For a seizure of a person to occur there must either be an application of force, however slight, or when force is absent, submission to an officer's “show of authority." California v. Hodari D.,
499 U.S. 279, 113 L. Ed. 690 (1991).
A determination of probable cause made within 48 hours of a warrantless arrest generally meets the promptness requirement. If a hearing is held more than 48 hours following the arrest the burden shifts to the government to demonstrate an emergency or extraordinary circumstances. County of Riverside v. McLaughlin,
500 U.S. 44,
114 L. Ed. 2d 49 (1991).
There shall be one rule governing all automobile searches. The police may search the car and all containers within it without a warrant when they have probable cause to believe contraband or evidence is contained in either. California v. Acevedo,
500 U.S. 565,
114 L. Ed. 2d 619 (1991).
If during a lawful weapons pat down an officer feels an object whose contours or mass makes its identity immediately apparent, there has been no invasion of privacy beyond that already authorized. Minnesota v. Dickerson,
508 U.S. 366,
124 L. Ed. 2d 334 (1993).
An officer making a traffic stop may order passengers to get out of the vehicle pending the completion of the stop. Maryland v. Wilson,
519 U.S. 408,
137 L. Ed. 2d 41 (1997).
Persons observed through a window in a home where they were not overnight guests but were present for a short period to engage in a primarily commercial illegal drug transaction, had no expectation of privacy in the home and the observation of those persons was not a constitutionally prohibited search. Minnesota v. Carter,
525 U.S. 83,
142 L. Ed. 2d 373 (1998).
The issuance of a traffic citation without an arrest did not authorize a full search of the vehicle. Knowles v. Iowa,
525 U.S. 113,
142 L. Ed. 2d 492 (1998).
When there is probable cause to search a vehicle for contraband officers may examine containers in the vehicle without a showing of individualized probable cause for each container. The container may be searched whether or not it's owner is present as a passenger, or otherwise, because it may contain contraband that the officers reasonably believe is in the car. Wyoming v. Houghton,
526 U.S. 295,
143 L. Ed. 2d 408 (1999).
Police need not obtain a warrant before seizing an automobile from a public place when there is probable cause to believe that the vehicle is forfeitable contraband. Florida v. White,
526 U.S. 559,
143 L. Ed. 2d 748 (1999).
The exception to the requirement of a warrant for automobiles does not require a separate finding of exigency, in addition to a finding of probable cause. Maryland v. Dyson,
527 U.S. 465,
144 L. Ed. 2d 442 (1999).
When there is probable cause to search a motor vehicle, the search is not unreasonable if the search is based on facts that would justify the issuance of a warrant, although a warrant was not obtained. No separate finding of exigent circumstances is required. Maryland v. Dyson,
527 U.S. 465,
144 L. Ed. 2d 442 (1999).
Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight is the consummate act of evasion. Illinois v. Wardlow,
528 U.S. 119,
145 L. Ed. 2d 570 (2000).
An anonymous tip that a person is carrying a gun, without more, is insufficient to justify a police officer's stop and frisk of a person. The tip must bear indicia of reliability. Reasonable suspicion requires that a tip be reliable in its assertion of criminal activity, not just in its tendency to to identify a person. Florida v. J.L.,
529 U.S. 266,
146 L. Ed. 2d 254 (2000).
Stopping vehicles at highway checkpoints without any individualized suspicion to interdict illegal drugs was an unreasonable seizure under the 4th amendment because the primary purpose was to uncover evidence of ordinary criminal wrongdoing, unlike checkpoints to check for drunk driving or illegal immigrants. City of Indianapolis v. Edmond,
531 U.S. 32,
148 L. Ed. 2d 333 (2000).
The police acted reasonably when, with probable cause to believe that the defendant had hidden drugs in his home, they prevented the man from entering the home for about 2 hours until a search warrant could be obtained. Illinois v. McArthur,
531 U.S. 326,
148 L. Ed. 2d 838 (2001).
A state hospital could not test maternity patients for cocaine and then turn the results over to law enforcement authorities without patient consent. The interest of using the threat of criminal sanctions to deter pregnant women from using cocaine does not justify a departure from the rule that a nonconsensual search is unconstitutional if not authorized by a warrant. Ferguson v. City of Charleston,
525 U.S. 67,
149 L. Ed. 2d 205 (2001).
If an officer has probable cause to believe a person has committed even a very minor criminal offense that does not breach the peace, the officer may, without violating the 4th amendment, arrest the offender without the need to balance the circumstances involved in the particular situation. Atwater v. City of Lago Vista,
532 U.S. 318,
149 L. Ed. 2d 549 (2001).
Obtaining, by sense-enhancing technology like infrared imaging, information regarding the interior of a home that could otherwise not be obtained without physical intrusion into a constitutionally protected area is a search presumptively unreasonable without a warrant. Kyllo v. United States,
533 U.S. 27,
150 L. Ed. 2d 94 (2001).
A warrantless search of a probationer's residence founded on reasonable suspicion of criminal activity and authorized as a condition of probation was reasonable. Such a search is not restricted to monitoring whether the probationer is complying with probation restrictions. United States v. Knights,
534 U.S. 112,
151 L. Ed. 2d 497 (2001).
Police officers may approach bus riders at random to ask questions and to request consent to search luggage without advising the passengers of their right to not cooperate. United States v. Drayton,
536 U.S. 194,
153 L. Ed. 2d 242 (2002).
A school district policy of requiring all participants in competitive extracurricular activities to submit to drug testing was a reasonable means of furthering the district's interest in preventing drug use among students and was not an unreasonable search. Board of Education of Independent School District. No. 92 of Pottawatomie County v. White,
536 U.S. 822,
153 L. Ed. 2d 735 (2002).
A highway checkpoint where police stopped motorists to ask them for information about a recent hit-and-run was reasonable. The arrest of a drunk driver arrested when his vehicle swerved nearly hitting an officer at the checkpoint was constitutional. Illinois v. Lidster,
540 U.S. 419,
124 S. Ct. 885,
157 L. Ed. 2d 843 (2004).
When a police officer has made a lawful custodial arrest of an occupant of an automobile, the 4th amendment allows the officer to search the passenger compartment of that vehicle as a contemporaneous incident of arrest whether the officer makes contact with the occupant while the occupant is inside the vehicle, or when the officer first makes contact with the arrestee after the latter has exited the vehicle. Thornton v. United States,
541 U.S. 615,
124 S. Ct. 2127,
158 L. Ed. 2d 905 (2004).
The principles of
Terry permit a state to require a suspect to disclose his or her name in the course of a
Terry stop and allow imposing criminal penalties for failing to do so. Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County,
542 U.S. 177,
124 S. Ct. 2451,
159 L. Ed 2d 292 (2004).
The 4th amendment does not requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop. The use of a well-trained narcotics-detection dog that does not expose noncontraband items that otherwise would remain hidden from public view during a lawful traffic stop, generally does not implicate legitimate privacy interests. Illinois v. Caballes,
543 U.S. 405,
125 S. Ct. 834,
160 L. Ed. 2d 842 (2004).
Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury. An action is reasonable under the 4th amendment, regardless of the individual officer's state of mind, “as long as the circumstances, viewed objectively, justify the action. Brigham City v. Stuart,
547 U.S. 398,
126 S. Ct. 1943,
164 L. Ed. 2d 650 (2006).
Warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the U.S. constitution, and while states are free to regulate such arrests however they desire, state restrictions do not alter the 4th amendment's protections. Virginia v. Moore,
553 U.S. 164,
128 S. Ct. 1598,
170 L. Ed. 2d 559 (2008).
In a traffic-stop setting, the first
Terry condition — a lawful investigatory stop — is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous. Arizona v. Johnson,
555 U.S. 323,
129 S. Ct. 781,
172 L. Ed. 2d 694 (2009).
Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle. Police are authorized to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Consistent with
Thornton, circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle. Arizona v. Gant,
556 U.S. 332,
129 S. Ct. 1710,
173 L. Ed. 2d 485 (2009).
The
New Jersey v. T. L. O. concern to limit a school search to a reasonable scope requires reasonable suspicion of danger or a resort to hiding evidence of wrongdoing in underwear before a searcher can reasonably make the quantum leap from a search of outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions. Safford Unified School District No. 1 v. Redding,
557 U.S. 364,
129 S. Ct. 2633,
174 L. Ed. 2d 354 (2009).
A government employer had the right, under the circumstances of the case, to read text messages sent and received on a pager the employer owned and issued to an employee. The privacy of the messages was not protected by the ban on “unreasonable searches and seizures" found in the 4th amendment. Because the search was motivated by a legitimate work related purpose, and because it was not excessive in scope, the search was reasonable. Ontario v. Quon,
560 U.S. 746,
130 S. Ct. 2619, 560 US 746,
177 L. Ed. 2d 216 (2010).
Warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the 4th amendment, to dispense with the warrant requirement. The exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. When the police do not create the exigency by engaging or threatening to engage in conduct that violates the 4th amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed. Kentucky v. King,
563 U.S. 452,
131 S. Ct. 1849,
179 L. Ed. 2d 865 (2011).
The government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a “search." United States v. Jones,
565 U.S. 400,
132 S. Ct. 945,
181 L. Ed. 2d 911 (2012).
Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time the action was taken. When an alleged 4th amendment violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner. There is a narrow exception allowing suit when it is obvious that no reasonably competent officer would have concluded that a warrant should issue. Messerschmidt v. Millender,
565 U.S. 535,
132 S. Ct. 1235,
182 L. Ed. 2d 47 (2012).
Generally, every detainee who will be admitted to the general jail population may be required to undergo a close visual inspection while undressed. Undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from these invasive procedures absent reasonable suspicion of a concealed weapon or other contraband. Deference must be given to the officials in charge of the jail unless there is substantial evidence demonstrating their response to the situation is exaggerated. Florence v. Board of Chosen Freeholders of County of Burlington,
566 U.S. 318,
132 S. Ct. 1510,
182 L. Ed. 2d 566 (2012).
The categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched. A spatial constraint defined by the immediate vicinity of the premises to be searched is therefore required for detentions incident to the execution of a search warrant. Limiting the rule in
Summers to the area in which an occupant poses a real threat to the safe and efficient execution of a search warrant ensures that the scope of the detention incident to a search is confined to its underlying justification. Once an occupant is beyond the immediate vicinity of the premises to be searched, the search-related law enforcement interests are diminished and the intrusiveness of the detention is more severe. Bailey v. United States,
568 U.S. 186,
133 S. Ct. 1031,
185 L. Ed. 2d 19 (2013).
Using a drug-sniffing dog on a homeowner's porch to investigate the contents of the home is a “search" within the meaning of the 4th amendment. A police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do. But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. Florida v. Jardines,
569 U.S. 1,
133 S. Ct. 1409,
185 L. Ed. 2d 495 (2013).
Natural metabolization of alcohol in the bloodstream does not present a
per se exigency that justifies an exception to the warrant requirement for nonconsensual blood testing in all drunk-driving cases. Consistent with general 4th amendment principles, exigency in this context must be determined case by case based on the totality of the circumstances. Missouri v. McNeely,
569 U.S. 141,
133 S. Ct. 1552,
185 L. Ed. 2d 696 (2013).
Police officers must generally secure a warrant before conducting a search of the information on a cell phone seized from an individual who has been arrested. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one. Riley v. California,
573 U.S. 373,
134 S. Ct. 2473,
189 L. Ed. 2d 430 (2014).
In light of
United States v. Jones and
Florida v. Jardines, it follows that a state conducts a search when it attaches a device to a person's body, without consent, for the purpose of tracking that individual's movements. That conclusion, however, does not decide the ultimate question of the program's constitutionality. The 4th amendment prohibits only unreasonable searches. Grady v. North Carolina,
575 U.S. 306,
135 S. Ct. 1368,
191 L. Ed. 2d 459 (2015).
A police stop exceeding the time needed to handle the matter for which the stop was made violates the constitution's shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation. Rodriguez v. United States,
575 U.S. 348,
135 S. Ct. 1609,
191 L. Ed. 2d 492 (2015).
The attenuation doctrine applies when an officer makes an unconstitutional investigatory stop; learns during that stop that the suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence during a search incident to that arrest. The evidence the officer seized as part of the search incident to arrest is admissible because the officer's discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest. Utah v. Strieff, 579 U.S. ___,
136 S. Ct. 2056,
195 L. Ed. 2d 400 (2016).
A breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation. The 4th amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for blood alcohol content testing is great. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Birchfield v. North Dakota, 579 U.S. ___,
136 S. Ct. 2160,
195 L. Ed 2d 560 (2016).
The automobile exception to the 4th amendment does not permit a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. Collins v. Virginia, 584 U.S. ___,
138 S. Ct. 1663,
201 L. Ed. 2d 9 (2018).
Individuals have a reasonable expectation of privacy in the whole of their physical movements, and an individual maintains a legitimate expectation of privacy in the record of the individual's physical movements as captured through cell-site location information. The government conducts a search under the 4th amendment when the government accesses historical cell phone records that provide a comprehensive chronicle of a user's past movements. Carpenter v. United States, 585 U.S. ___,
138 S. Ct. 2206,
201 L. Ed. 2d 507 (2018).
Under the third-party doctrine, a person has no legitimate expectation of privacy in information the person voluntarily turns over to third parties. However, given the unique nature of cellphone location records, the fact that the information is held by a third party does not by itself overcome a user's claim to 4th amendment protection. Whether the government employs its own surveillance technology or leverages the technology of a wireless carrier, an individual maintains a legitimate expectation of privacy in the record of the individual's physical movements as captured through cell-site location information, and a warrant is required in the rare case where a suspect has a legitimate privacy interest in records held by a third party. Carpenter v. United States, 585 U.S. ___,
138 S. Ct. 2206,
201 L. Ed. 2d 507 (2018).
A police officer did not violate the 4th amendment by initiating an investigative traffic stop after running a vehicle's license plate and learning that the registered owner had a revoked driver's license when the officer lacked information negating an inference that the owner was the driver of the vehicle. Kansas v. Glover, 589 U.S. ___,
140 S. Ct. 1183,
206 L. Ed. 2d 412 (2020).
Within the meaning of the 4th amendment, domestic animals are effects and the killing of a companion dog constitutes a seizure, which is constitutional only if reasonable. Viilo v. Eyre,
547 F.3d 707 (2008).
Given how slight is the incremental loss of privacy from having to wear an anklet monitor, and how valuable to society the information collected by the monitor is, s. 301.48 does not violate the 4th amendment. The terms of supervised release, probation, and parole often authorize searches by probation officers without the officers' having to obtain warrants. Such warrantless searches do not violate the 4th amendment as long as they are reasonable. Such monitoring of sex offenders is permissible if it satisfies the reasonableness test applied in parolee and special-needs cases. Wisconsin's ankle monitoring of the defendant is reasonable. Belleau v. Wall,
811 F.3d 929 (2016).
For protective searches for weapons, area searches are permissible only when they have the level of suspicion identified in
Terry,
392 U.S. 1 (1968). Under
Terry, an officer may conduct a protective search for weapons of an individual's person and the area within the individual's control if a reasonably prudent person in the circumstances would be warranted in the belief that the person's safety or that of others was in danger. In this case, officers suspected the defendant had placed a gun on the threshold of the front door behind the screen door, and, based on the totality of the circumstances, opening the screen door fell within the bounds of a constitutional search. United States v. Richmond,
924 F.3d 404 (2019).
In this case, because the walkway was part of the curtilage of the house and was not clearly accessible to the public, when police officers used it to enter the backyard, they violated the 4th amendment. Although they were in the process of securing the perimeter, which they contend was a legitimate law enforcement objective, the broad catch-call of “legitimate law enforcement objective" is not an exception to the 4th amendment's curtilage rule. Reardon v. Schossow,
416 F. Supp. 3d 793 (2019).
But What of Wisconsin's Exclusionary Rule? The Wisconsin Supreme Court Accepts Apparent Authority to Consent as Grounds for Warrantless Searches. Schmidt. 83 MLR 299 (1999).
State v. Seibel: Wisconsin Police Now Need Only a Reasonable Suspicion to Search a Suspect's Blood Incident to an Arrest. Armstrong. 1993 WLR 563.
The Private-Search Doctrine Does Not Exist. McJunkin. 2018 WLR 971.
OWI Blood Draws: An Uncertain Road Ahead. Anderegg. Wis. Law. Nov. 2017.
I,12
Attainder; ex post facto; contracts. Section 12
. No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed, and no conviction shall work corruption of blood or forfeiture of estate.
Section 45.37 (9), Stats. 1963, constituted a contract as to the property an applicant for admission to the Grand Army Home had to surrender, and to apply a later amendment would be unconstitutional. Estate of Nottingham,
46 Wis. 2d 580,
175 N.W.2d 640.
Although the obligation of a contract is not an absolute right but one that may yield to the compelling interest of the public, the public purpose served by a law mandating rent reductions due to property tax relief is not so vital so as to permit such an impairment of contract. State ex rel. Bldg. Owners v. Adamany,
64 Wis. 2d 280,
219 N.W.2d 274.
Retroactive application of s. 57.06, 1987 stats. [now s. 304.06], as amended in 1973, increasing the period to be served by state prison inmates imposed an additional penalty and violated the prohibition against ex post facto legislation. State ex rel. Mueller v. Powers,
64 Wis. 2d 643,
221 N.W.2d 692.
The legislative preclusion against the State Medical Society's divesting itself of control of ch. 148, disability plans did not constitute any impairment of the society's charter because: 1) the grant of ch. 148 powers is permissive and voluntarily exercised by the society; 2) the ch. 148 grant is in the nature of a franchise rather than a contract and cannot be viewed as unalterable or it would constitute a delegation of inalienable legislative power; and 3) the constitutional interdiction against statutes impairing contracts does not prevent the state from exercising its police powers for the common good. State Medical Society v. Comm. of Insurance,
70 Wis. 2d 144,
233 N.W.2d 470.
When a probation statute was amended after a crime was committed but before the accused pled guilty and was placed on probation, application of the amended statute to probation revocation proceedings offended the ex post facto clause. State v. White,
97 Wis. 2d 517,
294 N.W.2d 36 (Ct. App. 1979).
A challenge to legislation must prove: 1) the legislation impairs an existing contractual relationship; 2) the impairment is substantial; and 3) if substantial, the impairment is not justified by the purpose of the legislation. Reserve Life Ins. Co. v. La Follette,
108 Wis. 2d 637,
323 N.W.2d 173 (Ct. App. 1982).
A mortgage contract entered into in 1977 and controlled by the 1971 statutes, which provided for a redemption period of 12 months upon foreclosure, could not be altered by a 1978 legislative enactment that reduced the redemption period to 6 months. An act that in any degree modifies the obligation of the contract by attempting to relieve the one party from any duty by the contract assumed is repugnant to the constitutional prohibition. Burke v. E. L. C. Investors, Inc.
110 Wis. 2d 406,
329 N.W.2d 259 (Ct. App. 1982).
The ex post facto prohibition applies to judicial pronouncements as well as legislative acts. The question to be addressed is whether the new law criminalizes conduct that was innocent when committed. State v. Kurzawa,
180 Wis. 2d 502,
509 N.W.2d 712 (1993).
Legislation creating penalty enhancers resulting from convictions prior to the effective date does not run afoul of the ex post facto clause. State v. Schuman,
186 Wis. 2d 213,
520 N.W.2d 107 (Ct. App. 1994).
An ex post facto law is one that punishes as a crime an act previously committed, that: 1) was innocent when done; 2) makes more burdensome the punishment for a crime, after its commission; or 3) deprives one charged with a crime of any defense available at the time the act was committed. State v. Thiel,
188 Wis. 2d 695,
524 N.W.2d 641 (1994).
Retroactive application of a new statute of limitations, enacted at a time when the old limitations period has not yet run, does not violate the ex post facto clause. State v. Haines,
2003 WI 39,
261 Wis. 2d 139,
661 N.W.2d 72,
01-1311.
In any challenge to a law on double jeopardy and ex post facto grounds, the threshold question is whether the ordinance is punitive, as both clauses apply only to punitive laws. Courts employ a two-part “intent-effects" test to answer whether a law applied retroactively is punitive and, therefore, an unconstitutional violation of the Double Jeopardy and Ex Post Facto Clauses. If the intent was to impose punishment, the law is considered punitive and the inquiry ends there. If the intent was to impose a civil and nonpunitive regulatory scheme, the court must determine whether the effects of the sanctions imposed by the law are so punitive as to render them criminal. City of South Milwaukee v. Kester,
2013 WI App 50,
347 Wis. 2d 334,
830 N.W.2d 710,
12-0724.
In evaluating a claim brought under the contract clause, the court first considers whether the contested state legislation has operated as a substantial impairment of a contractual relationship. This inquiry has three components: 1) whether there is a contractual relationship; 2) whether a change in law impairs that contractual relationship; and 3) whether the impairment is substantial. If the legislative act constitutes a substantial impairment to a contractual relationship, it will still be upheld if a significant and legitimate public purpose for the legislation exists. If a significant and legitimate purpose exists for the challenged legislation, the question becomes whether the legislature's impairment of the contract is reasonable and necessary to serve an important public purpose. Madison Teachers, Inc. v. Walker,
2014 WI 99,
358 Wis. 2d 1,
851 N.W.2d 337,
12-2067.
For a legislative enactment to be considered a contract, the language and circumstances must evince a legislative intent to create private rights of a contractual nature enforceable against the state. This requires the court, when reviewing a particular legislative enactment, to suspend judgment and proceed cautiously both in identifying a contract within the language of a regulatory statute and in defining the contours of any contractual obligation. Madison Teachers, Inc. v. Walker,
2014 WI 99,
358 Wis. 2d 1,
851 N.W.2d 337,
12-2067.
Under
Calder v. Bull,
3 U.S. 386, “every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender," is a prohibited ex post facto law. A post-offense change in the law making hearsay evidence admissible at a preliminary hearing did not violate a defendant's ex post facto rights. The hearing is not held “in order to convict the offender," but rather to determine if probable cause exists to bind over a defendant for trial, at which the decision whether to convict occurs. State v. Hull,
2015 WI App 46,
363 Wis. 2d 603,
867 N.W.2d 419,
14-0365.
To determine whether a statute is punitive, the court applies the intent-effects test. The second part of the intent-effects test requires the court to examine the effect of the statute. Seven factors guide the court's analysis of whether the statute actually punishes a defendant: 1) does the statute involve an affirmative disability or restraint; 2) has the sanction at issue historically been regarded as punishment; 3) will the sanction be imposed only after a finding of scienter; 4) does the statute promote the traditional aims of punishment — retribution and deterrence; 5) is the behavior to which the sanction applies already a crime; 6) is there an alternative purpose to which the sanction may be rationally connected; and 7) is the sanction excessive in relation to the alternative purpose assigned. State v. Williams,
2018 WI 59,
381 Wis. 2d 661,
912 N.W.2d 373,
16-0883.
A statute is an ex post facto law only if it imposes punishment. In
Muldrow,
2018 WI 52, the court determined that neither the intent nor the effect of lifetime global positioning system (GPS) tracking is punitive. Thus, GPS tracking does not violate the ex post facto clause. Kaufman v. Walker,
2018 WI App 37,
382 Wis. 2d 774,
915 N.W.2d 193,
17-0085.
Constitutionality of rent control discussed. 62 Atty. Gen. 276.
I,13
Private property for public use. Section 13
. The property of no person shall be taken for public use without just compensation therefor.
The dismissal of an appeal for lack of prosecution in a condemnation action did not violate the condemnee's right to just compensation. Taylor v. State Highway Comm.,
45 Wis. 2d 490,
173 N.W.2d 707.
The total rental loss occasioned by a condemnation is compensable, and a limitation to one year's loss was invalid. Luber v. Milwaukee County,
47 Wis. 2d 271,
177 N.W.2d 380.
A prohibition against filling in wetlands pursuant to an ordinance adopted under ss. 59.971 and 144.26 [now ss. 59.692 and 281.31] does not amount to a taking of property. Police powers and eminent domain are compared. Just v. Marinette County,
56 Wis. 2d 7,
201 N.W.2d 761.
A special assessment against a railroad for a sanitary sewer laid along the railroad's right-of-way, admittedly of no immediate use or benefit to the railroad, did not constitute a violation of this section. Soo Line RR. Co v. Neenah,
64 Wis. 2d 665,
221 N.W.2d 907.
In order for the petitioner to succeed in the initial stages of an inverse condemnation proceeding, it must allege facts that, prima facie at least, show there has been either an occupation of its property under s. 32.10, or a taking, which must be compensated under the constitution. Howell Plaza, Inc. v. State Highway Comm.,
66 Wis. 2d 720,
226 N.W.2d 185.
The owners of private wells ordered by the department of natural resources to seal them because of bacteriological danger are not entitled to compensation because such orders are a proper exercise of the state's police power to prevent a public harm, for which compensation is not required. Village of Sussex v. Dept. of Natural Resources,
68 Wis. 2d 187,
228 N.W.2d 173.
Ordering a utility to place its power lines under ground in order to expand an airport constituted a taking because the public benefited from the enlarged airport. Public Service Corp. v. Marathon County,
75 Wis. 2d 442,
249 N.W.2d 543.
For inverse condemnation purposes, a taking can occur absent a physical invasion only when there is a legally imposed restriction upon the property's use. Howell Plaza, Inc. v. State Highway Comm.,
92 Wis. 2d 74,
284 N.W.2d 887 (1979).
The doctrine of sovereign immunity cannot bar an action for just compensation based on the taking of private property for public use even though the legislature has failed to establish specific provisions for recovery of just compensation. Zinn v. State,
112 Wis. 2d 417,
334 N.W.2d 67 (1983).
