Permitting
Terry,
392 U.S. 1 (1968), stops of a person observed momentarily patting the outside of the person's clothing when the only additional facts are that the person is in a high crime area and has seen a cruising police car would expand the individualized “reasonable suspicion" requirement so far so as to negate it. State v. Gordon,
2014 WI App 44,
353 Wis. 2d 468,
846 N.W.2d 483,
13-1878.
While exigent circumstances may justify entry, the fact that entry has already been made does not necessarily invalidate reliance on the exigent circumstances doctrine. In this case, the officer had already stepped into the apartment when the exigent circumstances arose. Whether or not the apartment occupants' behavior constituted consent to the officer's entry, so long as the officer was standing in the vicinity of the occupants when the officer received the information that they might possess a backpack with loaded weapons in it, the officer's search for and seizure of the backpack was, at that moment, justified by exigent circumstances. State v. Kirby,
2014 WI App 74,
355 Wis. 2d 423,
851 N.W.2d 796,
13-0896.
When an officer parks near a person's vehicle, gets out, and knocks on the person's window, the officer has not necessarily displayed sufficient authority to cause a reasonable person to feel that the person is not free to leave. While a person is not automatically seized by a knock on the window, or even a supplementary request, the seizure inquiry looks at the totality of the circumstances to determine whether the officer has effected a detention. County of Grant v. Vogt,
2014 WI 76,
356 Wis. 2d 343,
850 N.W.2d 253,
12-1812.
Upholding, by a divided court, the trial court's denial of the defendant's suppression motion arguing that the warrantless obtaining of the defendant's cell phone's location data from the defendant's cell phone provider violated the defendant's 4th amendment rights. State v. Subdiaz-Osorio,
2014 WI 87,
357 Wis. 2d 41,
849 N.W.2d 748,
10-3016.
Fourth amendment jurisprudence has evolved into two seemingly different, but somewhat interrelated, methods of identifying protectable interests relating to the home. One focuses on a person's expectation of privacy, where a person has exhibited an actual expectation of privacy that society is prepared to recognize as reasonable. The other, known as the intrusion or trespass test, focuses on whether government agents engaged in an unauthorized physical penetration into a constitutionally protected area. Officers in this case conducted an illegal search by trespassing on the defendants' property when they, without permission, went onto the porch of the defendants' trailer to peer into a window, had no other reason for being in those areas, and acknowledged that they could not have seen what they saw within the trailer if they had not been standing in the yard or on the porch. State v. Popp,
2014 WI App 100,
357 Wis. 2d 696,
855 N.W.2d 471,
13-1916.
Ordinary citizens, even citizens who are subject to diminished privacy interests because they have been detained, have a legitimate expectation of privacy in the contents of their electronic devices. This interest, however, is undercut when the electronic device in question is contraband. In this case, the defendant was prohibited from using a computer. It was irrelevant whether specific images were prohibited by the defendant's probationary terms or otherwise illegal to possess; the use of computers was itself prohibited, and the agent had reasonable grounds to believe the defendant had impermissibly used them. Thus, the probation search of the contents of the defendant's computers did not violate the 4th amendment or this section. State v. Purtell,
2014 WI 101,
358 Wis. 2d 212,
851 N.W.2d 417,
12-1307.
The exigent circumstance exception does not require that officers observe actual destruction of evidence taking place before making entry. Officers do not impermissibly create exigent circumstances merely by knocking on a door and announcing themselves as police. State v. Parisi,
2014 WI App 129,
359 Wis. 2d 255,
857 N.W.2d 472,
14-0474.
In light of
McNeely,
569 U.S. 141 (2013), the holding in
Bohling,
173 Wis. 2d 529 (1993), that the rapid dissipation of alcohol alone constitutes an exigent circumstance sufficient for law enforcement officers to order a warrantless investigatory blood draw, is no longer an accurate interpretation of the 4th amendment's protection against unreasonable searches and seizures. The rapid dissipation of alcohol alone no longer constitutes a per se exigent circumstance. Exigent circumstances, sufficient to justify a warrantless investigatory blood draw of a drunk-driving suspect, are to be determined on a case-by-case totality of the circumstances analysis. State v. Kennedy,
2014 WI 132,
359 Wis. 2d 454,
856 N.W.2d 834,
12-0523.
Under the facts and circumstances of this case, the deputy reasonably responded to an accident, secured the scene, investigated the matter, and ultimately was left with a very narrow time frame in which the defendant's blood could be drawn so as to produce reliable evidence of intoxication. This sort of “now or never" moment is the epitome of an exigent circumstance justifying a warrantless blood draw. State v. Tullberg,
2014 WI 134,
359 Wis. 2d 421,
857 N.W.2d 120,
12-1593.
An arrest need not precede a warrantless blood draw. When there is probable cause for a blood draw, there also is probable cause to arrest for operating while intoxicated. An arrest is not a prerequisite to a warrantless blood draw justified by probable cause and exigent circumstances. State v. Tullberg,
2014 WI 134,
359 Wis. 2d 421,
857 N.W.2d 120,
12-1593.
Officers' approach to a defendant at gunpoint, use of handcuffs, and detention of the defendant in a squad car are not sufficient to transform an investigatory detention into an arrest. However, upon transportation of the defendant from the site of the stop to a hospital ten miles away, a reasonable person in the defendant's position would have believed that the person was in custody due to an arrest because the transportation was involuntary and the defendant had experienced a significant level of force and restraint since the initial stop. State v. Blatterman,
2015 WI 46,
362 Wis. 2d 138,
864 N.W.2d 26,
13-2107.
When a person who is temporarily detained for investigation pursuant to a
Terry,
392 U.S. 1 (1968), stop is then moved to another location, courts conduct a two-part inquiry: 1) was the person moved within the vicinity of the stop; and 2) was the purpose in moving the person within the vicinity reasonable? Ten miles is too distant a transportation to be within the vicinity so long as the temporary detention is supported by no more than a reasonable suspicion. In order for the transporting of a defendant to a hospital that was not in the vicinity of the stop to have been lawful, it must have been supported by probable cause to arrest or by a reasonable exercise of the community caretaker function. State v. Blatterman,
2015 WI 46,
362 Wis. 2d 138,
864 N.W.2d 26,
13-2107.
Nervousness, anxiety, and tremors are consistent with methamphetamine use. These characteristics may also have innocent explanations. That innocent explanations may exist for observed behavior does not preclude a finding of reasonable suspicion, but as a practical matter, police cannot expect to conduct field sobriety tests on every motorist who is shaking and nervous when stopped by an officer. State v. Hogan,
2015 WI 76,
364 Wis. 2d 167,
868 N.W.2d 124,
13-0430.
Reasonable suspicion that a traffic law has been or is being violated is sufficient to justify all traffic stops. An objectively reasonable mistake of law by a police officer can form the basis for reasonable suspicion to conduct a traffic stop. State v. Houghton,
2015 WI 79,
364 Wis. 2d 234,
868 N.W.2d 143,
13-1581.
The defendant had no reasonable expectation of privacy in text messages that the defendant had sent to and were stored in another person's cell phone. Once the defendant sent the messages, the defendant had no control over whether the recipient saved them, deleted them, forwarded them to others, or shared their content in any way. This lack of control over what was done with the text message and lack of any right to exclude others from reading it were key in the determination that the defendant did not have an objectively reasonable expectation of privacy in the text messages stored in the other person's phone. State v. Tentoni,
2015 WI App 77,
365 Wis. 2d 211,
871 N.W.2d 285,
14-2387.
The statement in
Popke,
2009 WI 37, that a police officer may “conduct a traffic stop when, under the totality of the circumstances, he or she has grounds to reasonably suspect that a crime or traffic violation has been or will be committed," did not purport to circumscribe the universe of possible scenarios within which traffic stops permissibly may occur, or to make such limits contingent on whether the legislature has titled a particular law a “traffic regulation." A reasonable suspicion that a violation of the littering statute, s. 287.81, a non-traffic civil forfeiture offense, had occurred justified a brief and limited traffic stop. The more onerous standard of probable cause would also therefore justify a traffic stop. State v. Iverson,
2015 WI 101,
365 Wis. 2d 302,
871 N.W.2d 661,
14-0515.
In
Jardines,
569 U.S. 1 (2013), the U.S. Supreme Court confirmed that the curtilage of a person's home remains a constitutionally protected area without consideration of whether a reasonable expectation of privacy exists. The Wisconsin Supreme Court has adopted four factors set forth in
Dunn,
480 U.S. 294 (1987), relevant to conducting an analysis of whether an area constitutes curtilage of a home: 1) the proximity of the area claimed to be curtilage to the home; 2) whether the area is included within an enclosure surrounding the home; 3) the nature of the uses to which the area is put; and 4) the steps taken by the resident to protect the area from observation by people passing by. These factors did not weigh in favor of curtilage designation when applied to the parking garage located beneath the defendant's apartment building. State v. Dumstrey,
2016 WI 3,
366 Wis. 2d 64,
873 N.W.2d 502,
13-0857.
There was no reasonable expectation of privacy in the defendant's parking garage located beneath a 30-unit apartment building such that it warranted 4th amendment protection against warrantless entry for arrest. The relevant test is: 1) whether the person exhibits an actual, subjective expectation of privacy in the area; and 2) whether society is willing to recognize such an expectation as reasonable. In making this determination a six-factor test is applied. State v. Dumstrey,
2016 WI 3,
366 Wis. 2d 64,
873 N.W.2d 502,
13-0857.
A warrantless blood sample may be justified even when an inferior form of evidence may be available. The fact that morphine remains in the body for several hours after the ingestion of heroin does not mean that it would be unreasonable for an officer to believe that taking the time to obtain a search warrant in this case risked destruction of evidence of heroin use. That the defendant never used a car in this case did not elevate the defendant's privacy interests to such heights as to render any warrantless blood draw under exigent circumstances unreasonable. State v. Parisi,
2016 WI 10,
367 Wis. 2d 1,
875 N.W.2d 619,
14-1267.
A blood draw from the defendant under s. 343.305 while the defendant was unconscious was permissible under the 4th amendment under the exigent circumstances doctrine when a deputy had probable cause to arrest the defendant for operating a vehicle with a prohibited alcohol concentration. State v. Howes,
2017 WI 18,
373 Wis. 2d 468,
893 N.W.2d 812,
14-1870.
Under
Purtell,
2014 WI 101, when a condition of probation prohibits the possession of a certain item, and the subject of the search knowingly breaks that condition, in most situations a probation agent would presumably have reasonable grounds to search the contents of the item.
Purtell tells us that as long as there are “reasonable grounds” to believe a probationer has contraband, a probation agent will almost always have the right to search the contraband itself without a warrant. State v. Keller,
2017 WI App 19,
374 Wis. 2d 325,
893 N.W.2d 276,
16-0500.
When a probation agent lawfully seized a contraband computer from a probationer but did not have the ability to examine the contents of the contraband and requested the assistance of an analyst at the division of criminal investigation, independent from any law enforcement investigation, so as to examine the contents of the computer, based upon the rationale set forth in
Purtell,
2014 WI 101, and
Devries,
2012 WI App 119, the search was not a police search. State v. Keller,
2017 WI App 19,
374 Wis. 2d 325,
893 N.W.2d 276,
16-0500.
In cases involving warrantless community caretaker impoundments, the fundamental question is the reasonableness of the seizure. The absence of standard criteria does not by default render a warrantless community caretaker impoundment unconstitutional under the 4th amendment reasonableness standard, nor does an officer's lack of adherence to standard criteria, if they exist, automatically render such impoundments unconstitutional. Under the reasonableness standard, an officer's discretion to impound a car is sufficiently cabined by the requirement that the decision to impound be based, at least in part, on a reasonable community caretaking concern and not exclusively on the suspicion of criminal activity. State v. Asboth,
2017 WI 76,
376 Wis. 2d 644,
898 N.W.2d 541,
15-2052.
The danger inherent to traffic stops authorizes an officer to take certain negligibly burdensome precautions in order to complete the mission safely. When after writing traffic citations, the officer returned to the defendant's car and asked the defendant to submit to a search, this request did not extend the stop beyond its permissible duration. Because the request related to officer safety and was negligibly burdensome, it was part of the traffic stop's mission and so did not cause an extension. Whatever additional time the actual search consumed, or the burden it imposed, was irrelevant so long as the defendant consented to it. State v. Floyd,
2017 WI 78,
377 Wis. 2d 394,
898 N.W.2d 560,
15-1294. See also State v. Brown,
2020 WI 63,
392 Wis. 2d 454,
945 N.W.2d 584,
17-0774.
A court is not bound by an officer's subjective reasons for a search. That a search was going to happen pursuant to law enforcement agency policy is not controlling. Rather, the question is whether the search itself was constitutionally permissible as an objective matter. The officer in this case had reasonable suspicion to search for weapons. One who reacts to a question by quieting down, becoming deflated, and responding demurely does so for a reason. A reasonably prudent officer seeing this response to a question about weapons would be suspicious and wonder if the answer was truthful. An abnormal nervousness or unusual response to interaction with law enforcement is a relevant factor in whether a person is armed and dangerous. State v. Nesbit,
2017 WI App 58,
378 Wis. 2d 65,
902 N.W.2d 266,
16-0224.
In
Hughes,
2000 WI 24, the supreme court held that exigent circumstances exist when there is a strong odor of marijuana emanating from a residence and occupants simply become aware of police outside the door. An officer could reasonably believe that a juvenile who is attempting to flee from a residence when officers are on the property and the odor of burning marijuana is in the air is more likely to also attempt to prevent evidence from being discovered by the police, including through the destruction of such evidence. State v. Torres,
2017 WI App 60,
378 Wis. 2d 201,
902 N.W.2d 543,
16-1061.
Under
Edmond,
531 U.S. 32 (2000), generally, a search or seizure will be deemed unreasonable in the absence of individualized suspicion of wrongdoing. However, there are limited circumstances when special law enforcement concerns justify highway stops without individualized suspicion, such as when a suspicionless search is designed to serve special needs, beyond the normal need for law enforcement. The factors for determining reasonableness are the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. If the public interest aspects of the first two factors are not outweighed by the 4th amendment protections represented by the third factor, the protections offered by the 4th amendment are not violated. State v. Scott,
2017 WI App 74,
378 Wis. 2d 578,
904 N.W.2d 125,
16-1742.
Because a traffic stop's mission includes the ordinary inquiries, such as checking a driver's license, an officer who lawfully stops a vehicle should be able to complete that mission even if the reason for the traffic stop ended during the officer's walk to the stopped vehicle. Ordinary inquiries incident to the traffic stop include: checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance. State v. Smith,
2018 WI 2,
379 Wis. 2d 86,
905 N.W.2d 353,
15-0756.
A police officer's act of opening a vehicle's passenger door in order to effectively communicate with a driver otherwise inaccessible due to the malfunctioning driver's door and window when the defendant appeared to be cooperating and moving toward the passenger seat, and seemed to be trying to open the passenger door, did not constitute an unreasonable search. The officer's actions, viewed objectively, would warrant a person of reasonable caution to believe the action taken was appropriate. State v. Smith,
2018 WI 2,
379 Wis. 2d 86,
905 N.W.2d 353,
15-0756.
Despite the defendant passing field sobriety tests and the officer apparently concluding that the defendant was not impaired due to alcohol, the officer, quite reasonably, believed there was “something else going on,” though the officer did not know if it was a medical issue or a drug issue. From the totality of the circumstances, a reasonable inference of wrongful conduct—that the defendant had driven while under the influence of a drug or drugs—could be objectively discerned, and thus the officer had the right to continue the temporary detention of the defendant for further investigation. State v. Rose,
2018 WI App 5,
379 Wis. 2d 664,
907 N.W.2d 463,
16-2257.
Under
Payton,
445 U.S. 573 (1980), police may enter a residence pursuant to an arrest warrant if the facts and circumstances present the police with a reasonable belief that: 1) the subject of the arrest warrant resides in the home; and 2) the subject of the arrest warrant is present in the home at the time entry is effected. State v. Delap,
2018 WI 64,
382 Wis. 2d 92,
913 N.W.2d 175,
16-2196.
A search occurs when a convicted recidivist sex offender who has completed the offender's sentence is required to attach a monitoring device to the offender's body to track the offender's movements. The reasonableness of a search depends upon the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations. Under the totality of the circumstances, given the diminished nature of a defendant's privacy interest and the state's particularly strong interest in reducing recidivism through the information collected by the tracking device, the global positioning system tracking requirement for convicted sex offenders is reasonable under the 4th amendment. Kaufman v. Walker,
2018 WI App 37,
382 Wis. 2d 774,
915 N.W.2d 193,
17-0085.
The 4th amendment's special needs doctrine applies to s. 301.48. The global positioning system (GPS) tracking program effectively serves the recognized special needs of deterring future crimes and gathering information needed to solve them. The state's interest in accomplishing these special needs in the context of sex crimes outweighs sex offenders' diminished privacy expectations. Kaufman v. Walker,
2018 WI App 37,
382 Wis. 2d 774,
915 N.W.2d 193,
17-0085.
Under
Birchfield,
579 U.S. 438 (2016), it is impermissible to impose criminal penalties for refusing to submit to a warrantless blood draw. A lengthier jail sentence is a criminal penalty. Therefore, the circuit court in this case violated
Birchfield by explicitly subjecting the defendant to a more severe criminal penalty because the defendant refused to provide a blood sample absent a warrant. State v. Dalton,
2018 WI 85,
383 Wis. 2d 147,
914 N.W.2d 120,
16-2483.
The expectation of privacy in digital files is governed by the same standards as the expectation of privacy in physical property. There is no reasonable expectation of privacy in digital files that are publicly shared on a peer-to-peer network, including when law enforcement uses non-publicly available softwear and geolocation services based on a publicly available internet protocol (IP) address to discover the files and locate the defendant. State v. Baric,
2018 WI App 63,
384 Wis. 2d 359,
919 N.W.2d 221,
17-0185.
Whether consent is verbal or inferred from one's actions, consent must be unequivocal and specific. Leading an officer to the threshold of an apartment and then entering the apartment and closing the door does not imply consent for the officer to enter the apartment. The standard for measuring the scope of a suspect's consent under the 4th amendment is that of objective reasonableness—what the typical reasonable person would have understood by the exchange between the officer and the suspect. State v. Reed,
2018 WI 109,
384 Wis. 2d 469,
920 N.W.2d 56,
16-1609.
Generalized concerns for safety and risk of flight are not enough to give rise to exigent circumstances. The test is whether there are objective facts known to the officer that would reasonably lead the officer to believe that the delay caused by obtaining a warrant would gravely endanger life or greatly enhance the likelihood of the subject's escape. State v. Reed,
2018 WI 109,
384 Wis. 2d 469,
920 N.W.2d 56,
16-1609.
The 4th amendment tolerates certain investigations that are outside the scope of the mission of a traffic stop, so long as the investigations do not measurably extend the duration of the stop. When the officer questioned the defendant on whether the defendant had a valid concealed carry permit, although the questioning and a permit check were outside the mission of the traffic stop, they did not violate the 4th amendment because they did not measurably extend the duration of the stop and were conducted concurrently with mission-related activities. State v. Wright,
2019 WI 45,
386 Wis. 2d 495,
926 N.W.2d 157,
17-2006. See also State v. Brown,
2020 WI 63,
392 Wis. 2d 454,
945 N.W.2d 584,
17-0774.
An anonymous informant is considered reliable if police are able to corroborate details in the informant's tip. In this case, the record contained no information indicating the informant's identity or whether the informant had provided reliable information to police in the past, but, because the tips were corroborated, the court did not discount them entirely in its analysis. Accordingly, the corroborated tips of the unnamed informant in this case could be considered in the analysis of the totality of the circumstances, giving them such weight as they were due. State v. Anderson,
2019 WI 97,
389 Wis. 2d 106,
935 N.W.2d 285,
17-1104.
In this case, the immediate and continuous pursuit was a hot pursuit satisfying the 4th amendment exception to the warrant requirement. The measured speed at which the pursuit occurred in no way lessened its “hot” nature. State v. Ionescu,
2019 WI App 68,
389 Wis. 2d 586,
937 N.W.2d 90,
18-1620.
The reasonableness approach, and not the categorical approach, is the correct interpretation of
Gant,
556 U.S. 332 (2009). When the totality of the circumstances objectively demonstrated that the officer had reasonable suspicion that a bag in the passenger compartment of the vehicle might contain relevant evidence of operating while intoxicated (OWI), the search was permissible under the 4th amendment. State v. Coffee,
2020 WI 53,
391 Wis. 2d 831,
943 N.W.2d 845,
18-1209.
In this case, the deputies were not performing a bona fide community caretaker function when they seized the defendant's vehicle without a warrant. The defendant was parked on the side of a road after having been stopped for speeding, was alone in the vehicle, and had been driving with a suspended operator's license. Although the defendant told the deputies who were issuing the traffic citations that the defendant could have a licensed driver retrieve the vehicle, the deputies told the defendant department policy required them to take the vehicle to an impound lot. A standardized policy may provide some evidence that the police performed their community caretaker role reasonably, but it cannot establish the predicate—
that they were acting as community caretakers. Because the seizure in this case violated the 4th amendment, so did the ensuing inventory search. State v. Brooks,
2020 WI 60,
392 Wis. 2d 402,
944 N.W.2d 832,
18-1774.
The U.S. Supreme Court in
Mitchell, 588 U.S. ___,
139 S. Ct. 2525 (2019), indicated that a court's exigent-circumstances analysis should consider whether law enforcement could have taken steps en route to a medical facility without significantly increasing the delay in procuring the blood sample. A court is not at liberty to begin the exigency analysis for a warrantless blood draw at a point following a suspect's refusal to provide a blood sample when the U.S. Supreme Court has indicated the analysis begins earlier. State v. Hay,
2020 WI App 35,
392 Wis. 2d 845,
946 N.W.2d 190,
18-2240.
Following
Mitchell, 588 U.S. ___,
139 S. Ct. 2525 (2019), the four factors that the state bears the burden to show that exigent circumstances justified a warrantless blood draw are: 1) law enforcement has probable cause to believe that the driver has committed a “drunk-driving offense"; 2) the driver is, at pertinent times, unconscious or in a stupor; 3) the driver's unconscious state or stupor requires that the driver be taken to a hospital or similar facility; and 4) the driver is taken to the hospital or similar facility before law enforcement has a “reasonable opportunity" to administer a standard evidentiary breath test. The burden is on the defendant to show that the defendant's blood would not have been drawn if police had not been seeking blood alcohol concentration information and to show that law enforcement could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. State v. Richards,
2020 WI App 48,
393 Wis. 2d 772,
948 N.W.2d 359,
17-0043. See also State v. Mitchell,
2022 WI App 31,
404 Wis. 2d 103,
978 N.W.2d 231,
19-1942.
Because the natural dissipation of alcohol over time presents a risk that evidence will be destroyed, the passage of time may help support an exigent circumstances determination in a given case. Here, there had already been a significant delay, which occurred through no fault of the police. An objectively reasonable officer would have been concerned that additional delay to obtain a warrant, beyond the five hours that had already elapsed, would have further undermined the probative value of a test, possibly even rendering it inadmissible if an expert was not able to support its probative value. State v. Dieter,
2020 WI App 49,
393 Wis. 2d 796,
948 N.W.2d 431,
18-2269.
The reasonable suspicion test for executing a traffic stop is not an exercise in evaluating individual details in isolation. It is the whole picture, evaluated together, that serves as the proper analytical framework. State v. Genous,
2021 WI 50,
397 Wis. 2d 293,
961 N.W.2d 41,
19-0435.
A reasonable person being repetitively questioned while the officer retains the person's driver's license would not feel free to drive away and thereby terminate the encounter. In this case, it was the officer's conduct of retaining the driver's licenses, while repeatedly asking questions that the defendant and the passenger had already answered, that coerced the defendant to remain in the jurisdiction. Also, the officer's questioning was intended to require them to remain in the jurisdiction so that time would pass and a drug-sniff dog would appear to sniff for drugs. Accordingly, the defendant was seized during the second round of repetitive questions while the officer retained the defendant's driver's license. State v. VanBeek,
2021 WI 51,
397 Wis. 2d 311,
960 N.W.2d 32,
19-0447.
Although the time it takes to ask a question is measurable, the fact that an inquiry is made does not, in and of itself, create the type of unreasonable burden to make an extension of a traffic stop unlawful for 4th amendment purposes. That notion is true whether the question occurs in the “middle” of a stop versus at the very end of one. State v. Crone,
2021 WI App 29,
398 Wis. 2d 244,
961 N.W.2d 97,
18-1764.
Checking for bond conditions is not an ordinary inquiry incidental to the mission of a traffic stop. Officers may check bond conditions while simultaneously performing other mission-related tasks, but they may not prolong a stop to inquire into a motorist's bond conditions without reasonable suspicion that the motorist is violating a bond condition. State v. Davis,
2021 WI App 65,
399 Wis. 2d 354,
965 N.W.2d 84,
20-0731.
The supreme court has stated that, based on the reasonable suspicion of the offense of operating while intoxicated, an officer may request a driver to perform various field sobriety tests. That statement does not require that an officer observe facts suggesting intoxication when administering field sobriety tests upon reasonable suspicion of operating with a prohibited alcohol concentration. State v. Adell,
2021 WI App 72,
399 Wis. 2d 399,
966 N.W.2d 115,
20-2135.
If, during a valid traffic stop, an officer becomes aware of additional suspicious factors that 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. In this case, the deputy lawfully extended the traffic stop because the totality of the facts as they unfolded established reasonable suspicion to investigate the offense of operating with a prohibited alcohol concentration, and the deputy lawfully administered field sobriety tests in furtherance of that investigation because those tests would be likely to support or dispel the deputy's suspicion. State v. Adell,
2021 WI App 72,
399 Wis. 2d 399,
966 N.W.2d 115,
20-2135.
The emergency aid exception to the warrant requirement does not require that officers personally observe indications of an ongoing medical emergency. Reliable and corroborated information from an informant may justify a warrantless search of a home under the emergency aid exception. State v. Ware,
2021 WI App 83,
400 Wis. 2d 118,
968 N.W.2d 752,
20-1559.
Courts apply a two-part test in determining whether the emergency aid exception applies. Under the totality of the circumstances, a reasonable person would believe that: 1) there is an immediate need to provide aid or assistance to a person due to actual or threatened physical injury; and 2) immediate entry into an area in which a person has a reasonable expectation of privacy is necessary in order to provide that aid or assistance. State v. Ware,
2021 WI App 83,
400 Wis. 2d 118,
968 N.W.2d 752,
20-1559.
The results of a hospital blood test that were subpoenaed after the circuit court suppressed evidence from an unlawful blood draw were admissible under the independent source doctrine. The state's decision to subpoena the hospital for the defendant's medical records was not prompted by the deputy's unlawful conduct because the state had reasonable grounds to suspect the defendant of operating while intoxicated prior to the deputy's warrantless blood draw. The fact that the state subpoenaed those records only after the circuit court suppressed the deputy's unlawful blood draw did not change the independent nature of the state's suspicions that the defendant's blood-alcohol concentration was over the legal limit. Furthermore, the evidence discovered through the state's subpoena—the hospital's diagnostic blood test—was untainted by the deputy's unlawful conduct, thus suppressing it would not serve the exclusionary rule's purpose. State v. Van Linn,
2022 WI 16,
401 Wis. 2d 1,
971 N.W.2d 478,
19-1317.
Police lack reasonable suspicion to justify an investigatory stop if there are not specific, articulable facts, and all rational inferences that may be drawn from those facts, to suspect that criminal activity is afoot. When a deputy observed an individual wearing black clothing and riding a bicycle, crossing and then leaving publicly-accessible school grounds in the early hours of a Sunday morning, while the state was under the Department of Health Services' Safer at Home order due to the COVID-19 pandemic, the state failed to clear the “low bar" of reasonable suspicion and instead relied on what could be described, at most, as “a mere hunch" of the deputy. That is, the evidence regarding events leading up to the stop failed to establish articulable facts and rational inferences from those facts that could have led a reasonable officer to suspect that the defendant had engaged in criminal activity, was currently doing so, or was about to do so. State v. Meddaugh,
2022 WI App 12,
401 Wis. 2d 134,
972 N.W.2d 181,
21-0939.
Lacking a warrant or exigent circumstances, officers had no lawful basis to open the defendant's hotel room door—even just the few inches they initially could—and peer inside or even speak to the defendant through that opening. Absent the officer's unlawful opening of the defendant's door and utilization of that opening, there was no reason to believe the defendant ever would have even gotten out of bed much less been in a position to visibly turn away from the officers at the door. Under the facts of this case, the officers' forced entry into the room—leading to the discovery of the gun—cannot be legitimized by the defendant's turning away from the door because the officer's observation of that action was not lawfully grounded. State v. Bourgeois,
2022 WI App 18,
401 Wis. 2d 489,
973 N.W.2d 818,
20-1808.
In this case, the officers had reasonable suspicion to believe the defendant was involved in criminal activity when, in the course of responding within one minute after receiving a ShotSpotter report of gunfire in a residential neighborhood, the officers saw a single suspect near the scene make furtive movements suggesting concealment of a handgun. Looking at the whole picture, as the officers were required to do, they made a well-informed and reasonable inference that the defendant might be the shooter. State v. Nimmer,
2022 WI 47,
402 Wis. 2d 416,
975 N.W.2d 598,
20-0878.
The search-incident-to-arrest exception permits police to search items not actually located on the person but also in the area within the arrestee's reach. The scope of a search incident to arrest is confined to the area from within which the suspect might gain possession of a weapon or destructible evidence. A search may precede an arrest so long as the officer had probable cause to arrest prior to the search. State v. Meisenhelder,
2022 WI App 37,
404 Wis. 2d 75,
978 N.W.2d 551,
21-0708.
A “knock and talk" investigation is not a search but instead is an investigative technique premised on the implicit license that a visitor, or neighbor, would have with regard to entering one's constitutionally-protected curtilage. In limited scenarios, the implicit license may extend to an alternative approach to the house or back entryway depending on the facts of a case. However, in this case, the officers' warrantless entry into the defendant's fenced-in backyard was not a valid knock and talk investigation and therefore violated the 4th amendment. The backyard was surrounded by a tall, solid wooden fence, and, even though the gate to the backyard was open, it was blocked by a large garbage can. It is hard to believe that a private citizen in the alley would consider the fence, together with the garbage can impeding the opening in the fence, as an invitation to approach the side door of the unattached garage. State v. Wilson,
2022 WI 77,
404 Wis. 2d 623,
982 N.W.2d 67,
20-1014.
The 4th amendment requires a police officer to have particularized reasonable suspicion that a crime or non-criminal traffic violation took place before performing a traffic stop. Reasonable suspicion must be founded on concrete, particularized facts warranting suspicion of a specific individual, not inchoate and unparticularized suspicions or hunches. In this case, a stop based on the generic description of a Harley-Davidson motorcycle recently seen driving erratically in the area fell short of that threshold. State v. Richey,
2022 WI 106,
405 Wis. 2d 132,
983 N.W.2d 617,
21-0142.
In this case, the defendant, a detective with the county sheriff's department, had a reasonable expectation of privacy in the contents of the defendant's Dropbox account. Although it was established using the defendant's county email address, the defendant paid to create the private account, the account was password protected and accessible through the defendant's private devices, and the account was not stored on county property. In addition, although the defendant's account was held by Dropbox, an independent entity, the defendant did not grant a third party access to the password or the account when the defendant used the account to share specific documents with third parties. Thus, law enforcement engaged in a search of the defendant's account within the meaning of the 4th amendment. State v. Bowers,
2023 WI App 4,
405 Wis. 2d 716,
985 N.W.2d 123,
21-1767.
A Dropbox account is most reasonably comparable to a modern-day version of a container used to store personal documents and effects. It is well established that individuals generally have a reasonable expectation of privacy in locked or closed containers, which are comparable to password-protected Internet-based accounts. State v. Bowers,
2023 WI App 4,
405 Wis. 2d 716,
985 N.W.2d 123,
21-1767.
In this case, the officer seized the defendant at the defendant's home under the 4th amendment when the officer denied the defendant's request to terminate the encounter while standing in the doorway of the defendant's home. There is no reasonable suspicion exception to the warrant requirement under the 4th amendment for a person's seizure in the person's home or curtilage. State v. Cundy,
2023 WI App 41,
409 Wis. 2d 34,
995 N.W.2d 266,
22-0540.
When a driver was stopped because of expired license plates, a police order to get out of the car was reasonable and a subsequent “pat down" based on an observed bulge under the driver's jacket resulted in the legal seizure of an unlicensed revolver. Pennsylvania v. Mimms,
434 U.S. 106,
98 S. Ct. 330,
54 L. Ed. 2d 331 (1977).
A burning building clearly presents an exigency rendering a warrantless entry reasonable, and fire officials need no warrant to remain in a building for a reasonable time to investigate the cause of the fire after it is extinguished. Michigan v. Tyler,
436 U.S. 499,
98 S. Ct. 1942,
56 L. Ed. 2d 486 (1978).
The warrantless installation of a pen register, that recorded telephone numbers called but not the contents of the calls, did not violate the 4th amendment. Smith v. Maryland,
442 U.S. 735,
99 S. Ct. 2577,
61 L. Ed. 2d 220 (1979).
An officer who accompanied an arrestee to the arrestee's residence to obtain identification properly seized contraband in plain view. Washington v. Chrisman,
455 U.S. 1,
102 S. Ct. 812,
70 L. Ed. 2d 778 (1982).
Officers who have legitimately stopped an automobile and who have probable cause to believe contraband is concealed somewhere within it may conduct a warrantless search of the vehicle as thorough as could be authorized by warrant. United States v. Ross,
456 U.S. 798,
102 S. Ct. 2157,
72 L. Ed. 2d 572 (1982).
When an officer, after stopping a defendant's car at a routine driver's license checkpoint, saw a tied-off party balloon in plain sight, the officer had probable cause to believe the balloon contained an illicit substance. Hence, a warrantless seizure of the balloon was legal. Texas v. Brown,
460 U.S. 730,
103 S. Ct. 1535,
75 L. Ed. 2d 502 (1983).
A warrantless search by arson investigators of the defendant's fire-damaged home that was not a continuation of an earlier search was unconstitutional. Michigan v. Clifford,
464 U.S. 287,
104 S. Ct. 641,
78 L. Ed. 2d 477 (1984).
When a damaged shipping package was examined by company employees who discovered white powder, a subsequent warrantless field test by police was constitutional. United States v. Jacobsen,
466 U.S. 109,
104 S. Ct. 1652,
80 L. Ed. 2d 85 (1984).
The warrantless, nighttime entry of the defendant's home for arrest for a civil, nonjailable traffic offense was not justified under the “hot pursuit" doctrine or the preservation of evidence doctrine. Welsh v. Wisconsin,
466 U.S. 740,
104 S. Ct. 2091,
80 L. Ed. 2d 732 (1984).
School officials need not obtain a warrant before searching a student. The legality of the search depends on the reasonableness, under all circumstances, of the search. New Jersey v. T.L.O.,
469 U.S. 325,
105 S. Ct. 733,
83 L. Ed. 2d 720 (1985).
When officers were entitled to seize packages in a vehicle and could have searched them immediately without a warrant, a warrantless search of the packages three days later was reasonable. United States v. Johns,
469 U.S. 478,
105 S. Ct. 881,
83 L. Ed. 2d 890 (1985).
The good faith exception to the exclusionary rule applies when an officer reasonably relies upon a statute allowing a warrantless administrative search that was subsequently ruled unconstitutional. Illinois v. Krull,
480 U.S. 340,
107 S. Ct. 1160,
94 L. Ed. 2d 364 (1987).
A protective sweep of a residence in conjunction with an arrest is permissible if police reasonably believe that the area harbors an individual posing a danger to officers or others. Maryland v. Buie,
494 U.S. 325,
110 S. Ct. 1093,
108 L. Ed. 2d 276 (1990).
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. 621,
111 S. Ct. 1547,
113 L. Ed. 2d 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,
111 S. Ct. 1661,
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,
111 S. Ct. 1982,
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,
113 S. Ct. 2130,
124 L. Ed. 2d 334 (1993).
