The search of a crawl space in a ceiling, which was located in an area where police had heard much activity, was large enough to hide a person, and was secured by screws that had to be removed with a screwdriver, was a reasonable “protective sweep” to search for persons who would pose a threat to the police as they executed an arrest warrant for a murder suspect. State v. Blanco, 2000 WI App 119, 237 Wis. 2d 395, 614 N.W.2d 512, 98-3153. A police officer performing a Terry, 392 U.S. 1 (1968), stop and requesting identification could perform a limited search for identifying papers when the information received by the officer was not confirmed by police records, the intrusion on the suspect was minimal, the officer observed that the suspect’s pockets were bulging, and the officer had experience with persons who claimed to have no identification when in fact they did. State v. Black, 2000 WI App 175, 238 Wis. 2d 203, 617 N.W.2d 210, 99-1686. A warrantless blood draw is permissible when: 1) the blood is taken to obtain evidence of intoxication from a person lawfully arrested; 2) there is a clear indication evidence of intoxication will be produced; 3) the method used is reasonable and performed in a reasonable manner; and 4) the arrestee presents no reasonable objection. State v. Thorstad, 2000 WI App 199, 238 Wis. 2d 666, 618 N.W.2d 240, 99-1765. But see Birchfield v. North Dakota, 579 U.S. 438, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016). That a driver stopped at a stop sign for a few seconds longer than normal, that it was late in the evening, and that there was little traffic did not give rise to a reasonable suspicion that the driver was committing an unlawful act. State v. Fields, 2000 WI App 218, 239 Wis. 2d 38, 619 N.W.2d 279, 00-0694. A warrantless entry need not be subjectively motivated solely by a perceived need to render aid and assistance in order for the “emergency doctrine” to apply. A dual motivation of investigating a potential crime and rendering aid and assistance may be present. State v. Rome, 2000 WI App 243, 239 Wis. 2d 491, 620 N.W.2d 225, 00-0796. Whether a search is a probation search, which may be conducted without a warrant, or a police search, which may not, is a question of constitutional fact to be reviewed in a two-step review of historical and constitutional fact. A determination of reasonableness of the search must also be made. A search is reasonable if the probation officer has reasonable grounds to believe that the probationer has contraband. Cooperation with police officers does not change a probation search into a police search. State v. Hajicek, 2001 WI 3, 240 Wis. 2d 349, 620 N.W.2d 781, 98-3485. 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. Before the government may invade the sanctity of the home, it must demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. Reluctance to find an exigency is especially appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. State v. Kryzaniak, 2001 WI App 44, 241 Wis. 2d 358, 624 N.W.2d 389, 00-1149. Under J.L, 529 U.S. 266 (2000), an anonymous tip giving rise to reasonable suspicion must bear indicia of reliability. That the tipster’s anonymity is placed at risk indicates that the informant is genuinely concerned and not a fallacious prankster. Corroborated aspects of the tip also lend credibility. The corroborated actions of the suspect must be inherently criminal in and of themselves. State v. Williams, 2001 WI 21, 241 Wis. 2d 631, 623 N.W.2d 106, 96-1821. An anonymous tip regarding erratic driving from another driver calling from a cell phone contained sufficient indicia of reliability to justify an investigative stop when the informant was exposed to possible identification, and therefore possible arrest if the tip proved false; the tip reported contemporaneous and verifiable observations regarding the driving, location, and vehicle; and the officer verified many of the details in the tip. That the tip reasonably suggested intoxicated driving created an exigency strongly in favor of immediate police investigation without the necessity that the officer personally observe erratic driving. State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516, 98-3541. When a caller identifies himself or herself by name, placing the caller’s anonymity at risk, and the totality of the circumstances establishes a reasonable suspicion that criminal activity may be afoot, the police may execute a lawful investigative stop. Whether the caller gave correct identifying information or the police ultimately could have verified the information, the caller, by providing the information, risked that the caller’s identity would be discovered and cannot be considered anonymous. State v. Sisk, 2001 WI App 182, 247 Wis. 2d 443, 634 N.W.2d 877, 00-2614. The state constitution does not provide greater protection under the automobile exception for warrantless searches than the 4th amendment. The warrantless search of a vehicle is allowed when there is probable cause to search the vehicle and the vehicle is mobile. The exception apples to vehicles that are not in public places. There is no requirement that obtaining a warrant be impracticable. State v. Marquardt, 2001 WI App 219, 247 Wis. 2d 765, 635 N.W.2d 188, 01-0065. Whether exigent circumstances existed justifying a warrantless entry to prevent destruction of evidence after the defendant saw, and retreated from, a plain-clothes officer was not a question of whether the defendant knew that the detective was a police officer, but whether it was reasonable for the officer to believe that the officer had been identified and that the suspect would destroy evidence as a consequence. State v. Garrett, 2001 WI App 240, 248 Wis. 2d 61, 635 N.W.2d 615, 00-3183. For the warrantless search of an area made incident to the making of an arrest to be justified as a protective sweep to protect the safety of police officers where the area searched is not in the immediate vicinity of where the arrest is made, there must be articulable facts that would warrant a reasonably prudent officer to believe that the area harbors an individual posing a danger to the officers. State v. Garrett, 2001 WI App 240, 248 Wis. 2d 61, 635 N.W.2d 615, 00-3183. The need to transport a person in a police vehicle is not an exigency that justifies a search for weapons. More specific and articulable facts must be shown to support a Terry, 392 U.S. 1 (1968), frisk. While a routine pat-down of a person before a police officer places the person in a squad car is wholly reasonable, evidence gleaned from the search will only be admissible if there are particularized issues of safety concerns about the defendant. State v. Hart, 2001 WI App 283, 249 Wis. 2d 329, 639 N.W.2d 213, 00-1444. Although no traffic violation occurred, a traffic stop to make contact with the defendant was reasonable when police had reasonable suspicion that the defendant had previously been involved in a crime, and the defendant had intentionally avoided police attempts to engage the defendant in voluntary conversation. State v. Olson, 2001 WI App 284, 249 Wis. 2d 391, 639 N.W.2d 207, 00-3383. A warrantless blood draw by a physician in a jail setting may be unreasonable if it invites an unjustified element of personal risk of pain and infection. Absent evidence of those risks, a blood draw under those circumstances was reasonable. State v. Daggett, 2002 WI App 32, 250 Wis. 2d 112, 640 N.W.2d 546, 01-1417. Terry, 392 U.S. 1 (1968), applies to confrontations between the police and citizens in public places only. For private residences and hotels, in the absence of a warrant, the police must have probable cause and exigent circumstances or consent to justify an entry. Reasonable suspicion is not a prerequisite to an officer’s seeking consent to enter a private dwelling. If the police have lawfully entered a dwelling with valid consent and have a reasonable suspicion that a suspect is armed, a Terry pat down for weapons is permissible. State v. Stout, 2002 WI App 41, 250 Wis. 2d 768, 641 N.W.2d 474, 01-0904. A warrantless search of a home is presumptively unreasonable, but exigent circumstances that militate against delay in getting a warrant can justify immediate entry and search. Whether the officers acted reasonably in entering the house without a warrant is measured against what a reasonable police officer would reasonably believe under the circumstances. State v. Londo, 2002 WI App 90, 252 Wis. 2d 731, 643 N.W.2d 869, 01-1015. Canine sniffs are not searches within the meaning of the 4th amendment, and police are not required to have probable cause or reasonable suspicion before walking a dog around a vehicle for the purpose of detecting drugs in the vehicle’s interior. A dog’s alert on an object provides probable cause to search that object, provided that the dog is trained in narcotics detection and has demonstrated a sufficient level of reliability in detecting drugs in the past and the officer with the dog is familiar with how it reacts when it smells contraband. State v. Miller, 2002 WI App 150, 256 Wis. 2d 80, 647 N.W.2d 348, 01-1993. But see State v. Campbell, 2024 WI App 17, 411 Wis. 2d 439, 5 N.W.3d 870, 20-1813. Evidence from a warrantless nonconsensual blood draw is admissible when: 1) the blood is drawn to obtain evidence of intoxication from a person lawfully arrested for drunk-driving; 2) there is a clear indication that the blood draw will produce evidence of intoxication; 3) the method used to take the blood sample is reasonable and is performed reasonably; and 4) the arrestee presents no reasonable objection to the blood draw. In the absence of an arrest, probable cause to believe blood currently contains evidence of a drunk-driving-related violation satisfies the first and second prongs. State v. Erickson, 2003 WI App 43, 260 Wis. 2d 279, 659 N.W.2d 407, 01-3367. But see Birchfield v. North Dakota, 579 U.S. 438, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016). When an unlocked vehicle was not: 1) involved in an accident; 2) interrupting the flow of traffic; 3) disabled or damaged; 4) violating parking ordinances; or 5) in any way jeopardizing the public safety or the efficient movement of vehicular traffic, it was unreasonable to impound and tow the vehicle to ensure that the vehicle and any property inside it would not be stolen when there were reasonable alternatives to protect the vehicle. Evidence seized in an “inventory search” of the vehicle was inadmissible. State v. Clark, 2003 WI App 121, 265 Wis. 2d 557, 666 N.W.2d 112, 02-2195. Before the government may invade the sanctity of the home without a warrant, the government must demonstrate not only probable cause but also exigent circumstances that overcome the presumption of unreasonableness. When a police officer placed the officer’s foot in a doorway to prevent the defendant from closing the door, the act constituted an entry into the home. A warrantless home arrest cannot be upheld simply because evidence of the suspect’s blood alcohol level might have dissipated while the police obtained a warrant. State v. Larson, 2003 WI App 150, 266 Wis. 2d 236, 668 N.W.2d 338, 02-2881. To perform a protective search for weapons, an officer must have reasonable suspicion that an individual may be armed and dangerous. A court may consider an officer’s belief that the officer’s or another’s safety is threatened in finding reasonable suspicion, but such a belief is not a prerequisite to a valid search. There is no per se rule justifying a search any time an individual places the individual’s hands in the individual’s pockets contrary to police orders. The individual’s hand movements must be considered under the totality of the circumstances of the case. State v. Kyles, 2004 WI 15, 269 Wis. 2d 1, 675 N.W.2d 449, 02-1540. The propriety of a warrantless search of a person’s garbage outside the person’s home comes under a two-part test: 1) whether the person by the person’s conduct has exhibited an actual, subjective expectation of privacy; and 2) whether that expectation is justifiable in that it is one that society will recognize as reasonable. Consideration of curtilage or open fields appropriately falls within an expectation-of-privacy analysis and is not a separate factor. In this case, the defendant did not have a reasonable expectation of privacy in garbage placed in a dumpster not set out for collection located down a private driveway marked “Private Property.” State v. Sigarroa, 2004 WI App 16, 269 Wis. 2d 234, 674 N.W.2d 894, 03-0703. When the police are lawfully on the suspect’s premises by virtue of a valid search warrant, they may make a warrantless arrest of the suspect prior to the search if the arrest is supported by probable cause. State v. Cash, 2004 WI App 63, 271 Wis. 2d 451, 677 N.W.2d 709, 03-1614. A law enforcement officer acted reasonably when during a routine traffic stop the officer requested the passengers, as well as the driver, to exit the vehicle and individually asked them questions outside the scope of the initial traffic stop after the officer had become aware of specific and articulable facts giving rise to the reasonable suspicion that a crime had been, was being, or was about to be committed. State v. Malone, 2004 WI 108, 274 Wis. 2d 540, 683 N.W.2d 1, 02-2216. Whether a warrantless home entry is justified based on the need to render assistance or prevent harm is judged by an objective test of whether a police officer under the circumstances known to the officer at the time of entry reasonably believes that delay in procuring a warrant would gravely endanger life. In addition to the circumstances known to the police at the time of entry, a court may consider the subjective beliefs of police officers involved, but only insofar as such evidence assists the court in determining objective reasonableness. State v. Leutenegger, 2004 WI App 127, 275 Wis. 2d 512, 685 N.W.2d 536, 03-0133. Although a known citizen informer did not observe the defendant drive the defendant’s truck in a manner consistent with someone who was under the influence of an intoxicant, the tip was reliable when it was based on the informer’s first-hand observation that the defendant was drunk and was independently verified by the arresting officer. State v. Powers, 2004 WI App 143, 275 Wis. 2d 456, 685 N.W.2d 869, 03-2450. The anonymous caller in this case provided predictive information that, if true, demonstrated a special familiarity with the defendant’s affairs that the general public would have had no way of knowing. When the officer verified this predictive information, it was reasonable for the officer to believe that a person with access to such information also had access to reliable information about the defendant’s illegal activities providing reasonable suspicion to stop the defendant’s vehicle. State v. Sherry, 2004 WI App 207, 277 Wis. 2d 194, 690 N.W.2d 435, 03-1531. Under Hodari D., 499 U.S. 621 (1991), a person who did not submit to an officer’s show of police authority was not seized within the meaning of the 4th amendment. Until a submission occurs, Hodari D. holds that a person is not seized for purposes of the 4th amendment, and therefore the person may not assert a 4th amendment violation that evidence resulting from the encounter with the police is the fruit of an illegal seizure. State v. Young, 2004 WI App 227, 277 Wis. 2d 715, 690 N.W.2d 866, 03-2968. Blood may be drawn in a search incident to an arrest for a non-drunk-driving offense if the police reasonably suspect that the defendant’s blood contains evidence of a crime. State v. Repenshek, 2004 WI App 229, 277 Wis. 2d 780, 691 N.W.2d 780, 03-3089. But see Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013); Birchfield v. North Dakota, 579 U.S. 438, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016). An arrest immediately following a search, along with the probable cause to arrest before the search, causes the search to be lawful. A search was not unlawful because the crime arrested for immediately after the search was different than the crime for which the officer had probable cause to arrest before the search. As long as there was probable cause to arrest before the search, no additional protection from government intrusion is afforded by requiring that persons be arrested for and charged with the same crime as that for which probable cause initially existed. Whether the officer subjectively intended to arrest for the first crime is not the relevant inquiry. The relevant inquiry is whether the officer was aware of sufficient objective facts to establish probable cause to arrest before the search was conducted and whether an actual arrest was made contemporaneously with the search. State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695 N.W.2d 277, 03-1234. Under Terry, 392 U.S. 1 (1968), an officer is entitled not just to a patdown but to an effective patdown in which the officer can reasonably ascertain whether the subject has a weapon; when an effective patdown is not possible, the officer may take other action reasonably necessary to discover a weapon. When an officer could not tell whether a suspect had any objects hidden in the suspect’s waistband because of the suspect’s bulky frame and heavy clothing, it was reasonable for the officer to shake the suspect’s waistband by the belt loops in order to loosen any possible weapons. State v. Triplett, 2005 WI App 255, 288 Wis. 2d 515, 707 N.W.2d 881, 04-2032. The 4th amendment neither forbids nor permits all bodily intrusions. The 4th amendment’s function is to constrain against intrusions that are not justified in the circumstances or are made in an improper manner. Whether the warrantless administration of laxatives done to assist the police in recovering suspected swallowed heroin was a reasonable search required evaluating three factors: 1) the extent to which the procedure may threaten the safety or health of the individual; 2) the extent of the intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity; and 3) the community’s interest in fairly and accurately determining guilt or innocence. State v. Payano-Roman, 2006 WI 47, 290 Wis. 2d 380, 714 N.W.2d 548, 04-1029. Deciding when a seizure occurs is important because the moment of a seizure limits what facts a court may consider in determining the existence of reasonable suspicion for that seizure. The Mendenhall, 446 U.S. 544 (1980), test applies when the subject of police attention is either subdued by force or submits to a show of authority. When, however, a person flees in response to a show of authority, Hodari D., 499 U.S. 621 (1991), governs when the seizure occurs. The Hodari D. test does not supersede the Mendenhall test; it supplements it. State v. Young, 2006 WI 98, 294 Wis. 2d 1, 717 N.W.2d 729, 03-2968. An anonymous tip, whose indicia of reliability was debatable, along with behavior observed by the officer at the scene and deemed suspicious provided reasonable suspicion to justify a Terry, 392 U.S. 1 (1968), stop. Terry holds that the police are not required to rule out the possibility of innocent behavior before initiating a Terry stop. Suspicious conduct by its very nature is ambiguous, and the principle function of the investigative stop is to quickly resolve that ambiguity. State v. Patton, 2006 WI App 235, 297 Wis. 2d 415, 724 N.W.2d 347, 05-3084. There is a difference between police informers, who usually themselves are criminals, and citizen informers that calls for different means of assessing credibility. A citizen informant’s reliability is subject to a much less stringent standard. Citizens who purport to have witnessed a crime are viewed as reliable, and police are allowed to act accordingly although other indicia of reliability have not yet been established. That an informant does not give some indication of how the informant knows about the suspicious or criminal activity reported bears significantly on the reliability of the information. State v. Kolk, 2006 WI App 261, 298 Wis. 2d 99, 726 N.W.2d 337, 06-0031. To have a 4th amendment claim, an individual must have standing. Standing exists when an individual has a reasonable expectation of privacy, which requires meeting a two-prong test: 1) whether the individual’s conduct exhibits an actual, subjective, expectation of privacy in the area searched and the item seized; and 2) if the individual has the requisite expectation of privacy, whether the expectation of privacy is legitimate or justifiable. State v. Bruski, 2007 WI 25, 299 Wis. 2d 177, 727 N.W.2d 503, 05-1516. In considering whether an individual’s expectation of privacy is legitimate or justifiable, the following may be relevant: 1) whether the accused has a property interest in the premises; 2) whether the accused is lawfully on the premises; 3) whether the accused has complete dominion and control and the right to exclude others; 4) whether the accused takes precautions customarily taken by those seeking privacy; 5) whether the property is put to some private use; and 6) whether the claim of privacy is consistent with historical notions of privacy. State v. Bruski, 2007 WI 25, 299 Wis. 2d 177, 727 N.W.2d 503, 05-1516. Whether an individual may have a reasonable expectation of privacy in personal property found inside a vehicle that the individual does not have a reasonable expectation of privacy in is not governed by a bright-line rule. Principles pertinent to whether there is a reasonable expectation of privacy are that: 1) personal property found in vehicles is treated differently than personal property found in dwellings, there being a lesser expectation of privacy in vehicles; 2) neither ownership nor possession of an item alone establishes a reasonable expectation of privacy; and 3) an individual’s expectation of privacy in the space, rather than concepts of property law, is critical. State v. Bruski, 2007 WI 25, 299 Wis. 2d 177, 727 N.W.2d 503, 05-1516. When the defendant was only suspected of driving a vehicle with a suspended registration for an emissions violation and failing to signal for a turn, violations in no way linked to criminal activity or weapons possession, and when the only purported basis for a protective search was a single, partially obscured movement of the defendant in the vehicle that the officers observed from their squad car, the behavior observed by the officers was not sufficient to justify a protective search of the defendant’s person and car. State v. Johnson, 2007 WI 32, 299 Wis. 2d 675, 729 N.W.2d 182, 05-0573. Weaving within a single traffic lane does not alone give rise to the reasonable suspicion necessary to conduct an investigative stop of a vehicle. The reasonableness of a stop must be determined based on the totality of the facts and circumstances. State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, 05-2778. A private party’s discovery, and subsequent disclosure to law enforcement, of contraband is not prohibited by the 4th amendment when there is no reasonable expectation of privacy in dealings with the private party. One does not generally have a reasonable expectation of privacy when delivering property to a private shipping company, particularly when the shipping company posts a sign reserving its right to inspect parcels left with it for shipping. State v. Sloan, 2007 WI App 146, 303 Wis. 2d 438, 736 N.W.2d 189, 06-1271. An employee of a private company is not acting on behalf of the government and is free to disclose a package and material to law enforcement. Law enforcement, without a warrant, can properly replicate the search the employee has already conducted. By otherwise replicating the private-party search, police did not exceed the scope of the private search by conducting a field test for drugs. State v. Sloan, 2007 WI App 146, 303 Wis. 2d 438, 736 N.W.2d 189, 06-1271. The emergency doctrine permits officers investigating a kidnapping case to conduct a warrantless search if the officers possess an objectively reasonable belief that the particular search will result in finding the victim or evidence leading to the victim’s location. Police need not delay rescue when they reasonably believe that a kidnap victim is being held and a search of the premises will lead to the victim or to information about the victim’s whereabouts; time is of the essence. State v. Larsen, 2007 WI App 147, 302 Wis. 2d 718, 736 N.W.2d 211, 06-1396. One common factor in some cases in which courts have concluded that the officers did not have a justifiable basis for conducting a protective sweep has been that the protective search takes place after the traffic investigation has been completed. A protective sweep was justified when there were specific facts that demonstrated that the officers’ primary concern was indeed weapons and safety and the protective search was the first thing the officers did and was not an afterthought. State v. Alexander, 2008 WI App 9, 307 Wis. 2d 323, 744 N.W.2d 909, 07-0403. The fact that an officer told the defendant that the defendant was under arrest did not necessarily establish an arrest when immediately after making that statement the officer told the defendant that the defendant would be issued a citation and then would be free to go. Although the statements are contradictory, the assurance that the defendant would be issued a citation and released would lead a reasonable person to believe the person was not in custody. Under those circumstances, a search of the defendant was not incident to a lawful arrest and, as such, unlawful. State v. Marten-Hoye, 2008 WI App 19, 307 Wis. 2d 671, 746 N.W.2d 498, 06-1104. Because of the limited intrusion resulting from a dog sniff for narcotics and the personal interests that this section were meant to protect, a dog sniff around the outside perimeter of a vehicle located in a public place is not a search under the Wisconsin Constitution. The 78 seconds during which the dog sniff occurred were not an unreasonable incremental intrusion upon the defendant’s liberty. State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748, 06-0974. The “search incident to arrest” exception to the 4th amendment warrant requirement holds that a lawful arrest creates a situation justifying a contemporaneous, warrantless search of the arrestee’s person and the area within the arrestee’s immediate control. It is reasonable to search an area near the arrestee but not an area so broad as to be unrelated to the protective purposes of the search. Although a bedroom might be considered within the defendant’s immediate presence or control, the search of a bedroom was not a search incident to arrest after the defendant had been removed from the home as the defendant could not have gained possession of a weapon or destructible evidence. State v. Sanders, 2008 WI 85, 311 Wis. 2d 257, 752 N.W.2d 713, 06-2060. The potential availability of an innocent explanation does not prohibit an investigative stop. If any reasonable inference of wrongful conduct can be objectively discerned, notwithstanding the existence of innocent inferences that could be drawn, officers have the right to temporarily detain an individual for the purpose of inquiry. State v. Limon, 2008 WI App 77, 312 Wis. 2d 174, 751 N.W.2d 877, 07-1578. Although Terry, 392 U.S. 1 (1968), provides only for an officer to conduct a carefully limited search of the outer clothing in an attempt to discover weapons that might be used to assault the officer, under the circumstances of this case, the search was properly broadened to encompass the opening of the defendant’s purse, which was essentially an extension of the defendant’s person when the purse was accessible by the defendant. State v. Limon, 2008 WI App 77, 312 Wis. 2d 174, 751 N.W.2d 877, 07-1578. Reasonable suspicion was not obviated by the fact that 15 minutes passed between the time of a stop and a protective search when the defendant was kept under continuous surveillance. The passage of time can be a factor in the totality of the circumstances, but it is not likely to be a determinative factor in establishing or eliminating reasonable suspicion for a frisk. State v. Sumner, 2008 WI 94, 312 Wis. 2d 292, 752 N.W.2d 783, 06-0102. The standing of a guest to challenge a search is measured by the guest’s relationship to the property and the host. When a person claims guest status, the analysis examines the evidence in light of: 1) whether the guest’s use of the premises is for a purely commercial purpose; 2) the duration of the guest’s stay; and 3) the nature of the guest’s relationship to the host. The defendant did not have standing when there was little evidence of the duration or closeness of the defendant’s friendship with the property owner, the defendant did not have a long-term relationship to the place and was not an overnight guest, and at the time of the search, used it largely for a commercial purpose. State v. Fox, 2008 WI App 136, 314 Wis. 2d 84, 758 N.W.2d 790, 07-0685. The defendant did not have standing to assert a 4th amendment violation based on an officer unlocking the door of the public restroom the defendant occupied. The defendant’s expectation of privacy was not reasonable when, while the defendant’s initial use of the restroom was for its intended purpose, the defendant continued to have the private use of the locked restroom for at least 25 minutes without responding to knocking and while dozing off. State v. Neitzel, 2008 WI App 143, 314 Wis. 2d 209, 758 N.W.2d 159, 07-2346. Based on the reasoning in Pallone, 2000 WI 77, and under the facts of this case, the police could search the personal belongings of a passenger that were found outside a motor vehicle incident to the arrest of the driver. State v. Denk, 2008 WI 130, 315 Wis. 2d 5, 758 N.W.2d 775, 06-1744. An entry into a home was illegal when police, after seizing contraband from the defendant and seeing others on cell phones, acted on a hunch that someone would destroy evidence at the defendant’s residence and entered the residence without a warrant upon the silence of the defendant’s elderly mother and made a protective sweep without seizing any contraband. However, the illegality was attenuated by knowledge that contraband was seized after two hours had passed from the entry, no search for contraband took place during the entry, and the eventual search of the residence was pursuant to a valid search warrant. State v. Rogers, 2008 WI App 176, 315 Wis. 2d 60, 762 N.W.2d 795, 07-1850. Government involvement in a search is not measured by the primary occupation of the actor, but by the capacity in which the actor acts at the time in question. An off-duty officer acting in a private capacity in making a search does not implicate the 4th amendment. When an officer opened mail that contained evidence of criminal activity that was incorrectly addressed to a person other than the officer at the officer’s home address, the officer’s action was that of a private citizen. State v. Cole, 2008 WI App 178, 315 Wis. 2d 75, 762 N.W.2d 711, 07-2472. See also State v. Berggren, 2009 WI App 82, 320 Wis. 2d 209, 769 N.W.2d 110, 08-0786. In a community caretaker context, when under the totality of the circumstances an objectively reasonable basis for the community caretaker function is shown, that determination is not negated by the officer’s subjective law enforcement concerns. An officer may have law enforcement concerns even when the officer has an objectively reasonable basis for performing a community caretaker function. State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598, 07-1834. See also State v. Gracia, 2013 WI 15, 345 Wis. 2d 488, 826 N.W.2d 87, 11-0813; State v. Maddix, 2013 WI App 64, 348 Wis. 2d 179, 831 N.W.2d 778, 12-1632. A three-step test is used to evaluate the reasonableness of a seizure made under the community caretaker exception: 1) that a seizure within the meaning of the 4th amendment has occurred; 2) whether the police conduct was bona fide community caretaker activity; and 3) whether the public need and interest outweighed the intrusion upon the privacy of the individual. A bona fide community caretaker activity is one that is divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598, 07-1834. Even if no probable cause exists, a police officer may conduct a traffic stop when, under the totality of the circumstances, the officer has grounds to reasonably suspect that a crime or traffic violation has been or will be committed. The officer must be able to point to specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant the intrusion of the stop. The crucial question is whether the facts would warrant a reasonable police officer, in light of the officer’s training and experience, to suspect that the individual has committed, was committing, or is about to commit a crime. While any one fact, standing alone, might well be insufficient for reasonable suspicion, as facts accumulate, reasonable inferences about the cumulative effect can be drawn. State v. Popke, 2009 WI 37, 317 Wis. 2d 118, 765 N.W.2d 569, 08-0446. A security guard’s seizure, detention, and search of the defendant was not a government action that permitted the invocation of the exclusionary rule because, unless state action is involved, a defendant detained by another citizen has no right to suppress the fruits of the citizen’s search. Although a citizen may detain another citizen for a misdemeanor committed in the citizen’s presence and amounting to a breach of the peace, the court left for another day whether a citizen is privileged to detain another whom the citizen sees breaching the peace by doing something that is not a crime, but an offense subject to a forfeiture. State v. Butler, 2009 WI App 52, 317 Wis. 2d 515, 768 N.W.2d 46, 08-1178. The extent to which law enforcement is permitted to rely on exigent circumstances for a warrantless entry of a home has a relationship to the seriousness of the offense. When the underlying offense for which there is probable cause to arrest is relatively minor, courts should be very hesitant to find exigent circumstances. In determining the extent to which the underlying offense may support a finding of exigency, the critical factor is the penalty that may attach. Courts, in evaluating whether a warrantless entry is justified by exigent circumstances, should consider whether the underlying offense is a jailable or nonjailable offense, rather than whether the legislature has labeled that offense a felony or a misdemeanor. State v. Ferguson, 2009 WI 50, 317 Wis. 2d 586, 767 N.W.2d 187, 07-2095. During a traffic stop, a police officer may make inquiries to obtain information confirming or dispelling the officer’s suspicions concerning weapons or other dangerous articles. The response that a person provides to an officer’s inquiry, including the absence of or refusal to provide a response, may provide information that is relevant to whether a protective search is reasonable and is therefore a factor to be considered alongside other factors that together comprise the totality of the circumstances. In this case, failure to provide an explanation effectively transformed what the defendant maintained was an innocent movement into a specific, articulable fact supporting a reasonable suspicion that the defendant posed a threat to the officers’ safety. State v. Bridges, 2009 WI App 66, 319 Wis. 2d 217, 767 N.W.2d 593, 08-1207. The holding of Angelia D.B., 211 Wis. 2d 140 (1997), that searches on school grounds must be supported by reasonable suspicion extends to searches in school parking lots. A school search is legal when it satisfies a two-prong test: 1) the search must be justified at its inception; and 2) reasonably related in scope to the circumstances that justified the interference in the first place. A school official has the responsibility to keep students safe on school grounds. The search in this case was justified at its inception because school officials were put on alert that the defendant was in possession of drugs that day, and school officials must act on such a tip. When searches of the defendant’s person, backpack, and locker were cleared, the search was reasonable in scope when the next step for school officials was to search the defendant’s car. State v. Schloegel, 2009 WI App 85, 319 Wis. 2d 741, 769 N.W.2d 130, 08-1310. When officers found themselves in the middle of an unstable situation—having to decide whether to stand guard over the open door to an apartment potentially occupied by armed individuals prepared to attack them while they took the time necessary to obtain a warrant, or instead to retreat and risk the destruction of evidence, along with a continuing risk of attack—the circumstances posed the sort of special risks that required the officers to act immediately and to forego obtaining a warrant and constituted exigent circumstances justifying warrantless entry. State v. Lee, 2009 WI App 96, 320 Wis. 2d 536, 771 N.W.2d 373, 07-2976. Unlike in Johnson, 2007 WI 32, where the defendant’s head and shoulder movement did not give reasonable suspicion to conduct a search of the person and car, in this case, the defendant after being stopped in the defendant’s vehicle made three to five furtive-type movements that the trial court found were attempts to hide something. While the number of acts by itself may not be determinative of a reasonable basis, the persistence in the gesture is a specific, articulable measure of a strong intent to hide something from the police officer who made the stop. Further, when the defendant said the object seemingly being hidden was candy, it was reasonable to doubt the truthfulness of that response, and it created another articulable suspicion to support the inference that the defendant was trying to hide a gun. State v. Bailey, 2009 WI App 140, 321 Wis. 2d 350, 773 N.W.2d 488, 08-3153. The defendant, not the police, created the exigency in this case that resulted in a warrantless search when, after seeing the police outside the defendant’s residence, the defendant retreated into the residence and shut the door after the police ordered the defendant to stop. Those actions created the exigency of the risk that evidence would be destroyed. It was not necessary to delve into the appropriateness of the officers’ determination after a controlled drug buy to conduct a “knock and talk” contact with the defendant or whether a knock and talk creates an exigency because, in this case, a knock and talk was never actually accomplished. State v. Phillips, 2009 WI App 179, 322 Wis. 2d 576, 778 N.W.2d 157, 09-0249. An officer’s demand that a suspect drop an object that the officer believes could be a weapon can be likened to a frisk or pat-down. The approach in Wisconsin for determining whether a pat-down is valid has been one of reasonableness. State v. Carroll, 2010 WI 8, 322 Wis. 2d 299, 778 N.W.2d 1, 07-1378. Law enforcement agents are justified in seizing and continuing to hold a container if: 1) there is probable cause to believe that it contains evidence of a crime; and 2) if exigencies of the circumstances demand it. Analogizing a cell phone containing pictures to a container was appropriate. An officer who legally viewed an image of the defendant with marijuana in plain view on an open cell phone and who testified that the officer knew, based on the officer’s training and experience, that drug traffickers frequently personalize their cell phones with images of themselves with items acquired through drug activity, had probable cause to believe that the phone contained evidence of illegal drug activity. State v. Carroll, 2010 WI 8, 322 Wis. 2d 299, 778 N.W.2d 1, 07-1378. When an officer had probable cause to seize a cell phone that the officer reasonably believed was a tool used in drug trafficking, exigent circumstances permitted the officer to answer an incoming call. The test for whether exigent circumstances are present focuses on whether the officer reasonably believes that the delay necessary to obtain a warrant, under the circumstances, threatens the destruction of evidence. The fleeting nature of a phone call is apparent; if it is not picked up, the opportunity to gather evidence is likely to be lost, as there is no guarantee or likelihood that the caller would leave a voice mail or otherwise preserve the evidence. State v. Carroll, 2010 WI 8, 322 Wis. 2d 299, 778 N.W.2d 1, 07-1378. Under the collective knowledge doctrine, an investigating officer with knowledge of facts amounting to reasonable suspicion may direct a second officer without such knowledge to stop and detain a suspect. At the same time, in a collective knowledge situation, if a defendant moves to suppress, the prosecutor must prove the collective knowledge that supports the stop. Proof is not supplied by the mere testimony of one officer that the officer relied on the unspecified knowledge of another officer. Such testimony provides no basis for the court to assess the validity of the police suspicion. The testimony contains no specific, articulable facts to which the court can apply the reasonable suspicion standard. State v. Pickens, 2010 WI App 5, 323 Wis. 2d 226, 779 N.W.2d 1, 08-1514. When a temporary detention is justified, the court will still examine the circumstances of the detention to determine whether the investigative means used in a continued seizure are the least intrusive means reasonably available to verify or dispel the officer’s suspicion and whether it lasts no longer than is necessary to effectuate the purpose of the stop. It was an unreasonable seizure when a suspect was handcuffed based on the bare fact that the officer knew the suspect was suspected in a prior shooting when no specific, articulable facts were presented to support that position under the collective knowledge doctrine. State v. Pickens, 2010 WI App 5, 323 Wis. 2d 226, 779 N.W.2d 1, 08-1514. Although a person sharing a hotel room was found to have apparent authority over the room authorizing the person to consent to a search of the room, the person did not have actual or apparent authority over the inside of the safe when the safe was locked, the person could not open the safe, and the person did not even know it was in the room. Even if the scope of the person’s consent to search the room included the safe, the search of the safe was unreasonable if the person had no authority to grant that consent. State v. Pickens, 2010 WI App 5, 323 Wis. 2d 226, 779 N.W.2d 1, 08-1514. In a search incident to an arrest, an officer may only search that area within the “immediate control” of the arrestee. In a no-arrest case, the possibility of access to weapons in the vehicle always exists since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed. Because the defendant was not under arrest, the officers had an immediate safety interest in verifying that the defendant did not have a gun or other weapon under the defendant’s immediate control. Therefore, the search of the defendant’s vehicle console was not prohibited. State v. Williams, 2010 WI App 39, 323 Wis. 2d 460, 781 N.W.2d 495, 09-0501. Soldal, 506 U.S. 56 (1992), recognized that there could be a seizure of property in violation of the 4th amendment even though the seizure was not preceded or accompanied by a search. Soldal also specifically recognized that a valid consent permits a lawful 4th amendment seizure. In this case, computers owned by one tenant were legally seized when another tenant, who had permission to use those computers, specifically gave the detective the right to “conduct a complete search of [m]y premises, and all property found therein, located at” the apartment and to take the computers away for further analysis. State v. Ramage, 2010 WI App 77, 325 Wis. 2d 483, 784 N.W.2d 746, 09-0784. The holding of Gant, 556 U.S. 332 (2009), that Belton, 453 U.S. 454 (1981), does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle is adopted as the proper interpretation of the Wisconsin Constitution’s protection against unreasonable searches and seizures. State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, 07-1894. In light of Gant, 556 U.S. 332 (2009), the broad rule adopted in Fry, 131 Wis. 2d 153 (1986), is no longer good law. Belton, 453 U.S. 454 (1981), does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. State v. Bauer, 2010 WI App 93, 327 Wis. 2d 765, 787 N.W.2d 412, 09-1367. Police cannot conduct warrantless searches pursuant to a probation apprehension request. Warrantless searches conducted by police, as opposed to probation agents, are prohibited. State v. Bauer, 2010 WI App 93, 327 Wis. 2d 765, 787 N.W.2d 412, 09-1367. A “knock and talk” interview at a private residence that has lost its consensual nature and has effectively become an in-home seizure or constructive entry may trigger 4th amendment scrutiny. When the situation is such that a person would not wish to leave the person’s location, such as the person’s home, the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter. City of Sheboygan v. Cesar, 2010 WI App 170, 330 Wis. 2d 760, 796 N.W.2d 429, 09-3049. The test for exigent circumstances justifying a warrantless seizure is an objective one: whether a police officer under the circumstances known to the officer at the time reasonably believes that delay in procuring a warrant would gravely endanger life or risk destruction of evidence or greatly enhance the likelihood of the suspect’s escape. An arrest was lawful when the urgency reasonably perceived by the officers was compelling and the danger they reasonably perceived for themselves and others if they did not move quickly was substantial. State v. Ayala, 2011 WI App 6, 331 Wis. 2d 171, 793 N.W.2d 511, 09-2690. An officer’s exercise of the bona fide community caretaker function must be reasonable as determined by the court by balancing the public interest or need that is furthered by the officer’s conduct against the degree and nature of the intrusion on the citizen’s constitutional interest. The stronger the public need and the more minimal the intrusion upon an individual’s liberty, the more likely the police conduct will be held to be reasonable. Four factors are considered: 1) the extent of the public’s interest; 2) the attendant circumstances surrounding the search; 3) whether the search or seizure took place in an automobile; and 4) the alternatives that were available to the action taken. State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d 505, 10-0895. But see Caniglia v. Strom, 593 U.S. ___, 141 S. Ct. 1596, 209 L. Ed. 2d 604 (2021). As a general matter, it is unacceptable for a member of the public to enter a home’s attached garage uninvited regardless of whether an overhead or entry door is open. Thus, generally, an attached garage will never be impliedly open to the public, i.e., police entry. There may be an exception to that general rule if, in a given circumstance, it reasonably appears that entry into the attached garage is the least intrusive means of attempting contact with persons inside the home. State v. Davis, 2011 WI App 74, 333 Wis. 2d 490, 798 N.W.2d 902, 10-2191. Randolph, 547 U.S. 103 (2006), held that in co-habitation cases, if both parties are present, a search is unlawful when one consents but the other expressly refuses to consent. Randolph did not apply when one co-habitant consented and the other did not object. State v. Pirtle, 2011 WI App 89, 334 Wis. 2d 211, 799 N.W.2d 492, 10-1363. Under the totality of the circumstances, the trooper’s observation of the defendant’s furtive movements and visible nervousness, a record of arrests for violent crimes, and a drug delivery arrest that had occurred nearby a short time before the stop constituted specific and articulable facts that, taken together with the rational inferences from those facts, created reasonable suspicion and justified a protective search for the officer’s safety. State v. Buchanan, 2011 WI 49, 334 Wis. 2d 379, 799 N.W.2d 775, 09-2934.
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wisconsinconstitution
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