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). A search warrant obtained on an affidavit containing misrepresentations by a police officer as to the reliability of an unnamed informant is invalid. When the search is conducted within a reasonable time following an arrest based on probable cause, the search will be sustained even though it was conducted in execution of an invalid warrant. Schmidt v. State, 77 Wis. 2d 370, 253 N.W.2d 204 (1977). Affidavits for search warrants need not be drafted with technical specificity nor demonstrate the quantum of probable cause required in a preliminary examination. The usual inferences that reasonable persons draw from evidence are permissible, and doubtful or marginal cases should be resolved by the preference to be accorded to warrants. State v. Starke, 81 Wis. 2d 399, 260 N.W.2d 739 (1978). Probable cause for arrest, standing alone, does not justify taking a blood sample for a blood test without first obtaining a search warrant. To be admissible, the blood test must have been required by the exigencies of the situation, and the sample must have been drawn in a reasonable manner. State v. Bentley, 92 Wis. 2d 860, 286 N.W.2d 153 (Ct. App. 1979). See also State v. Kennedy, 2014 WI 132, 359 Wis. 2d 454, 856 N.W.2d 834, 12-0523. A “no knock” warrant to search a drug dealer’s house was invalid because of a lack of specific information to indicate the evidence would be destroyed otherwise. State v. Cleveland, 118 Wis. 2d 615, 348 N.W.2d 512 (1984). At a Franks, 438 U.S. 154 (1978), hearing challenging the veracity of a statement supporting a search warrant, the defendant must prove that a falsehood was intentional or with reckless disregard for truth and that the false statement was necessary to finding probable cause. State v. Anderson, 138 Wis. 2d 451, 406 N.W.2d 398 (1987). Under the independent source doctrine, the court examines whether an agent would have sought a warrant had it not been for an illegal entry and if information obtained during the entry affected the decision to issue the warrant. State v. Lange, 158 Wis. 2d 609, 463 N.W.2d 390 (Ct. App. 1990). A status check of a driver’s license arising out of police exercise of the community care-taker function is not a stop and does not require reasonable suspicion of a crime. State v. Ellenbecker, 159 Wis. 2d 91, 464 N.W.2d 427 (Ct. App. 1990). Seizure of a package delivered to a third party for limited investigative detention requires reasonable suspicion, not probable cause. State v. Gordon, 159 Wis. 2d 335, 464 N.W.2d 91 (Ct. App. 1990). An evidentiary search of a person not named in a search warrant but present during the search of a residence reasonably suspected of being a drug house was reasonable. State v. Jeter, 160 Wis. 2d 333, 466 N.W.2d 211 (Ct. App. 1991). A probable cause determination in the face of a staleness challenge depends upon the nature of the underlying circumstances, whether the activity is of a protracted or continuous nature, the nature of the criminal activity under investigation, and the nature of what is being sought. State v. Ehnert, 160 Wis. 2d 464, 466 N.W.2d 237 (Ct. App. 1991). A warrant for the seizure of film authorized the seizure, removal, and development of the undeveloped film. State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d 676 (1991). Knowledge that a dealer operating an ongoing drug business was armed in the dealer’s residence satisfied the requirements for a “no knock” search warrant. A reasonable belief that the weapon will be used need not be shown. State v. Watkinson, 161 Wis. 2d 750, 468 N.W.2d 763 (Ct. App. 1991). See also State v. Williams, 168 Wis. 2d 970, 485 N.W.2d 42 (1992). A warrantless search of an apartment for evidence of occupancy when the police reasonably believed that the tenant had vacated and the occupants were not legitimately on the premises was not unreasonable. The defendant had no reasonable expectation of privacy in the apartment or in property kept there. State v. Whitrock, 161 Wis. 2d 960, 468 N.W.2d 696 (1991). An informant need not have a “track record” established with the police if the totality of the circumstances indicate probable cause for a search exists. State v. Hanson, 163 Wis. 2d 420, 471 N.W.2d 301 (Ct. App. 1991). If old information contributes to an inference that probable cause exists at the time of the application for a warrant, its age is no taint. State v. Moley, 171 Wis. 2d 207, 490 N.W.2d 764 (Ct. App. 1992). Police serving a warrant are not required to ring a doorbell before forcing entry. State v. Greene, 172 Wis. 2d 43, 492 N.W.2d 181 (Ct. App. 1992). Use of a ruse to gain entry in the execution of a warrant when “no-knock” was not authorized did not violate the announcement rule. Special authorization is not required for the use of a ruse. State v. Moss, 172 Wis. 2d 110, 492 N.W.2d 627 (1992). Failure to comply with the announcement rule was allowable when officers reasonably believed further announcement was futile. State v. Berry, 174 Wis. 2d 28, 496 N.W.2d 746 (Ct. App. 1993). Compliance with the announcement rule must be determined at the time of execution. While advance request for “no-knock” authority is preferable if police at the time of execution have grounds, failure to seek authorization is not fatal. State v. Kerr, 174 Wis. 2d 55, 496 N.W.2d 742 (Ct. App. 1993). The incorrect identification of a building’s address in the warrant did not render the resulting search unreasonable when the search made was of the building identified by the informant, which was otherwise correctly identified in the warrant. State v. Nicholson, 174 Wis. 2d 542, 497 N.W.2d 791 (Ct. App. 1993). A federal magistrate’s decision at a 4th amendment suppression hearing was not binding on a state trial court when the state was not a party nor in privity with a party to the federal action and the federal case did not review errors in the proceeding. State v. Mechtel, 176 Wis. 2d 87, 499 N.W.2d 662 (1993). An investigatory stop of an automobile based solely on the fact that the vehicle bore “license applied for” plates, and the reasonable inferences that could be drawn therefrom, was justified by reasonable suspicion. State v. Griffin, 183 Wis. 2d 327, 515 N.W.2d 535 (Ct. App. 1994). For a violation of the requirement that a warrant be issued by a neutral and detached magistrate, actual bias and not the appearance of bias must be shown. State v. McBride, 187 Wis. 2d 409, 523 N.W.2d 106 (Ct. App. 1994). An “anticipatory warrant,” issued before the necessary events have occurred that will allow a constitutional search, is subject to the same probable cause determination as a conventional search warrant. State v. Falbo, 190 Wis. 2d 328, 526 N.W.2d 814 (Ct. App. 1994). That a person was a passenger in a vehicle in which cocaine was found in the trunk was not of itself sufficient to establish probable cause to arrest the person for being a part of a conspiracy to possess or sell the cocaine. State v. Riddle, 192 Wis. 2d 470, 531 N.W.2d 408 (Ct. App. 1995). A search warrant authorizing the search of certain premises and “all occupants” was not unconstitutional when there was probable cause to believe that persons on the premises were engaged in illegal activities. State v. Hayes, 196 Wis. 2d 753, 540 N.W.2d 1 (Ct. App. 1995), 94-3040. A request to perform field sobriety tests does not convert an otherwise lawful investigatory stop into an arrest requiring probable cause. County of Dane v. Campshure, 204 Wis. 2d 27, 552 N.W.2d 876 (Ct. App. 1996), 96-0474. Probable cause is not required to justify a search conducted on school grounds by a police officer at the request of and in conjunction with school authorities. A lesser “reasonable grounds” standard applies. State v. Angelia D.B., 211 Wis. 2d 140, 564 N.W.2d 682 (1997), 95-3104. A suspect’s seeming reluctance to have the front of the suspect’s boxer shorts patted at or below the waist did not give rise to probable cause to search inside the shorts when no specific suspicion of a crime was focused on the suspect and no weapon or contraband had been plainly felt in a Terry, 392 U.S. 1 (1968), pat down search. State v. Ford, 211 Wis. 2d 741, 565 N.W.2d 286 (Ct. App. 1997), 96-2826. It is not necessary that a warrant explicitly state that delivery of the sought after contraband must take place before the search is initiated when the requirement is sufficiently implied. It is not necessary to describe in the affidavit in support of the warrant the exact role the police will play in delivering the contraband. State v. Ruiz, 213 Wis. 2d 200, 570 N.W.2d 556 (Ct. App. 1997), 96-1610. A no-knock search cannot be founded on generalized knowledge. Fruits of an invalid no-knock search must be suppressed. State v. Stevens, 213 Wis. 2d 324, 570 N.W.2d 593 (Ct. App. 1997), 97-0758. The showing required to sustain an unannounced entry parallels the reasonable suspicion standard for justifying investigative stops. The police must have reasonable suspicions based on specific articulable facts that announcing their presence will endanger safety or present an opportunity to destroy evidence. State v. Larson, 215 Wis. 2d 155, 572 N.W.2d 127 (Ct. App. 1997), 95-1940. There is no constitutional requirement that an anticipatory search warrant contain explicit conditional language limiting the execution of the warrant until after delivery of the contraband. State v. Meyer, 216 Wis. 2d 729, 576 N.W.2d 260 (1998), 96-2243. To dispense with the rule of announcement in executing a warrant, particular facts must be shown in each case that support an officer’s reasonable suspicion that exigent circumstances exist. An officer’s experience and training are valid relevant considerations. State v. Meyer, 216 Wis. 2d 729, 576 N.W.2d 260 (1998), 96-2243. Police are not prevented from ever using evidence gleaned from an illegal search in a subsequent and independent investigation. When the later investigation is not prompted by the information obtained in the earlier search, the information may be used. State v. Simmons, 220 Wis. 2d 775, 585 N.W.2d 165 (Ct. App. 1998), 97-1861. The odor of a controlled substance provides probable cause to arrest when the odor is unmistakable and may be linked to a specific person under the circumstances of the discovery of the odor. The odor of marijuana emanating from a vehicle established probable cause to arrest the sole occupant of the vehicle. State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999), 97-2476. See also State v. Moore, 2023 WI 50, 408 Wis. 2d 16, 991 N.W.2d 412, 21-0938. Police have authority under a valid search warrant to enter unoccupied premises if the search is otherwise reasonable under the circumstances. Knocking and announcing is not required. State v. Moslavac, 230 Wis. 2d 338, 602 N.W.2d 150 (Ct. App. 1999), 98-3037. “Probable cause to believe” does not refer to a uniform degree of proof, but instead varies in degree at different stages of the proceedings. County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999), 97-3512. The test for finding probable cause to issue a warrant is not whether the inference drawn from the supporting affidavit is the only reasonable inference. The test is whether the inference drawn is a reasonable one. State v. Ward, 2000 WI 3, 231 Wis. 2d 723, 604 N.W.2d 517, 97-2008. Marijuana plants discovered while officers, although mistaken, believed they were executing a valid search warrant of an adjacent apartment were properly admitted into evidence. Because the officers were required to cease all searching when they discovered that they were not operating within the scope of the warrant, incriminating statements and evidence obtained thereafter were properly suppressed. A warrant obtained for the second apartment based on the discovery of the marijuana plants was based on untainted evidence, and additional evidence obtained thereunder was admissible. State v. Herrmann, 2000 WI App 38, 233 Wis. 2d 135, 608 N.W.2d 406, 99-0325. Police with an arrest warrant are authorized to enter a home if they have probable cause to believe that the person named in the warrant lives there and is present but not to enter a third-party’s residence where the police believe the person to be a visitor. State v. Blanco, 2000 WI App 119, 237 Wis. 2d 395, 614 N.W.2d 512, 98-3153. In searching a computer for items listed in a warrant, the police are entitled to examine all files to determine if their contents fall within the scope of the warrant. The first file containing evidence of other illegal activity is admissible under the plain view doctrine and is grounds for a warrant to search for more evidence of the second illegal activity. State v. Schroeder, 2000 WI App 128, 237 Wis. 2d 575, 613 N.W.2d 911, 99-1292. The constitutional validity of an unannounced entry in serving a warrant turns on whether the evidence introduced at the suppression hearing, including the facts known to the police but not included in the warrant application, was sufficient to establish a reasonable suspicion that knocking and announcing, under the circumstances, would be dangerous or futile or would inhibit the effective investigation of the crime. State v. Henderson, 2001 WI 97, 245 Wis. 2d 345, 629 N.W.2d 613, 99-2296. A good faith exception to the exclusionary rule is adopted for when police officers act in objectively reasonable reliance upon a warrant that had been issued by a detached and neutral magistrate. For the exception to apply, the state must show that the process used in obtaining the search warrant included a significant investigation and a review by either a police officer trained and knowledgeable in the requirements of probable cause and reasonable suspicion or a knowledgeable government attorney. State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625, 98-2595. Whether tenants have a reasonable expectation of privacy in stairways and halls of rental property is to be determined by assessing each case on its individual facts and depends on whether the person has exhibited an actual subjective expectation of privacy in the area inspected and whether society is willing to recognize the expectation as reasonable. State v. Trecroci, 2001 WI App 126, 246 Wis. 2d 261, 630 N.W.2d 555, 00-1079. The timeliness of seeking a warrant depends upon the nature of the underlying circumstances and concepts. When the activity is of a protracted and continuous nature, the passage of time diminishes in significance. Factors like the nature of the criminal activity under investigation and the nature of what is being sought have a bearing on where the line between stale and fresh information should be drawn in a particular case. State v. Multaler, 2001 WI App 149, 246 Wis. 2d 752, 632 N.W.2d 89, 00-1846. Warrants for administrative or regulatory searches modify the conventional understanding of probable cause 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. There is a presumption that a warrantless search of a private residence is per se unreasonable. A warrantless search requires probable cause, not reasonable suspicion. Although flight from an officer may constitute reasonable suspicion, it does not rise to probable cause. For probable cause, there must be a fair probability that contraband or evidence will be found in a particular place. State v. Rodriguez, 2001 WI App 206, 247 Wis. 2d 734, 634 N.W.2d 844, 00-2546. The absence of an oath or affirmation supporting the issuance of a warrant is not a mere technicality or matter of formality. Absence of an oath subjects evidence seized under the defective warrant to suppression. State v. Tye, 2001 WI 124, 248 Wis. 2d 530, 636 N.W.2d 473, 99-3331. If a telephone warrant application has not been recorded and there is no evidence of intentional or reckless misconduct on the part of law enforcement officers, a reconstructed application may serve as an equivalent of the record of the original application and can protect the defendant’s right to a meaningful appeal and ability to challenge the admission of evidence. Courts should consider the time between the application and the reconstruction, the length of the reconstructed segment in relation to the entire warrant request, if there were any contemporaneous written documents used to reconstruct the record, the availability of witnesses used to reconstruct the record, and the complexity of the segment reconstructed. The issuing judge’s participation may be appropriate. State v. Raflik, 2001 WI 129, 248 Wis. 2d 593, 636 N.W.2d 690, 00-1086. Probable cause to arrest may be based on hearsay that is shown to be reliable and emanating from a credible source. Thus information from a confidential informant may supply probable cause if the police know the informant to be reliable. State v. McAttee, 2001 WI App 262, 248 Wis. 2d 865, 637 N.W.2d 774, 00-2803. An affidavit in support of a search warrant is not a research paper or legal brief that demands citations for every proposition. An investigator’s detailed listing of the investigator’s sources of information and accompanying credentials, combined with the investigator’s indication that his opinion was based upon his training and research provided a sufficient foundation for the opinion the investigator gave in support of the warrant. State v. Multaler, 2002 WI 35, 252 Wis. 2d 54, 643 N.W.2d 437, 00-1846. Under Ellenbecker, 159 Wis. 2d 91 (1990), it was reasonable for an officer, who stopped a motorist whose vehicle and general appearance matched that of a criminal suspect, to make a report of the incident, even if the officer had already decided that the driver was not the suspect, and for that purpose it was reasonable to ask for the motorist’s name and identification. Once the motorist stated that the motorist had no identification, there was a reasonable ground for further detention. State v. Williams, 2002 WI App 306, 258 Wis. 2d 395, 655 N.W.2d 462, 02-0384.
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wisconsinconstitution
/constitution/wi/000229/000026/000007
section
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