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). It is a violation of the 4th amendment for police to bring members of the media or other third persons into a home during the execution of a warrant when the presence of the third persons in the home is not in aid of the execution of the warrant. Wilson v. Layne, 526 U.S. 603, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999). Inherent in the authorization under Summers, 452 U.S. 692 (1981), to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention. Use of force in the form of handcuffs to effectuate detention in the garage outside the house being searched was reasonable when the governmental interests outweighed the marginal intrusion. Muehler v. Mena, 544 U.S. 93, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005). A claim of excessive force in the course of making a seizure of the person is properly analyzed under the 4th amendment’s objective reasonableness standard. A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the 4th amendment, even when it places the fleeing motorist at risk of serious injury or death. Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter the conduct, and sufficiently culpable that such deterrence is worth the price paid by the justice system. The exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. When police mistakes are the result of negligence, such as here when a cancelled warrant was not removed from a database, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not pay its way. Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009). When officers make an arrest supported by probable cause for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the 4th amendment. In the context of a valid arrest supported by probable cause, the arrestee’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks for DNA. That same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations, DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. Maryland v. King, 569 U.S. 435, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013). The objective reasonableness of a particular seizure under the 4th amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s 4th amendment interests against the countervailing governmental interests at stake analyzed from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. If police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended. Plumhoff v. Rickard, 572 U.S. 765, 134 S. Ct. 2012, 188 L. Ed. 2d 1056 (2014). Facial challenges to statutes authorizing warrantless searches under the 4th amendment are not categorically barred or especially disfavored. A facial challenge is an attack on a statute itself as opposed to a particular application. While such challenges are the most difficult to mount successfully, the U.S. Supreme Court has never held that these claims cannot be brought under any otherwise enforceable provision of the U.S. Constitution. City of Los Angeles v. Patel, 576 U.S. 409, 135 S. Ct. 2443, 192 L. Ed. 2d 435 (2015). Search regimes where no warrant is ever required may be reasonable when special needs make the warrant and probable cause requirement impracticable, and when the primary purpose of the searches is distinguishable from the general interest in crime control. The U.S. Supreme Court has referred to this kind of search as an administrative search. In order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker. City of Los Angeles v. Patel, 576 U.S. 409, 135 S. Ct. 2443, 192 L. Ed. 2d 435 (2015). When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim. A different 4th amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure. County of Los Angeles v. Mendez, 581 U.S. 420, 137 S. Ct. 1539, 198 L. Ed. 2d 52 (2017). The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat the driver’s otherwise reasonable expectation of privacy. Byrd v. United States, 584 U.S. ___, 138 S. Ct. 1518, 200 L. Ed. 2d 805 (2018). A seizure requires the use of force with intent to restrain, with the appropriate inquiry being whether the challenged conduct objectively manifests an intent to restrain. The application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person. Torres v. Madrid, 592 U.S. ___, 141 S. Ct. 989, 209 L. Ed. 2d 190 (2021). The “Reasonableness” of the Investigative Detention: An “Ad Hoc” Constitutional Test. Wiseman. 67 MLR 641 (1984).
The Exclusionary Rule and the 1983-1984 Term. Gammon. 68 MLR 1 (1984).
The Constitutionality of the Canine Sniff Search: From Katz to Dogs. FitzGerald. 68 MLR 57 (1984).
Analyzing the Reasonableness of Bodily Intrusions. Sarnacki. 68 MLR 130 (1984).
The Good Faith Exception to the Exclusionary Rule: The Latest Example of “New Federalism” in the States. Yagla. 71 MLR 166 (1987).
What’s Fear Got to do with it?: The “Armed and Dangerous” Requirement of Terry. Reamey. 100 MLR 231 (2016).
Constitutional Law—Search and Seizure—Abandonment. Branigan. 1974 WLR 212.
Terry Revisited: Critical Update on Recent Stop-and-Frisk Developments. Van Sicklen. 1977 WLR 877.
The Future of the Exclusionary Rule and the Development of State Constitutional Law. Schneider. 1987 WLR 377.
The good-faith exception to the exclusionary rule. Wiseman. WBB Aug. 1986.
Law Enforcement in Cyberspace: Search and Seizure of Computer Data. McChrystal, Gleisner, & Kuborn. Wis. Law. Dec. 1998.
DNA Extraction on Arrest: Maryland v. King and Wisconsin’s New Extraction Law. Dupuis. Wis. Law. Sept. 2013.
consent and standing
The fact that consent to the search of a car was given while the defendant was in custody does not establish involuntariness. It was not improper for the police to tell the defendant that if a search did not produce stolen goods the defendant would be released. Gautreaux v. State, 52 Wis. 2d 489, 190 N.W.2d 542 (1971). When police opened a package in the possession of an express company without a warrant or the consent of the addressee, persons later arrested in possession of the package, other than the addressee, had no standing to challenge the evidence on the ground of illegal search. The defendants would have to establish a possessory interest in the package at the time of the search. State v. Christel, 61 Wis. 2d 143, 211 N.W.2d 801 (1973). The defendant was qualified to challenge the admissibility of evidence taken from his wife, when he and his wife were in each other’s presence when arrested for the same crime; a search of her person at that time would have been at a place where the defendant had a legitimate right to be; the object of the search, incident to the arrest for robbery could only be for weapons and incriminating evidence against him and his wife; and this situation carried over into a custodial search of the wife which was thereafter conducted at the police station where the search occurred. State v. Mabra, 61 Wis. 2d 613, 213 N.W.2d 545 (1974). The sons of a murdered property owner did not, as such, have authority to consent to a search of the premises. Kelly v. State, 75 Wis. 2d 303, 249 N.W.2d 800 (1977). A person living in a tent in the yard of a house had no authority to grant consent to a warrantless search of the house. A police officer’s observation through a window of a cigarette being passed in the house did not constitute probable cause for a warrantless search of the house for marijuana. Discussing the “plain view” doctrine. State v. McGovern, 77 Wis. 2d 203, 252 N.W.2d 365 (1977). An estranged wife had no authority to consent to the warrantless search of property she owned jointly with her defendant husband but did not occupy at that time. State v. Verhagen, 86 Wis. 2d 262, 272 N.W.2d 105 (Ct. App. 1978). The boyfriend of an apartment lessee who paid no rent or expenses and whose access to the apartment was at the whim of the lessee did not have even a limited reasonable expectation of privacy in the premises when away from the premises. State v. Fillyaw, 104 Wis. 2d 700, 312 N.W.2d 795 (1981). The impoundment and subsequent warrantless inventory search of a car, including a locked glove box, were not unconstitutional. Discussing automatic standing. State v. Callaway, 106 Wis. 2d 503, 317 N.W.2d 428 (1982). A defendant had no standing to contest the legality of a search of a van because of a lack of dominion and control over the van. State v. Wisumierski, 106 Wis. 2d 722, 317 N.W.2d 484 (1982). When the defendant’s mother admitted police into her home to talk to her son, the subsequent arrest of the son was valid. State v. Rodgers, 119 Wis. 2d 102, 349 N.W.2d 453 (1984). When police reentered a home to recreate a crime 45 hours after consent to enter was given, evidence seized was properly suppressed. State v. Douglas, 123 Wis. 2d 13, 365 N.W.2d 580 (1985). A person who borrows a car with the owner’s permission has a reasonable expectation of privacy in the vehicle. State v. Dixon, 177 Wis. 2d 461, 501 N.W.2d 442 (1993). In a consent search, voluntariness and freedom from coercion, not fully informed consent, must be shown. Language and cultural background are relevant in determining whether the police took advantage in gaining consent. State v. Xiong, 178 Wis. 2d 525, 504 N.W.2d 428 (Ct. App. 1993). A warrantless entry by uniformed officers to make arrests after undercover agents gained permissive entrance to the premises was justified under the consent exception, and no exigent circumstances were required. State v. Johnston, 184 Wis. 2d 794, 518 N.W.2d 759 (1994). Evidence obtained in a consensual search of the defendant’s car when the consent was given during an illegal search was admissible as the evidence was not “come at” by information learned in the interrogation. State v. Goetsch, 186 Wis. 2d 1, 519 N.W.2d 634 (Ct. App. 1994). Whether persons have “common authority” to consent to a search of a premises depends, not on property rights, but on the relationship between the consenting party and the premises. Co-residents have “common authority” to consent to a search, but relatives of residents and property owners do not. Consent of one who possesses common authority is binding against an absent resident but is not against a nonconsenting party who is present. State v. Kieffer, 207 Wis. 2d 462, 558 N.W.2d 664 (Ct. App. 1996), 96-0008. Consent to a search must be knowledgeably and voluntarily given. When consent is not requested, it cannot be knowledgeably and voluntarily given. State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997), 96-2052. Suddenly placing a police officer at each side of a vehicle just prior to asking for consent to search cannot be said to create or to be intended to create a coercive situation. State v. Stankus, 220 Wis. 2d 232, 582 N.W.2d 468 (Ct. App. 1998), 97-2131. A person with no property interest who may have entered the premises legitimately but did not have permission to remain to the time of a search is without standing to challenge the search. State v. McCray, 220 Wis. 2d 705, 583 N.W.2d 668 (Ct. App. 1998), 97-2746. To have standing to challenge the pre-delivery seizure of a package not addressed to the defendant, the defendant has the burden of establishing some reasonable expectation of privacy in the package, which will be determined on a case-by-case basis. State v. Ramirez, 228 Wis. 2d 561, 598 N.W.2d 247 (Ct. App. 1999), 98-0996. In light of the reduced expectation of privacy that applies to property in an automobile, the search of a vehicle passenger’s jacket based upon the driver’s consent to the search of the vehicle was reasonable. State v. Matejka, 2001 WI 5, 241 Wis. 2d 52, 621 N.W.2d 891, 99-0070. Non-objected to warrantless entry by police into living quarters is entry demanded under color of office granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right. If consent is granted only in acquiescence to an unlawful assertion of authority, the consent is invalid. An initial refusal to permit a search when asked militates against a finding of voluntariness. State v. Munroe, 2001 WI App 104, 244 Wis. 2d 1, 630 N.W.2d 223, 00-0260.
