Marsy’s Law: Changes for Crime Victims? Donaldson, Rabe Mayer, Robson, Rufo, Sattler, & Shirley. Wis. Law. Sept. 2020.
I,10Treason. Section 10. Treason against the state shall consist only in levying war against the same, or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. I,11Searches and seizures. Section 11. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. general
Electronic eavesdropping, done with the consent of one of the parties, does not violate the U.S. Constitution. State ex rel. Arnold v. County Court, 51 Wis. 2d 434, 187 N.W.2d 354 (1971). The prohibition against unreasonable searches and seizures is not limited to criminal cases. It applies in forfeiture actions arising out of ordinance violations. City of Milwaukee v. Cohen, 57 Wis. 2d 38, 203 N.W.2d 633 (1973). An inspection by police of a basement storage room accessible to the public and the observation of evidence found there in open view that was later seized under a search warrant did not amount to an improper invasion of the defendant’s privacy. Watkins v. State, 59 Wis. 2d 514, 208 N.W.2d 449 (1973). Police have a right to lock a car to protect its contents after arresting the driver, but if it is already locked they cannot enter it on the pretense of locking it and thus discover contraband. When the car was borrowed, consent by the lawful user of the car was sufficient to allow a search and any containers found could be opened and examined. Soehle v. State, 60 Wis. 2d 72, 208 N.W.2d 341 (1973). When officers, armed with a search warrant, knocked on a door, pushed it open when the defendant opened it two inches, and put him under restraint before showing the warrant, they acted legally. State v. Meier, 60 Wis. 2d 452, 210 N.W.2d 685 (1973). The observation of tools in a car by police officers did not constitute a search, and the tools could be seized and were properly admissible into evidence. Anderson v. State, 66 Wis. 2d 233, 223 N.W.2d 879 (1974). Pertinent to the validity of an investigative stop is whether the facts available to the officer at the moment of the seizure warrant a man of reasonable caution in the belief that the action taken was appropriate. Wendricks v. State, 72 Wis. 2d 717, 242 N.W.2d 187 (1976). When an abused child, an occupant of defendant’s house, was accompanied to the house by social workers to recover the child’s belongings and exhibited to the workers the instruments used to inflict punishment, a subsequent search warrant was not tainted by an unconstitutional search. State v. Killory, 73 Wis. 2d 400, 243 N.W.2d 475 (1976). When evidence seized in an illegal search was admitted, no reversible error resulted when other evidence uninfluenced by the inadmissible evidence was sufficient to convict. Kelly v. State, 75 Wis. 2d 303, 249 N.W.2d 800 (1977). The drawing and testing of blood solely for diagnostic and not government-instigated purposes was not a “search or seizure” even when the testing physician testified at a negligent homicide trial. State v. Jenkins, 80 Wis. 2d 426, 259 N.W.2d 109 (1977). A person who is lawfully in custody for a civil offense may be required to participate in a lineup for an unrelated criminal offense. State v. Wilks, 121 Wis. 2d 93, 358 N.W.2d 273 (1984). There is no reasonable expectation of privacy in garbage once it has been routinely collected by garbage collectors. State v. Stevens, 123 Wis. 2d 303, 367 N.W.2d 788 (1985). Under the inevitable discovery doctrine, evidence seized under a defective search warrant was admissible because a later inventory search would have discovered it. State v. Kennedy, 134 Wis. 2d 308, 396 N.W.2d 765 (Ct. App. 1986). The reasonableness of an investigative stop depends on facts and circumstances present at the time of the stop. State v. Guzy, 139 Wis. 2d 663, 407 N.W.2d 548 (1987). When an officer observed a traffic violation but stopped the vehicle merely to render assistance, inadvertently discovered criminal evidence was admissible. State v. Baudhuin, 141 Wis. 2d 642, 416 N.W.2d 60 (1987). The trial court is permitted to consider suppressed evidence at sentencing when nothing suggests consideration will encourage illegal searches. State v. Rush, 147 Wis. 2d 225, 432 N.W.2d 688 (Ct. App. 1988). An escapee does not have a legitimate privacy expectation in premises other than the penal institution the escapee is sent to. State v. Amos, 153 Wis. 2d 257, 450 N.W.2d 503 (Ct. App. 1989). Aerial surveillance using standard binoculars and cameras with generally available standard and zoom lenses from an airplane flying no lower than 800 feet was reasonable. State v. Lange, 158 Wis. 2d 609, 463 N.W.2d 390 (Ct. App. 1990). The statutory privilege protecting an informer protects the contents of a communication that will tend to reveal the identity of the informant. The trial court may rely on redacted information in determining the informant’s reliability and credibility in determining whether there was reasonable suspicion justifying a warrantless seizure. State v. Gordon, 159 Wis. 2d 335, 464 N.W.2d 91 (Ct. App. 1990). Bank customers have no protectable privacy interest in bank records relating to accounts. State v. Swift, 173 Wis. 2d 870, 496 N.W.2d 713 (Ct. App. 1993). A defendant had no reasonable expectation of privacy in a porch through which the door to the living area was visible and that was entered through an unlocked screen door. When an officer came to the defendant’s residence for a legitimate purpose, observation of contraband from the porch through a window in the interior door was not a search. State v. Edgeberg, 188 Wis. 2d 339, 524 N.W.2d 911 (Ct. App. 1994). The use of a police dog to sniff an automobile parked in a motel parking lot did not constitute a search. There is no legitimate expectation of privacy in the air space around a car in a motel parking lot. State v. Garcia, 195 Wis. 2d 68, 535 N.W.2d 124 (Ct. App. 1995), 94-2573. Although a vehicle had been improperly seized, evidence obtained in a later search of the vehicle under a warrant that was not based on information gathered from the illegal seizure was not subject to suppression. State v. Gaines, 197 Wis. 2d 102, 539 N.W.2d 723 (Ct. App. 1995), 94-1225. When executing a search warrant on private premises, the belongings of a visitor on the premises that are plausible repositories for the objects of the search, except those worn by or in the physical possession of persons whose search is not authorized by the warrant, may be searched. State v. Andrews, 201 Wis. 2d 383, 549 N.W.2d 210 (1996), 94-1888. Presence in a high drug-trafficking area, a brief meeting of individuals on a sidewalk in the afternoon, and the officer’s experience that drug transactions that take place in that neighborhood involve brief meetings on the street, without more, is not particularized suspicion justifying an investigative stop. State v. Young, 212 Wis. 2d 417, 569 N.W.2d 84 (Ct. App. 1997), 97-0034. A prison inmate does not possess a reasonable expectation of privacy in the inmate’s body that permits a 4th amendment challenge to strip searches. Prisoners convicted of crimes are protected from cruel and unusual treatment that prohibits prison officials from utilizing strip searches to punish, harass, humiliate, or intimidate inmates regardless of their status in the institution. Al Ghashiyah v. McCaughtry, 230 Wis. 2d 587, 602 N.W.2d 307 (Ct. App. 1999), 98-3020. Police failure to comply with the rule of announcement in violation of the 4th amendment and this section did not require suppression of the evidence seized when the officers relied, in objective good faith, upon the pronouncements of the Wisconsin Supreme Court, as no remedial purpose would be served. State v. Ward, 2000 WI 3, 231 Wis. 2d 723, 604 N.W.2d 517, 97-2008. A curtilage determination is a question of constitutional fact subject to a two-step review. The findings of evidentiary or historical fact are reviewed for clear error to determine if they are contrary to the great weight and clear preponderance of the evidence. The ultimate determination of constitutional fact is reviewed de novo. State v. Martwick, 2000 WI 5, 231 Wis. 2d 801, 604 N.W.2d 552, 98-0101. Generally a premises warrant authorizes the search of all items that are plausible receptacles of the objects of the search. When currency was an object, looking through documents for hidden currency was appropriate. When the incriminating nature of the document was apparent upon brief perusal, its seizure was justified under the plain view doctrine. State v. Oswald, 2000 WI App 3, 232 Wis. 2d 103, 606 N.W.2d 238, 97-1219. When a person turns material over to a third party, the person who turned over the material has no 4th amendment protection if the third party reveals or conveys the material to governmental authorities, whether or not the person who turned over the material had a subjective belief that the third party would not betray him or her. State v. Knight, 2000 WI App 16, 232 Wis. 2d 305, 606 N.W.2d 291, 99-0368. While the subtleties of police practice in some cases necessitate an expert witness, there is no per se requirement that there be expert testimony to prove an excessive use of force claim. Robinson v. City of West Allis, 2000 WI 126, 239 Wis. 2d 595, 619 N.W.2d 692, 98-1211. What a person knowingly exposes to the public is not subject to 4th amendment protection. An inner tube rental and campground business did not have a reasonable expectation of privacy in areas open to the public. Float-Rite Park, Inc. v. Village of Somerset, 2001 WI App 113, 244 Wis. 2d 34, 629 N.W.2d 818, 00-1610. An individual does not have a reasonable expectation of privacy in a public restroom stall when the individual occupies it with another individual, leaves the door slightly ajar, and evinces no indication that the stall is being used for its intended purpose. State v. Orta, 2003 WI App 93, 264 Wis. 2d 765, 663 N.W.2d 358, 02-1008. The first sentence of this section is a statement of purpose that describes the policies to be promoted by the state and does not create an enforceable, self-executing right. Schilling v. Wisconsin Crime Victims Rights Board, 2005 WI 17, 278 Wis. 2d 216, 692 N.W.2d 623, 03-1855. For a search to be a private action not covered by the 4th amendment: 1) the police may not initiate, encourage, or participate in a 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. A search may be deemed a government search when it is a “joint endeavor” between private and government actors. 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 4th amendment. State v. Payano-Roman, 2006 WI 47, 290 Wis. 2d 380, 714 N.W.2d 548, 04-1029. Although the defendant’s initial trip to the police station was consensual, when the defendant was left in a locked room for five hours, the defendant was seized within the meaning of the 4th amendment. Under these circumstances, a reasonable person would not have believed that the person was free to leave. The defendant’s post-Miranda confession, offered within five minutes of the officers’ first questions to the defendant after five hours of isolation, was insufficiently attenuated from the illegal seizure and should have been suppressed. State v. Farias-Mendoza, 2006 WI App 134, 294 Wis. 2d 726, 720 N.W.2d 489, 05-0365. When officers were met with disorderly conduct during the execution of a search warrant, they possessed the lawful authority to arrest notwithstanding the invalidity of the warrant. State v. Annina, 2006 WI App 202, 296 Wis. 2d 599, 723 N.W.2d 708, 05-0876. A premises warrant generally authorizes the search of all items on the premises so long as those items are plausible receptacles of the objects of the search. A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. State v. LaCount, 2008 WI 59, 310 Wis. 2d 85, 750 N.W.2d 780, 06-0672. What a person knowingly exposes to the public, even in the person’s own home or office, is not a subject of 4th amendment protection. When affidavits were left unattended in a public hallway frequented by hundreds, there was no illegal search when a court commissioner picked up and looked at or photocopied the affidavits. State v. Russ, 2009 WI App 68, 317 Wis. 2d 764, 767 N.W.2d 629, 08-1641. The good faith exception precludes application of the exclusionary rule when officers conduct a search in objectively reasonable reliance upon clear and settled Wisconsin precedent that is later deemed unconstitutional by the U.S. Supreme Court. State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252; 786 N.W.2d 97, 07-1894. It is a violation of a defendant’s right to due process for a prosecutor to comment on the defendant’s failure to consent to a warrantless search. It has long been a tenet of federal jurisprudence that a defendant’s invocation of a constitutional right cannot be used to imply guilt. State v. Banks, 2010 WI App 107, 328 Wis. 2d 766, 790 N.W.2d 526, 09-1436. Even if police use excessive force in making an arrest, a defendant’s remedy is a suit for damages rather than exclusion of the evidence in the defendant’s criminal trial. For evidence to be suppressed there must be a causal relationship between the alleged use of unreasonable force and the evidence sought to be suppressed. State v. Herr, 2013 WI App 37, 346 Wis. 2d 603, 828 N.W.2d 896, 12-0935. Requiring the state in all inevitable discovery doctrine cases to prove active pursuit of an alternative line of investigation at the time of the constitutional violation risks exclusion of evidence that the state might demonstrate that it inevitably would have discovered. Therefore, the factors in Schwegler, 170 Wis. 2d 487 (1992), Lopez, 207 Wis. 2d 413 (1996), and Avery, 2011 WI App 124, should be regarded as important indicia of inevitability rather than indispensable elements of proof. Instead, the relevant inquiry is whether the prosecution has met its burden of proving by a preponderance of the evidence that it inevitably would have discovered the evidence sought to be suppressed. State v. Jackson, 2016 WI 56, 369 Wis. 2d 673, 882 N.W.2d 422, 14-2238. It was constitutionally reasonable for an emergency medical technician (EMT), as opposed to a physician, to draw an operating while intoxicated suspect’s blood. The important point for constitutional purposes was that the evidence demonstrated that the EMT was thoroughly trained and experienced in properly drawing blood. Also, it was not unreasonable for the blood draw to occur in the non-medical setting of the jail when the evidence indicated that the room in which the blood was drawn “was clean and as clean as a hospital emergency room,” and the EMT used a new blood draw kit containing a sterile needle. State v. Kozel, 2017 WI 3, 373 Wis. 2d 1, 889 N.W.2d 423, 15-0656. In this case, incriminating cell phone data was obtained via an unrelated criminal investigation and kept in a police database. A different law enforcement agency investigating a homicide came upon this data and used it to connect the defendant to the homicide. Even if some constitutional defect attended either the initial download or subsequent accessing of the cell phone data, there was no law enforcement misconduct that would warrant exclusion of that data. Unless evidence was obtained by sufficiently deliberate and sufficiently culpable police misconduct, resort to the massive remedy of suppressing evidence of guilt is unjustified. State v. Burch, 2021 WI 68, 398 Wis. 2d 1, 961 N.W.2d 314, 19-1404. Arson investigations under s. 165.55 (9) and (10) are subject to search warrant requirements set forth in Tyler, 436 U.S. 499 (1978). Discussing consent to search. 68 Atty. Gen. 225. A person has been seized within the meaning of the 4th amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that the person was not free to leave. United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). Illegally seized evidence was properly admitted to impeach the defendant’s false trial testimony, given in response to proper cross-examination, when the evidence did not squarely contradict the defendant’s testimony on direct examination. United States v. Havens, 446 U.S. 620, 100 S. Ct. 1912, 64 L. Ed. 2d 559 (1980). Police placement of a beeper in a container of precursor chemical used to manufacture an illicit drug and the subsequent surveillance of the defendant’s car by monitoring beeper transmissions was not prohibited by the 4th amendment. United States v. Knotts, 460 U.S. 276, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983). Under the “independent source” doctrine, evidence discovered during a valid search was admissible regardless of whether initial entry was illegal. Segura v. United States, 468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984). The “good faith” exception to the exclusionary rule allowed the admission of evidence obtained by officers acting in objectively reasonable reliance on a search warrant, issued by a detached and neutral magistrate, later found to be unsupported by probable cause. United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). If a “wanted flyer” has been issued on the basis of articulable facts supporting reasonable suspicion that a wanted person has committed a crime, other officers may rely on the flyer to stop and question that person. United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985). In assessing whether detention is too long to be justified as an investigative stop, it is appropriate to examine whether the police diligently pursued a means of investigation likely to quickly confirm or dispel their suspicions. United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). Fingerprints were not admissible when the police transported the suspect to a station house for fingerprinting without consent, probable cause, or prior judicial authorization. Hayes v. Florida, 470 U.S. 811, 105 S. Ct. 1643, 84 L. Ed. 2d 705 (1985). When an officer stopped a car for traffic violations and reached into the car to move papers obscuring the vehicle identification number, discovered evidence was admissible. New York v. Class, 475 U.S. 106, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986). The reasonable expectation of privacy was not violated when police, acting on an anonymous tip, flew over the defendant’s enclosed backyard and observed marijuana plants. California v. Ciraolo, 476 U.S. 207, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986). Defendants have no reasonable privacy interest in trash left on a curb for pick-up. Therefore, a warrantless search is not prohibited under federal law. California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988). The impeachment exception to the exclusionary rule does not extend to the use of illegally obtained evidence to impeach testimony of defense witnesses other than the defendant. James v. Illinois, 493 U.S. 307, 110 S. Ct. 648, 107 L. Ed. 2d 676 (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). When an officer has no articulable suspicion regarding a person, but requests that person to allow the search of his luggage, there is no seizure of the person if a reasonable person would feel free to decline the officer’s request or end the encounter. Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). Fourth-amendment protections against unreasonable searches and seizures extend to civil matters. The illegal eviction of a trailer home from a private park with deputy sheriffs present to prevent interference was an unconstitutional seizure of property. Soldal v. Cook County, 506 U.S. 56, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992). Whether police must “knock and announce” prior to entering a residence in executing a warrant is part of the reasonableness inquiry under the 4th amendment. Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995). Public school students are granted lesser privacy protections than adults, and student athletes even less. Mandatory drug testing of student athletes did not violate the constitutional protection against unreasonable searches and seizures. Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995).
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wisconsinconstitution
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