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. When officers gained entry into a motel room for the stated, but false, reason of determining whether the occupant had violated an ordinance requiring the presentation of proper identification when renting a room, any license granted by acquiescence to their entry vanished when proper identification was presented, and the officers had no authority to conduct a general search. State v. Munroe, 2001 WI App 104, 244 Wis. 2d 1, 630 N.W.2d 223, 00-0260. A social guest who is not an overnight guest may have a reasonable expectation of privacy in premises giving standing to challenge a warrantless search if the guest’s relationship to the property and host is firmly rooted. State v. Trecroci, 2001 WI App 126, 246 Wis. 2d 261, 630 N.W.2d 555, 00-1079. Warrants for administrative or regulatory searches modify the conventional understanding of probable cause requirements for warrants as the essence of the search is that there is no probable cause to believe a search will yield evidence of a violation. Refusal of consent is not a constitutional requirement for issuing the warrant, although it may be a statutory violation. Suppression only applies to constitutional violations. State v. Jackowski, 2001 WI App 187, 247 Wis. 2d 430, 633 N.W.2d 649, 00-2851. A visual body cavity search is more intrusive than a strip search. It is not objectively reasonable for police to conclude that consent to a strip search includes consent to scrutiny of body cavities. State v. Wallace, 2002 WI App 61, 251 Wis. 2d 625, 642 N.W.2d 549, 00-3524. A search authorized by consent is wholly valid unless that consent is given while an individual is illegally seized. The general rule is that a seizure has occurred when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Questioning alone does not a seizure make. That a defendant spontaneously and voluntarily responded to an officer’s questions is not enough to transform an otherwise consensual exchange into an illegal seizure. State v. Williams, 2002 WI 94, 255 Wis. 2d 1, 646 N.W.2d 834, 01-0463. Consent to a vehicle search, given following the conclusion of a traffic stop, when the police had given verbal permission for the defendant to leave but continued to ask questions, was valid. Applying a “reasonable person” test, there was no “seizure” at the time and consent to the search was not an invalid result of an illegal seizure. State v. Williams, 2002 WI 94, 255 Wis. 2d 1, 646 N.W.2d 834, 01-0463. Detaining, in handcuffs, a person who had arrived at a motel room with the person who had rented the room pending the arrival of and during the execution of a search warrant for the hotel room was reasonable. Consent to a search of the person’s living quarters on completion of the search, which resulted in the seizure of illegal drugs, when the person had been repeatedly told the person was being detained but was not under arrest was voluntarily given and not the product of an illegal seizure. State v. Vorburger, 2002 WI 105, 255 Wis. 2d 537, 648 N.W.2d 829, 00-0971. There is no bright-line rule that a tenant in an unlocked apartment building with at least four units does not have a reasonable expectation of privacy in the common areas of the stairways, hallways, and basement. Whether there is a reasonable expectation of privacy is decided on a case-by-case basis. State v. Eskridge, 2002 WI App 158, 256 Wis. 2d 314, 647 N.W.2d 434, 01-2720. Questioning the defendant’s three-year-old child outside the defendant’s presence did not exceed the scope of the defendant’s consent to search the defendant’s home when the child was left with a police officer without any restrictions and there was no evidence of trickery, deceit, or coercion. The questioning constituted on-the-scene questioning of a potential witness in an ongoing investigation. There was no applicable prohibition against speaking with the child about whether a gun was in the house. State v. Ragsdale, 2004 WI App 178, 276 Wis. 2d 52, 687 N.W.2d 785, 03-2795. For a search with no probable cause made after a traffic stop to be consensual, the consent must be given under circumstances in which a reasonable person granting the consent would have believed that the person was free to leave. Some verbal or physical demonstration by the officer, or some other equivalent facts, clearly conveying to the person that the traffic matter is concluded and the person should be on the person’s way is necessary. Absent that, it is a legal fiction to conclude that a reasonable person would believe that the person is free to depart the scene. State v. Jones, 2005 WI App 26, 278 Wis. 2d 774, 693 N.W.2d 104, 03-3216. In a traffic stop context, in which the test of consent to search is whether a reasonable person would feel free to disregard the police and go about the person’s business, the fact that the person’s driver’s license or other official documents are retained by the officer is a key factor in assessing whether the person is seized and, therefore, whether consent is voluntary. State v. Luebeck, 2006 WI App 87, 292 Wis. 2d 748, 715 N.W.2d 639, 05-1013. Orderly submission to law enforcement officers who, in effect, incorrectly represent that they have the authority to search and seize property is not knowing, intelligent, and voluntary consent under the 4th amendment. When officers offered the defendant a fleeting glimpse of a subpoena signed by a judge, they suggested authority they did not possess that led the defendant to believe he could not refuse consent for the officers to search his room and seize his computer. State v. Giebel, 2006 WI App 239, 297 Wis. 2d 446, 724 N.W.2d 402, 06-0189. But see State v. Brar, 2017 WI 73, 376 Wis. 2d 685, 898 N.W.2d 499, 15-1261. The defendant in this case did not have a legitimate expectation of privacy in a package intercepted by a delivery service and later searched. While the expectation of privacy when using an alias to send or receive mail is something society may accept as reasonable, the coupling of a false name and a false address, along with an unknown sender and a statement by the defendant that the package belonged to someone else, did not demonstrate that the defendant had a reasonable expectation of privacy in the package. State v. Earl, 2009 WI App 99, 320 Wis. 2d 639, 770 N.W.2d 755, 08-1580. In considering the totality of the circumstances surrounding whether consent was given voluntarily, the court considered: 1) whether the police used deception, trickery, or misrepresentation; 2) whether the police threatened or physically intimidated the defendant or punished the defendant by the deprivation of something like food or sleep; 3) whether the conditions attending the request to search were congenial, non-threatening, and cooperative or the opposite; 4) how the defendant responded to the request to search; 5) what characteristics the defendant had as to age, intelligence, education, physical and emotional condition, and prior experience with the police; and 6) whether the police informed the defendant that the defendant could refuse consent. State v. Artic, 2010 WI 83, 327 Wis. 2d 392, 786 N.W.2d 430, 08-0880. Threatening to obtain a search warrant does not vitiate consent if the expressed intention to obtain a warrant is genuine and not merely a pretext to induce submission. State v. Artic, 2010 WI 83, 327 Wis. 2d 392, 786 N.W.2d 430, 08-0880. Voluntary consent is less likely when the defendant answers the door to find officers with guns drawn. However, the fact that an officer has a weapon drawn at the beginning of an encounter does not prevent the situation from evolving into something non-threatening and relatively congenial. State v. Artic, 2010 WI 83, 327 Wis. 2d 392, 786 N.W.2d 430, 08-0880. A defendant’s consent to a search obtained following illegal police activity may be admissible. The court must consider the temporal proximity of the misconduct to the statements by the defendant, the presence of intervening circumstances, and the purpose and flagrancy of the misconduct. Circumstances may mitigate a short time span including congenial conditions. Meaningful intervening circumstances concerns whether the defendant acted of free will unaffected by the initial illegality. Purposefulness and flagrancy of the police conduct is particularly important because it goes to the heart of the exclusionary rule’s objective of deterring unlawful police conduct. State v. Artic, 2010 WI 83, 327 Wis. 2d 392, 786 N.W.2d 430, 08-0880. The rule regarding consent to search a shared dwelling in Randolph, 547 U.S. 103 (2006), which states that a warrantless search cannot be justified when a physically present resident expressly refuses consent, does not apply when a physically present resident is taken forcibly from the residence by law enforcement officers but remains in close physical proximity and refuses to consent after removal from the residence. When the defendant was nearby but not invited to take part in the threshold colloquy in which the defendant’s co-tenant granted permission to search, the defendant did not fall within the rule stated in Randolph such that the search should have been barred and the evidence gained from it suppressed. State v. St. Martin, 2011 WI 44, 334 Wis. 2d 290, 800 N.W.2d 858, 09-1209. Who may consent to the search of a home hinges not upon the law of property, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes. There is no rigid rule that a weekend guest may not grant consent to search. Whether an individual has the constitutional authority to invite law enforcement into the home of another is determined on a case-by-case basis. State v. Sobczak, 2013 WI 52, 347 Wis. 2d 724, 833 N.W.2d 59, 10-3034. Specific factors that weigh on whether an individual has the constitutional authority to invite law enforcement into the home of another include: 1) the relationship of the consenter to the defendant, not only in the familial sense, but also in terms of the social ties between the two; 2) the duration of the consenter’s stay in the premises; 3) a defendant’s decision to leave an individual in the defendant’s home alone; 4) various other miscellaneous facts that may illuminate the depth of an individual’s relationship to the premises, such as whether the individual has been given a key, keeps belongings in the home, or lists the residence as the individual’s address on a driver’s license. State v. Sobczak, 2013 WI 52, 347 Wis. 2d 724, 833 N.W.2d 59, 10-3034. See also State v. Torres, 2018 WI App 23, 381 Wis. 2d 268, 911 N.W.2d 388, 16-1398. To validate the search of an object within a home on consent, the government must satisfy the same requirements as apply to consent to enter, namely, that the consenter had joint access or control of the object for most purposes. State v. Sobczak, 2013 WI 52, 347 Wis. 2d 724, 833 N.W.2d 59, 10-3034. When consent to search a vehicle was given by the vehicle’s driver, a passenger did not effectively withdraw the driver’s consent to search a briefcase contained in the car when the passenger asked, “Got a warrant for that?” Police officers confronted with ambiguous statements, such as the passenger’s in this case, are not under a duty to ask follow-up questions to clarify the ambiguity. State v. Wantland, 2014 WI 58, 355 Wis. 2d 135, 848 N.W.2d 810, 11-3007. Involuntary consent is invalid, regardless of any prior illegality or attenuation therefrom. Attenuation analysis is not voluntariness analysis, and it is not meant to cure the involuntary waiver of rights. Rather, attenuation analysis examines whether voluntary consent is tainted by prior illegality. Attenuation analysis examines three factors to determine whether consent is sufficiently attenuated from illegal action to be removed from the taint of illegality: 1) the temporal proximity of the official misconduct and seizure of evidence; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the official misconduct. State v. Hogan, 2015 WI 76, 364 Wis. 2d 167, 868 N.W.2d 124, 13-0430. The attenuation test is the proper test to apply for analyzing voluntary consent to search a vehicle when that consent comes after the illegal extension of a traffic stop. Attenuation analysis may not be necessary in all cases; it is only appropriate when, as a threshold matter, courts determine that the challenged evidence is in some sense the product of illegal governmental activity. If the unlawful police conduct is not a “but-for” cause of the search, attenuation analysis is unnecessary because the consent is not tainted by the unlawful conduct in such a case. State v. Hogan, 2015 WI 76, 364 Wis. 2d 167, 868 N.W.2d 124, 13-0430. After a traffic stop has ended, police may interact with a driver as they would with any citizen on the street. If a person is not seized, police may request consent to search even absent reasonable suspicion. State v. Hogan, 2015 WI 76, 364 Wis. 2d 167, 868 N.W.2d 124, 13-0430. When after consenting to a blood draw, the defendant asked the officer if the officer needed to obtain a warrant to draw the defendant’s blood and the officer shook his head no in response, the officer’s response did not vitiate the voluntariness of the defendant’s consent. The officer did not need a warrant because the defendant already had consented, and the officer was not obligated to explain further than he did. State v. Brar, 2017 WI 73, 376 Wis. 2d 685, 898 N.W.2d 499, 15-1261. A third party may consent to a search of an individual’s property when the third party shares “common authority” over that property. The same common authority standard that applies in the search context also determines whether a third party can consent to a seizure. Whether common authority exists depends on whether the third party has joint access to or control over the individual’s property such that the individual has assumed the risk of the intrusion. In this case, the fact that the defendant had an affair, that he was living in the basement, and that his spouse planned to divorce him did not overcome the spouse’s common authority over their marital property when the spouses continued to cohabitate in the marital home and had joint access to one another’s living areas. State v. Abbott, 2020 WI App 25, 392 Wis. 2d 232, 944 N.W.2d 8, 19-0021. In this case, law enforcement exceeded the scope of consent to search a single user account on a shared computer when they began their forensic examination of a computer’s hard drive by examining the drive’s recycle bin container, which aggregated the deleted files of all the computer’s users, including the defendant’s. When a person limits the person’s consent to search a particular user account on an electronic device, a reasonable person would interpret that consent as being limited to only those files accessible from that account’s user interface. State v. Jereczek, 2021 WI App 30, 398 Wis. 2d 226, 961 N.W.2d 70, 19-0826. A court may not suppress otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before court. United States v. Payner, 447 U.S. 727, 100 S. Ct. 2439, 65 L. Ed. 2d 468 (1980). Defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own 4th amendment rights have in fact been violated. United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980). A warrantless entry to premises is permitted under the 4th amendment when entry is based upon third-party consent and officers reasonably believed the third party possessed authority to consent. Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). An officer’s opening of a closed bag found on the floor of a suspect’s car during a search of the car made with the suspect’s consent was not unreasonable. Florida v. Jimeno, 500 U.S. 248, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991). A defendant can urge suppression of evidence obtained in violation of constitutional protections only if that defendant’s rights were violated. United States v. Padilla, 508 U.S. 77, 113 S. Ct. 1936, 123 L. Ed. 2d 635 (1993). The 4th amendment does not require that a seized person must be advised that the person is free to go before the person’s consent to a search can be recognized as voluntary. Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996). A physically present inhabitant’s express refusal of consent to a police search is dispositive as to that inhabitant, regardless of the consent of a fellow occupant. If a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out. Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006). When a police officer makes a traffic stop, the driver of the car and its passengers are seized within the meaning of the 4th amendment and so may challenge the constitutionality of the stop. Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007). Consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search. However, a physically present inhabitant’s express refusal of consent to a police search of the inhabitant’s home is dispositive as to the inhabitant, regardless of the consent of a fellow occupant. An occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason. That the arrested occupant had made an objection to the search of the premises before the occupant’s removal did not change the sufficiency of a still present occupant’s subsequent consent. Fernandez v. California, 571 U.S. 292, 134 S. Ct. 1126, 188 L. Ed. 2d 25 (2014). As a matter of federal law, an appellant cannot assert an alleged violation of his wife’s 4th amendment rights as a basis for suppression, at his trial, of evidence taken from his wife. Mabra v. Gray, 518 F.2d 512 (1975). Zurcher: Third Party Searches and Freedom of the Press. Cantrell. 62 MLR 35 (1978).
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. Stevens: Consent by Deception in the Context of Garbage Searches. Thompson. 1987 WLR 191.
probable cause and warrants
Probable cause meeting constitutional requirements for issuance of the search warrant of the defendant’s premises was not established by testimony of a police officer that a youth found in possession of amphetamines informed the officer that a shipment of marijuana was being delivered to the defendant’s premises, when it was established that the officer had no previous dealings with the informant and could not personally attest to the informant’s reliability. The warrant was invalid. State ex rel. Furlong v. Waukesha County Court, 47 Wis. 2d 515, 177 N.W.2d 333 (1970). Probable cause for arrest without a warrant under the 4th amendment of the U.S. Constitution is applicable in this state. Tests for probable cause are discussed. A citizen informer is not subject to the requirement that the officer show prior reliability of the informant. State v. Paszek, 50 Wis. 2d 619, 184 N.W.2d 836 (1971). An affidavit reciting that a reliable informant had reported seeing a large quantity of heroin in the defendant’s apartment was sufficient to support a search warrant. State v. Mansfield, 55 Wis. 2d 274, 198 N.W.2d 634 (1972). Unauthorized out-of-court disclosures of private marital communications may not be used in a proceeding to obtain a search warrant. Muetze v. State, 73 Wis. 2d 117, 243 N.W.2d 393 (1976). A search warrant designating an entire farmhouse occupied by the accused and “other persons unknown” was not invalid despite the multiple occupancy. State v. Suits, 73 Wis. 2d 352, 243 N.W.2d 206 (1976). A warrant authorizing the search of the “entire first-floor premises” encompassed a balcony room that was part and parcel of the first floor. Rainey v. State, 74 Wis. 2d 189, 246 N.W.2d 529 (1976).
