: "Considering the tendency of victims of domestic abuse to be less than forthcoming about the harms to which they were or will likely be exposed at the hands of an aggressor who remains on the scene, Perez was entitled to search inside the hotel room, which in the total circumstances was an objectively reasonable way to address the exigency." See also State v. Steineman, 2004-Ohio-6188, Ohio App 3rd Dist No. 8-04-07, 11/22/04 (entry upheld where police responded to unidentified caller's report of domestic disturbance and when arriving at scene saw and heard glass breaking and shouting); State v. Drennan, KS SCt No 90,954, 12/17/04 (known prior DV history supported warrantless, emergency-doctrine entry upon 911 call report of current DV disturbance).

Under § 813.12(4m)(a)2, a DV injunction may "require the respondent to surrender any firearms": does this provision allow a court to order the police to search a residence for weapons? A sharply divided court discussing similar legislation finds in favor of such authority, Kelly v. Mueller, 2004 PA Super 425.

Note the holding in Town of Castle Rock v. Jessica Gonzales, USSC No. 04-278, that the due process clause clause does not confer on the holder of a DV injunction a property interest in its enforcement.


Exigency -- Hot Pursuit

Warrantless Entry of Residence – Exigency - Effectuate Misdemeanor Arrest
State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion
For Ferguson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Support for warrantless entry of a residence to effectuate an arrest may be found where the offense is jailable, even if a misdemeanor; State v. Mikkelson, 2002 WI App 152 overruled:
¶27      Our review of the reasoning of Mikkelson, as compared with that of Welsh and Santana, causes us to overrule Mikkelson and to adopt Justice Prosser's concurrence in State v. Sanders, 2008 WI 85, 311 Wis. 2d 257, 752 N.W.2d 713. As Justice Prosser noted, Welsh and Santana did not create a bright-line rule requiring the underlying offense to be labeled a felony in order for exigent circumstances to justify a warrantless home entry. [8] Id., ¶71 (Prosser, J., concurring). Instead, Welsh held that the gravity of the underlying offense is "an important factor to be considered when determining whether any exigency exists," Welsh, 466 U.S. at 753, and that where the underlying offense is "a noncriminal, civil forfeiture offense for which no imprisonment is possible," exigent circumstances will rarely, if ever, be present, id. at 754.

¶28      Welsh does not create a felony/misdemeanor distinction for finding exigent circumstances, contrary to the holding in Mikkelson. Instead, in determining the extent to which the underlying offense may support a finding of exigency, "the critical factor . . . is . . . 'the penalty that may attach.'" Sanders, 311 Wis.  2d 257, ¶81 (Prosser, J., concurring) (quoting Welsh, 466 U.S. at 754 n.14). We reach this conclusion since the penalty imposed for an offense "'provide[s] the clearest and most consistent indication of the State's interest in arresting individuals suspected of committing that offense.'" Id. (quoting Welsh, 466 U.S. at 754 n.14).

¶29      Accordingly, courts, in evaluating whether a warrantless entry is justified by exigent circumstances, should consider whether the underlying offense is a jailable or nonjailable offense, rather than whether the legislature has labeled that offense a felony or a misdemeanor. To hold otherwise would allow "the perpetrator of a serious misdemeanor offense, for which jail time is a penalty, to avoid immediate arrest merely because of the label ('felony' or 'misdemeanor') chosen by the legislature." Id., ¶93 (citation omitted). Such a result is not mandated by Welsh.

No bright line, then, any longer separates misdemeanors from felonies for purposes of warrantless entry to arrest. Does this also mean that such entries are necessarily lawful? Not clear. All the majority says on this point, really, is that probable cause to believe Ferguson committed disorderly conduct, a jailable offense, potentially supported warrantless police entry, ¶30. “Gravity” of the underlying offense is an “important factor”: just because the offense is jailable doesn’t mean it’s sufficiently “grave”—or so you might think. And although this is no doubt something to be hashed out case-by-case, the court doesn’t say what ought to be weighed in any given case. Perhaps this is because the viability of Mikkelson wasn’t really presented under the facts and that the majority, despite its protestation to the contrary, ¶30 n. 9, reached an issue that was really an abstraction to the case, and thus engaged in a bit of judicial activism.

To belabor the obvious on a separate point: probable cause to arrest isn’t enough, of course, for warrantless entry. There must be some sort of exigency, such as hot pursuit or evidence destruction, e.g., ¶20.

Exigency - Hot Pursuit - Misdemeanor - Entry of Residence
State v. Harold C. Mikkelson, 2002 WI App 152
For Mikkelson: Michael Yovovich, SPD, Madison Appellate
Issue/Holding: The hot pursuit doctrine, which allows warrantless entry to effectuate an arrest-in-progress, applies only to felonies. Here, pursuit was for obstructing an officer, a misdemeanor, and hot pursuit therefore can't justify entry to effectuate that arrest. ¶17.
For a case discussing the "doorway exception" and its relation to hot pursuit justification for entering a residence to effectuate an arrest, see State v. Mann, 76 Conn. App. 48, 818 A.2d 122 (2003).

Caution: a subsequent, 3-vote concurrence would overrule Mikkelson, State v. Dwight M. Sanders, 2008 WI 85 (majority granting relief on different ground and not reaching that issue).

Warrantless Entry of Residence – Exigency -- Hot Pursuit – Misdemeanor (Obstructing)
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: Hot pursuit for the crime of obstructing doesn’t overcome the presumption that warrantless entry of a residence is unreasonable, ¶¶16-29. (State v. Harold C. Mikkelson, 2002 WI App 152, followed; State v. Vanessa D. Hughes, 2000 WI 24 and State v. Patrick E. Richter, 2000 WI 58, distinguished.) The concurrence urges supreme court review to overrule Mikkelson, at least to the extent that it categorically limits hot pursuit to felonies, ¶¶34-41 -- and on review by the supreme court a 3-vote concurrence would have done just that; the majority affirmed the grant of relief without reaching the issue.
Exigency -- Hot Pursuit -- Entry of Residence -- Arrest of 3rd Party
State v. Michael J. Kryzaniak/Sherry L. Kryzaniak, 2001 WI App 44.
For Kryzaniak: Raymond G. Meyer II.
Issue: Whether warrantless entry of a residence to arrest a third party was justified by the exigent circumstance of hot pursuit.
Holding:
¶18 ... (T)here was no immediate or continuous pursuit of a suspect from the scene of a crime; thus, there was no hot pursuit and no exigent circumstances.… There was no pursuit here, only a day-long investigation of Anderson's whereabouts. The police were at the Kryzaniak residence as the result of an investigation, not a police chase.…

¶21 Our reluctance to find exigent circumstances is especially appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Welsh, 466 U.S. at 750.… ¶22 Consequently, the nature of the underlying offense is an important factor to be considered in the exigent circumstances calculus. Id. at 751. Most courts addressing this issue have disallowed warrantless home arrests for nonfelonious crimes. Id. at 752.

Exigency -- Hot Pursuit -- Reported Burglary in Progress
State v. Patrick E. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, reversing State v. Richter, 224 Wis. 2d 814, 592 N.W.2d 310 (Ct. App. 1999)
For Richter: Susan Alesia, SPD, Madison Appellate
Issue/Holding:
¶29 There are four well-recognized categories of exigent circumstances that have been held to authorize a law enforcement officer's warrantless entry into a home: 1) hot pursuit of a suspect, 2) a threat to the safety of a suspect or others, 3) a risk that evidence will be destroyed, and 4) a likelihood that the suspect will flee. Id. at 229. The State bears the burden of proving the existence of exigent circumstances. Id. at 228.

¶30 As in other Fourth Amendment cases, the determination of whether exigent circumstances are present turns on considerations of reasonableness, and we apply an objective test....

...

¶32 The exigent circumstance of "hot pursuit" is established "where there is an 'immediate or continuous pursuit of [a suspect] from the scene of a crime.'" ...

...

¶35 Hayden supports our conclusion that "hot pursuit" does not necessarily require that the officer personally witness the crime or the suspect's flight from the scene....¶36 Like the officers in Hayden, Berlin responded to a dispatch and picked up the trail of a fleeing suspect from an eyewitness account. His response to the scene of the crime was immediate, and his pursuit of the suspect was immediate and continuous upon his arrival on the scene and rapid collection of information regarding the whereabouts of the suspect. There is no evidence in this record of any delay in Berlin's response or pursuit that would have interrupted the immediacy and continuity of the situation and therefore dissipated the exigency. We conclude that Berlin's entry was justified by the exigent circumstance of hot pursuit.

As the quoted portion suggests, the police responded to a report of a burglary in progress at a trailer park. The victim told the officer that someone had broken into her trailer, and that she'd seen him flee into a trailer (Richter's) across the street. The officer then saw signs of forced entry of Richter's trailer. Some occupants opened the door, and directed the officer to the owner, Richter, who was sleeping. Richter gave permission to search. The officer found marijuana. ¶1. And as also indicated the court hold that the facts known to the officer supported entry on the basis of hot pursuit (the court, interestingly, not bothering to analyze entry in terms of "probable cause," though that test is surely applicable). The court also seems to hold that entry was justified on the separate theory of "exigent circumstances implicating a threat to physical safety," ¶40. The suspect had fled into Richter's trailer, which had signs of forced entry; people were sleeping inside, "creating a situation fraught with potential for physical harm if something was not immediately done to apprehend the suspect," ¶41. The court thus merges -- without saying so, the emergency and exigent circumstances doctrines (in that exigency on the basis of physical harm is rough short-hand for "emergency." This may seem, and might well be, a small thing, except that the court of appelas has construed Richter to therefore change the way warrantless emergency entries ("the urgent need to enter because of the possible need to render immediate assistance or prevent harm") are tested -- State v. Walter Leutenegger, 2004 WI App 127, see discussion, above.
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EXPECTATION OF PRIVACY
Expectation of Privacy – Generally:
State v. Elliot B. Russ, Sr., 2009 WI App 68
For Russ: Barry S. Buckspan
Issue/Holding:
¶11   The first issue turns on whether Russ had a reasonable expectation of privacy in the affidavits that he left on the bench. See Roberts, 196 Wis.  2d at 453, 538 N.W.2d at 828 (“[B]efore a defendant can invoke the protections of the Fourth Amendment, he or she must establish a legitimate expectation of privacy in the object searched.”).
The determination of whether the defendant had a reasonable expectation of privacy depends on two separate questions. The first question is whether the individual by his conduct exhibited an actual, subjective expectation of privacy. The second question is whether such an expectation is legitimate or justifiable in that it is one that society is willing to recognize as reasonable.
State v. Rewolinski, 159 Wis. 2d 1, 13, 464 N.W.2d 401, 405 (1990). We focus on the second aspect of the test, that is, whether Russ had an objectively reasonable expectation of privacy in the affidavits. See Roberts, 196 Wis. 2d at 454, 538 N.W.2d at 829 (“An actual, subjective expectation of privacy is not sufficient to create fourth amendment protection; in addition, the expectation must be one society is prepared to accept as objectively reasonable.”). We conclude that he did not.
Expectation of Privacy – Generally: Proof of (and: “Standing” Contrasted)
State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶20 …Bruski, as the proponent of a motion to suppress, has the burden of establishing that his Fourth Amendment rights were violated by the search. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978). [1]

¶21 To have a Fourth Amendment claim, the proponent must initially satisfy two requirements. First, the search must have been done by a government agent. …

¶22 Second, an individual must have standing. [2] Rakas, 439 U.S. at 140. There is not a bright-line test for determining when an individual has standing, but standing exists when an individual has a reasonable expectation of privacy. Id. at 144. The proponent of a Fourth Amendment claim bears the burden of proving that he or she had a reasonable expectation of privacy. State v. Whitrock, 161 Wis. 2d960, 972, 468 N.W.2d696 (1991) (citing Rawlings, 448 U.S. at 104). [3]


[1] … This court generally follows the United States Supreme Court's interpretation of the search and seizure provision of the Fourth Amendment in construing Article I, Section11 of the Wisconsin Constitution. State v. Young, 2006 WI 98, ¶30, _ Wis. 2d _, 717 N.W.2d729.

[2] Fourth Amendment standing differs from traditional notions of standing. Fourth Amendment standing analysis "focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing." Rakas v. Illinois, 439 U.S. 128, 139 (1978). Defining an individual's Fourth Amendment rights "is more properly placed within the purview of substantive Fourth Amendment law than within that of standing." Id. at 140. Standing, in the context of the Fourth Amendment, refers to a threshold substantive determination, which is distinct from Article III standing.

[3] In his brief, Bruski urged the court to overrule State v. Callaway, 106 Wis.2d 503, 317 N.W.2d 428 (1982), and construe Article I, Section 11 of the Wisconsin Constitution to confer automatic standing to defendants charged with possession of illegal material. … Given our agreement with the United States Supreme Court that "'Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted,'" Rakas, 439 U.S. at 133-34 (internal citation omitted), we continue to follow the Court's interpretation of the Fourth Amendment when construing Article I, Section 11 of the Wisconsin Constitution.

Expectation of Privacy, Generally
State v. Brian Harold Duchow,  2008 WI 57, reversing  unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue/Holding
¶21 This second component reflects that protections from unreasonable searches and seizures, as described in the Fourth Amendment of the federal constitution [15] as well as Article I, § 11 of the state constitution, [16] must be determined by reference to the "'scope of privacy that a free people legitimately may expect.'" State v. Whitrock, 161 Wis.  2d 960, 973, 468 N.W.2d 696 (1991) (quoting Rakas v. Illinois, 439 U.S. 128, 151 (1978)). "A reasonable expectation is one [that] is constitutionally 'justifiable.'" Id. at 974 (citation omitted). No single factor is determinative in resolving whether one has a reasonable expectation of privacy; rather, we investigate the totality of the circumstances to resolve the question. Id. at 973-74.

¶22 Recognizing that the law requires an examination of the totality of the circumstances in determining whether an individual has a reasonable expectation of privacy, courts have identified a non-exclusive list of factors to discern whether an individual's expectation of privacy in his or her oral statements is objectively reasonable. The factors include the following: (1) the volume of the statements; (2) the proximity of other individuals to the speaker, or the potential for others to overhear the speaker; (3) the potential for the communications to be reported; [17] (4) the actions taken by the speaker to ensure his or her privacy; (5) the need to employ technological enhancements for one to hear the speaker's statements; and (6) the place or location where the statements are made. [18] See, e.g., Kee, 247 F.3d at 213-15.

Privacy interest in an oral statement is subject to a different calculus than where real property is ¶22 n. 18 ("We forgo applying the factors we most recently cited in State v. Bruski, 2007 WI 25, 299 Wis. 2d 177, 727 N.W.2d 503, for determining whether an individual's expectation of privacy is reasonable. We do so because the Bruski factors apply to assertions of a privacy interest that were taken from the context of an expectation of privacy in real property. ... While these factors may be instructive, we conclude that their focus on criteria relating to property renders them not directly applicable in evaluating whether an individual has an expectation of privacy in oral statements.").
Expectation of Privacy – Generally: In Relation to Area Searched
State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶23 Whether an individual had a reasonable expectation of privacy in an area subjected to a search depends on two prongs. Smith v. Maryland, 442 U.S. 735, 740 (1979); Dixon, 177 Wis. 2d at 468. First, whether the individual's conduct exhibited an actual (i.e., subjective) expectation of privacy in the area searched and the item seized. Then, if the individual had the requisite expectation of privacy, courts determine whether such an expectation of privacy was legitimate or justifiable (i.e., one that society is willing to recognize as reasonable).

¶24 In considering whether an individual's expectation of privacy constitutes a legitimate or justifiable one, our court has stated that the following factors may be relevant:

(1) whether the accused had a property interest in the premises; (2) whether the accused is legitimately (lawfully) on the premises; (3) whether the accused had complete dominion and control and the right to exclude others; (4) whether the accused took precautions customarily taken by those seeking privacy; (5) whether the property was put to some private use; (6) whether the claim of privacy is consistent with historical notions of privacy.
Id. at 469 (citing State v. Fillyaw, 104 Wis. 2d 700, 711 n. 6, 312 N.W.2d 795 (1981)). The list is neither controlling nor exclusive. Rather, courts consider the totality of the circumstances when evaluating the latter prong of the reasonable expectation test.
Expectation of Privacy -- Abandoned Property
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 the seizure of files earmarked for destruction by a disbarred attorney violated the fourth amendment.
Holding: The files, which the disbarred attorney had turned over to a third party for destruction, had been abandoned and therefore no search and seizure occurred within the meaning of the fourth amendment.
Knight was a disbarred attorney. He had given his client files to his secretary, who had taken them to her home and was going to throw them out. Before she could do that, a circuit court appointed a trustee to take charge of the files, pursuant to SCR 22.271(2). The trustee found evidence of embezzlement in one of the files, leading to Knight's conviction and this appeal. The fourth amendment didn't protect Knight, because he had abandoned the files to his secretary. "When a person turns material over to a third party, that person has no Fourth Amendment protection if the third party reveals it or conveys it to governmental authorities," regardless of the person's "subjective belief or expectation that the third party would not betray him or her." ¶13.
Expectation of Privacy – Automobile: (Non-Owner) Driver – "Standing" to Challenge Search of Car
State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding: Bruski did not establish an expectation of privacy in the automobile from which evidence was seized, where his only connection to the automobile was that he had passed out in it; further, he did not know how he’d gotten to his current location and didn’t know where the car key was. Moreover, any expectation of privacy he might have had would not have been reasonable under the circumstances:
¶27 First, Bruski had no property interest in the vehicle. His only connections to the vehicle were that he passed out in it and claimed to know the owner's daughter. The fact that he did not even know Ms. Smith's daughter's last name suggests that he did not have any relationship with the owner of the vehicle that would support a conclusion that he had a property interest in Ms. Smith's vehicle.

¶28 Second, Bruski took no precautions customarily associated with those seeking privacy. He did not even know how he had gotten to his current location, let alone taken steps to retain his privacy. Although he argues that parking the car behind a residence constitutes an effort to retain his privacy, this lacks persuasiveness given that he did not even acknowledge being the person to drive the vehicle to that location.

¶29 Third, Bruski lacked the right to exclude others from the vehicle. He did not own the vehicle. He did not establish any possessory interest in the vehicle. As mentioned above, but also relevant to this factor, his only connections to the vehicle were that he passed out in it and claimed to know the owner's daughter. His lack of knowledge about how he got to his current location also undermines his authority to exclude others from the vehicle.

¶30 Finally, Bruski's claim of privacy in Ms. Smith's vehicle is not consistent with historical notions of privacy. …

If “reasonableness” and “expectation of privacy” analyses seem to overlap to the point of blurring any distinction, well, that’s because they do. However sliced, though, Bruski’s claim is about as weak as you can get: he couldn’t even show that he was a permissive driver; all he could show was that he’d passed out in a car which hadn’t been reported stolen. His more substantial claim related to his expectation of privacy in the container from which the evidence was seized, an issue discussed separately.
Expectation of Privacy -- Automobile Passenger -- "Standing" to Challenge Stop
State v. Anthony Harris, 206 Wis. 2d 243, 557 N.W.2d 245 (1996), reversing unpublished decision of court of appeals
For Harris: Robert J. Diaz
Issue: Whether passenger who is not target of vehicle stop has standing to challenge its lawfulness.
Holding:
... [M]ost of the federal circuit courts have held that a traffic stop of a vehicle constitutes a seizure of any of the passengers. People v. Bell, 51 Cal. Rptr. 2d 115, 119 (Ct. App. 1996). ... In Bell, the court held that the detention of the driver on a traffic violation stop was equally a detention of the passenger. 51 Cal. Rptr. 2d at 122. Therefore, the passenger in Bell was detained and had standing to challenge the lawfulness of the driver's detention. Id. ...

Recognizing the growing trend in other state and federal jurisdictions, and more importantly, recognizing that when a passenger rides in a vehicle he or she does not surrender the Fourth Amendment and art. I, sec. 11 right against unreasonable seizure, we now adopt the bright line rule described in Bell. Moreover, we apply this rule to all police-initiated vehicle stops, finding no rational distinction, for standing purposes, between the rights of passengers in a traffic stop and the rights of passengers in an investigatory stop. We hold that when police stop a vehicle, all of the occupants of that vehicle are seized and have standing to challenge the stop.

What, though, of the slight but recurrent variant of a lawful stop but an unlawful continuing detention? On that issue there is authority that no similar bright-line rule exists, that the passenger must show a connection between his continued (unlawful) detention and the seized evidence, e.g., See, e.g., U.S. v. Ladeaux, 10th Cir No. 05-8097, 7/12/06; U.S. v. DeLuca, 269 F.3d 1128 (10th Cir 2001); U.S. v. Pulliam, 9th Cir No. 03-50550, 4/21/05 -- for detailed discussion distinguishing that sort of situation from an illegal-at-inception stop, see U.S. v. Mosely, 3rd Cir No. 05-1519, 7/21/06 (standard fruits analysis applies, without need to show factual nexus between police illegality and seized evidence). State v. Baker, 2008 UT App 115 ("from the moment the officers placed the driver under arrest, Baker, a passenger in the driver's vehicle, was unlawfully detained").
Expectation of Privacy – Automobile: Closed Container
State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶32 Bruski argues that he had a reasonable expectation of privacy in his travel case, even if he did not have a reasonable expectation of privacy in Ms. Smith's vehicle. The question of whether an individual may have a reasonable expectation of privacy in personal property found inside a vehicle that he or she does not have a reasonable expectation of privacy in has not been addressed by the United States Supreme Court. It is a matter of first impression in this state.

¶34 The court of appeals in this case seemingly followed the bright-line rule rationale …. The Fourth Amendment does not lend itself to bright-line rules, see Rakas, 439 U.S. at 147, and we will not adopt one in this case.

¶37 The Court has set forth principles that are especially pertinent in resolving whether Bruski had a reasonable expectation of privacy in the travel case. First, personal property found in vehicles is treated differently than personal property found in dwellings. There is a lesser expectation of privacy in vehicles. …

The court thus effectively overruled the coourt of appeals' holding, 2006 WI App 53, ¶19, that "(w)ithout a reasonable expectation of privacy in the vehicle, he has no expectation of privacy relative to his travel case as a matter of law, even though he owned the case." However, the court goes on to decline to find a reasonable expectation of privacy in the container, given the circumstances:
¶39 As mentioned above, there is a reduced expectation of privacy in vehicles. … Bruski left the travel case in a vehicle that he did not own. He left it in a vehicle in which he had established no connection. He left it in a vehicle where he had no reasonable expectation of privacy. [5]

¶40 Courts "have been reluctant to find a reasonable expectation of privacy where the circumstances reveal a careless effort to maintain a privacy interest." United States v. Angevine, 281 F.3d 1130, 1135 (10th Cir. 2002) (citing United States v. Anderson, 154 F.3d 1225, 1232 (10th Cir. 1998)). Bruski left his travel case in a vehicle he did not have a reasonable expectation of privacy to while he was in such a state that he appeared dead, and required physical shaking to be roused.

¶41 The ease with which Officer Beauchamp came across the travel case illustrates Bruski's carelessness and failure to take "precautions customarily taken by those seeking privacy." Dixon, 177 Wis. 2d at 469. … Additionally, Bruski had not done anything to protect any privacy interest he may have had. The travel case was not locked. It did not have identifying information on its exterior. Nothing indicated that Bruski had an expectation of privacy in the travel case. Even when Officer Beauchamp was in the process of opening it, Bruski had neither a verbal or nonverbal response.

The court suggests that State v. Matejka, 2001 WI 5 (search of passenger’s jacket upheld on theory of driver’s consent) contrastingly shows 4th A standing, because that case “involved personal property that had been removed from a vehicle, facts that do not exist in this case,” ¶45 n. 6:
State v. Matejka, 2001 WI 5, 241 Wis. 2d 52, 621 N.W.2d 891, presented a different issue than the one that arises in this case. Defendant Jennifer Matejka claimed the government had violated her Fourth Amendment rights when it searched her jacket. The court held that the search of Matejka's jacket was reasonable based on the driver's consent to the search of his vehicle. Her jacket (i.e., personal property) had been retrieved from the vehicle being searched. Before a government agent searched the jacket, it had been removed from the vehicle and the agent had been given a description of her specific jacket. The Matejka court did not address whether Matejka had a reasonable expectation of privacy in her jacket. Her standing to challenge the search of her jacket may be inferred because the court addressed her Fourth Amendment claim. Matejka involved personal property that had been removed from a vehicle, facts that do not exist in this case.
Just how valid is the distinction, though? Matejka's jacket was left inside the van after she (and the other passengers) were ordered out. Her jacket was retrieved by the police, and searched, after the passengers complained of being cold, 2001 WI 5, ¶¶8-12. Bruski, too, left his property behind when "asked" to get out, 2007 WI 5, ¶9. Presumably, if he'd asked for the case then his situation would be indistinguishable from Matejka's and, like her, he'd have standing to challenge an ensuing search. Seems like a fairly arbitrary distinction, though it might be this: by insisting that the item be delivered to him, he would thereby be exercising sufficient dominion and control so as to assert a right to, and freedom of interference with, that property. In any event, the court has explicitly recognized the distinction and so it must be kept in mind.
Expectation of Privacy -- Bank Records: U.S. v. Miller Still Good Law, Both State and Federal Constitutions
State v. Michelle R. Popenhagen, 2007 WI App 16, PFR granted 4/17/07
For Popenhagen: James B. Connell
Issue/Holding1: The holding of U.S. v. Miller, 425 U.S. 435 (1976), that the fourth amendment confers no legitimate expectation of privacy in bank records, remains good law, notwithstanding passage of the 1978 Right to Financial Privacy Act and “scholarly criticism” of the holding, ¶¶10-18.
Issue/Holding2: The holding of State v. Swift, 173 Wis. 2d 870, 883, 496 N.W.2d 713 (Ct. App. 1993), that bank records are afforded the same protection under Wis. Const. Art. I, § 11 as under the fourth amendment, controls the present argument that banks records should be given greater protection under the state constitution:
¶22      Popenhagen argues Swift has been called into question by Eason. Eason involved the “good faith” exception to the exclusionary rule. Id., 245 Wis.  2d 206, ¶28. The court adopted a narrower “good faith” exception than exists under the Fourth Amendment, and stated that Wis. Const. Art. I, § 11, guarantees more protection than the Fourth Amendment with regard to that particular point of law. Id., ¶60. …

¶23      … However, Eason did not overrule Swift or even call that case into question. It merely applied the standard existing when Swift was decided to a different question, and reached a different result. Swift is therefore controlling law, and we are bound to follow it. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997). We therefore reject Popenhagen’s argument that a right to privacy in bank records is recognized by the Wisconsin Constitution.

Good dissent, ¶¶30-39, which more or less makes the point that § 968.135 itself establishes an expectation of privacy in bank records under state law. The tension is thus as follows: a purely statutory violation will not support suppression unless mandated as a remedy by the statute; the statute in this instance doesn’t mandate suppression but it does establish a depositor’s expectation of privacy in bank records. Is it, then, enough for fourth amendment suppression purposes that a statute create an expectation of privacy or must the statute go a step further and expressly mandate suppression?
Expectation of Privacy - Commercial Building Dumpster
State v. Richard D. Yakes, 226 Wis.2d 425, 595 N.W.2d 108 (Ct. App. 1999).
Issue/Holding: Yakes owned a commercial enterprise, on whose property was a dumpster owned by the disposal company. The police, acting without a warrant, seized evidence from the dumpster. Yakes, the court of appeals holds, did not demonstrate a reasonable expectation of privacy as to his trash. The court adopts United States v. Hall, 47 F.3d 1091 (11th Cir. 1995), which requires the business owner to show what affirmative steps were taken to bar the public from the dumpster area. The yard was fenced, but not gated. Customers and others entered the area. The disposal company had access. And, the police regularly patrolled the area, without complaint from Yakes.
Expectation of Privacy – Public Area (Courthouse Hallway), Property Left in
State v. Elliot B. Russ, Sr., 2009 WI App 68
For Russ: Barry S. Buckspan
Issue/Holding: No expectation of privacy protected papers left in courthouse hallway and subsequently seized and photocopied by court personnel:
¶12   Although Russ’s main brief on this appeal asserts that, as testified-to by Carlson, the affidavits were in a folder when Carlson saw them, the circuit court found that when Commissioner Sweet first saw them they “were spread out on a public bench” … . The circuit court thus concluded that the commissioner did not invade Russ’s privacy when he took the documents. We agree. See Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”); see also State v. Barrett, 401 N.W.2d 184, 189–190 (Iowa 1987) (no reasonable expectation of privacy in personal journals inadvertently left in restaurant); State v. Flynn, 360 N.W.2d 762, 765, 766 (Iowa 1985) (“the place where seized property is located may be so exposed as to negate any reasonable expectation of privacy”) (no reasonable expectation of privacy in paper sacks containing financial records and cassette tapes left under a tarpaulin on a golf course “accessible to all of the private members and others given permission to enter”). There was thus no illegal search when the commissioner picked up and looked at the affidavits.

¶13   There was also no illegal seizure when the commissioner photocopied the affidavits. “A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). Here, as we have seen, the commissioner was lawfully entitled to look at the affidavits, which, as the circuit court found, were “in plain view” and “[t]heir potential incriminating character was immediately apparent.” See Katz, 389 U.S. at 351; Cardwell v. Lewis, 417 U.S. 583, 591–592, 594 (1974) (Fourth Amendment not violated by “the taking of paint scrapings from the exterior of the vehicle left in the public parking lot.”); United States v. Mancari, 463 F.3d 590, 596 (7th Cir. 2006) (photographing items in plain view does not violate the Fourth Amendment). Russ’s Fourth Amendment rights were not violated. Accordingly, the circuit court properly denied Russ’s motion to suppress.

Not hard to read between the lines: Russ, a process server, had ruffled feathers, ¶7, with court staff only too glad to hunt and peck through his paperwork. If there’s a moral, it might be that you don’t want to leave forged documents lying around people who bear you ill-will.
Expectation of Privacy -- Curtilage -- (Attached) Garage
State v. Walter Leutenegger, 2004 WI App 127
For Leutenegger: Bill Ginsberg
Issue/Holding: ¶21 n. 5:
The State does not challenge the circuit court's holding that the garage was part of the curtilage of Leutenegger's house and subject to the warrant requirement. This implicit concession appears appropriate in this case. Published decisions on this topic consistently hold that an attached garage is part of the curtilage. See Los Angeles Police Protective League v. Gates, 907 F.2d 879, 885 (9th Cir. 1990); State v. Pink, 648 N.W.2d 107, 109 (Iowa 2002). We caution, however, that such determinations are fact specific and, in a particular case, a house and attached garage may be situated such that entry through an open garage door to an "exterior" house door within the garage may appear to be the least intrusive means of establishing contact with an occupant. Under such circumstances, an attached garage might be considered non-curtilage for the limited purpose of making contact with an occupant, similar to some porches. See United States v. Santana, 427 U.S. 38, 42 (1976); State v. Potter, 72 S.W.3d 307, 313-14 (Mo. Ct. App. 2002).
A thoroughly gratuitous footnote. If the point is to remind that access to a house ought to be by " least intrusive means," then the question is still begged: the issue is whether there's an invitation of public access, not whether one means of uninvited access is less intrusive than another. Moreover, it may be imaginable that some house, somewhere affords the public access through an attached garage, but the possibility seems unlikely enough to warrant this footnote -- which probably explains why, as the footnote concedes, published decisions "consistently" hold an attached garage to be within the curtilage. E.g., State v. Kitchen, 1997 ND 241, ¶17, 572 N.W.2d 106 (attached garage distinguished from "small attached entryway" re: expectation of privacy).

Nor do the cases cited in the footnote explain when a garage is or isn't regarded as curtilage. Potter is a search warrant case (police authorized to search garage under authority of warrant precisely because it was curtilage). Santana says that if you voluntarily stand in the open doorway of your home you’re relinquishing your right to privacy, such that the police can arrest you (assuming cause of course). Santana doesn’t quite cover Leutenegger’s situation because he was inside the garage, not standing in its doorway. The underlying principle has been termed the “doorway exception,” and a number of courts, including State v. James L. Larson, 2003 WI App 150, refuse to apply it when you answer the door in response to the police. This is, however, not exactly uncontroversial: there is authority for the idea that when someone "voluntarily" opens the door to a police knock, the police may indeed frisk that person inside the doorway, State v. Mann, CT SCt No. SC 16996, 10/5/04, on less than probable cause. Contrast, State v. Cranford, 2005-Ohio-1904, ¶¶14-18 (merely opening door to police knock didn't expose occupant to "public view," so as to allow police to enter and make warrantless arrest, at least where occupant didn't actually "step[] into the open doorway or exit[] her home"). The Supreme Court will eventually have to resolve the "doorway exception," but for present purposes you can see that we’re getting somewhat afield from the undisputed notion that Leutenegger’s garage was within the curtilage of his home; and that’s why the footnote is gratuitous.

UPDATE: For a more refined analysis of what constitutes garage-as-curtilage, see State v. Trusiani, 2004 ME 107:

[¶10] In Oliver v. United States, the United States Supreme Court held that the Fourth Amendment protects the curtilage of a house from unreasonable searches and seizures. 466 U.S. 170, 180 (1984). The definition of curtilage was explored in United States v. Dunn, 480 U.S. 294 (1987), where the Court developed a test for determining what constitutes the curtilage of the home, requiring the consideration of four factors:
the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. Id. at 301.
[¶11] Using this test, the garage was within the curtilage of Trusiani’s mother’s home. The garage was attached to the home. It was used for storage, and it housed a working refrigerator and a freezer. Although the garage had windows, the vehicle and passage doors to the garage were closed. ...
As Trusiani goes on to point out, a determination of "curtilage" hardly ends the analysis -- "the State is allowed to intrude into the home's curtilage under certain circumstances, including accessing the entry to a dwelling while conducting legitimate law enforcement activities," ¶15. The question thus becomes whether the walkway, albeit part of the curtilage, is tantamount to an implied invitation, such that the police do have the right to enter the curtilage, "that right is restricted to areas that are the 'normal route of access' for visitors ." ¶¶17-19. In Trusiani's instance, his family used the garage to enter the house, but it wasn't a normal access route for visitors, hence police entry of the garage was unlawful. See also State v. Jenkins, 2007 Op. No. 30, ID SCT No. 33347, 2/21/07 ( "Jenkins’ garage was part and parcel of the structure constituting his home, and was secured with a door closed at the time police arrived at the home. On the facts of this case, Jenkins had a reasonable expectation of privacy in his temporarily opened attached garage, and this space was subject to Fourth Amendment protection.").

Same sort of analysis, but different result on the facts, albeit not a garage-entry case: Trimble v. State , Ind SCt No. 40S01-0602-CR-64, 2/21/06 ("However, police entry onto private property and their observations do not violate the Fourth Amendment when the police have a legitimate investigatory purpose for being on the property and limit their entry to places visitors would be expected to go, such as walkways, driveways, and porches."), reversing Trimble v. State, 816 N.E.2d 83 (App 2004). The court of appeals had held that the police should have approached via the front door rather than the back but the supreme court ruled that the police were allowed to go to the back door because the "driveway ... wrapped around the back of Trimble's house," and "(m)ost of the traffic to Trimble's house goes to the back door." Both of these courts stressed that the issue of whether "a given piece of real estate may reasonably be viewed as open to visitors is fact-specific."

For detailed discussion with a number of cites on "implied invitation" doctrine, see Robinson v. State, 45 Va App 592, 612 S.E.2d 751 (2005). (See also discussion re: Larson and "Threshold of Residence," below, on "implied invitation" doctrine.) Indeed, as the Robinson dissent makes clear, the implied invitation doctrine is to a large extent the rationale authorizing the "knock and talk" practice which is increasingly referred to in the caselaw. Note as well that Robinson was upheld on en banc review, 1/31/06, in a lengthy opinion which among others makes the following general points:

It is generally recognized that, absent any affirmative attempts to discourage trespassers, owners or possessors of private property impliedly consent to have members of the general public intrude upon certain, limited areas of their property. ...

This invitation, where it exists, extends only to those areas of the property that would be used when approaching the residence in an ordinary attempt to speak with the occupants. See id. Thus, areas of the curtilage that a visitor could reasonably be expected to cross when approaching the front door—for example, the driveway, front sidewalk, and front porch—are generally exempted from Fourth Amendment protection....

The landowner’s implied consent is generally presumed to exist absent evidence of an affirmative intent to exclude the public from the premises....

As for knock-and-talk, see e.g., U.S. v. Taylor, 11th Cir No. 05-10648, 7/28/06 ("a minor departure from the front door under these circumstances does not remove the initial entry from the 'knock and talk' exception to the warrant requirement"). But see, State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998) ("One of Ferrier's contentions is that the so-called 'knock and talk' procedure employed by the police officers to obtain her consent to the search is violative of both the state and federal constitutions. ... We conclude that because Ferrier had heightened privacy rights in her home, as guaranteed by article I, section 7 of our state constitution, she should have been informed that she need not consent to the search."). More on "knock and talk" below.

And State v. Silva, Or App No A120338, 2/2/05 (to effect that intrusion onto curtilage presumptively trespass, and that mere existence of gate, path, etc., insufficient to defeat presumption); State v. Pierce, OR App No. A131475, 3/4/09 (similarly: "Approaches to points on the property other than a front door, however, are generally not regarded as being approaches to which the occupant has implicitly consented." That is, entry onto property by means other than approaching front door is presumptive trespass, albeit rebuttably so.); Leach v. Commonwwealth, KY App NO. 2006-CA-001481-MR, 7/20/07 ("the officer may [execute knock-and-talk at back door] only if the front door is inaccessible or if they first knocked on the front door and got no response").

For conclusion that officer's penetration of front porch was proper because it was "an entryway," hence resident had no reasonable expectation of privacy, see State v. Edgeberg, 188 Wis. 2d 339, 524 N.W.2d 911 (1994) (i.e., stressing that porch afforded "normal mean of access to and from house"; as contrasted, interestingly, from "a closed garage"). To like effect, with survey of cases, see People v. Tierney, MI App No. 252185, 6/14/05; U.S. v. Titemore, 2nd Cir No. 05-1380-cr, 2/9/06 (officer's approach, across lawn and up porch, permissible because within "principal entranceway" to house; very detailed discussion of curtilage doctrine, synthesized as: "when a police officer enters private property for a legitimate law enforcement purpose and embarks only upon places visitors could be expected to go, 'observations made from such vantage points are not covered by the Fourth Amendment'"). But see, State v. Peterson, 2007-Ohio-5667 (during knock-and-talk operation one officer went up to the side of residence, where there was no driveway or sidewalk: this violated occupant's expectation of privacy such that officer's observations couldn't be considered in plain view).

For authority that a detached garage was within the curtilage of the home, see Bies v. State, 76 Wis.2d 457, 462-63, 251 N.W.2d 461 (1977). Result similar to Bies: State v. Buzzard, 2005-Ohio-5270 (peering into garage through 1/4-inch crack violated expectation of privacy).

For idea that absence of closed gate generally amounts to invitation to public to enter along driveway and portion of yard adjacent to front door of residence: U.S. v. Lakoskey, 8th Cir No. 05-3389, 9/14/06.

Expectation of Privacy -- Curtilage -- Test -- Open Fields
State v. Thomas G. Martwick, 2000 WI 5, 231 Wis.2d 801, 604 N.W.2d 552, reversing unpublished decision.
For Martwick: Robert P. Rusch
Issue: Whether plants found on Martwick's property were within his curtilage, and therefore subject to the warrant requirement, or in "open fields."
Holding: The plants were in open fields, outside the curtilage, and therefore could be seized without a warrant.
The sheriff thought Martwick was growing marijuana on his property, but didn't have enough information to get a warrant. Two deputies went out to spy on him, and found five marijuana plants 50-75 feet from his house, along a path leading to some ginseng sheds. ¶9. The four-factor curtilage test is found in United States v. Dunn, 480 U.S. 294, 300 (1987): proximity to home; existence of enclosure; use to which area put; steps taken by resident to protect area from observation. ¶30. Applying them here: Proximity militates (strongly, perhaps) in favor of curtilage. ¶34. During the term just past, the court found a truck to be within the curtilage of a farmhouse 200 feet away. State v. O'Brien, 223 Wis. 2d 303, 588 N.W.2d 8 (1999). But that case is distinguishable, largely because it involved a farmhouse. ¶¶35-36. Martwick put up no enclosure around his house. ¶37. The plants were growing in an area not used "for anything in particular." ¶41. Finally, the fact the plants were found among dense trees that shielded them observation from the street isn't meaningful: Martwick did not himself plant the trees, and thus "simply has not exercised dominion over his woods, so as to make the woods an intimate part of his home." ¶42. The decision splits 4-3, with a concurrence by Justice Prosser, whose stress on the following factors ought to be closely reviewed, because he cast the deciding vote: "Martwick did not place any enclosure around his woods or take any steps to discourage public entry onto his property. He did not use the woods for the kind of lawful activities intimately associated with the home. Therefore, the circuit court was correct...." ¶60. See also U.S. v. Cousins, 10th Cir No.04-2218, 7/26/06 (to effect that even partial enclosure of area supports curtilage, but finding exception where "the unenclosed side is the expected path one would take to get to the sideyard").

Review of a curtilage is the familiar bipartite one: trial court findings of historical fact (in this context, the Dunn factors) are reviewed for clear error; but whether those facts establish curtilage is a matter of constitutional fact, reviewed de novo, ¶¶16-24. See also U.S. v. Cousins, 10th Cir No.04-2218, 7/26/06 (same).

Expectation of Privacy -- Curtilage - Backyard area
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: Officer's invasion of home's curtilage, where he smelled marijuana burning inside, held unlawful. Court enumerates various factors relevant to extent of curtilage protection, and stresses that fourth amendment protects both home and area around it. In this case, the officer went into a backyard area where children played, and the back door "is intimately related to the home itself[.]" For these and other reasons, the court finds that the officer penetrated the curtilage when he discovered the odor of marijuana. His intrusion was therefore unlawful. (Note: presumably, this illegal entry tainted everything that followed, but the court doesn't analyze the issue this way, instead seeming to suggest that only the "discovery of the marijuana odor was without legal justification.")
For a relatively detailed discussion of the considerations which go into whether a back-yard area is "curtilage" or "open field," see Trimble v. State, 816 N.E.2d 83 (Ind. App. 2004), stressing that the backyard and area immediately surrounding the home are extensions of the dwelling, reversed on other grounds, Trimble v. State, Ind SCt No. 40S01-0602-CR-64, 2/21/06. See also Hardesty v. Hamburg Township, 6th Cir No. 05-1346, 9/1/06 ("the backyard of a home is part of the curtilage"; but: court goes on to uphold police "officers' decision to proceed around the house to seek out a back door [as being] within the scope of the knock and talk investigative technique"); State v. Silva, Or App No A120338, 2/2/05 (where backyard fenced from adjoining property, and back door not visible from front door or any other area accessible to public, police committed trespass by entering backyard without warrant); State v. Hemphill, LA App No. 41,526-KW, 11/17/06 (shed in yard deemed within curtilage: "defendant had a heightened expectation of privacy in his yard. The yard was partially enclosed and fenced, and distinguishable from adjoining agricultural fields. The shed itself was partially obscured from view by the fence and vegetation").
Go To Brief

Expectation of Privacy -- Garbage
State v. Sylvester Sigarroa, 2004 WI App 16, PFR filed 1/2/04
For Sigarroa: John Pray, UW Law School
Issue/Holding:
¶14. The State and Sigarroa propose different tests for determining the constitutionality of a warrantless garbage search….

¶16. Both parties are able to cite case law in support of their competing approaches. However, upon close review of the relevant cases, it appears to this court that the law has moved away from the strict "curtilage" approach. Fewer and fewer cases speak to curtilage as a separate factor….

¶19. Adhering to the development of the case law, we are persuaded that the proper analysis comes under the two-part test proposed by Sigarroa: (1) whether the individual by his or her conduct has exhibited an actual, subjective expectation of privacy, and (2) whether that expectation is justifiable in that it is one which society will recognize as reasonable. Stevens, 123 Wis. 2d at 316. This is not to say that the State's analysis is entirely off base. We simply hold that a discussion of curtilage/open fields appropriately falls within an expectation-of-privacy analysis and is not a separate factor as the State suggests.

¶21. We do not agree that … that Sigarroa had an actual, subjective expectation of privacy in his trash. We reach this conclusion based on the following evidence. The garbage was placed in a dumpster located at the far rear of the apartment building property. The garbage was placed in the dumpster with the knowledge of and expectation that it would be picked up for disposal by the garbage collection service. While the property was surrounded on three sides by a fence, the fence did not impede access to the property or to the dumpster. Although the property had a "Private Property" sign and signs warning that there should be no playing around the dumpster, the signs did not bar observation of the dumpster from the street or impede access to the dumpster. The dumpster was located in an area totally unassociated with activities that would normally be associated with notions of privacy.

¶22. We now turn to the second prong of the two-part test and hold that even if Sigarroa had demonstrated an actual, subjective expectation of privacy, we cannot say that his expectation is justifiable in that it is one which society would recognize as reasonable. In making our determination, we look to whether our society would expect to have privacy in this garbage under the facts of this case. It is our view that society would not recognize a reasonable expectation of privacy when garbage is thrown into a dumpster with the knowledge and the expectation that control of the garbage would be turned over to third parties. Society would expect that while the most immediate third-party recipient of garbage in a dumpster would be a garbage collector, that is not the only third party one can envision taking control of this garbage. It would not be unreasonable under these facts for society to expect access to the garbage by other third parties (i.e., scavengers and the like) when such garbage is easily accessible to the public. As noted, this garbage was abandoned in a dumpster that was both visible from the street and had unimpeded access from the street. See Greenwood, 486 U.S. at 40. Garbage receptacles "cannot be equated to a safety deposit box," United States v. Shelby, 573 F.2d 971, 973 (7th Cir. 1978), and "[t]here is nothing unfair about requiring that people not discard things they want to keep secret, or destroy them before they do." United States v. Kramer, 711 F.2d 789, 792 (7th Cir. 1983). Evaluating this case on its particular facts, we hold that Sigarroa's Fourth Amendment protection claim fails.

Expectation of Privacy – GPS Tracking
State v. Michael A. Sveum, 2009 WI App 81, PFR filed 5/28/09
For Sveum: Robert J. Kaiser, Jr.
Issue/Holding: No search or seizure within the 4th A occurs when police attach a GPS device to the outside of a vehicle in a publicly accessible place and then track the vehicle in public view:
¶8        We agree with the State that neither a search nor a seizure occurs when the police use a GPS device to track a vehicle while it is visible to the general public. The seminal cases on this topic are United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984).

¶11      Knotts and Karo teach that, to the extent a tracking device reveals vehicle travel information visible to the general public, and thus obtainable by warrantless visual surveillance, the use of the device does not normally implicate Fourth Amendment protections. It follows that no Fourth Amendment violation occurred here simply because the police used a GPS device to obtain information about Sveum’s car that was visible to the general public.

¶12      We also agree with the State that the police action of attaching the GPS device to Sveum’s car, either by itself or in combination with subsequent tracking, does not constitute a search or seizure. [4]  The State aptly relies on United States v. Garcia, 474 F.3d 994 (7th Cir. 2007).

¶13   … Like the Seventh Circuit, we discern no privacy interest protected by the Fourth Amendment that is invaded when police attach a device to the outside of a vehicle, as long as the information obtained is the same as could be gained by the use of other techniques that do not require a warrant.

¶19      Accordingly, we conclude that no Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle while it is in a place accessible to the public and then use that device to track the vehicle while it is in public view. Because this case does not involve tracking information on the movement of Sveum’s car within a place protected by the Fourth Amendment, it follows that the circuit court correctly rejected Sveum’s Fourth Amendment suppression argument.

Several points. The cops placed the device on Sveum’s car while it was in his driveway. Svuem didn’t challenge on appeal the trial court ruling that this wasn’t within the curtilage, ¶14. If planting the device does intrude on 4th A-protected interests, then you’ve got a different situation. Another possible point of distinction: the court stresses that Sveum’s car was tracked only within areas open to public surveillance, ¶17; the court immediately goes on to say, So what, we don’t care about that, ¶18, to which you can say, So what, the court acknowledged Sveum didn’t argue the point and its analysis wasn’t “exhaustive[],” which sounds like an invitation to revisit the problem. The court also expresses not a little anxiety about privacy implications of its ruling, and exhorts legislative action in “imposing limitations on the use of GPS and similar devices by both government and private actors.” (Hmm. Maybe they imagine some nutjob attaching a GPS device to their cars.) Never fear, proposed legislation, AB 171, would make it a Class I felony for a private citizen to track someone with a GPS device; and would authorize the police to obtain a GPS warrant, with suppression a remedy for failing to follow statutory procedure.

GPS tracking under the 4th A is, as you might imagine, a fast-developing area: “Tied Up in Knotts? GPS Technology and the Fourth Amendment,” UCLA Law Review, Vol. 55, No. 1, pp. 409-465, 2007 (“Considering the intrusiveness of GPS-enhanced tracking, this Article concludes that the unfettered use of such surveillance is inimical to fundamental Fourth Amendment principles. The most defensible treatment of GPS tracking under the existing analytical framework is that it is a search and, as such, must be preauthorized by a warrant issued only upon probable cause.”); Evidence Prof post 7/7/09. There’s also the matter of whether the state constitution would accommodate greater protection in this area, something Sveum seems not to have been raised. Several courts have indeed gone just that route, including Washington v. Jackson, 150 Wash 2d 251, 76 P3d 217 [2003]; Oregon v Campbell, 306 Or 157, 759 P2d 1040 (1988) and, more recently, People v. Weaver, NY Ct App No. 53, 5/12/09 (“If, as we have found, defendant had a reasonable expectation of privacy that was infringed by the State's placement and monitoring of the Q-Ball on his van to track his movements over a period of more than two months, there was a search under article I, § 12 of the State Constitution. And that search was illegal because it was executed without a warrant and without justification under any exception to the warrant requirement. In light of the unsettled state of federal law on the issue, we premise our ruling on our State Constitution alone.”). Amicus Brief of NACDL in support of Weaver, here.


Expectation of Privacy -- Hospital Emergency Room
State v. Melvin Thompson, 222 Wis. 2d 179, 585 N.W.2d 905 (Ct. App. 1998)
For Thompson: Phillip J. Brehm
Issue/Holding:
No published Wisconsin case has specifically addressed whether one has a reasonable expectation of privacy in a hospital emergency room or operating room. Accordingly, we analyze the question under the general approach for determining whether a person has a reasonable expectation of privacy in an area where evidence is gathered. ...

Any analysis of the subjective first prong of the test is hampered by the fact that Thompson did not, and could not, exhibit a subjective expectation of privacy because he was unconscious during the entire time the officer was at the hospital. Accordingly, we focus first on the objective second prong of the test: whether society would recognize as reasonable an expectation of privacy in the areas of the hospital in which the officer collected the evidence.

...

We recognize that historical notions of privacy generally accord patients a significant measure of privacy in their medical treatment. Sections 146.82 and 905.04, Stats., are certainly embodiments of these historical notions of privacy. Hospital treatment areas are not public thoroughfares to which all manner of persons have unfettered access. We conclude, however, that historical notions of privacy are not offended when a police officer, in responding to an emergency call and with the acquiescence of hospital staff, enters the treatment area of an emergency room. Nor are historical notions of privacy offended when an officer observes a surgical procedure with the permission of the operating surgeon, given a patient's traditional surrender to his or her physician of the right to determine who may and may not be present during medical procedures. If medical personnel violated confidentiality laws or ethical obligations by permitting the officer to be present, Thompson may be entitled to redress in another forum. We conclude, however, that the sixth and final factor does not weigh in favor of a conclusion that society would recognize as reasonable Thompson's asserted expectation of privacy in the emergency and operating rooms.

The court suggests a possible limitation to the holding, fn. 8:
Thompson's arguments on appeal challenge only the officer's presence in the treatment areas of the hospital. He does not claim that the officer improperly rifled his belongings or searched closed containers within the emergency room. The record does not indicate whether the pager and $100 bill were plainly visible or were concealed within Thompson's clothing when these items were seized by the officer in the emergency room. We do not address, therefore, whether Thompson had a reasonable expectation of privacy in items which may have been concealed in the clothing removed from him in the emergency room by medical personnel.
See, however, State v. Cromb, OR App No. A130120, 6/11/08 (collecting cases on general proposition of no expectation of privacy in ER room).

Reasonable Expectation of Privacy – Guest: Permissive Use of Mobile Home
State v. Sean R. Fox, 2008 WI App 136
For Fox: Daniel M. Berkos
Issue/Holding: Permissive guest who had not stayed overnight lacked expectation of privacy in a mobile home:
¶21      The facts of this case contrast with those of Trecroci and more closely resemble those of Carter. Fox’s relationship to his hosts, Terry and McCoy, and to the trailer was not as firmly rooted as the defendant’s relationship in Trecroci was to her host. The Trecroci defendant was engaged to the lessee of the attic, whereas Fox was merely a friend of the homeowner’s son. The record contains little evidence of the duration or closeness of Fox’s friendship with Terry or McCoy. As for the premises, Fox, like the Carter defendants, did not have a long-term relationship to the place, and, at the time of the search, used it for a largely (if not purely) commercial purpose, the production of methamphetamine. And, unlike Olson, but similar to Carter, Fox was not an overnight guest at the trailer; as discussed above, the record conclusively demonstrates that he slept at a motel while in the area.

¶22      Thus, we conclude that application of the three factors outlined in Trecroci weighs against Fox’s claim that he had a reasonable expectation of privacy in the trailer. Fox’s use of the premises upon his return was for a largely commercial purpose. His stay, while exceeding that of the Carter defendants, was only episodic over the course of three to four days. His relationship to his host was more attenuated than that of the defendant in Trecroci to her fiancé-host. Finally, Fox lacked the more firmly rooted relationship to the premises characteristic of an overnight guest (Olson) or a frequent visitor (Trecroci).


Expectation of Privacy -- Guest -- Premises Used Primarily for Commercial Purposes
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 a guest temporarily on premises used primarily for commercial purposes had standing to assert suppression of evidence seized after unlawful police entry.
Holding:: Notwithstanding certain language in Minnesota v. Carter, 525 U.S. 83 (1998), a guest need not have stayed overnight in order to assert suppression of items seized from a residential unit used primarily for commercial purposes:
¶59 ... But this language also reveals that if the guest's relationship with the host and the host's property is more firmly rooted, a guest may have standing to challenge a search.

¶60 That also is how the trial court read Carter. And the court's findings of fact reveal the kind of relationship between Wicks and the other defendants and the property which allows for standing under Carter. The trial court noted that the defendants, including Wicks, had used the attic area on prior occasions for both their criminal enterprise and for socializing. In addition, Wicks was Ronnie Frayer's [a renter's] fiance.

Also see State v. Missouri, SC No. 25874, 9/27/04:
In the present case, Missouri and Curtis testified that they had grown up together and were “good friends.” Missouri had frequently visited the Siberts’ apartment in the past and occasionally spent the night. Missouri described the Sibert home as a place to “get away” and as a place to “find comfort.” At times, Missouri had a key to the Siberts’ apartment and kept a change of clothes there. He paid nothing to use the apartment and was there for at least seven hours on the day of the search.

By choosing to share the privacy of their home with Missouri on several occasions in the past and on the occasion in question, both the Siberts and Missouri demonstrated a subjective expectation of privacy, and that expectation, we hold, is one that society is prepared to recognize as reasonable. ...


Expectation of Privacy -- Guest -- Overstaying Welcome
Kelly L. McCray, 220 Wis. 2d 705, 583 N.W.2d 668 (Ct. App. 1998)
For McCray: Paul LaZotte
Issue/Holding: A guest who has exceeded his authorized stay loses any expectation of privacy in the residence.
Expectation of Privacy - Mail, Generally
State v. Dwan J. Earl, 2009 WI App 99
For Earl: Mark D. Richards, Christy Marie Hall
Issue/Holding:
¶9        Sealed packages sent through the mail are entitled to full protection under the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 114 (1984). In order to challenge a warrantless search or seizure, one must show a legitimate expectation of privacy in the thing or place searched or seized. State v. Ramirez, 228 Wis. 2d 561, 566, 598 N.W.2d 247 (Ct. App. 1999). This showing entails both a manifestation of a subjective expectation of privacy as well as an indication that the privacy interest is one that society is willing to recognize as reasonable. Id. This standing requirement reflects the fact that Fourth Amendment rights are personal, and thus may not be asserted vicariously. Id. The burden of establishing that the search or seizure violated the challenger’s rights, and not those of some third party, is on the challenger.   Id.; Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978). Whether sufficient facts have been brought forth to demonstrate a reasonable expectation of privacy must be determined on a case-by-case basis. Ramirez, 228 Wis. 2d at 567-68. Whether a party has standing to challenge the constitutionality of a search is a question of law we review de novo. Id. at 566. [6]
Expectation of Privacy - Mail - Fictitous Addressee
State v. Dwan J. Earl, 2009 WI App 99
For Earl: Mark D. Richards, Christy Marie Hall
Issue/Holding: Earl did not satisfy the “initial minimal burden of establishing some reasonable expectation of privacy” in a package addressed to a fictitious recipient at a vacant residence; moreover, when Earl picked up the package from the driver he gave his own name and thus “disassociated” himself from the addressee.
¶16      We know of no case addressing whether a recipient has a legitimate expectation of privacy in a package where the sender’s identity is unknown and the recipient’s name is fictitious and the address vacant. The court’s decision in United States v. DiMaggio, 744 F. Supp. 43 (N.D.N.Y 1990), provides some guidance. In DiMaggio, the defendants sent drug money to the known residences of the intended recipients but using fictitious personal or business names and also received packages of cocaine addressed to fictitious names and addressed not to their places of residence but to that of a business associate. Id. at 43-44. The DiMaggio court acknowledged that the defendants “did in fact subjectively expect that the contents of the Federal Express packages would remain private”; however, the court concluded that the defendants’ expectations were not ones that society would accept as reasonable. Id. at 45. The court reasoned, “[t]he packages allegedly used in this case contained nothing on the surface to indicate that defendants had any connection with the packages.” Id. at 46; see also United States v. Koenig, 856 F.2d 843, 846 (7th Cir. 1988) (defendant who denies ownership interest does not have standing when he is not the addressee and does not reside at the delivery address).

¶17      The package in this case involves more (or less) than just a false name. Here, Earl provided no information about the sender. The package was addressed to both a fictitious name and a vacant apartment, leaving nothing at all to link the package to Earl. After flagging down the FedEx driver, Earl identified himself, and stated that he was picking up the package for Mark Harris. The objective manifestations of Earl’s intent all lead to a conclusion that he sought to disassociate himself from the package—not that it was intended for him. Stated differently, there was nothing on the surface to indicate that Earl had any connection with the package, much less any dominion or control over it. Earl has failed to meet his burden to establish that he had a reasonable expectation of privacy in the package at the time of the search.

The court stresses that its conclusion is informed by “the coupling of a false name and a false address, along with an unknown sender and a statement that the package belongs to someone else,” ¶18. This suggests a narrow, fact-bound holding. Nonetheless, bear in mind that the court string-cites with apparent (but not explicit) approval various holdings to the effect “that even an intended recipient of an item that has been addressed and sent to another actual person has no reasonable expectation of privacy where it was the actual addressee who could control the use of and access to the item,” ¶15 n. 7.
Expectation of Privacy -- Mail, Prior to Delivery.
State v. Domingo G. Ramirez, 228 Wis.2d 561, 598 N.W.2d 247 (Ct. App. 1999).
For Ramirez: Donald T. Lang, SPD, Madison Appellate.
Holding: When the state searches mail prior to delivery to a residence, and the addressee is not a resident, that person has a ("minimal") burden of establishing some reasonable expectation of privacy in the package. This requirement occupies a middle ground, between a presumptive expectation of privacy and a requirement that the "challenger" "show that he or she uses the name on the package as an alias or alter ego." Instead, the defendant "need(s) to present some reason as to why he would expect that the package, when it came, was intended for him."
Go To Brief
Use of a false name may not forfeit privacy expectation in contents of mailing, People v. Pereira, Cal App No. A114794, 5/15/07.
Expectation of Privacy -- Multi-Unit Common Area (Basement)
State v. Garry C. Eskridge2002 WI App 158, PFR filed 6/14/02
For Eskridge: Gregory Bates
Issue: Whether a tenant had an expectation of privacy in the basement area of a multiple unit apartment building.
Holding: A tenant's expectation of privacy in the common areas of multiple unit buildings is decided on a case by case basis. ¶10. Because the state offered credible testimony -- specifically believed by the trial court -- that third parties had unfettered access to the basement of this four-unit building, the defendant did not have a subjective expectation of privacy. ¶13. (State v. Trecroci, 2001 WI App 126, ¶35, 246 Wis. 2d 261, 630 N.W.2d 555, distinguished.) Nor, applying the six-factor Trecroci ¶36 test, could the defendant's expectation of privacy have been objectively reasonable:
  • he didn't have complete dominion and control and the right to exclude others, because this was a laundry area that was uncordoned and openly accessible to other tenants. ¶17, citing United States v. McGrane, 746 F.2d 632, 633-34 (8th Cir. 1984) (no reasonable expectation of privacy in common area of basement of two-story, four-unit apartment building where the area was accessible to all tenants and the landlord);
  • he didn't take precautions customarily taken by those seeking privacy, in that the door to the building was customarily unlocked, which made this area accessible to nontenants as well as tenants. ¶18, embellishing State v. Titus, 707 So.2d 706, 711 (Fla. 1998) (holding of reasonable expectation of privacy in an apartment building common area doesn't extend to common areas of unlocked apartment buildings
  • "Historical notions of privacy do not seem to encompass 'common areas' in apartment buildings." ¶19, citing: "Penny v. United States, 694 A.2d 872, 875 (D.C. 1997) (in holding that there was no reasonable expectation of privacy in the basement of a multi-unit building, the court relied in part on the fact that the tenant did not have the authority to exclude others from the common area of the basement that was entered and searched); United States v. Hawkins, 139 F.3d 29, 32-33 (1st Cir. 1998) (the unenclosed area of the basement of the apartment building was a common area for which the defendant as a tenant had no reasonable expectation of privacy); United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir. 1993) (court observed that '[m]ost other circuits agree a tenant does not have a reasonable expectation of privacy in an apartment building hallway or other common area.')."
This discussion, on objective expectation of privacy, is clearly dicta, the court having already disposed of the case on the basis of the subjective analysis. For discussion on expectation of privacy in common area of duplex and apartment building, see U.S. v. Dillard, 6th Cir No. 04-4191, 2/27/06; U.S. v. Villegas, 7th Cir No. 05-2678, 7/27/07 (especially, concurrence).
Expectation of Privacy -- Public Rest Room
State v. Timothy L. Neitzel, 2008 WI App 143
For Neitzel: David A. Nelson
Issue/Holding: Under the particular circumstances, the sole occupant of a locked, public restroom had no reasonable expectation of privacy given that he occupied the room for at least 25 minutes and then failed to respond to pounding on the door.
The court follows the 6-factor test adopted by State v. Juan M. Orta, 2003 WI App 93 (another public bathroom case, but with distinguishable facts, ¶17: there, multiple individuals were in a single stall, the door to which wasn’t locked). Although the majority purports to weigh each factor individually, it comes down to these crucial facts, ¶¶26-27: “Neitzel’s claim of privacy while using the only restroom for males at a gas station for at least twenty-five minutes, without responding to the officer’s knocking, is not consistent with historical notions of privacy. … While his initial use of the restroom was for its intended purpose, his expectation that he continue to have the private use of the locked restroom for at least twenty-five minutes, without responding to knocking and while dozing off, is not reasonable.”

As you can gather, Neitzel either fell asleep or passed out drunk while on the toilet. (Do not attempt this trick at home.) The State apparently sought something like a bright-line rule that passage of time alone eliminates any expectation of privacy, but the court declines the invitation, ¶21 n. 5: “However, we do not establish a period of time beyond which there is no reasonable expectation of privacy. Instead, our analysis takes into account the period of time Neitzel was occupying the restroom scoupled with the knocking and lack of response.” The concurrence, however, is dubious about significant limits as a practical matter, ¶31 (“The majority’s result is dangerous because appellate courts usually do not like bright lines, and the next case will involve a twenty-minute stay in a mens’ or womens’ room. And then one of fifteen minutes, until the result is that nobody has an expectation of privacy in a locked rest room if someone knocks.”). Just so.

One wonders, too, exactly why a response to knocking would be necessary to assert a right to privacy. The majority simply asserts that “(a) person seeking privacy while using a public restroom of this type would customarily respond to a knock on the door by explaining how much longer he or she would be occupying the restroom,” ¶23. But as the concurrence suggests (¶30), the majority is reductionistic: human behavior is too idiosyncratic, too subject to uncontrollable variables, to be collapsed into such a rigid formulation. But here we are, and for the time being anyway, the holding is fact-specific.

Expectation of Privacy -- Public Rest Room Stall
State v. Juan M. Orta, 2003 WI App 93
For Orta: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding:
¶2 ... (A)n individual who occupies a public restroom stall does not have a reasonable expectation of privacy when he or she occupies it with another individual, leaves the door slightly ajar and unlatched, and evinces no indication that the stall is being used for its intended purpose.
The court clarifies the methodology "where standing is at issue": in contrast to consideration of the merits of a search/seizure issue, "a court may look to facts discovered after the intrusion to determine if a defendant has a reasonable expectation of privacy to confer standing to challenge a search.... Therefore, in assessing Orta's standing claim, we are entitled to consider the observations and discoveries made by Jones when he entered the restroom stall." ¶¶7, 9. As the above summary indicates, though, this is a very fact-specific result. The court takes pains to distinguish foreign authority affording privacy rights in a public stall, on the basis of the multiple occupancy in this instance. ¶ 17. That seems to be the most important factor, more so than even leaving the door slightly ajar, cases cited ¶17 n. 3; you may have an expectation of privacy even with multiple occupancy if the door is locked, ¶22 n. 5.

Cited, State v. Powers, Fl App 4D07-3974, 10/15/08, for idea that expectation of privacy in public restroom stall "gives way where two persons enter a stall together under circumstances reasonably indicating that they are doing drugs."

See also U.S. v. Hill, 8th Cir No 04-2020, 1/11/05 (where "it was not a single person using the single toilet restroom but two persons of opposite gender and, under the circumstances, we hold that they had a diminished expectation of privacy which had expired by the time the officers had arrived"; cases involving "privacy partitions" distinguished). One knowledgable commentator is alarmed by the result in Hill: "This ruling is significant. It means that -- contrary to most people's expectations - closing the door to a public bathroom does not necessarily entitle a person to freedom from governmental snooping." Sherry F. Colb, Findlaw's Writ, "Big Brother in the Bathroom," 2/9/05. She astutely points out that, while the police might well have had probable cause under the facts to believe a crime was taking place, that wasn't the basis for entry; there's a big difference in saying, no expectation of privacy therefore no search. Colb's concern, it should be said, seemingly wouldn't apply to the Orta result, given that the door was left ajar, a singularly crucial privacy-reducing fact.

For additional authority recognizing that "(a) substantial line of state cases have recognized that occupants of public restrooms have a reasonable expectation of privacy," and citing cases, see State v. Smith, 2004 MT 234, 8/31/04 (extending this principle to a transient guest in a private home).


Expectation of Privacy -- Prison inmate, strip search.
Tayr Kilaab Al Ghashiyah (Kahn) v. McCaughtry, 230 Wis.2d 587, 602 N.W.2d 307 (Ct. App. 1999)
For Kahn: Walter W. Stern.
Issue: Whether a prison inmate may be strip-searched, under the fourth amendment, upon being taken to or from segregation.
Holding: "(W)e conclude that a prison inmate in segregation status does not possess a reasonable expectation of privacy in his body that permits a Fourth Amendment challenge to the visual inspections to which Casteel was subjected." (Note: addtional discussion here, scroll down.)

Expectation of Privacy -- Property or Possessory Interest Necessary
State v. Derrick Benton, 2001 WI App 81.
For Benton: James Kachelski.
Issue: Whether the defendant can challenge seizure of property from an auto where he claimed no ownership or possessory interest in either the auto or the seized property.
Holding: ¶11:
Here, as in Rakas, Benton 'asserted neither a property nor a possessory interest in the automobile, nor an interest in the property sezied,' id., 439 U.S. at 148; indeed, all the car's occupants, including the driver, disclaimed any possessory interest in the car or the guns. Moreover, as in Rakas, Benton has not demonstrated that he had 'any legitimate expectation of priovacy in the ... area under the seat of the car' in which he was a mere passenger. Id., 439 U.S. at 148-49 ('passenger qua passenger simply would not normally have a legitimate expectation of privacy' in that area). Accordingly, Benton lacks standing to contest the search.
Expectation of Privacy -- Stairway, Multiple Unit Building
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 warrantless police entry of a stairway in a multiple unit building was lawful.
Holding: Existence of reasonable expectation of privacy in a stairway leading to the upper levels of a dwelling is decided case-by-case, rather than under bright-line rule. ¶¶33-34. The various factors listed in State v. Thompson, 222 Wis. 2d 179, 186, 585 N.W.2d 905 (Ct. App. 1998) support these defendants' expectations of privacy:
  1. Property interest/legitimate presence: The defendants included the owner who lived on the second floor, and others who rented the attic from him. ¶37.
  2. Dominion & control/actions evincing privacy: The defendants were the only ones with unlimited access to the stairway, which they regulated with a deadbolt lock. ¶¶38-40.
  3. Use of property:
    • The owner used the stairway to access his residence, and he therefore had a clearly reasonable expectation of privacy, ¶41;
    • the question is closer for the other defendants, who rented the attic and used it for a purely commercial purpose (drugs), entitling them to less protection than for a residence, but because this use was covert and secretive, and because of the efforts undertaken to keep others out, the use "is consistent with historical notions of privacy." ¶¶42-43.
Expectation of Privacy -- Threshold of Residence
State v. James L. Larson, 2003 WI App 150
For Larson: Rex Anderegg
Issue/Holding: A police officer's stepping into the threshold of an apartment, preventing the occupant from closing the door, amounted to an "entry," thereby triggering the fourth amendment warrant requirement. ¶¶10-11, following State v. Johnson, 177 Wis. 2d 224, 227, 501 N.W.2d 876 (Ct. App. 1993); and noting that "(t)he police practice of putting a foot in the doorway appears to be a common and widespread practice, at least in Wisconsin...." ¶11 n. 3. And, United States v. Santana, 427 U.S. 38 (1976) (by standing in her doorway, Santana exposed herself to public view and thereby obviated warrant requirement), distinguished on basis that Larson wasn't exposed to view until he opened door in response to police knock. ¶14, adopting Cox v. State, 696 N.E.2d 853, 858 (Ind. 1998).

The police may have possessed probable cause to arrest Larson (for drunk driving), but they had neither a warrant nor, under Welsh v. Wisconsin, 466 U.S. 740 (1984), exgient circumstances to justify entry into Larson's home. A potentially complex welter of issues is presented. In the first place, Santana has led to a good deal of litigation, with differing results. For a survey of cases, see State v. Mann, 76 Conn. App. 48, 818 A.2d 122 (2003). Terming Santana the "doorway exception" to the warrant requirement, Mann took the view adopted by Larson and Cox, that partially opening door in response to police knock isn't relinquishment of privacy, but the case was overruled, in State v. Mann, CT SCt No. SC 16996, 10/5/04, which holds that when someone voluntarily opens a door, the police may enter without a warrant or probable cause if they have reasonable suspicion that the person is armed and dangerous. Showing that labels matter, "doorway exception" doesn't appear in the opinion; instead, the situation is deemed an exemplar of "knock and talk" practice -- which shifts rhetorical emphasis away from the warrant requirement toward a consenusal encounter:

[W]hen police officers knock on the door of a dwelling and an occupant voluntarily opens the door, the resulting encounter, in the absence of coercive police conduct, generally is deemed to be consensual. ... Moreover, as a general matter, no objective level of suspicion is required for investigating officers merely to knock on the door of a person’s residence....

...

Although the United States Supreme Court has yet to apply the Terry doctrine to ‘‘knock and talk’’ investigations, the court has extended the reasonable suspicion standard announced in Terry to other contexts involving possible jeopardy to the immediate safety of law enforcement officers....

...

Long and Buie both demonstrate that when the immediate safety of law enforcement officers is in jeopardy, the reasonableness of a protective search is determined by balancing the need to conduct the search against the nature of the intrusion occasioned by the search.... According to the defendant, the police lawfully cannot cross the threshold of a home without either a warrant or probable cause and exigent circumstances. We disagree.

...

In view of the state’s weighty interest in promoting the safety of its police officers and the diminished expectation of privacy that the occupant of a dwelling has in what the police can observe through a door that that occupant voluntarily has opened, we conclude that it is constitutionally permissible for the police to conduct a limited patdown search of the occupant, even though that occupant is located inside the doorway, if the search is supported by a reasonable and articulable suspicion that the occupant is armed and dangerous....

...

... In sum, we conclude only that when police officers knock on a door as part of a lawful investigation, and the door is voluntarily opened by an occupant, the officers may enter the dwelling to patdown the occupant for weapons if a reasonably prudent officer would be warranted in believing, on the basis of specific and articulable facts, that the person with whom the officer is dealing is armed and poses an immediate danger.

For an interesting approach -- in effect: "knock and talk" practice must be scrutinized for its reasonableness, such that police may not impermissibly create the very exigency on which they rely for nonconsensual entry -- U.S. v. Gomez-Moreno, 5th Cir No. 05-20921, 2/12/07 ("The purpose of a 'knock and talk' is not to create a show of force, nor to make demands on occupants, nor to raid a residence. Instead, the purpose of a “knock and talk” approach is to make investigatory inquiry or, if officers reasonably suspect criminal activity, to gain the occupants’ consent to search.); U.S. v. Coles, 3rd Cir No. 04-2134, 2/9/06; State v. Frye, 2007-Ohio-6941 (presence of 3 officers rendered knock and talk coercive thus invalidating putative consent to search). Moreover, when they knock the police have to have the right to be at that spot, typically under the "implied invitation" doctrine (i.e., the public at large has an implied invitation to approach and knock at the door). See, e.g., Leach v. Commonwwealth, KY App NO. 2006-CA-001481-MR, 7/20/07 ("the officer may [execute knock-and-talk at back door] only if the front door is inaccessible or if they first knocked on the front door and got no response"). Such points as those aside, though, the general rule is that "a 'knock and talk' is a consensual encounter" and doesn't require reasonable suspicion, U.S. v. Cruz-Mendez, 10th Cir No. 05-4296, 11/6/06; general discussion in People v. Rivera, Cal SCt No. S138898, 6/14/07 (because knock and talk is consensual encounter, doesn't matter that genesis was uncorroborated, anonymous tip).

Speaking of door-opening: this is a cert-worthy issue (i.e., whether entry of a home on less than probable cause is permissible), hence the lengthy excerpt. And, both because "knock and talk" is a common practice and also because it's easy to imagine the police manufacturing reasons for fear once the door is opened, the issue is sure to come up. The "knock and talk" situation isn't really controlled by Larson -- because exigent circumstances simply weren't present in that case -- but it is inserted here because Santana intersects the issues: Mann reads that case to mean that "the occupant of a residence who voluntarily opens the door of that residence has no reasonable expectation of privacy in what can be seen through the open door"; hence the occupant's very diminished expectation of privacy can be easily overriden under a balancing test. If nothing else, Larson can be read to take a different approach, ¶14. Other courts are split: see U.S. v. Mowatt, 4th Cir No. 06-4886, 1/25/08 (police demand that occupant open door resuled in "search" when he complied; distinguishing United States v. Cephas, 254 F.3d 488 (4th Cir. 2001) where no "search" occurred because occupant simply opened door upon knocking, without being commanded); State v. Shellenbarger, Idaho Cr. App. No. 29561, 5/6/04 (no link available) (similar: distinguishing voluntarily opening door in response to police-initiated request from police "compulsion" as where the police attempt to break down the door and command the occupant to leave); and State v. Cranford, 2005-Ohio-1904, ¶¶14-18 (merely opening door to police knock didn't expose occupant to "public view," so as to allow police to enter and make warrantless arrest, at least where occupant didn't actually "step[] into the open doorway or exit[] her home"). Also see Hadley v. Williams, 7th Cir. No. 03-1530, 5/14/04 (suggesting that police can't simply seize anything they happen to see "when the front door swings open in response to" their knock; but further suggesting that under Santana, and exigent circumstances doctrine, they "can take steps to secure the evidence or the person"). Note, again, that this distinction between compelled and voluntary door-opening is not part of the Larson holding.

For additional authority construing officer's insertion of foot far enough into threshold to prevent occupant from closing door as entry of residence, see State v. Maland, Idaho SCt No. 29136, 2004 Op. No. 106, 11/24/04:

... It was not necessary for the officer’s entire body to cross the threshold in order to constitute an entry under the Fourth Amendment. “[A]ny physical invasion of the structure of the home, ‘by even a fraction of an inch,’ [i]s too much.” Kyllo v. United States, 533 U.S. 27, 37 (2001). [¶] Once Maland attempted to terminate the conversation by closing the door, the female officer intruded into his residence in order to seize him by inserting her foot through the threshold to keep him from closing the door.
Keep in mind that in Maland -- as in Larson -- the police had neither warrant nor exigent circumstances. With that important proviso in mind, the following observation by Maland seems to be consistent with Larson:
“A person does not abandon this privacy interest in his home by opening his door from within to answer a knock.” United States v. Berkowitz, 927 F.2d 1376, 1387 (7th Cir. 1991). In the case where the police enter a person’s home, without his/her consent, before announcing their authority to arrest.
the arrestee has not forfeited his privacy interest in the home; he has not relinquished his right to close the door on the unwanted visitors. See McCraw, 920 F.2d at 229; McKinney v. George, 726 F.2d at 1188 (suggesting that a person answering the police’s knock may retreat into his home, and that police may not then enter without a warrant to arrest him); LaFave, supra, § 6.1(e) at 591.
927 F.2d at 1387.
See also Cummings v. City of Akron, 6th Cir No. 03-3259, 7/22/05 ("In contrast to Warden and its progeny, Cummings did not commit a crime in a public place and attempt to flee into his house; in contrast to Santana, Cummings never fully exposed himself to the public view, given that he only opened the door very slightly, and only at the request of the police.").

Variant: what about when the police ask the soon-to-be-arrested resident to step outside upon answering their knock? See U.S. v. Thomas, 6th Cir No. 04-6148, 12/1/05, for discussion as to when coercive "request" by police amounts to illicit "constructive entry"; but, holding on its facts that mere request to come outside leads to consensual encounter.

If the interior, "solid" door is open but the screen is closed, the occupant retains an expectation of privacy: U.S. v. Arellano-Ochoa, 9th Cir No. 04-30545, 8/31/06 ("Where the screen door is the only barrier between the inside of the house and the outside, the police cannot open the screen door without consent or some exception." But: court finds exigent circumstances on particular facts). Like reasoning, if different result on facts: Christian v. State, MD Ct. Spec. App. No. 987, 1/2/07 (expectation of privacy turns on "whether the screen door is acting as the perimeter barrier to the residence"). But see U.S. Walker, 10th Cir No. 05-2287, 1/31/07 (describing Areallano-Ochoa as dicta, and concluding that "opening the storm door to knock on the inner door, even though the inner door was partially open, was not a Fourth Amendment intrusion because such action does not violate an occupant's reasonable expectation of privacy").

Further discussion, implied invitation and curtilage, above.


FORFEITURE
Forfeiture – Dismissal with Prejudice, Failure to Hold Timely Hearing on Petition, § 961.555(2)
State v. Lamont D. Powell, 2007 WI App 127
For Powell: Nicholas C. Zales
Issue/Holding:
¶3        The sixty-day limit in Wis. Stat. § 961.555(2)(b) is mandatory and a forfeiture petition must be dismissed unless the requisite hearing is held within the sixty-day period because a person may not be deprived of his or her property “for an indefinite time” without a prompt judicial assessment of whether forfeiture is justified. See State v. Baye, 191 Wis. 2d 334, 339–340, 528 N.W.2d 81, 83 (Ct. App. 1995); see also State v. Rosen, 72 Wis. 2d 200, 204, 206–208, 240 N.W.2d 168, 170, 171–172 (1976) (applying a predecessor provision identical, as material, to § 961.555(2)(b)). Although it is true, as the State points out, that the statute does not indicate whether a dismissal for non-compliance with § 961.555(2)(b) should be with prejudice or without prejudice, if the State could, as it tried here, avoid the statute’s sixty-day command by the simple expedient of filing a new forfeiture petition based on the same facts, the sixty-day limitation would be meaningless. See Kindcare, Inc. v. Judith G., 2002 WI App 36, ¶3, 250 Wis. 2d 817, 821, 640 N.W.2d 839, 841 (protective placement) (“We hold that the circuit court loses competence if the probable-cause hearing is not held within seventy-two hours after the person is first taken into custody, and that the mere filing of a new petition does not start the clock anew.”). Accordingly, once the sixty-day period mandated by § 961.555(2)(b) has expired, the circuit court loses competency, and the State may not start the clock running anew by filing another forfeiture petition based on the same facts. Thus, the new action is a nullity, and the circuit court’s order of dismissal is modified to be a dismissal with prejudice. [5]
 [5] The State argues that because the circuit court lost competency once the sixty days mandated by Wis. Stat. § 961.555(2)(b) expired, it had no competency to do anything further in the case, and that this permitted the State to file its forfeiture petition again. We disagree. An appeal from the circuit court cannot be taken without a writing reifying the circuit court’s action. See Wis. Stat. § 808.03(1). Thus, Brandt v. Labor & Industry Review Commission, 166 Wis.  2d 623, 627, 480 N.W.2d 494, 496 (1992), recognized that dismissal is appropriate where a circuit court lacks competency to adjudicate the matter before it.
Forfeiture of Weapon, § 968.20(1m)(b) – Actual Physical Possession Not Necessary
State v. John L. Kueny, 2006 WI App 197, PFR filed 10/19/06
For Kueny: James R. Lucius
Issue: Whether “actual physical possession” of weapons is necessary to support forfeiture under § 968.20(1m)(b).
Holding:
¶9        Kueny argues that he effectively did not have possession of the firearms. He reminds us that he had had no contact with the weapons since putting them in storage years before, did not have keys to the facility housing them, and did not have “imminent or unfettered access” to them at the time the crime was committed. We are not persuaded. Kueny owned the weapons, he paid the storage fees and, although he did not possess a key, upon request Allwright would have had to surrender to him either a key or the firearms. The firearms were in Kueny’s possession because they were in an area over which he had control and he intended to exercise control over them. See State v. Allbaugh, 148 Wis. 2d 807, 814, 436 N.W.2d 898 (Ct. App. 1989) (approving concept of “possession” as stated in Wis JI—Criminal 920, that “[a]n item is … in a person’s possession if it is in an area over which the person has control and the person intends to exercise control over the item”). Whether or not tagged “constructive possession,” [3] the essential point is that Kueny had ultimate control over the stored firearms. See United States v. Manzella, 791 F.2d 1263, 1266 (7th Cir. 1986). “He need not have them literally in his hands or on premises that he occupies but he must have the right … to possess them, [just] as the owner of a safe deposit box has legal possession of the contents even though the bank has actual custody.” Id. Kueny’s assertion that he did not have contact with the weapons for several years does not establish lack of possession, especially in view of his testimony that he was allowing the firearms to appreciate in value for his intended later sale of them.
[3] The Wisconsin Criminal Jury Instructions Committee has cautioned against use of the term “constructive possession” because it implies something other than “actual” or “real” possession. State v. Allbaugh, 148 Wis.  2d 807, 813-14, 436 N.W.2d 898 (Ct. App. 1989); Wis JI—Criminal 920, Comment 2.
Forfeiture of Weapon, § 968.20(1m)(b) – Read-In Crime Suffices
State v. John L. Kueny, 2006 WI App 197, PFR filed 10/19/06
For Kueny: James R. Lucius
Issue: Whether the weapon must have been used in the crime of conviction in order to be subject to forfeiture.
Holding:
¶11      Kueny misreads the plain language and misses a nuance of the statute. Wisconsin Stat. § 968.20(1m)(b) forbids returning weapons to one who “committed” a crime involving their use; it does not require that the defendant be convicted of that crime. Agreeing to a crime being read in at the time of sentencing constitutes an admission of having committed it. State v. Szarkowitz, 157 Wis. 2d 740, 753, 460 N.W.2d 819 (Ct. App. 1990).

¶13      The read-in charge, possession of dangerous weapons by one ordered not to possess a firearm, intrinsically involved the use of those dangerous weapons. Therefore, the two elements of (1) commission of a crime (2) involving the same dangerous weapons as those sought to be returned were satisfied.

Analogy drawn, ¶12, to Leonard L. Jones v. State, 226 Wis.2d 565, 594 N.W.2d 738 (1999), relative to holding that contraband need not be returned even if underlying charges were dismissed or never filed. Keep in mind, however, the pending case of State v. Monika S. Lackershire, 2005 WI App 265, PFR granted 2/27/06 (whether guilty plea must establish defendant’s actual knowledge of read-in and its consequences and effects). Presently, the court may simply assume that the defendant agrees to and correctly understands the read-in, State v. Cleaves, 181 Wis. 2d 73, 80, 510 N.W.2d 143 (Ct. App. 1993), but Lackershire may eliminate that assumption and require an appropriate colloquy. If that happens, then in the instance of a defective read-in there may be an argument that there was no “admission” to the offense, hence no indication the defendant “committed” the offense.
Forfeiture -- "Adjudication" of Underlying Crime, § 973.076(2)
State v. One 1997 Ford and David Beck, 2003 WI App 128, PFR filed 6/6/03
For Beck: Adam B. Stephens, Alex Flynn
Issue/Holding: The right to seek adjournment of a forfeiture action until after "adjudication" of the underlying criminal proceeding, § 973.076(2), terminates upon trial-level disposition:
¶18. While the term "adjudication" is not itself specifically defined in the statutes, its meaning can be ascertained from an examination of the definitions of other related terms. Wisconsin Stat. § 967.02 defines the terms "judgment" and "court" for purposes of Wis. Stat. chs. 967 through 979. This forfeiture proceeding falls within those chapters. Section 967.02(8) provides that "judgment" means "an adjudication by the court that the defendant is guilty or not guilty." Section 967.02(7) states that "court" means "the circuit court unless otherwise indicated." Thus, according to the plain language of the statute, "adjudication" occurs at the moment of a finding of guilt or innocence by a circuit court and, therefore, the term does not embrace an appeal of a conviction. Accordingly, we hold that Wis. Stat. § 973.076(2)(a) does not contemplate adjournment of forfeiture proceedings pending an appeal of the underlying criminal conviction.
Forfeiture -- Personal Jurisdiction: Service, § 801.10(4)(a)
State v. One 1997 Ford and David Beck, 2003 WI App 128, PFR filed 6/6/03
For Beck: Adam B. Stephens, Alex Flynn
Issue/Holding: Although a party must "show strict compliance with the requirements of" § 801.10(4)(a) when service is challenged, it is not necessary to "submit an affidavit in which the process server specifically states that he or she served the defendant with 'authenticated' copies or did so to the best of his or her knowledge." ¶8.  All that is necessary is that the affiant affirm that an authenticated copy of the summons was served, not that the affiant have first-hand knowledge of the authentication. ¶12, citing State v. Boyd, 2000 WI App 208, ¶24, 238 Wis. 2d 693, 618 N.W.2d 251. Service in this case was, therefore, adequately demonstrated on the basis of one affidavit showing that office policy is to prepare only authenticated copies of the summons and complaint; and on another affidavit indicating personal service of these documents. ¶¶5, 13.
Forfeiture -- Pre-existing Security Interest
State v. Robert E. Frankwick, 229 Wis.2d 406, 599 N.W.2d 893 (Ct. App. 1999).
For Frankwick: Wendy A. Patrickus.
Issue/Holding: Frankwick's truck was ordered seized and forfeited, per § 346.65(6), following OWI convictions. However, someone had perfected a lien, the day before the convictions, and the trial court voided the lien after concluding that it had been filed in bad faith. The court of appeals reverses: § 346.65 (6) doesn't speak to perfection of liens, though the UCC does require that they be created in good faith. Nonetheless, it is the lien's creation, not an eleventh-hour attempt to perfect it, that is subject to the good-faith requirement of § 401.203. Because the trial court's findings of bad faith aren't supported by the record, the case is remanded for further fact-finding.
Forfeiture -- Return of Seized Property
Leonard L. Jones v. State, 226 Wis.2d 565, 594 N.W.2d 738 (1999), affirming unpublished decision.
For Jones: Colleen D. Ball, Reinhart, Boerner, Van Dueren, Norris & Riesselbach.
Issue/Holding: Procedure for obtaining return of property seized under Uniform Controlled Substances Act is outlined in two seemingly overlapping statutes, §§ 961.55 & 968.20. The former, part of UCSA, mandates that "(a)ny property seized but not forfeited shall be returned to its rightful owner." In other words, return of all property seized under this Act is mandatory where, as here, forfeiture proceedings are not attempted (or are unsuccessful). On the other hand, under § 968.20 - which more broadly applies to all seized property not just USCA cases - "contraband" isn't subject to return. After a lengthy recitation of the history and purpose of each provision, the court holds that § 961.55's mandatory return provision
is only triggered by an unsuccessful forfeiture action brought by the state. ...   In those instances where the district attorney chooses not to initiate a forfeiture action, then a person claiming the right to possession of property seized by authorities may apply for its return under § 968.20(1).
Analysis: Forfeiture wasn't attempted in this case, so Jones was forced under § 968.20. The police seized cash, incident to arrest for OWI. An officer testified at a return proceeding that in his experience the money (a wad of 20s) was drug-related. The question is therefore whether cash is "contraband," exempt from return under § 968.20. "Contraband" isn't defined in § 968.20, so the court looks to § 968.13(1), which does define the term. From that exercise, the court concludes "that contraband includes, among other things, money that is related to the commission of a crime or that represents illicit proceeds from an unlawful sale." (In other words, "contraband is not limited to materials which are per se illegal. Rather, it is clear that contraband encompasses ... those items which are used, acquired or transferred illicitly.")
In sum, we conclude that Wis. Stat. § 968.13(1)(a) is clear on its face, and that under this statute contraband is not limited to materials which are per se illegal. Rather, it is clear that contraband encompasses those items that are not only per se illegal, such as controlled substances or forged money, but also those items which are put to an illegal use or acquired illicitly, such as the purchase or sale of controlled substances." In a return-proceeding under § 968.20; the state has "the burden of establishing that the property, in this case money, constitutes contraband ....
The burden is greater weight of credible evidence. (Allocation of this burden at a return-proceeding, the court suggests, removes the prosecutor's incentive to never use the § 961.55 forfeiture procedure.) Jones did litigate a return proceeding, and the trial court erroneously placed the burden of proof on him to show that the money wasn't contraband, rather than on the state to show that it was. But, noting that whether a party has met its burden of proof is a question of law, the supreme court holds that the error was harmless. Jones produced no evidence refuting the officer's testimony.
¶69 In summary, we hold that property, in this case money, which has been found in a judicial proceeding to have a logical nexus to items which are illegal to possess, such as controlled substances, or have been acquired through illicit means, may constitute contraband as defined in Wis. Stat. § 968.13(1)(a). If property is found to be contraband under § 968.13(1)(a), the property need not be returned to the owner whether criminal charges are filed or not. Wis. Stat. § 968.20. We also hold that the state is required to establish, by the greater weight of the credible evidence, that the property constitutes contraband. Even though the circuit court in this case mistakenly placed the burden on the defendant to show whether the cash was or was not contraband, we conclude that based on the evidence presented at the hearing, this error was harmless. Accordingly, we affirm the decision of the court of appeals.
(Note: Local authorities sometimes turn seized cash over to the feds, on the assumption it's then shielded from a favorable state court return-order. A recent case articulates the rationale for this tactic. Commonwealth v. Rufo, 429 Mass. 380, 708 N.E.2d 947 (1999), ("in the absence of a State statute providing for judicial control over seized property, courts have held that the seizure of property by State authorities does not alone confer in rem jurisdiction on a State court"). Jones doesn't squarely address this problem, but its language indicates that Wisconsin may take a different approach:
¶31 In other situations, the property may be subject to state and federal jurisdiction. In such a case, the first-in- time rule applies. The rule is that only one court may have jurisdiction over the res in an in rem proceeding, and therefore the first court to obtain in rem jurisdiction maintains it to the exclusion of all others, whether the court is state or federal.
Additionally, there's the problem of whether the defendant's testimony or documentary evidence at a forfeiture/return proceeding is admissible in a prosecution. See, e.g., US v. Scrivner, 189 F.3d 825 (9th Cir. 1999).)
Forfeiture -- Return of Seized Property -- "Excessive Fine"
State v. Kirk J. Bergquist, 2002 WI App 39
For Berhquist: Steven H. Gibbs
Issue: Whether the state's refusal to return guns valued at between $5000 and $7,150, following conviction for disorderly conduct, violated the Eighth Amendment Excessive Fines Clause.
Holding:
¶8. Although the term 'forfeiture' does not appear in this statute, our supreme court has recognized that the result of refusing to return a weapon to a person who committed a crime using the weapon is a forfeiture. See In re Return of Property in State v. Perez, 2001 WI 79, 61, 244 Wis. 2d 582, 628 N.W.2d 820....

¶9. We are convinced that even though Wis. Stat. § 968.20(1m)(b) does not contain the word 'forfeiture,' it prescribes one. The determinative issue, therefore, is whether the statute prescribes a forfeiture subject to the Excessive Fines Clause.

¶10. The Excessive Fines Clause limits the government's power to extract payments, whether in cash or in kind, as punishment for an offense. Austin v. United States, 509 U.S. 602, 609-10 (1993)....

¶11. Applying the Austin analysis here, we conclude that the Excessive Fines Clause applies to Wis. Stat. § 968.20(1m)(b). In State v. Williams, 148 Wis. 2d 852, 858, 436 N.W.2d 924 (Ct. App. 1989), we recognized that § 968.20(1m)(b) satisfies two legitimate police power objectives: deterrence and preventing the same firearms from being used again in criminal activities. In Perez, our supreme court agreed with this assessment...

(Note: The trial court concluded that forfeiture of the guns would be grossly disproportionate; the state doesn't contest this analysis, and the court of appeals affirms on that basis. ¶¶13-14.)
Forfeiture -- Qualifying Offense -- Carrying Concealed Weapon
State v. Carlos Perez, 2001 WI 79, reversing State v. Perez, 2000 WI App 115, 235 Wis. 2d 238, 612 N.W.2d 374
For Perez; R. Douglas Stansbury
Issue/Holding:
¶1 ... The issue presented is whether a person who is convicted of carrying a concealed and dangerous weapon under Wis. Stat. § 941.23 (1997-98) has 'committed a crime involving the use of the dangerous weapon,' as that phrase is used in Wis. Stat. § 968.20(1m)(b), so that a dangerous weapon seized from the person may not be returned....

¶3. We hold that a person convicted of going armed with a concealed and dangerous weapon contrary to Wis. Stat. § 941.23 has 'committed a crime involving the use of the dangerous weapon,' and that the return of the dangerous weapon or weapons seized from the person is prohibited by Wis. Stat. § 968.20(1m)(b). Accordingly, we reverse.

Forfeiture -- Constitutionality -- § 346.65(6)
State v. Lance Terry Konrath, 218 Wis.2d 290, 577 N.W.2d 601 (1998), affirming unpub. decision.
For Konrath: Ralph A. Kalal
Issue/Holding: Forfeiture statute § 346.65(6) authorizes a civil, remedial in rem proceeding, and is not facially unconstitutional; because the statute is civil, double jeopardy doesn't apply; the proceeding provides sufficient notice to satisfy due process (with caution that immediate seizure appropriate in certain circumstances).
Forfeiture -- Vehicle Used in Crime -- Proportionality Test
State v. William W. Boyd, 2000 WI App 208, 238 Wis.2d 693, 618 N.W.2d 251
Issue: Whether forfeiture of the entire value of a $28,000 vehicle which transported a weapon used in a crime was excessive, especially in light of the maximum fine of $10,000 for the crime.
Holding: Applying the proportionality test mandated by United States v. Bajakajian, 524 U.S. 314 (1998), imposing "full forfeiture" of the vehicle's entire amount would be excessive; forfeiture of $10,000 (the maximum fine for the underlying offense) was proportionate. ¶17.
Analysis: In high dudgeon over a couple of OWI arrests, Boyd shot up the Elkhart Lake police station. Because he used his pick-up to get to and from the crime scene, the truck became forfeiture fodder, § 973.075(1)(b)1m.a. Forfeiture under this provision is subject to the Excessive Fines clause, the test for which is found in Bajakajian, and which the court applies as follows:
¶17 Although we acknowledge that Boyd's conduct was a serious offense, we nonetheless conclude that imposing the full forfeiture would be an excessive fine. The harm that Boyd caused was minimal and will be sufficiently satisfied from the reduced forfeiture amount of $10,000. As the State points out, Boyd's conduct was highly unusual 'because not many people in Sheboygan County fire shots into police stations.' The purpose of the forfeiture statute-to deter offenders from using their vehicles to commit a felony-is not significantly impacted as this is a situation not likely to recur. The full forfeiture amount is also significantly greater than the crime's maximum fine. Weighing all these factors, we hold that a full forfeiture would be grossly disproportionate to the gravity of the offense and affirm the circuit court's reduction of the forfeiture amount.
Forfeiture -- Nature -- Remedy for Wrongful Disposition of Seized Property by State
State v. Sammie L. Glass, 2001 WI 61, affirming 2000 WI App 252, 239 Wis. 2d 373, 620 N.W.2d 213
Issue/Holding:
¶19 Considering the aims and objects of a Wis. Stat. § 968.20 action and the procedure set forth in Wis. Stat. § 968.20, we conclude that Wis. Stat. § 968.20 establishes an in rem proceeding. The court reached this same conclusion in a recent case.8

¶20 We now turn to whether the plaintiff may obtain monetary damages from the City in this proceeding under Wis. Stat. § 968.20. He cannot. Wisconsin Stat. § 968.20 does not expressly state that a circuit court may award monetary damages if seized property is not returned. Furthermore, the circuit court did not obtain personal jurisdiction over the City in accordance with the statutes governing civil actions, a prerequisite for awarding monetary damages against the City.9

¶21 We have concluded that a proceeding under § 968.20 is a proceeding in rem to determine true ownership of specific property. A judgment in an in rem proceeding is valid only against the specific property and not against a defendant or a defendant's other assets.10

Forfeiture -- "Owner" of Subject Property, § 973.075(1)(b)2
State v. Walter A. Kirch, 222 Wis. 2d 598, 587 N.W.2d 919 (Ct. App. 1998)
For Kirch: Timothy J. Gaskell
Issue/Holding:
The federal courts continue to consider possession, title, control and financial stake when determining ownership under 21 U.S.C. § 881(a)(7). ... We therefore consider these factors when determining ownership for the purposes of § 973.075(1)(b)2, Stats.

While Sharon Kirch is listed on the Chevrolet Suburban's title as the owner, she had no financial stake in the truck, because the truck was purchased entirely by Walter. Nor did she possess or have control over the actual vehicle. She has not claimed ownership of the truck. In fact, she twice stated that the truck "belongs to" her son, and that she was only listed as owner because her son "was undergoing a bankruptcy" and did not want the truck in his name. These are not the indicia of an "owner" of a vehicle. As a result, we conclude that Sharon Kirch is not the "owner" of the Chevrolet Suburban as that term is used in § 973.075(1)(b)2, Stats.


PLAIN VIEW

Plain View

Plain View – Cell Phone, Image on Display Screen
State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding: Displayed image on cell phone satisfied plain view doctrine (lawful position of officer, inadvertent discovery, probable cause to be images displayed contraband), ¶¶23-25.
Plain View - Generally
State v. Shaun E. Kelley, 2005 WI App 199
For Kelley: Gregory Bates
Issue/Holding:
¶15      An officer has the right to access objects in plain view while searching within the scope of the consent.  See State v. Johnson, 187 Wis. 2d 237, 242, 522 N.W.2d 588 (Ct. App. 1994). In order for the plain view doctrine to apply, three requirements must be met:
First, the evidence must be in plain view. Second, the police officer must have a lawful right of access to the object. Third, the incriminating character of the object must be immediately apparent, meaning the police must show they had probable cause to believe the object was evidence or contraband. 
State v. Ragsdale, 2004 WI App 178, ¶17, 276 Wis. 2d 52, 687 N.W.2d 785. Here, all three elements were satisfied. The officer searched under the bed, where a phone handset could have been hidden. He discovered several photos, which he recognized immediately to be child pornography. Thus, the pictures were lawfully seized.

REASONABLE SUSPICION ISSUES

Reasonable Suspicion Issues -- Stop

Reasonable Suspicion Issues -- Stop / Duration -- General
(also see "Arrest -- Traffic Offense")
Reasonable Suspicion – Stop/Detention – Duration/Intensity – Handcuffed, Placed in Squad in Absence of Suspected Weapons
State v. Sameeh J. Pickens, 2010 WI App 5, reconsideration denied 1/20
For Pickens: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: A temporary detention is narrowly circumscribed, in terms of duration and intensity, by the least intrusive means necessary to dispel suspicion¸¶27. Thus, in the absence of any reason to believe weapons were present, use of handcuffs on Griffin was unjustified, ¶30.
¶33   In sum, we conclude that the State failed to show that the level of restraint used to detain Pickens was reasonable because the State points to no specific, articulable facts that justify handcuffing and securing Pickens in a squad car. In the absence of any other developed argument supporting admission of evidence obtained from Pickens in the parking lot, we conclude that that evidence must be suppressed. [5]
Court observes that “(a) number of courts have concluded that police exceeded the permissible scope of a temporary detention in circumstances that we find at least as compelling as those here,” and proceeds to catalog them, ¶33 n. 5. Import: long-delayed recognition that handcuffing/squad placement may well convert stop into full-blown arrest. See, e.g., discussion here (following Marten-Hoye summary); and here (scroll under Neaves summary).

The court declines to resolve definitively whether suspected drug activity alone justifies handcuffing, but cautions “that our research indicates that we would likely reject such an argument,” ¶31.

Reasonable Suspicion - Stop - Duration - Automobile -- Prolonged to determine if Driver Had Valid License
State v. Vernell T. Williams, 2002 WI App 306
For Williams: Michael A. Haakenson
Issue: Whether a stop whose purpose (to investigate possible connection to an earlier crime) had dissipated was unlawfully prolonged by a checking the driver's license.
Holding:
¶19. In State v. Ellenbecker, 159 Wis. 2d 91, 464 N.W.2d 427 (Ct. App. 1990), we held that a request for a driver's license from a driver whose vehicle was disabled, and a status check on the license, did not transform a lawful "motorist assist" into an unlawful seizure. ...

¶20. We next stated that Wis. Stat. § 343.18(1) (1999-2000) gives law enforcement officers the authority to require a driver of a motor vehicle to display his or her license on demand. ...

¶22. For the reasons we relied on in Ellenbecker, we conclude that it was reasonable for Officer Garcia to make a report of the incident, even if she had already decided that the driver was not Williams, and for that purpose it was reasonable for her to ask for Williams's name and identification. Once Williams stated that he had no identification, there was a reasonable ground for further detention. Under Wis. Stat. § 343.18(1), persons operating motor vehicles are required to have their licenses with them. The fact that Williams did not have identification was a violation of this statute and was a reasonable ground for suspecting that Williams was not authorized to drive. We conclude that Officer Garcia's calling Officer Henderson because he knew many people was a reasonable means of identifying Williams, and, further, that once she knew the man was Williams, it was reasonable for her to ask dispatch to determine whether he had a valid driver's license. 4


4 We observe that under State v. Ellenbecker, 159 Wis. 2d 91, 464 N.W.2d 427 (Ct. App. 1990), even if Williams had produced his driver's license, Garcia could have lawfully checked on the status of his license.
The long and short of it is that, once they stop a car, the police have authority to ask for and check on the status of the motorist's driver's license. (This authority ought to be kept in mind when reviewing routine traffic stop cases, summarized below.) Williams was stopped because the police wrongly but reasonably believed his car matched the description of a car they were investigating. Even though Williams was cleared of that, the police were allowed to ask for his DL and, for better or worse, he didn't have one -- he then became subject to arrest for that offense. "Subject to" but not necessarily arrested in fact; the opinion doesn't say, and it isn't clear from the facts whether he was indeed arrested, see ¶4. The court apparently assumed that Williams was not then under arrest, ¶23: "Once Officer Garcia knew Williams did not have a valid driver's license, she could at that point lawfully detain him further only for the purpose of giving him a citation for that violation, and, perhaps, for a violation of Wis. Stat. § 343.18(1), since the record discloses no basis for reasonably suspecting him of any other violation at that time." In any event, evidence eventually was seized from the trunk of the car, the validity of which seizure turned on whether Williams properly consented, something the court analyzes in terms of prolonging the stop, as summarized below.

Ellenbecker adopted, in Coffia v. State, 2008 OK CR 24 ("public interest in running a status check on a license" outweighs iminimal intrusion involved).

Reasonable Suspicion -- Stop -- Duration -- Prolonged to Seek Consent to Search Automobile
State v. Vernell T. Williams, 2002 WI App 306
For Williams: Michael A. Haakenson
Issue/Holding:
¶24. It is true that when an officer has fulfilled the purpose of a lawful stop, the officer's request for permission to search the vehicle does not, in itself, transform the stop into an unlawful one. State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996). In Gaulrapp, the person detained answered yes immediately, and we concluded that his consent was voluntary. Id. at 603, 608. Under those circumstances, we held the request to search did not unreasonably prolong the stop. Id. at 609.5 However, in State v. Gammons, 2001 WI App 36, ¶24, 241 Wis. 2d 296, 308, 625 N.W.2d 623, we held that an officer acted unlawfully when he did not terminate the detention after the reason for the initial lawful stop was resolved, and the driver had answered no to the questions whether he had any drugs in the vehicle, and whether the officer could search the vehicle....

¶25. Accordingly, in order to determine whether a search of Williams's vehicle was lawful under Gaulrapp, we need to know the circumstances, including: (1) whether Officer Garcia asked Williams for consent to search his vehicle; (2) when she did so; (3) what he responded; and (4) when the search took place. ... We conclude there is conflicting evidence on these points, which the trial court must resolve.

This holding is relevant to prolongation of a routine traffic stop, where police attempt to secure consent to search is a recurrent problem -- see routine traffic stop cases, summarized below. Williams is categorized here simply because the underlying stop was to investigate a crime, not for routine traffic enforcement; that distinction is arbitrary in terms of the present problem, because all that matters is that the stop's purpose, whatever is was, has ended.
Reasonable Suspicion -- Stop -- Duration -- Prolonged to Administer Field Sobriety Tests
State v. Guy W. Colstad, 2003 WI App 25
For Colstad: T. Christopher Kelly
Issue/Holding: Continued detention, in order to administer field sobriety tests, was supported by reasonable suspicion, given the defendant-driver's mild odor of alcohol as well as ambiguity surrounding the cause of the fatal accident. "Thus, one reasonable possibility was that Colstad struck the child with his pickup truck because his judgment and driving skills were impaired by alcohol." ¶21.
Reasonable Suspicion -- Stop -- Duration -- Prolonged to Process Scene of Fatal Accident
State v. Guy W. Colstad, 2003 WI App 25
For Colstad: T. Christopher Kelly
Issue/Holding: Prolonged detention of the driver at the scene of a fatal accident did not transmute a temporary stop into an arrest:
¶17 Colstad argues that the duration of his detention was unreasonable because the officer directed him to wait, instead of questioning Colstad sufficiently to dispel or confirm the officer's suspicions, and because Colstad was made to wait approximately thirty to forty-five minutes before the officer resumed questioning. The State responds that the duration of the detention was reasonable given the chaotic accident scene and need for the officer to attend to the victim and process the scene. We agree with the State.
Reasonable Suspicion -- Stop -- Duration -- Prolonged by Procurement and Execution of Warrant
State v. Bradley J. Vorburger, 2002 WI 105, reversing 2001 WI App 43
For Vorburger: David D. Cook
Issue1: Whether the detention of suspect Becker in a motel hallway, while the police sought and then executed a search warrant for a room, was unnecessarily prolonged so as to amount to an arrest (unsupported by probable cause), where Becker was detained over an hour, handcuffed, and denied private use of a bathroom.
Holding1: A search warrant carries implicit authority to detain an occupant of the premises to be searched. Michigan v. Summers, 452 U.S. 692, 705 (1981). The fact that Becker wasn't registered to the room to be searched doesn't throw her outside this principle: the police had reasonable suspicion that she was herself involved in criminal activity; and, she was standing outside the room, about to enter it, with the person to whom it was registered, giving her a "voluntary connection" to the room. ¶¶48-52, citing United States v. Pace, 898 F.2d 1218 (7th Cir. 1990), and United States v. Fountain, 2 F.3d 656 (6th Cir. 1993). Nor does it matter that Becker was detained before the search warrant had even been signed. The length of her detention -- one hour and ten minutes -- related to procurement and execution of the warrant was no longer than reasonably necessary. ¶63. That she was handcuffed didn't convert the detention into an arrest. ¶64. The officers had a justified concern for their safety; there were three detainees, two of whom were large males. ¶66. The "central" aspect of this case is the search warrant, because of its authorization of a "limited detention" based on the same policy considerations underlying search incident to arrest -- "We think such a concept applies to this case from the moment of initial detention to the completion of the search, because a search warrant was in the works and its execution was imminent, and because the police had articulable, reasonable suspicion for each of the people they detained." ¶69.
The court casually suggests that State v. Swanson, 164 Wis. 2d 437, 448, 475 N.W.2d 148 (1991) can't be reconciled with Summers and similar authority. ¶68. Hard to believe that the court thus meant to overrule Swanson; it probably meant that in the particular context of execution of a warrant, it simply doesn't matter whether a reasonable person in the detainee's position would perceive him or herself to be under arrest. The warrant, as a matter of law, necessarily makes the person's restraint-status one of detention rather than arrest. Not that this principle is always and necessarily true: it's just that the court's casual (and ambiguous) dismissal of Swanson probably shouldn't be taken at face value. Indeed, the court applies, albeit without citing Swanson, the reasonable person test for custody. ¶86. And see also search-incident discussion, above.
More recent authority relative to detaining someone during execution of warrant: Muehler, et al v. Mena, 125 S. Ct. 1465 (2005). But note potential distinction between detention and search, see summary of, and discussion under, Kolp, below.
Issue2: Whether continued detention after execution of the warrant, during which time her handcuffs were removed but was given Miranda warnings and interrogated, converted her detention into an arrest.
Holding2: The police had a reasonable suspicion of Becker's involvement in drug activity, and therefore were entitled to continue her detention as an investigatory effort to verify or dispel that suspicion. ¶¶70-89. Becker's continued detention didn't amount to an arrest, because her handcuffs were removed, and she was allowed to use the bathroom: "For Becker, the police were deescalating the conditions of her detention." ¶86.
Reasonable Suspicion -- Stop -- Duration -- General
State v. Kelsey C.R., 2001 WI 54
For Kelsey C. R.: Susan Alesia, SPD, Madison Appellate
Issue: Whether Kelsey's detention was prolonged beyond its proper purpose.
Holding: The operative principle is settled: "an investigative detention ... must last only long enough to fulfill the purpose of the stop." ¶44. Applying that principle -- (3-vote lead opinion:) The purpose of the stop was to dispel the idea that she was up to criminal activity; her statement that she was afraid, coupled with the officers' confirmation that she was not a runaway, heightened their suspicions, and authorized them to hold her for 20 minutes so that a female officer could come and frisk her. ¶44. (2-vote concurrence): Although the police confirmed from Kelsey's mother that she was not a runaway, the mother asked the officers to bring her home, and they were justified under statutory mandate, §§ 938.19(1)(d)8 and 938.20(2)(ag), to do just that. ¶¶69-70.

Reasonable Suspicion Issues -- Stop -- Duration -- Routine Traffic Stops
(also see "Arrest -- Traffic Offense")

This is an increasingly recurrent problem: a routine traffic stop either used as subterfuge for investigatory search, or during which suspicions arise, hence the effort to place these summaries in their, own separate category. But note that they do present issues such as consent, seizure or voluntary interaction, and unnecessarily prolonged detention whose principles may apply outside the immediate context.

As to routine traffic stops, the recurrent problems seem to be limits, if any, on police authority to:

  • question beyond purpose of stop and
  • seek consent to search
These problems are often, but not always, factually intertwined.

The following pronouncement in Arizona v. Johnson, USSC No. 07-1122, 1/26/09, should also be considered in any analysis of duration:

A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. See Brendlin, 551 U. S., at 258. An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. See Muehler v. Mena, 544 U. S. 93, 100–101 (2005).
Routine Traffic Stop -- Routine Traffic Stop – Duration – Extension by 78 Seconds to Perform Dog Sniff
State v. Ramon Lopez Arias, 2008 WI 84, on Certification
For Arias: Lora B. Cerone, SPD, Madison
Issue: whether extending a routine traffic stop by 78 seconds so that a dog could perform (without reasonable suspicion) a “drug sniff” amounted to an unlawful seizure.
Holding:
¶34      … . There remains no hard-and-fast time limit for when a detention has become too long and therefore becomes unreasonable. Sharpe, 470 U.S. at 685-86; Griffith, 236 Wis.  2d 48, ¶54.

¶39      Under the totality of the circumstances before us, we examine the public interest, the degree to which the continued seizure advances the public interest and the severity of the interference of Arias's liberty interest. Griffith, 236 Wis.  2d 48, ¶37. The dog sniff occurred so Rennie could ascertain whether there were drugs in Schillinger's vehicle. In that regard, the public interest in "prevent[ing] the flow of narcotics into distribution channels" has long been recognized as significant. Place, 462 U.S. at 704. The use of a narcotics sniffing dog furthers this public interest by locating narcotics that may not otherwise be detected. [18] The dog sniff was part of the on-going traffic stop of Schillinger that occurred because she was a minor and was transporting alcohol that Arias had placed in her vehicle. The dog sniff of Schillinger's vehicle took 78 seconds to further the public's interest. This brief 78-second extension of Arias's seizure is significantly outweighed by the importance of preventing the flow of illegal drugs. [19]

¶40      In addition, Rennie diligently pursued his investigation in a manner that could quickly confirm or dispel his suspicions relative to the stop of Schillinger's vehicle. Sharpe, 470 U.S. at 686. He observed beer being loaded into a car that was driven by Schillinger, whom he knew was under age. He quickly sought to ensure that Schillinger was not intoxicated, first by administering a preliminary breath test to her and then by inquiring whether drugs were in the vehicle. He released D'Jango to sniff the outside perimeter of the car. All these tasks took only 4 minutes, 10 seconds to accomplish. Rennie's actions were systematic and efficient. Arias was not taken to a non-public location as the defendant was in Royer. He remained seated in the passenger compartment of Schillinger's vehicle. Therefore, the incremental intrusion on Arias's liberty is time-focused, as it was in Griffith. On balance, we conclude that the incremental intrusion upon Arias's liberty interest that resulted from the 78-second dog sniff is outweighed by the public's interest served thereby. Accordingly, Arias was not subjected to an unreasonable seizure.

¶47      In sum, we observe that neither the Fourth Amendment nor Article I, Section 11 of the Wisconsin Constitution prohibit all seizures. Only unreasonable seizures are violative of constitutional rights. In examining the reasonableness of Arias's seizure, we balance the public's interest in preventing the distribution of illegal drugs, the furtherance of that interest by the continued seizure of Schillinger's vehicle and the effect on Arias's liberty interest under the Fourth Amendment and Article I, Section 11 of the Wisconsin Constitution. See Mimms, 434 U.S. at 109; Griffith, 236 Wis.  2d 48, ¶37. The incremental extension of time expended in this stop that was occasioned by the dog sniff was a brief 78 seconds. It was only the 78 seconds of the dog sniff that added to Rennie's efficient efforts to confirm or allay his suspicions that led to the initial stop. This incremental liberty intrusion does not outweigh the public interest served by it; therefore, the incremental intrusion occasioned by the dog sniff satisfies our test for reasonableness. Griffith, 236 Wis.  2d 48, ¶38. Accordingly, the "controlled substance investigation" comported with the strictures of the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution.

The leading prior cases are: State v. Betow, 226 Wis.2d 90, 593 N.W.2d 499 (Ct. App. 1999); State v. Christopher Gammons, 2001 WI App 36; and State v. Daniel L. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996), which the court purports to reconcile with the current result by reducing Betow to dicta:
¶45      We note that Betow contains broad dicta that might be read so as to cause confusion with the appropriate inquiry for evaluating the constitutionality of a continuing seizure. For example, Betow asserts:
[T]he scope of the officer's inquiry, or the line of questioning, may be broadened beyond the purpose for which the person was stopped only if additional suspicious factors come to the officer's attention——keeping in mind that these factors, like the factors justifying the stop in the first place, must be "particularized" and "objective."
Id. at 94. This dicta misstates the manner in which courts are to evaluate the reasonableness of the continuation of a seizure that was lawful at its inception. Betow was clarified by Gaulrapp's explanation that, "[n]o seizure occurs when police, without the reasonable suspicion justifying a Terry stop, ask questions of an individual . . . so long as the police do not convey that compliance with the request is required." Gaulrapp, 207 Wis.  2d at 609. The dicta in Betow quoted above is also inconsistent with Bostick, which concludes that law enforcement questions do not result in a seizure, so long as answers are not compelled. Bostick, 501 U.S. at 437. As we have explained, the appropriate inquiry involves balancing the public interest in the seizure, the degree to which the continued seizure advances the public interest and the severity of the interference with the liberty interest of the person detained. Griffith, 236 Wis.  2d 48, ¶37.
Short version: if we determine that the evidence turned up is sufficiently important, as contraband drugs are by definition, then “the continuation of a (lawful) seizure” just isn’t problematic. Those who fear slippery slopes will think the court sliding some distance toward a drug-contraband exception to the 4th amendment -- without benefit of stability control. For that matter, the court's analysis may well be unsatisfactory even if you favor the particular outcome. The threshold question should be whether or not the traffic stop had indeed concluded – a fraught question to be sure, but all the more reason to provide some guidance. (See discussion below.) Other than a nod in the direction of drug interdiction, the court says little. Recall the reason the court rejects a "New Federalism" approach: "By following the Supreme Court's Fourth Amendment jurisprudence in interpreting Article I, Section 11, we impart certainty about what the law requires for those who will apply our decisions with respect to searches and seizures, and we provide distinct parameters to those who must enforce the law while maintaining the constitutionally protected rights of the people," ¶21. If the court truly wanted "certainty" (and predictable results) then it would have been inclined more toward a bright-line rule rather than the squishy "totality-of-circumstances" test it adopted. And what of that bright-line? There is authority, elsewhere to be sure but also arguably from this court itself, that on a routine traffic stop the police questioning is limited (absent, of course, adequate suspicion) to topics reasonably related to the stop. See discussion below, with respect to Malone. No such claim can be made now, given Arias, which imposes no such limitation.

Only if the stop has been extended beyond its lawful purpose is it relevant to ask whether the continued detention was unlawful. Instead, the court merely asserts without explanation that “the traffic stop of Schillinger [the driver] was on-going when the dog sniff of the outside of the vehicle occurred,” ¶44. Fine, but the court doesn’t quite explain whether or not this "on-going" stop had been extended beyond its lawful purpose. If nothing else, this makes the result fact-specific. The car was lawfully stopped for a violation of § 346.93 (intoxicants in car driven by minor). The record seems to be vague (¶¶5-6) but apparently 78 seconds after a PBT and cursory questions, the dog sniff was completed; total time elapsed after the stop: 4 minutes 10 seconds. Maybe – the court simply doesn’t say – this lapse of time was well within the length of time to run a license check … which would mean that in effect the stop wasn’t really extended in any meaningful sense. Maybe (again the court doesn’t say) the court regards a lapse of 78 seconds as de minimis non curat lex (the law doesn't concern itself with trifles). What the court does say, as noted, is that the stop was “on-going,” as if that status self-evidently legalizes the police activity. This and other ambiguities ensure that we likely haven’t heard the last of this problem which, at heart, involves potentially cert-worthy questions.

See State v. Harris, TN Cr App 2/6/08 ("otherwise lawful canine sweep that is ancillary to a legitimate traffic stop may constitute an unlawful search if the suspect is detained beyond the time necessary to complete the traffic stop"; canine sweep while citation form being completed didn't unlawfully extend stop); U.S. v. Bell, 6th Cir No. 06-4413, 2/17/09 ("The proper inquiry is not whether Bell was detained longer than the average speeder, but whether he was detained longer than reasonably necessary for the Officers to complete the purpose of the stop in this case.").

Reasonable Suspicion -- Stop, Duration, Routine Traffic Violation
State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15
For Johnson: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding:
¶45      Another factor weighs strongly against the reasonableness of the protective search in this case. Before Johnson was asked to exit the vehicle and submit to a pat down, he gave Stillman paperwork showing that his vehicle had passed an emissions test recently, and that, as a result, the registration suspension had been lifted. Officers may detain a person on a stop for a routine traffic violation only for as long as necessary to complete the investigation of the violation. See Knowles v. Iowa, 525 U.S. 113, 117 (1998). The paperwork Johnson provided to Stillman established that Johnson's vehicle was no longer subject to an emissions suspension.  [17]
 [17]  We recognize that the officers noted that Johnson had failed to signal a turn prior to the stop. The record does not establish whether the officers had finished their investigation with respect to his failure to signal a turn. What is clear in light of Knowles v. Iowa, 525 U.S. 113 (1998), is that once an investigation for a minor traffic violation is completed, the officers' generalized concern for safety does not provide a basis for a full protective search.
Reasonable Suspicion -- Stop -- Duration -- Traffic Offense -- Extended Beyond Permissible Limits
State v. Christopher E. Betow, 226 Wis.2d 90, 593 N.W.2d 499 (Ct. App. 1999)
For Betow: James C. Murray.
Issue/Holding:
There is no question that a police officer may stop a vehicle when he or she reasonably believes the driver is violating a traffic law; and, once stopped, the driver may be asked questions reasonably related to the nature of the stop-including his or her destination and purpose. ... Stated another way, the scope of questions asked during an investigative stop must bear a reasonable relationship to the reasons for which the stop was made in the first place. United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975).

Once a justifiable stop is made-as is the case here-the scope of the officer's inquiry, or the line of questioning, may be broadened beyond the purpose for which the person was stopped only if additional suspicious factors come to the officer's attention-keeping in mind that these factors, like the factors justifying the stop in the first place, must be "particularized" and "objective." United States v. Perez, 37 F.3d 510, 513 (9th Cir. 1994). If, during a valid traffic stop, the officer becomes aware of additional suspicious factors which are sufficient to give rise to an articulable suspicion that the person has committed or is committing an offense or offenses separate and distinct from the acts that prompted the officer's intervention in the first place, the stop may be extended and a new investigation begun. The validity of the extension is tested in the same manner, and under the same criteria, as the initial stop.

The court goes on to determine that the police lacked reasonable suspicion, hence the detention / questioning after fulfilling the stop's purpose was unlawful. See below.
Reasonable Suspicion -- Stop -- Duration -- Traffic Offense -- Questioning Passenger Following Lawful Stop
State v. Donavan W. Malone, 2004 WI 108, on certification
For Malone: John A. Cabranes
Issue: Whether, during a routine traffic stop, the officer may request passengers to get out of the vehicle and question them on matters reasonably related to the nature of the stop.
Holding: Because lawfulness of the stop of the car in which Malone was riding was undisputed, the applicable framework of analysis is found in State v. Griffith, 2000 WI 72, 236 Wis. 2d 48, 613 N.W.2d 72:
¶26 We promulgated a framework to assess such claims in Griffith. The reasonableness of a seizure that is alleged to impermissibly detain an individual for questioning can be measured by examining two variables. First, the nature of an officer's actions may exceed the scope justified by the original stop, raising the question whether "the incremental intrusion" of additional questions is unreasonable when balanced against the public interest. Id., ¶37-38. Second, the duration of law enforcement questioning during a valid traffic stop "can transform a reasonable seizure into an unreasonable one if it extends the stop beyond the time necessary to fulfill the purpose of the stop." Id., ¶54 (citing United States v. Sharpe, 470 U.S. 675, 684-85 (1985) ("[I]f an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.")).
Basis for intrusion
¶44 On balance, Hyer's conduct toward Malone was reasonable when viewed in light of the objective indications that criminal narcotics activity might be afoot: (1) the presence of an abnormal number of air fresheners, which may be used to mask the odor of narcotics; (2) the radically different accounts of the group's travel plans; (3) Marohl's statement that the group was headed to a rave party, which the driver may have attempted to conceal from the officer; (4) the nervousness of the driver and the passengers, e.g., putting their hands in and out of their pockets; and (5) the other passenger's unsolicited statement that he was on probation for a drug-related offense. The nature of the intrusion——that is, the subject matter of the questions——lined up with Hyer's suspicion and was supported by a number of specific and articulable facts, which, under the totality of the circumstances, suggested that the group might be involved in narcotics. Though Hyer asked somewhat intrusive questions, Hyer's reasonable level of suspicion justified these questions. Accordingly, we conclude that Hyer's conduct in posing these four questions to Malone was reasonable under the circumstances.
Duration of intrusion:
¶45 Duration is a second factor to consider in evaluating whether Trooper Hyer's conduct in "seizing" Malone and subsequently questioning him was unreasonable under the Fourth Amendment. As we noted in Griffith, "questioning can transform a reasonable seizure into an unreasonable one if it extends the stop beyond the time necessary to fulfill the purpose of the stop." 236 Wis. 2d 48, ¶54 (citing Sharpe, 470 U.S. at 684-85). The original purpose of the stop was to investigate the traffic violation. The purpose of the stop was transformed as Hyer became aware of additional information that justified expanding his investigation to pursue his reasonable suspicion that the occupants of the vehicle might be committing or about to commit a crime involving narcotics. Thus, Hyer had a new purpose——to investigate his suspicion regarding criminal activity. However, Hyer's lawful authority to pursue his suspicion of criminal activity did not mean that the stop could last indefinitely.

¶46 Malone does not claim that either the overall length of time or the length of time Hyer questioned Malone exceeded the outer limits of the Fourth Amendment. Rather, we understand Malone to argue that any extension of the stop was unjustified. We disagree. Malone fails to present an alternative argument regarding the permissible length of the detention if we were to find that Hyer was justified in pursuing his suspicion of criminal activity in a reasonable manner. Because Malone does not address this issue, neither do we.

The court disdains reliance on any bright-line rule, ¶¶17, 20, 34. Thus, the fact-specific determination of reasonable suspicion in this case will have to be compared to and contrasted with the absence of reasonable suspicion on somewhat overlapping considerations, in State v. Betow, 226 Wis.2d 90, 593 N.W.2d 499 (Ct. App. 1999), summarized above. Malone certainly doesn't overrule Betow on the issue of reasonable suspicion. On the more overarching problem -- just how far can a police inquiry go during a routine traffic stop -- the court cites (¶33) Betow, if not with explicit approval, then at worst in neutral terms, for the idea that "once stopped, the driver may be asked questions reasonably related to the nature of the stop—including his or her destination and purpose." Of course, such an inquiry does open the door to further inquiry, as the officer actively seeks to heighten his/her suspicions. But the corollary is that the driver may not be asked questions not reasonably related, etc. Or, as Betow puts it more directly, 226 Wis. 2d at 94: "the scope of the officer's inquiry, or the line of questioning, may be broadened beyond the purpose for which the person was stopped only if additional suspicious factors come to the officer's attention." Don't lose sight of the fact that Malone upheld questioning only after determining the existence of reasonable suspicion. The narrow holding of Malone is that, on the particular facts presented, the police didn't exceed the scope of the permissible inquiry. As discussed in other cases immediately below (scroll down), a nation-wide divide seems to be developing on this point: some jurisdictions limit police authority to question the motorist during a routine traffic stop, others don't; Wisconsin at least for now and in theory appears to be on the side of limited authority.

NOTE: The New Mexico SCT underscores the commentary immediately above, State v. Duran, NM SC, No. 28,241, 8/31/05 (interprets Malone to "require such questions to be reasonably related to the intial justification for the stop," ¶32, a view the court adopts, ¶35; court also catalogs national split of authority on issue -- discussed in more detail below, underneath Jones summary). See also People v. Andrews, Ill App No. 3--02--0569, 4/9/07 ("However, the background check of defendant was not related to the initial justification for the stop. Defendant was simply a passenger in the truck and was not implicated in the traffic violation. ... Regardless of the duration of any extended detention, however, the background check was impermissible because it changed the fundamental nature of the traffic stop."); State v. Morlock, KS App No. 97,447, 8/29/08 ("a law enforcement officer exceeds the reasonable scope and duration of a traffic stop by running a warrant check on the passengers in the absence of reasonable suspicion of criminal activity").

Different but somewhat related point: a passenger may be ordered out of a car during a routine traffic stop; however, "ancillary requests" (such as rolling up window, closing vent) may exceed scope of detention, U.S. v. Ladeaux, 10th Cir No. 05-8097, 7/12/06.

Reasonable Suspicion -- Stop -- Duration -- Traffic Offense -- Asking for Passenger's Identification Following Lawful Stop
State v. Terry Griffith, 2000 WI 72, 236 Wis. 2d 48, 613 N.W.2d 72, affirming unpublished decision of court of appeals
For Griffith: Paul G. LaZotte
Issue: Whether the police lacked authority to ask the name and birth date of a passenger of a lawfully stopped car.
Holding: The police may request identifying information from passengers during traffic stops, ¶45, and though the passenger may rightfully decline to answer, ¶52, when, as here, the passenger falsely answers and otherwise resists the police, he may charged with the resulting offenses.
Analysis: After the police stopped a car, they asked passenger Griffith his name and date of birth. He gave false information. He was arrested and escaped, leading to a variety of charges. His principal contention is that the initial questioning violated the fourth amendment; everything that followed was tainted by this illegal police action. Conceding that the stop was lawful, he first argues that its purpose had already been served by the time the police asked him for identifying data. The court stresses the lawfulness of the stop, critically distinguishing Brown v. Texas, 443 U.S. 47 (1979) on that basis. ¶33. Resolution of the propriety of the questioning turns on "the incremental intrusion" that this conduct added to the lawful stop. ¶38. This, in turn, depends on whether questioning went beyond the scope of the stop, and whether the questioning itself was "nonconsensual." ¶40. The court assays the factors in favor of police questioning. ¶¶45-48 (not clear whether investigation stemming from stop had concluded; general public value to identifying witnesses to police-citizen encounter; additional interest in determining whether passenger licensed and available to drive car upon driver's arrest). Nor was the encounter nonconsensual: all events "took place in public view," and lasted "only a few minutes." ¶51. The passenger could have rightfully refused to answer, without penalty. ¶52. But merely posing a question doesn't amount to a seizure. ¶53. A stop may be unreasonably prolonged, but "the length of time required to ask a question is not sufficiently intrusive to transform a reasonable, lawful stop into an unreasonable, unlawful one." ¶61.

UPDATE: the Illinois supreme court has since held that, "during the course of a routine traffic stop, a police officer's mere request for identification from a passenger ... passes constitutional muster." People v. Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260 (2003). The opinion also contains a fairly detailed discussion of the "divergence of opinion among the federal and state courts as to the parameters of the Terry 'scope' requirement when determining the propriety of police questioning during a traffic stop. But see People v. Harris, 207 Ill. 2d 515, 802 N.E.2d 219 (2003) (clarifying Gonzalez: may not run warrant check on passenger absent reasonable suspicion or direct connection to purpose of stop); People v. Heather, Ill App. 4th Dist No. 4-02-0627, 7/04 (continuing to question driver and running warrant check on passenger after traffic stop was complete "changed the fundamental nature of the stop into an impermissible investigation of past wrongdoing"); State v. Rankin / Staab, Wash. SCt No. 72509-8, 6/10/04 (state constitution "affords automobile passengers a right of privacy that is violated when an officer requests identification from a passenger for investigative purposes, absent an independent basis for making the request"); St. George v. State, Tex App 2d Dist No. 2-03-422-CR, 8/31/04 ("an investigation of the passenger of a vehicle is not included in the scope of a mere traffic stop. ... an officer must have separate reasonable suspicion of a passenger in order to request identification and check for outstsanding warrants against that passenger"); Commonwealth v. Campbell, 2004 PA Super 440, ¶12, 11/22/04 ("the police can require both the driver and the passengers in the vehicle to identify themselves during a routine traffic stop regardless of whether there is reasonable suspicion that the passengers are engaged in criminal activity").

Contra, People v. Vibanco, Cal App No. H029524, 4/30/07; U.S. v. Soriano-Jarquin, 4th Cir No. 05-4962, 7/11/07 ("a simple request for identification from passengers falls within the purview of a lawful traffic stop and does not constitute a separate Fourth Amendment event"); State v. Smith, 683 N.W.2d 542 (Iowa 2004) (check on passenger's ID after stop concluded didn't amount to seizure; Smith was free to decline to cooperate). Note, too, that resolution of this dispute may turn on outcome of broader issues, such as whether police are entitled to ask questions unrelated to purpose of stop, or whether "mere questioning" is tantamount to a (prolonged) seizure, see discussion below.

See generally T. Fusco, Annotation, Permissibility Under Fourth Amendment of Detention of Motorist by Police, Following Lawful Stop for Traffic Offense, to Investigate Matters Not Related to Offense, 118 A.L.R. Fed. 567 (1994).

The Supreme Court's subsequent decision in Larry D. Hiibel v. Sixth Judicial District Court, 03-3554, 542 U.S. __, 6/21/04 (neither fourth nor fifth amendment precludes arrest of a person simply for refusing to provide identification during a stop supported by reasonable suspicion) doesn't necessarily sanction police authority to require a passenger's identification during a traffic stop, absent reasonable suspicion. That issue is distinct from the one presented in Hiibel whose result, as the Court noted, is based on the following idea: "The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop." Still, the case should be reviewed closely. (Briefs posted here.) Indeed, Campbell, in the course of finding no expectation of privacy in identification information, deems Hiibel "instructive," see ¶¶14-18. The implication is potentially profound: if there's no expectation of privacy, then the acquisition of identification information through illicit means (such as unjustified detention) is at least arguably not suppressible.

See State v. Johnson, Ariz. App. No. 2 CA-Cr 2006-0079, 9/10/07 for discussion re: "when the seizure of passengers in a vehicle, incident only to a driver’s traffic violation, terminates."

Reasonable Suspicion -- Stop -- Duration -- Seeking Consent to Search Automobile After Purpose of Stop Fulfilled
State v. Vernell T. Williams, 2002 WI App 306
For Williams: Michael A. Haakenson
Issue/Holding: Request to search car after purpose of lawful, routine traffic stop satisfied doesn't make stop unlawful; validity turns on fact-specific inquiry. ¶¶24-25. (See summary here.)
Reasonable Suspicion -- Stop -- Duration -- Seeking Consent to Search Automobile After Purpose of Stop Fulfilled
State v. Daniel L. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996)
For Gaulrapp: Ralph A. Kalal
Issue/Holding: Asking the motorist, during a routine stop for a muffler violation, if he had drugs or weapons and then obtaining permission to search the vehicle didn't illegally extend the detention:
The trial court here made extensive findings, and the record supports its findings. The court found the detention was of a short duration and the request to search was made within a reasonable time. The court found that Gaulrapp was not under the influence of intoxicants, he appeared to understand the requests, no handcuffs were used, no threats or promises were made, he did not object at any timeduring the search of his person or vehicle, and the scope of the searches did not exceed the consent.

...

Gaulrapp argues, however, that the very asking of the first question about drugs and firearms, without a reasonable suspicion that he possessed either, transformed the legal stop into an illegal stop, making his consent automatically invalid. ...

...

The cases Gaulrapp relies on are factually distinguishable. They involve prolonged detention after the officers concluded or should have concluded that the justification for the initial stop did not warrant further detention. ...

Gaulrapp's focus on the subject of the question the officers asked rather than its effect on the duration of the seizure is not supported by recent Fourth Amendment cases. Mere police questioning does not constitute a seizure.

Gaulrapp's detention was not unreasonably prolonged by the asking of one question. After that question, the detention was prolonged because Gaulrapp consented to the search. Once Endl found the white powdery residue on Gaulrapp's person, believing it to be cocaine, he had a reasonable suspicion to justify further questioning about drugs.

Reasonable Suspicion -- Stop -- Duration -- Traffic Offense -- Running Warrant Check on Passenger, After Purpose of Stop Resolved
State v. Christopher Gammons, 2001 WI App 36
For Gammons: Keith A. Findley, LAIP
Issue: Whether, following stop of a car which seemed not to have plates, identification-related investigation of passenger is permissible once the officer discovers proof (display of temporary sticker) that there is in fact no apparent violation of registration laws.
Holding: A lawful stop doesn't become an unreasonable seizure merely because the officer asks for the passenger's identification. ¶12, relying on State v. Griffith, 2000 WI 72, 236 Wis. 2d 48, 613 N.W.2d 72.
Note, however, the existence of a potentially significant -- and therefore cert-worthy -- split of authority on whether the police may indeed ask to see a driver's license if the basis for the stop dissipates before the actual encounter. See, e.g., Meredith v. State, Ind App No. 89A04-0703-CR-148, 12/28/07, following United States v. McSwain, 29 F.3d 558 (10th Cir. 1994) ("once Officer Lackey had verified the valid expiration date on the temporary tag, and prior to any personal contact with Meredith, the objective purpose for the investigative detention had been satisfied"); U.S. v. Edgerton, 10th Cir No. 05-3167, 2/22/06 (similar: when cop sees that car in fact displays temporary tag then purpose of stop dissipates and can't ask for license / registration information or otherwise question driver); and State v. Johnny Diaz, 850 So. 2d 435 (Fl. 2003), collecting cases on this split (same: stop to check out validity of temporary plate; upon approach, officer discerned that plate was in fact valid, and the authority to continue the detention, even for the purpose of asking to see the driver's license, terminated):
Permitting an officer to further detain and interrogate a motorist, after the officer is fully satisfied that the motorist has not committed a violation of the laws of the State of Florida, violates the precepts established in Prouse and Royer. Having verified the total validity of Mr. Diaz's temporary tag, the sheriff's deputy could lawfully make personal contact with Mr. Diaz only to explain to him the reason for the initial stop. Because the sheriff's deputy had no justification for further detention, anything more than an explanation of the stop was a violation of Mr. Diaz's Fourth Amendment rights.
But compare U.S. v. Kirksey, 7th Cir No. 06-2854, 5/10/07 (Edgerton line of cases narrowly limited to instances where reasonable suspicion immediately dispelled; matching VIN didn't obviate need to further investigate smudged plate).

Gammons in effect assumes that the stop was lawful even though there was in fact no traffic violation. Whether this approach eventually prevails over Diaz, it should not be extended to one where the stop is based on erroneous, police-generated information, State v. Allen, 269 Neb. 69, 77, 1/7/05 (as distinguished from erroneous, court-generated information, Arizona v. Evans, 514 U.S. 1 (1995)):

This is not a case in which police possess factual information supporting a reasonable suspicion of criminal activity which, upon further investigation, proves to be unfounded. Here, there was no factual foundation for the information which the dispatcher transmitted to Sautter, as it is undisputed that the information was false due to the dispatcher’s mistake in running the wrong license plate number. Sautter had no other reason for initiating the stop. Thus, the record reflects that neither Sautter nor any other law enforcement personnel possessed any true fact which would support the reasonable suspicion necessary to justify an investigative stop. The stop was therefore an unreasonable seizure in violation of the Fourth Amendment.
Reasonable Suspicion -- Stop -- Duration -- Traffic Offense -- Prolonged by Questioning / Seeking Consent to Search
State v. Lawrence A. Williams/State v. Antwon C. Mathews, 2002 WI 94, reversing 2001 WI App 249, 248 Wis. 2d 361, 635 N.W.2d 869
In analyzing this case, keep in mind the very similar but crucially distinguishable case discussed immediately below, State v. Reginald Jones / Maurice E. O'Neal, 2005 WI App 26, (AG’s) PFR filed 2/23/05
For Williams: Thomas E. Knothe
For Mathews: Peter J. Thompson
Issue: Whether the traffic stop was unnecessarily prolonged so as to amount to an illegal seizure and invalidate consent to search the car.
Holding:
¶27 Indeed, the circuit court made the following finding: "it is clear that, at least verbally, the trooper had given the defendant permission to be on his way." Accordingly, the court of appeals properly focused its analysis on the events at the conclusion of the initial seizure, and immediately thereafter.8 Like the court of appeals, we see the case as calling for a determination of whether Williams was seized after the conclusion of the original traffic stop, when he was questioned about contraband and asked for permission to search.

¶28. This requires, as noted above, consideration of all the circumstances and application of an objective "reasonable person" standard. We know that questioning alone does not a seizure make, and the fact that this defendant--perhaps like most people--spontaneously and voluntarily responded to the officer's questions is not enough to transform an otherwise consensual exchange into an illegal seizure. Delgado, 466 U.S. at 216; Drayton, 536 U.S. ___, 122 S.Ct. at 2112-13. We conclude that a reasonable person in these circumstances would not have considered himself compelled to stay and answer the officer's questions. Stated positively, a reasonable person would have felt free to decline to answer the officer's questions and simply "get on [his] way."

¶29. That the officer had just invited Williams to "get on [his] way" strongly influences our conclusion. The officer's words and actions, considered as a whole, communicated permission to leave, as the traffic stop was over. The officer did nothing, verbally or physically, to compel Williams to stay. That Williams stayed, and answered the questions, and gave consent to search, is not constitutionally suspect, and does not give rise to an inference that he must have been compelled to do so. Mendenhall specifically rejected this argument. Mendenhall, 446 U.S. at 555-56.


8 This case does not, therefore, present a question of whether the officer impermissibly exceeded the scope of or prolonged the initial seizure in violation of the Fourth Amendment. See State v. Griffith, 2000 WI 72, 236 Wis. 2d 48, 613 N.W.2d 72 (noting that a reasonable seizure can become an unreasonable one if the officer's investigation extends beyond that which is related to the purpose of the stop, but holding that mere identification questions asked of a passenger do not make a seizure unreasonable); State v. Betow, 226 Wis. 2d 90, 94, 593 N.W.2d 499 (Ct. App. 1999) (holding that "the scope of the officer's inquiry, or the line of questioning, may be broadened beyond the purpose for which the person was stopped only if additional suspicious factors come to the officer's attention . . . ."); State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996) (traffic stop not unreasonably prolonged by question about contraband in the car and subsequent request for consent to search).
Commentary accompanies State v. Reginald Jones, below.
Stop -- Duration -- Traffic Offense -- Prolonged by Seeking Consent to Search
State v. Calvin R. Kolk, 2006 WI App 261
For Kolk: Michael Zell
Issue/Holding: The (lawful) traffic stop’s purpose concluded when the officer returned Kolk’s license and registration and issued his warning; however, the officer had not released Kolk from the temporary detention caused by the traffic stop when he next asked for consent to search the car and as a result Kolk’s ensuing consent was tainted, ¶¶20-24.
State v. Daniel L. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996) and State v. Lawrence A. Williams, 2002 WI 94, distinguished; State v. Reginald Jones, 2005 WI App 26, followed.
Reasonable Suspicion -- Stop -- Duration -- Routine Traffic Offense
State v. Reginald Jones / Maurice E. O'Neal, 2005 WI App 26, (AG’s) PFR filed 2/23/05
For Jones: John P. Tedesco, SPD, Madison Appellate
For O’Neal: Jess Martinez
Issue/Holding: Though the facts are almost indistinguishable from those in State v. Lawrence A. Williams, 2002 WI 94, 255 Wis. 2d 1, 646 N.W.2d 834, consent to search a car immediately after conclusion of a routine traffic stop was (unlike Williams) the product of an illegal detention. As in Williams, the police: made a late-night I-stop for a routine traffic violation; called back-up assistance to the scene; asked the driver to get out and go to the rear of the car; issued a warning citation; returned the driver’s ID; and, mere seconds later, sought and obtained consent to search (the aptly named "Badger" process, ¶4). Consent was upheld in Williams, but not here; the crucial difference was police failure to inform the driver that the stop was over:
¶17 As noted above, the officer’s invitation to Williams to “get on [his] way” strongly influenced the supreme court’s conclusion. Id., ¶29. While we agree with the State that the supreme court did not establish a bright-line rule that an officer must say “have a nice day” or shake hands with an individual in order for an ensuing encounter to be consensual, it is clear that the court saw those facts as sufficient to tip the scale in favor of a finding that the subsequent encounter was consensual. We therefore read Williams to require some verbal or physical demonstration by the officer, or some other equivalent facts, which clearly convey to the person that the traffic matter is concluded and that the person should be on his or her way. Absent that, it is a legal fiction to conclude that a reasonable person would deduce, infer or believe that he or she is free to depart the scene.
That isn't quite all there is to it.

Determining Conclusion of Stop

The court drops a footnote (¶7 n. 4) which, despite being unfortunately cryptic, is potentially every bit as significant as the text: The court first seems to hold that, as a bright-line rule, "a traffic stop is concluded when the driver has received his or her citation and driver’s license." To be sure, substantial authority exists for that idea, see, e.g., cases cited in State v. Smith, 683 N.W.2d 542 (Iowa 2004); U.S. v. Ramirez, 11th Cir No. 05-12765, 2/1/07 (and collecting cases re: return of documents suggests that stop has concluded and motorist free to leave). Contrast, State v. Campbell, Fla App No. 4D04-2442, 9/21/05 (failure to return driver's license without justification tainted consent). It follows that, because the documents had been returned, the stop was over, and therefore the issue is not whether the police exceeded the permissible scope of a stop but, rather, whether a reasonable person would believe himself in custody under totality of the circumstances. Those concepts form the backbone of the ultimate holding, that "the two matters [conclusion of stop; attempt to gain consent] were seamlessly woven together," and therefore the driver would have regarded himself as still in custody, ¶18. (Illegally so, because custody was unsupported by reasonable suspicion at that point, given that the stop was over; in other words, the purpose for the stop ends when the stop ends and simply can’t extend to continued detention.) That analysis is deceptively simple, as significant for what it leaves unsaid as for what it does say.

The court stresses (fn. 4) that, because the stop was over, "this case does not involve a question of whether Multer impermissibly exceeded the scope of an ongoing traffic stop. See State v. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996) (officer had not issued citation at the time request to search was made)." But, Gaulrapp allowed consent to be sought during a stop, and what the court leaves unsaid now is that there is a national split on the question of whether such action is indeed proper during a routine traffic stop. Indeed, the reference to Gaulrapp reinforces the idea that Wisconsin comes down on the side of permitting such police action. The premise is that asking for consent during a legal stop negligibly if at all prolongs the stop; any additional seizure is so incremental as to not really be measurable. And that is the virtue of the Jones / O'Neal approach; it avoids this swamp by establishing firmer analytical footing: given that the stop was over once the documents were returned, did the driver nonetheless see himself as being in custody? He did, and because the state conceded lack of reasonable suspicion at that point (again: given that the stop was over), further custody was illegal, and consent perforce tainted. All in all, a potentially important brake on the process of badgering motorists in Wisconsin, who heretofore were subjected without seeming limitation to requests for consent both during (Gaulrapp) and after (Williams; State v. Vernell T. Williams, 2002 WI App 306, ¶¶24-25) a routine stop.

Keep in mind, too, Jones' argument, fn. 4, that he was in custody precisely because transition from custody to supposedly consensual encounter was "seamless" -- an argument that, as noted, the court bought, ¶18 ("the two matters were seamlessly woven together"). But if the events were "seamless," then how can it properly be said that one had "concluded"? As LaPoint (immediately below) indicates, a "transition" this "seamless" is a continuation of custody; it is just that at that point, there is no reasonable suspicion. Better, perhaps, to say that the basis for the traffic stop had concluded and yet the driver remained in custody, without cause. Same result, slightly different analysis (one that stresses that the stop was unncessarily prolonged, rather than that it ended at a discrete point and then immediately picked up again but without cause).

(You'll find a better analysis of this problem in State v. Pichardo, 367 SC 84, 623 S.E.2d 840 (Ct. App. 2005) ("the return of documents does not conclusively establish that a traffic stop has de-escalated into a consensual encounter"; instead, given "was an immediate transition from the valid traffic stop to the search such that they may not have realized the initial seizure was over" the court may view continued interaction as a "detention seamlessly [which] followed a pre-existing lawful stop"). Compare, State v. Thompkin, OR SCt No. S51405, 9/14/06 (retention of ID to run warrant check changed encounter from consenual to one of restraint of liberty). But it is certainly hazardous to draw hard-and-fast rules, and other cases dealing with the effect of returned documentation are included in the ensuing discussion.)

Back to Lawrence Williams: The court's determination that the encounter was voluntary after the stop's basis (speeding) was resolved (by issuance of a warning citation) discounts on the one hand the tone, tenor, and rapidity of Fetherston's questioning; the presence and stance of the back-up officer, whose squad lights were still flashing; the location; and the time of night, ¶¶31-34, but on the other makes the holding very narrow -- the stop wasn't prolonged, it was terminated, and the subsequent interaction was simply voluntary. But this also illustrates the fact-intensive nature of the issue. A different result may well result from even a slight variation of the facts -- Bedsole v. State, ARK App No. CACR08-376, 1/9/09 (routine stop concluded with warning and return of license, but trooper's immediate questioning supported non-consensual encounter); State v. Henderson, 2007-Ohio-2315 (handing citation to driver and telling him "he was 'free to go' was ephemeral. A reasonable person would not perceive that he was free to go when the officer moves into the next round of questioning with the lights from his patrol vehicle still flashing"); Commonwealth v. Moyer, 2008 PA Super 173 (en banc 8/1/08 (though warning ticket processed and defendant told free to go, nonetheless deemed in custody where stop was late at night on dark rural road and officer asked pointed questions); Sizemore v. State, Fl App No. 1D05-2764, 10/11/06 (custody continued despite officer telling defendant free to go, given "presence of a canine unit at the scene and the positioning of the officers’ vehicles in such a manner as to make the defendant’s departure from the scene difficult, if not impossible"); State v. Thompson, KS App No. 94,254, 7/21/06 (return of ID necessary but not sufficient to onset of consensual encounter; continued activation of emergency lights, officer's failure to disengage, et al., compel conclusion of continuing detention; note court's reference to "Lt. Columbo gambit"); State v. Hayes, KS App No. 94,313, 4/28/06 (still in custody though warning ticket issued and driver's license returned where squad lights were still activated, officer didn't tell driver she was free to go, and made a statement which implied other matters remained to be addresssed); State v. Huffstutler, ID App No. 31821, 4/27/06 (custody where, though license returned, officer gave no indication citation would not be issued, officer told driver's companion she could leave (without similar advice to driver), and police questions were accusatory (which suggested show of authority); People v. Brandon, Colo App No. 03CA1176, 7/14/05 (normally, officer must return driver's documentation before detention ends, but such return doesn't necessarily establish that ensuing interaction consensual: stop in isolated area, and officer's barrage of questions made driver burst into tears, construed by court "escalat(ion) into an ulawful detention"); People v. LaPoint, Ill App 3rd Dist No. 3-02-1002, 10/29/04 (officer's failure to return driver's documents, coupled with having her get out of car, communicated that custody continued, such that even though consent was requested after documents returned, the transition between mandatory and consensual nature of encounter deemed too "seamless" and "subtle" to be other than continuation of custody); Lilley v. State, Ark App No. 03-1285, 12/8/04 (where driver placed in back of squad while warning ticket written, wouldn't feel free to go after being given ticket but remained in squad without being told free to go and officer began asking if had anything illegal in car); State v. Barks, Mo. SCt, SC85735, 3/9/04 (once officer issued citation Barks should have been free to go but instead, "the patrolman positioned himself by Barks' window" while "looking down at" Barks, left his squad's emergency lights on, and failed to tell Barks he was indeed free to go: "Considering the totality of the circumstances, a reasonable person in Barks' position would have understood the situation to be one of custody."); and U.S. v. Richardson, 6th Cir. No. 02-6146, 9/24/04:

In determining whether a particular encounter between an officer and a citizen constitutes a seizure, we recognize that words alone may be enough to make a reasonable person feel that he would not be free to leave. See United States v. Buchanon, 72 F.3d 1217, 1233 (6th Cir. 1995) (quoting Mendenhall, 446 U.S. at 554). In the instant case, the traffic stop concluded when Officer Fisher handed Collier the citation and shook his hand. Collier was then free to leave, until Officer Fisher asked him to remain behind the vehicle. The United States makes much of the fact that Officer Fisher did not display an intimidating demeanor or use coercive language, but rather said, “Okay, just hang out right here for me, okay?” Regardless of Officer Fisher’s demeanor, however, his words alone were enough to make a reasonable person in Collier’s shoes feel that he would not be free to walk away and ignore Officer Fisher’s request. When the driver is not free to leave, neither are his passengers; indeed, the passengers are at the mercy of any police officer who is withholding the return of their driver. See Sitz, 496 U.S. at 450; Prouse, 440 U.S. at 653; Kimball, 25 F.3d at 5. Thus, defendant Richardson’s freedom of movement was subject to the will of Officer Fisher for as long as Officer Fisher detained Collier behind the car.
And see also, State v. Wood, 188 Or. App. 89, 69 P.3d 1263 (2003) (officer indeed told Wood he could go, but then positioned himself in such a way as to prevent Wood from going where the officer knew he intended to go: "A reasonable person in defendant's position would have felt that the officers had significantly restricted his freedom of movement."). As Wood notes:
This case presents a familiar pattern: A police officer lawfully stops a driver to investigate a traffic infraction and then, after citing the driver and returning documents, without any reasonable suspicion that the driver has committed a crime, asks permission to search the driver's vehicle. The driver gives consent, and the search leads to contraband. The driver, now a defendant, moves to suppress the contraband as deriving from an unlawful search, and the state argues that defendant's consent negates any illegality. See, e.g., State v. Toevs, 327 Or 525, 964 P2d 1007 (1998); State v. Arabzadeh, 162 Or App 423, 986 P2d 736 (1999). These cases are highly fact-specific.
"Familiar pattern"? And how. The sheer, seemingly ceaseless volume of duration-of-routine-traffic-stop suppression cases suggests that sooner or later one is going to hit your desk. Different jurisdictions have derived different analytical methodologies, not always reconcilable; eventually, the Supreme Court will have to step in. Wood upheld suppression because, even though the officer told the defendant he could go, the officer also positioned himself in such a way that the defendant couldn't open the car door to get back in. And for a slight variation, see People v. Miller, Ill. App., 4th Dist. No. 4-02-0953, 1/15/04 (once purpose of stop -- warning ticket for loud muffler -- completed, officer's retention of driver's license and insurance card amounted to illegal seizure of driver which tainted enusing search).

And keep in mind that safety concerns may inhibit drawing a bright-line as to when the stop ends -- see, e,g, State v. Vandenberg, 2003-NMSC-030, ¶¶36:

...Officer Roberts still had to get close enough to hand Swanson the citation. Although his proximity may have been only momentary, the risk to his personal safety was no less real. Therefore, we refuse to draw a bright-line, temporal cut-off point. We decline to say that an investigating officer cannot be in as much danger at the end of a traffic stop as at the beginning, or at least reasonably believe that to be so.
And even where you can draw a bright-line, the reviewing court may be tempted to say that any prolongation of the stop was de minimis, 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); see, however, U.S. v. Urrieta, 6th Cir No. 07-5431, 3/20/08 ("Under the Fourth Amendment, even the briefest of detentions is too long if the police lack a reasonable suspicion of specific criminal activity. ... In other words, law enforcement does not get a free pass to extend a lawful detention into an unlawful one simply because the unlawful extension was brief.").

But as suggested the problem is as much methodological as it is fact-intensive. Thus, an irreconcilable split has developed as to whether the police have license to make any inquiry they wish, or whether questioning must be related to the purpose of the stop (or supported by reasonable suspicion). This is a recurrent analytical problem that inheres to every traffic-stop suppression issue.

Determining Permissible Police Activity During Routine Traffic Stop

A good overview may be found in State v. Duran, NM SC, No. 28,241, 8/31/05: it contains a useful catalog of the irreconcilable split nationally, and it offers a cogent approach, namely: a traffic stop necessarily implicates Terry considerations; Terry requires a relation in scope between the police activity and the justification for the stop; therefore, "all questions asked by police officers during a traffic stop must be analyzed to ensure they are reasonably related to the initial justification for the stop or are supported by reasonable suspicion" (¶35). State v. Washington, Ind App No. 02A03-0703-CR-124, 10/22/07 (mere moped violation, presenting no indications of criminal activity, didn't support inquiry into whether moped transgressor possessed drugs, because the question "was not related either to the purpose of the stop or to officer safety" -- decision based on state constitution, 4th amendment not reached). The split on this issue is so deep that USSC resolution is virtually a necessity. (Point implicitly made by State v. Berrios, TN Crim App 04-03042, 3/3/06: "Our research discloses no clear consensus or guidance regarding how police questioning at the scene of an otherwise typical traffic stop precisely impacts the time, manner, or scope of the investigative detention.") Split deepened, by State v. Morlock, KS App No. 97,447, 8/29/08 ("During a routine traffic stop, a law enforcement officer may question the driver about his or her travel plans provided that the questioning is reasonably related to the scope of the traffic stop and the questioning does not unreasonably alter the nature or the duration of the stop. Generally, this is limited to questioning concerning the driver's place of departure or destination."). In the meanwhile, you should stress that Wisconsin follows the Duran approach (id., ¶32, citing Malone). With that caution in mind, the following survey is intended to acquaint the reader with the views on both sides of the divide.

For some courts, mere questioning is unlikely to be sufficiently coercive either to establish the fact, or stretch the intensity, of a stop:

Because questions are neither searches nor seizures, police need not demonstrate justification for each inquiry. Questions asked during detention may affect the reasonableness of that detention (which is a seizure) to the extent that they prolong custody, but questions that do not increase the length of detention (or that extend it by only a brief time) do not make the custody itself unreasonable or require suppression of evidence found as a result of the answers.
United States v. Childs, 277 F.3d 947, 954 (7th Cir.) (en banc), cert. denied, 123 S.Ct. 126 (2002). Same: U.S. v. Martin, 7th Cir No. 04-3496, 9/7/05 (follows Childs; and, on facts, "developing information" eventually supported reasonable suspicion so that officer could detain driver until canine unit arrived). See also Byers v. State, 2005 GA App Lexis 361, n. 2, 4/6/05 [free registration required to access link] (not the nature of the questioning, but rather whether it impermissibly detains individual beyond what's necessary to effectuate traffic stop); United States v. Burton, 334 F.3d 514 (6th Cir. 2003); and U.S. v. Moore, 7th Cir. No. 02-2802, 7/12/04, stop of cab based on probable cause: "And, incident to his status as a passenger of a vehicle involved in a traffic stop, Moore could be questioned by the officers without their questions being deemed a 'seizure' for Fourth Amendment purposes (and thus perhaps requiring reasonable suspicion or probable cause to justify the questions being asked at all)." Like effect: U.S. v. Hernandez, 11th Cir No. 04-11776, 7/29/05:
    ... [T]he Supreme Court concluded that it is unreasonable extensions of the duration -- not the scope of conversation -- that could render an otherwise justified detention unreasonable for Fourth Amendment purposes. “[M]ere police questioning does not constitute a seizure,” -- even if such questioning is about a topic unrelated to the initial purpose of the search or seizure -- so long as it does not “prolong[] . . . the time reasonably required to complete that [initial] mission.” Muehler v. Mena, 125 S.Ct. 1465, 1471 (2005) (internal quotations and citations omitted) (holding that no independent reasonable suspicion was required for officers to question person about immigration status while being detained during search for weapons and evidence of gang membership). Although the seizure in Muehler was conducted pursuant to a search warrant, we believe that the focus on duration (and not scope of questioning) is just as applicable to a lawful traffic stop.
    Therefore, arguments that the Trooper asked questions unrelated to either officer safety, the speeding offense, or processing the citation are not determinative of our evaluation of the constitutionality of the seizure here. We are to look only at the duration of the seizure given all the circumstances: was it for an unreasonable time? And, of course, a traffic stop will inherently take some time. When an officer is, for instance, looking at a driver’s license or waiting for a computer check of registration, he lawfully can at about the same time also ask questions -- even questions not strictly related to the traffic stop.
Also, U.S. v. Alcaraz-Arellano, 441 F.3d 1252 (10th Cir 2006) (in light of Muehler, if questioning doesn't extend detention, no 4th amendment issue with regard to content of questions) -- that result expressly ratified, in U.S. v. Stewart, 10th Cir No. 05-4255, 1/19/07; to same effect: U.S. v. Mendez, 9th Cir No. 05-10205, 2/23/07 ("The Supreme Court, however, recently decided in Muehler, that “mere police questioning does not constitute a seizure” unless it prolongs the detention of the individual, and, thus, no reasonable suspicion is required to justify questioning that does not prolong the stop"); extended, U.S. v. Turvin, 9th Cir 06-30551, 2/26/08 (questioning unrelated to purpose of stop and unsupported by reasonable suspcion permissible even if it briefly prolongs stop). Not reaching broad issue of whether questions unrelated to initial purpose of detention extend length of detention, but holding on facts that officer didn't "effect[] an unreasonable seizure simply by asking three brief questions related to possible drug trafficking amidst his other traffic-related inquiries and tasks": U.S. v. Olivera-Mendez, 8th Cir No. 06-1910, 5/4/07. Compare, Greenawalt v. IDOC, 7th Cir 04-1997, 2/14/05 (after citing Childs approvingly: "because the objective is to obtain testimonial rather than physical evidence, the relevant constitutional amendment is not the Fourth but the Fifth").

As suggested above, this issue "has caused considerable consternation in law enforcement circles, as well as with bench and bar, i.e., whether asking for consent to search for drugs during the course of a brief, on-going traffic stop can, in and of itself, be a Fourth Amendment violation so as to make a valid detention 'illegal,' thereby rendering any consent to search the product of such illegal detention," State v. Bibbins, 2004 Ga. App LEXIS 1587 [NOTE: free registration required to access linked opinion]. The court's answer is "maybe": analysis is case-by-case, with a number of factors considered. The decision is worth reviewing for its collection of the split in authority, and its "recognition that the disarray generated through the practical application of complex Fourth Amendment issues is extensive. Conflict exists." In the case at hand, the court upheld the officer's request for consent to search while "holding Bibbins' license in preparation for writing out a traffic citation." Although the decision seems to disdain bright-line rules in preference to case-specific scrutiny, it does give a bright green light to police authority "to ask brief, general investigative questions such as those related to travel plans, itinerary, and ownership of the vehicle," at least where the officer's traffic-detention "duties are being diligently pursued." The result is thus something of a hybrid, if Duran is taken as one pure approach and Childs as its opposite. (Duran, that is, expressly declines, ¶35, to give pre-approval to questioning about travel plans. Note, as well, that Bibbins cites Gaulrapp, fn. 20, as authority for the idea that asking about drugs and weapons "is minimally intrusive and does not unreasonably prolong an ongoing detention.")

Where does Wisconsin fall on this problem? The caselaw is a bit of a jumble. It does seem settled that "(q)uestioning by law enforcement officers does not alone effectuate a seizure," Williams, 2002 WI 94, ¶22. But in that case it was "quite clear ... that the traffic stop had concluded" when the challenged questioned occurred, id., ¶26. "Mere" questioning (whatever that may mean) occurred during a vountary encounter after, not during a stop. That said, Gaulrapp, 207 Wis. 2d at 609 upholds at least very limited, unrelated-to-stop questioning during a stop ("Gaulrapp's detention was not unreasonably prolonged by the asking of one question."). Gaulrapp well be explicable by the notion, de minimis non curat lex (the law doesn't concern itself with trifles). Thus, if Gaulrapp suggests a lean in one direction, another direction is also apparent: State v. Betow, 226 Wis. 2d 90, 94, 593 N.W.2d 499 (Ct. App. 1999) ("the scope of the officer's inquiry, or the line of questioning, may be broadened beyond the purpose for which the person was stopped only if additional suspicious factors come to the officer's attention . . . ."). But in the final analysis, if these cases can't be reconciled, then it is easy enough to say that Malone resolves the dispute, by requiring a reasonable-relation analysis, as discussed above.

A number of jurisdictions follow the Duran approach, that no inquiry ("mere" or not) is permitted unless reasonably related to the stop's purpose:

Thus, in determining whether police questioning during the course of a traffic stop satisfies Terry's scope requirement, we must consider, as an initial matter, whether the question is related to the initial justification for the stop. If the question is reasonably related to the purpose of the stop, no fourth amendment violation occurs. If the question is not reasonably related to the purpose of the stop, we must consider whether the law enforcement officer had a reasonable, articulable suspicion that would justify the question. If the question is so justified, no fourth amendment violation occurs. In the absence of a reasonable connection to the purpose of the stop or a reasonable, articulable suspicion, we must consider whether, in light of all the circumstances and common sense, the question impermissibly prolonged the detention or changed the fundamental nature of the stop.
People v. Gonzalez, 204 Ill. 2d 220, 235, 789 N.E.2d 260 (2003); accord, People v. Marungo, Ill. Appp. 2nd Dist., 11/21/03 (asking for consent to search during routine traffic stop violated 4th amendment because it was neither related to initial justification for stop nor supported by reasonable suspicion: "The question to search not only prolonged any legitimate detention of the car to investigate a traffic violation, but also changed the fundamental nature of the stop to a search for a violation of our criminal code."); and People v. Hall, Ill. App. No. 2-03-0515, 8/20/04 (asking driver if he had any contraband and seeking consent to search after stating that driver was free to go "were clearly unrelated to initial purpose of the stop," malfunctioning headlight, and thus impermissibily prolonged the detention). Explication of Gonzalez, in People v. Mendoza, IL App No. 2-05-0132, 3/29/06 (traffic stop ends with return of license and issuance of ticket; police questioning after that point isn't tested by Gonzalez; although Mendoza's stop was over, the officer immediately began asking about illegal items in the car, refused to accept Mendoza's answer, and asked for consent to search and shined his flashlight into the car -- this amounted to continuation of the detention). See also State v. Jenkins, CT App No. AC 26833, 11/20/77 (police inquiry into "illegal activity went beyond the scope of the traffic stop and occurred at a time when the stop reasonably should have ended); U.S. v. Mendez, 9th Cir No. 05-10205, 10/30/06 ("officer may expand the scope of questioning beyond the initial purpose of the stop only if" reasonable suspicion); State v. Barks, Mo. SCt, SC85735, 3/9/04, quoting State v. Woolfolk, 3 S.W.3d 823, 829 (Mo. App. 1999) ("[T]he basis for the reasonable suspicion must arise within the parameters of the traffic stop itself; suspicions based upon answers to questions asked after the stop is completed are irrelevant to the determination of whether specific, articulable facts supported a reasonable suspicion of criminal activity and provided a justification for further questioning once the traffic stop was completed."); State v. Maginnis, Mo App No. WD62896, 9/28/04 ("The officer may ask questions beyond the scope of the stop only if there is an objectively reasonable suspicion of criminal activity." Questioning in this instance based on mere albeit accurate "hunch" and therefore improper); U.S. v. Oliver, 10th Cir. No. 02-4187, 4/6/04 ("In other words, we must ask whether the circumstances made it reasonable for the officer to ask the questions, even when the questining did not prolong the detention."); Campbell v. State, 2004 WY 106 ("The question about drugs was unrelated to the purpose of the initial stop -- a possible expired registration -- and, therefore, was proper only if the trooper had a reasonable articulable suspicion that Campbell was engaged in illegal activity.... Consequently, Trooper Chatfield exceeded the reasonable scope of the detention and violated Campbell’s Fourth Amendment rights when he questioned him about drugs.").

The 5th Circuit grappled with this problem at some length, first in a panel decision and then its subsequent reversal en banc. The panel originally concluded, in U.S. v. Brigham, 343 F.3d 490 (5th Cir. 2003), that "'questioning unrelated to the justification for the stop that extends the duration of the stop violates the Fourth Amendment'"; and that this restriction can't be circumvented by engaging in questioning unrelated to the stop before running a computer check of the car and its occupants. However, on en banc review, No. 02-40719, 8/19/04, the full court held: "But even more important, we 'reject any notion that a police officer's questioning, even on a subject unrelated to the purpose of a routine traffic stop, is itself a Fourth Amendment violation.' ... Mere police questiong, without some nonconsensual restraint on a person's liberty, is not a 'seizure' or detention." However valid this statement may be as an abstract principle, its application to any given set of facts is almost bound to be messy: it's clear that, in context, the court is referring to police authority to ask questions related to the planned itinerary and to information gleaned during license and registration checks -- permissible inquiries, in other words. "Timing and sequence" thus matters, even (especially) under Brigham's analysis; where computer checks come up clean, the court takes pains to note, questioning thereafter may well unconstitutionally prolong the detention. It is just that questions related to the occupants' itinerary may properly be posed in the first instance. If nothing else, though, the en banc opinion is a strong statement opposing the formulation of bright-line rules in this area; the duration of stops is to be tested by general standards, case by case. And see U.S. v. Hernandez, fn. 7, 11th Cir No. 04-11776, 7/29/05 (albeit dicta: "Where at its inception a traffic stop is a valid one for a violation of the law, we doubt that a resultant seizure of no more than seventeen minutes can ever be unconstitutional on account of its duration: the detention is too short."). But compare Wilson v. State, Ind App No. 30A01-0508-CR-393, 5/26/06 (duration tested by whether police diligently pursued investigation; where warning tickets isuued at 2:06 and drug dog didn't arrive until 2:15, traffic stop unnecessarily prolonged: "As the warning tickets were written some time before the dog arrived, it is apparent that Officer Fields could have completed the traffic stop sooner than he did.").

For a similar sentiment, that the police may conduct routine but time-consuming tasks such as computerized checks, and questioning passengers to verify information provided by the driver, see U.S. v. Barragan, 8th Cir. No. 03-3872, 8/17/04; and State v. Kothe, TX Crim App No. 1738-03, 10/20/04 (license and warrants check necessary incident of routine traffic stop, Brigham cited with approval):

... the issue is "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." Further, neither the Fourth Amendment nor the Supreme Court dictate that an officer making a Terry traffic stop must investigate the situation in a particular order. A traffic stop may involve both an investigation into the specific suspected criminal activity and a routine check of the driver's license and car registration. Only if a license check "unduly prolongs" the detention is the officer's action unreasonable under the circumstances.
And even Missouri, which expressly limits police authority to question during routine traffic stops, says that "(a)s long as the officer is investigating these items, running the records check, and issuing a citation, the officer may continue to conduct a reasonable investigation of the traffic violation by conversing with the driver," State v. Maginnis, Mo App WD No. WD62896, 9/28/04.) Also see Daniel v. State, GA SCT No. S03G1172, 5/24/04: "Once the underlying basis for the initial traffic stop has concluded, it does not automatically follow that any further detention for questioning is unconstitutional. ... Thus, we hold that a law enforcement officer's continued questioning of a vehicle's driver and passengers outside the scope of a valid traffic stop passes muster under the Fourth Amendment either when the officer has a reasonable articulable suspicion of other illegal activity or when the valid traffic stop has de-escalated into a consensual encounter." (Court goes on to discuss three of the most recurrent factors in determining whether search has become consensual: return of driver's license; informing driver free to leave; and, "the citizen's appreciation that the traffic stop has reached an endpoint.") But just because a routine check is permissible does not mean that its execution should be sloughed over -- see, e.g., State v. Bruce, Tenn Cr App No. E2004-02325-CCA-R3-CD, 8/22/05 (time officer took to run checks and write out ticket deemed to be "stalling" and thus led to conclusion that stop had been unnecessarily prolonged).

Though these cases are, as suggested, fact-specific, it is possible to extract overarching principles. One court applies the following useful analytic framework, U.S. v. Cervine, 10th Cir. 02-3169, 10/22/03:

In reviewing the constitutionality of traffic stops under the Fourth Amendment, we conduct a two-step inquiry. First, we must determine "whether the officer's action was justified at its inception." United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994). Second, we must consider "whether the action was reasonably related in scope to the circumstances that first justified the interference." Id. "An officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation." Id. After completion of these activities, an officer may detain a driver for reasons unrelated to the initial traffic stop if (1) the officer has "an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring[,]" or (2) "if the initial detention has become a consensual encounter." Id. (citations omitted).

...

"Generally, an investigative detention must 'last no longer than is necessary to effectuate the purpose of the stop.'" United States v. Patten, 183 F.3d 1190, 1193 (10th Cir. 1999) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). Under ordinary circumstances, this limits the officer to a request for the driver's license and registration, a computer check on the car and driver, an inquiry about the driver's travel plans, and the issuance of a citation. See, e.g., United States v. Williams, 271 F.3d 1262, 1267 (10th Cir. 2001).

Generally, "[i]f the driver produces a valid license and proof of right to operate the vehicle, the officer must allow him to continue on his way without delay for further questioning." Soto, 988 F.2d at 1554 (quoting United States v. Pena, 920 F.2d 1509, 1514 (10th Cir. 1990)). The officer, however, may extend this detention for reasons unrelated to the traffic stop under two circumstances: (1) if the officer has "an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring"; or (2) "if the initial detention has become a consensual encounter." Gonzalez-Lerma, 14 F.3d at 1483 (citations omitted).

The 5th Circuit en banc decision in Brigham similarly articulates a two-part test (first examine whether stop justified at inception; second, whether subsequent police actions reasonably related in scope to justification), and authorizes inquiries into license, registration, itinerary. But the court also explicitly rejects any notion of a "least intrusive means" of carrying out this function, thereby rejecting the dissent's position as well as prior intimations in 5th Circuit cases; see, e.g., U.S. v. Grant, 5th Cir. 02-41130, 8/26/03, revised 10/23/03 (esp. re: investigation should employ "the least intrusive means reasonably available"). But the "least intrusive means" principle comes directly from Florida v. Royer, 490 U.S. 491 (1983), and therefore may be worth pressing. Nor should the overarching idea -- that "(o)nce an officer's suspicions have been verified or dispelled, the detention must end unless there is additional articulable, reasonable suspicion," U.S. v. Grant -- be obscured by a battle over whether this came about through the least intrusive means. And, for another general statement of principles, see State v. Miliany-Ojeda, Del Super No. 0308017950, 2/18/04:
"Specifically, the State must demonstrate that the [traffic] stop and any subsequent police investigation were reasonable in the circumstances.” The detention must be limited in scope and duration, and the seizure must be “reasonably related in scope to the circumstances which justified the interference in the first place.” The scope of the detention must be carefully tailored to its underlying justification. In other words, the permissible Fourth Amendment intrusion “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Further, it is well settled that the duration and execution of a traffic stop is necessarily limited by the initial purpose of the stop. The duration and scope of the detention must last only so long as is reasonably necessary to conduct the above activities and/or to issue a traffic citation, at which point the legitimate investigative purpose of the traffic stop is completed. Any investigation of the vehicle or its occupants beyond that required to complete the purpose of the traffic stop constitutes a separate seizure that must be supported by independent facts sufficient to justify the additional intrusion.

So, a potentially significant split of authority seems to be developing over what could well be a cert-worthy issue, relating to analysis of police authority to question a motorist on matters outside the scope of the stop.

A particular subset of this problem -- not raised in the above cases but worth mention nonetheless -- is whether the police may ask occupant(s) during a routine traffic stop if any weapons are present. Recent authority has no difficulty authorizing such a question: U.S. v. Holt, 264 F.3d 1215 (10th Cir. 2001) ("Given the dangers inherent in all traffic stops, we hold that the government's interest in officer safety outweighs a motorist's interest in not being asked about the presence of loaded weapons. This balance tips in the government's favor even when the officer lacks particularized suspicion that the motorist possesses loaded weapons and regardless of whether the officer subjectively fears the motorist. Accordingly, the district court erred in suppressing Holt's response to this question."); and Childs ("A majority in Holt thought that questions designed to ensure the officers' safety while the license and registration checks occur are 'reasonable' within the Constitution's meaning; it is hard to disagree with that conclusion.") And as the last quote suggests, there is also authority for the idea that "a request for criminal histories as part of a routine computer check is justified for officer safety." U.S. v. Purcell, 236 F.3d 1274, 1278 (11th Cir. 2001). Note, however, that when the computer check is not run initially, as part of the original traffic stop, but only subsequently, on the basis of purportedly aroused suspcion, this rationale is unavailable; the detention must cease unless the suspicion is indeed supportable. U.S. v. Boyce, 11th Cir. 11/28/03 ("Edwards did not request the criminal history check until several minutes after he had written the warning. Therefore, the criminal history check could not be part of the original traffic stop investigation and could not be the basis for prolonging Boyce’s detention. Once the traffic stop was at an end, Edwards should have let Boyce go unless he had a reasonable and articulable suspicion of some other criminal wrong doing.")

And, when the officer's suspicion is allayed before reaching the stopped vehicle, the officer is "not required to drive away and leave defendant wondering why the stop had been initiated in the first place; the officer may approach the vehicle, "explain the reason for the stop, apologize, and advise the defendant he was free to leave," People v. Bartimo, Ill. App., 4th Dist. No. 4-03-0351, 1/15/04. Where officer had all the information needed to write citation or let motorist go, but instead delayed the decision by engaging the defendant in a conversation, the traffic stop was impermissbily prolonged: State v. Broughton, OR App A128177, 8/13/08

Reasonable Suspicion -- Stop -- Duration -- Routine Traffic Offense -- Prolonged to Seek Consent to Search Automobile
State v. Joseph R. Luebeck, 2006 WI App 87, (State’s) PFR filed 5/17/06
For Luebeck: Alex Flynn; Adam B. Stephens; Rebecca Robin Lawnicki
Issue: Whether the traffic stop, valid at inception, was impermissibly extended so as to invalidate consent to search the car.
Holding: 
¶14      ... (I)n its decision reaffirming the order granting Luebeck’s motion to suppress the evidence, the circuit court stated: 
I don’t think any reasonable person would have felt this encounter had concluded and that he was free to leave. I think any reasonable person, when a police officer is holding his driver’s license, had not told him he’s free to leave, and was questioning him about his passenger’s state of sobriety ... would not have felt that this encounter ended.      For purposes of the Fourth Amendment, I’m satisfied that a seizure of this person had occurred. I think it’s controlled by State vs. Jones, similar to [ Williams] obviously.   
¶15      We agree with the circuit court’s application of the  Jones and with the court’s conclusion that a reasonable person in Luebeck’s position would not have felt free to decline the officer’s search request and simply get on his or her way. Unlike the complainants in  Gaulrapp and  Williams, Luebeck was detained for over twenty minutes, his driver’s license was held by the police, no citation or warning for lane deviation had yet been issued, he passed all of the sobriety tests and his preliminary breath test indicated a blood alcohol below the legal limit, and yet he was being questioned about his passenger’s ability to drive in his place. In Williams, the officer issued and explained the traffic warning, returned Williams’ identification, shook hands with Williams, and said, “[We’ll] let you get on your way then.”  Williams, 255 Wis. 2d 1, ¶¶7-12. In Gaulrapp, we expressly distinguished the case from others that “involve prolonged detention after the officers concluded or should have concluded that justification for the initial stop did not warrant further detention.”  Gaulrapp, 207  Wis. 2d at 608.
Another in a seemingly unending stream of prolonged traffic stop cases. Though black-letter rules are difficult to come by—the reasonable-person test for custody typically thwarts such an effort—the court nonetheless comes awfully close, ¶16: “We are persuaded that, in a traffic stop context, where the test is whether a reasonable person would feel free to ‘disregard the police and go about his [or her] business,’  Bostick, 501 U.S. at 434 (citation omitted), the fact that the person’s driver’s license or other official documents are retained by the officer is a key factor in assessing whether the person is ‘seized’ and, therefore, whether consent is voluntary.” This conclusion is, really, just the flip side of the apparent holding in State v. Reginald Jones / Maurice E. O'Neal, 2005 WI App 26, ¶7 n. 4 that “a traffic stop is concluded when the driver has received his or her citation and driver’s license.” But though this rule is easily stated, it is less easily applied in any given fluid situation. Some possible implications:
  • This principle—retaining a DL or other ID—establishes (ongoing) detention outside the traffic stop context, e.g., Brye v. State, FL App 1D05-0624, 4/7/06. But see Golphin v. State, 945 So.2d 1174 (Fl 2006) (no seizure where "the police officer held in her hand at that specific site the identification he had consensually and voluntarily provided and viewed it as she conducted a computerized check for warrants in his presence and without moving away from that location where the identification had been consensually and voluntarily produced").
  •  The cases string-cited with approval in ¶16 are all from the 10th Circuit: does this mean that absent further word from either the Wis or US Supreme Court, 10th Circuit caselaw in this area will carry great weight? Perhaps, and with that in mind, here’s another such case: US v. Lopez, 10th Cir No. 05-1323, 4/11/06 (“continued retention of” DL to run computer check was, under circumstances, without cause and therefore amounted to illegal seizure of Lopez).
  •  Left unsaid, perhaps because too obvious to bear elaboration: the officer did not have adequate cause to extend Luebeck’s traffic stop; and, consent given during an illegal stop (or, to say the same thing, a stop illegally extended) is necessarily coerced. The latter point may be perfectly obvious, but the former isn't—you should read the facts and decide for yourself; decent advice anyway, especially in the 4th amendment context.
  •  Not explicitly raised by the decision but worth keeping in mind is whether any restrictions are placed on an officer’s inquiries at a routine traffic stop. Typically, a wide-ranging inquiry leads to reasonable suspicion (evasive, inconsistent answers, etc.) or to request for consent to search the car. Discussion on this problem, here, underneath Jones / O’Neal summary –including, similarly, idea that you can argue continuing detention after the officer has issued the ticket and returned the DL.
Reasonable Suspicion -- Stop -- Duration -- Traffic Offense -- Prolonged by Questioning Unrelated to Stop
State v. Christopher Gammons, 2001 WI App 36
For Gammons: Keith A. Findley, LAIP
Issue: Whether the police violated the motorist's fourth amendment rights by prolonging a motor vehicle stop with questions unrelated to the stop and unsupported by reasonable suspicion.
Holding: Without either consent to search in the first instance or reasonable belief contraband is present, the police may not continue to detain the car’s occupants beyond the purpose of a traffic stop, in an effort to extract consent to search:
¶24 While Fahrney's initial questions may have been permissible under Griffith and Gaulrapp, no additional suspicious factors suggesting drug activity developed from Farr's responses to Fahrney's initial questions. Therefore, Fahrney had no basis to continue to detain Gammons and the others after Farr stated that the men did not have any drugs and denied Fahrney's first request to search the vehicle. At that point, the Fourth Amendment required Fahrney to terminate the stop and allow Gammons and the other men to continue about their business. Instead, Fahrney continued to detain the vehicle and told Farr he was going to get a police dog to sniff the car. At that moment, the stop was transformed into an unlawful detention, and the State cannot rely on Farr's subsequent consent to search to justify the police actions. Therefore, the drug evidence the police gathered from the subsequent searches was obtained in violation of Gammons' Fourth Amendment rights and should have been suppressed. See State ex rel. Peckham v. Krenke, 229 Wis. 2d 778, 786-87, 601 N.W.2d 287 (Ct. App. 1999). On remand, the trial court should grant Gammons' motion to suppress.
(That the car was from Illinois and was stopped in "drug crime" area at night, that the officer knew occupants had prior drug activity and the driver appeared uneasy, were insufficient to establish reasonable suspicion. ¶¶21-23.)

Reasonable Suspicion Issues -- Stop -- Basis
Reasonable Suspicion – Basis – Traffic Stops – Excessive Window Tint, Generally
State v. Phillip Brian Conaway / Craig Griffin, 2010 WI App 7
For Conaway: Philip J. Brehm
For Griffin: Michael S. Murphy
Issue/Holding:
¶3    The window tint regulation at issue here is easily summarized. Rear window tinting is permitted only if the window allows at least 35% of light to pass through, except that the limitation does not apply to tinting done during the original manufacture of a vehicle. Thus, for tinted rear windows, the regulation creates two factual issues: whether the 35%-light-pass-through requirement is met and whether the window is original equipment. A vehicle window might fail to meet the 35% requirement, but still comply with the statute if it is original equipment. 

¶7    It is true, of course, that the officer in this case did not need to be able to ascertain with certainty that there was a window tint violation. Officers need not, and likely cannot, distinguish with the naked eye small variations in the amount of light that passes through suspect windows. Reasonable suspicion does not require such precision. Rather, the officer need only reasonably suspect that the window violates the regulation. Focusing solely on the 35%-light-pass-through requirement, it would be enough, for example, if an officer testifies that he or she is familiar with how dark a minimally complying window appears and that the suspect window appeared similarly dark or darker, taking into account the circumstances of the viewing. Assuming, as we suggest above, that officers cannot tell by observation alone whether a window is precisely at the 35% standard, it follows that, if a window appears to be at about that standard, there is reasonable suspicion that it falls below the standard.

Reasonable Suspicion – Basis – Traffic Stops – Excessive Window Tint, Unsupported
State v. Phillip Brian Conaway / Craig Griffin, 2010 WI App 7
For Conaway: Philip J. Brehm
For Griffin: Michael S. Murphy
Issue/Holding: Traffic stop premised on excessive window tint wasn’t supported by reasonable suspicion the window failed the “35%-light-pass-through requirement,” where “nothing in the officer’s testimony provides a basis for a finding that the officer had the ability to judge whether a tinted rear window came close to or failed to meet the 35%-light-pass-through requirement,” ¶¶8-13.
The officer’s training on use of a tine meter and significant experience performing excessive-tint stops while relevant, wasn’t sufficient because “the officer made no connection between his longevity or his tint meter training and his ability to differentiate between legally and illegally tinted glass. He did not, for example, say that he had e