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. Under circumstances in which: 1) a man in a high-crime area; 2) late at night; 3) wearing a ski mask that covered his face below his eyes; 4) wearing a hoodie; 5) had an ambiguous but “unusual”-appearing encounter with a woman walking by herself, the police reasonably and based on their experience could objectively see that further investigation was warranted to ensure that criminal activity was not afoot. State v. Matthews, 2011 WI App 92, 334 Wis. 2d 455, 799 N.W.2d 911, 10-1712. It was reasonable for the officers to conclude that the leaseholder of a property had the authority to consent to them proceeding up the property’s stairs to look for another tenant who was not present to either consent or refuse consent when: 1) a third non-leaseholder tenant refused to consent; 2) the officers were aware that the tenant granting consent was the leaseholder of the property; and 3) the person refusing consent had not previously lived there and had left the room to wake up the subject of the police inquiry after the officers arrived. State v. Lathan, 2011 WI App 104, 335 Wis. 2d 234, 801 N.W.2d 772, 10-1228. Under Johnson, 555 U.S. 323 (2009), a lawful roadside stop “ordinarily” begins when a vehicle is pulled over for a traffic violation and ends when the police no longer have further need to control the scene, at which time the driver and passengers are free to leave. Johnson does not create a bright-line rule that police always have the authority to detain passengers for the duration of a roadside stop. Johnson leaves the door open for exceptions to the general rule that passengers are reasonably detained for the duration of a stop. Nonetheless, the stop in this case was reasonable under the totality of the circumstances. State v. Salonen, 2011 WI App 157, 338 Wis. 2d 104, 808 N.W.2d 162, 10-2504. The plain view doctrine did not justify opening opaque cylinders that were in plain view, but the contents were not, and the containers, as indicated by their size or shape, could hold a weapon. State v. Sutton, 2012 WI App 7, 338 Wis. 2d 338, 808 N.W.2d 411, 11-0036. If a third party has mutual use of a property and joint access or control for most purposes, then the third party may consent to a search of the property regardless of whether the third party owns the property. While a mere guest in a home may not ordinarily consent to a search of the premises, the analysis is different when the guest is more than a casual visitor but instead has the run of the house. A weekend house guest who was permitted to stay in the home by herself and had the authority to receive people into the home had the authority to permit an officer to enter. Similarly, when the defendant gave his guest permission to use his computer, the guest had the authority to consent to the officer’s search and seizure of that item. State v. Sutton, 2012 WI App 7, 338 Wis. 2d 338, 808 N.W.2d 411, 11-0036. When police have probable cause to arrest before an unlawful entry and warrantless arrest from a defendant’s home, this violation of Payton, 445 U.S. 573 (1980), does not require the suppression of evidence obtained from a defendant outside of the home. This rule applies when the only illegal police conduct is an unlawful entry and arrest in violation of Payton, not when the evidence may be tied to an unlawful search by police. State v. Felix, 2012 WI 36, 339 Wis. 2d 670, 811 N.W.2d 775, 10-0346. Under the totality of the circumstances, police acted reasonably when they conducted an investigatory stop of the vehicle that the defendant was driving based on reasonable suspicion “that criminal activity may be afoot.” The police had the requisite reasonable suspicion primarily based on the reliability of their final informant and the information provided by the informant when the information was supported by the prior tips to police. While the initial tips were of limited reliability, the final informant and the tips had significant indicia of reliability because the informant provided self-identifying information that made the informant more reliable than a truly anonymous informant and the final informant provided details and accurate future predictions that police were able to corroborate. State v. Miller, 2012 WI 61, 341 Wis. 2d 307, 815 N.W.2d 349, 10-0557. Under Jacobsen, 466 U.S. 109 (1984), an individual can retain a legitimate expectation of privacy after a private individual conducts a search. However, additional invasions of that individual’s privacy by a government agent must be tested by the degree to which they exceeded the scope of the private search. The officer’s search in this case did not exceed the original search by the private individual who, after discovering and reviewing child pornography, placed it in a duffel bag and invited the officer to view the contents of the bag. State v. Cameron, 2012 WI App 93, 344 Wis. 2d 101, 820 N.W.2d 433, 11-1368. Guzy, 139 Wis. 2d 663 (1987), forged a list of factors to be considered in determining reasonable suspicion that a person or vehicle was the one connected to a reported crime: 1) the particularity of the description of the offender or the vehicle in which the offender fled; 2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; 3) the number of persons about in that area; 4) the known or probable direction of the offender’s flight; 5) observed activity by the particular person stopped; and 6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation. State v. Rissley, 2012 WI App 112, 344 Wis. 2d 422, 824 N.W.2d 853, 11-1789. The administration of a preliminary breath test by a police officer, at the request and on behalf of a probation agent during a probation meeting in the probation office, for probation purposes and for no independent police purpose, was a probation search, not a police search, and was lawful. State v. Devries, 2012 WI App 119, 344 Wis. 2d 726, 824 N.W.2d 913, 10-0429. The test applied in determining whether an officer has sufficient reasonable suspicion under Terry, 392 U.S. 1 (1968), is objective—“would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?” Backing away from a police officer is not sufficient objective evidence supporting a reasonable suspicion that criminal activity is afoot or that a person is a threat. A person approached by a law enforcement officer need not answer any question put to the person, may decline to listen to the questions, and may go on the person’s way. Naming a movement that would accompany any walking away adds nothing to the calculus except a false patina of objectivity. State v. Pugh, 2013 WI App 12, 345 Wis. 2d 832, 826 N.W.2d 418, 12-0481. Under the totality of the circumstances of this case, when a person came down the staircase between a building’s upper unit and a common entrance and opened the door for the police, identified herself, expressly stated that the person lived in the upper unit, granted consent to search both verbally and in writing, and acted as though the person had access to the landlord by pretending to call the landlord, that person had apparent authority to consent to the warrantless search of the upper unit, and the police were reasonable in reaching the same conclusion. State v. Wheeler, 2013 WI App 53, 347 Wis. 2d 426, 830 N.W.2d 278, 12-1291. A seizure following a “dog sniff” is subject to the Terry, 392 U.S. 1 (1968), test—that a seizure is reasonable only if it is justified at its inception and is reasonably related in scope to the circumstances that justified the interference in the first place. Here, unlike in Arias, 2008 WI 84, the dog sniff attendant to the defendant’s seizure occurred after the initial stop had been completed and undisputed facts established that the reasons justifying the initial stop ceased to exist. The continued detention of the defendant to conduct the dog sniff was not reasonably related in scope to the circumstances justifying the stop. State v. House, 2013 WI App 111, 350 Wis. 2d 478, 837 N.W.2d 645, 12-2414. Permitting Terry, 392 U.S. 1 (1968), stops of a person observed momentarily patting the outside of the person’s clothing when the only additional facts are that the person is in a high crime area and has seen a cruising police car would expand the individualized “reasonable suspicion” requirement so far so as to negate it. State v. Gordon, 2014 WI App 44, 353 Wis. 2d 468, 846 N.W.2d 483, 13-1878. While exigent circumstances may justify entry, the fact that entry has already been made does not necessarily invalidate reliance on the exigent circumstances doctrine. In this case, the officer had already stepped into the apartment when the exigent circumstances arose. Whether or not the apartment occupants’ behavior constituted consent to the officer’s entry, so long as the officer was standing in the vicinity of the occupants when the officer received the information that they might possess a backpack with loaded weapons in it, the officer’s search for and seizure of the backpack was, at that moment, justified by exigent circumstances. State v. Kirby, 2014 WI App 74, 355 Wis. 2d 423, 851 N.W.2d 796, 13-0896. When an officer parks near a person’s vehicle, gets out, and knocks on the person’s window, the officer has not necessarily displayed sufficient authority to cause a reasonable person to feel that the person is not free to leave. While a person is not automatically seized by a knock on the window, or even a supplementary request, the seizure inquiry looks at the totality of the circumstances to determine whether the officer has effected a detention. County of Grant v. Vogt, 2014 WI 76, 356 Wis. 2d 343, 850 N.W.2d 253, 12-1812. Upholding, by a divided court, the trial court’s denial of the defendant’s suppression motion arguing that the warrantless obtaining of the defendant’s cell phone’s location data from the defendant’s cell phone provider violated the defendant’s 4th amendment rights. State v. Subdiaz-Osorio, 2014 WI 87, 357 Wis. 2d 41, 849 N.W.2d 748, 10-3016. Fourth amendment jurisprudence has evolved into two seemingly different, but somewhat interrelated, methods of identifying protectable interests relating to the home. One focuses on a person’s expectation of privacy, where a person has exhibited an actual expectation of privacy that society is prepared to recognize as reasonable. The other, known as the intrusion or trespass test, focuses on whether government agents engaged in an unauthorized physical penetration into a constitutionally protected area. Officers in this case conducted an illegal search by trespassing on the defendants’ property when they, without permission, went onto the porch of the defendants’ trailer to peer into a window, had no other reason for being in those areas, and acknowledged that they could not have seen what they saw within the trailer if they had not been standing in the yard or on the porch. State v. Popp, 2014 WI App 100, 357 Wis. 2d 696, 855 N.W.2d 471, 13-1916. Ordinary citizens, even citizens who are subject to diminished privacy interests because they have been detained, have a legitimate expectation of privacy in the contents of their electronic devices. This interest, however, is undercut when the electronic device in question is contraband. In this case, the defendant was prohibited from using a computer. It was irrelevant whether specific images were prohibited by the defendant’s probationary terms or otherwise illegal to possess; the use of computers was itself prohibited, and the agent had reasonable grounds to believe the defendant had impermissibly used them. Thus, the probation search of the contents of the defendant’s computers did not violate the 4th amendment or this section. State v. Purtell, 2014 WI 101, 358 Wis. 2d 212, 851 N.W.2d 417, 12-1307. The exigent circumstance exception does not require that officers observe actual destruction of evidence taking place before making entry. Officers do not impermissibly create exigent circumstances merely by knocking on a door and announcing themselves as police. State v. Parisi, 2014 WI App 129, 359 Wis. 2d 255, 857 N.W.2d 472, 14-0474. In light of McNeely, 569 U.S. 141 (2013), the holding in Bohling, 173 Wis. 2d 529 (1993), that the rapid dissipation of alcohol alone constitutes an exigent circumstance sufficient for law enforcement officers to order a warrantless investigatory blood draw, is no longer an accurate interpretation of the 4th amendment’s protection against unreasonable searches and seizures. The rapid dissipation of alcohol alone no longer constitutes a per se exigent circumstance. Exigent circumstances, sufficient to justify a warrantless investigatory blood draw of a drunk-driving suspect, are to be determined on a case-by-case totality of the circumstances analysis. State v. Kennedy, 2014 WI 132, 359 Wis. 2d 454, 856 N.W.2d 834, 12-0523. Under the facts and circumstances of this case, the deputy reasonably responded to an accident, secured the scene, investigated the matter, and ultimately was left with a very narrow time frame in which the defendant’s blood could be drawn so as to produce reliable evidence of intoxication. This sort of “now or never” moment is the epitome of an exigent circumstance justifying a warrantless blood draw. State v. Tullberg, 2014 WI 134, 359 Wis. 2d 421, 857 N.W.2d 120, 12-1593. An arrest need not precede a warrantless blood draw. When there is probable cause for a blood draw, there also is probable cause to arrest for operating while intoxicated. An arrest is not a prerequisite to a warrantless blood draw justified by probable cause and exigent circumstances. State v. Tullberg, 2014 WI 134, 359 Wis. 2d 421, 857 N.W.2d 120, 12-1593. Officers’ approach to a defendant at gunpoint, use of handcuffs, and detention of the defendant in a squad car are not sufficient to transform an investigatory detention into an arrest. However, upon transportation of the defendant from the site of the stop to a hospital ten miles away, a reasonable person in the defendant’s position would have believed that the person was in custody due to an arrest because the transportation was involuntary and the defendant had experienced a significant level of force and restraint since the initial stop. State v. Blatterman, 2015 WI 46, 362 Wis. 2d 138, 864 N.W.2d 26, 13-2107. When a person who is temporarily detained for investigation pursuant to a Terry, 392 U.S. 1 (1968), stop is then moved to another location, courts conduct a two-part inquiry: 1) was the person moved within the vicinity of the stop; and 2) was the purpose in moving the person within the vicinity reasonable? Ten miles is too distant a transportation to be within the vicinity so long as the temporary detention is supported by no more than a reasonable suspicion. In order for the transporting of a defendant to a hospital that was not in the vicinity of the stop to have been lawful, it must have been supported by probable cause to arrest or by a reasonable exercise of the community caretaker function. State v. Blatterman, 2015 WI 46, 362 Wis. 2d 138, 864 N.W.2d 26, 13-2107. Nervousness, anxiety, and tremors are consistent with methamphetamine use. These characteristics may also have innocent explanations. That innocent explanations may exist for observed behavior does not preclude a finding of reasonable suspicion, but as a practical matter, police cannot expect to conduct field sobriety tests on every motorist who is shaking and nervous when stopped by an officer. State v. Hogan, 2015 WI 76, 364 Wis. 2d 167, 868 N.W.2d 124, 13-0430. Reasonable suspicion that a traffic law has been or is being violated is sufficient to justify all traffic stops. An objectively reasonable mistake of law by a police officer can form the basis for reasonable suspicion to conduct a traffic stop. State v. Houghton, 2015 WI 79, 364 Wis. 2d 234, 868 N.W.2d 143, 13-1581. The defendant had no reasonable expectation of privacy in text messages that the defendant had sent to and were stored in another person’s cell phone. Once the defendant sent the messages, the defendant had no control over whether the recipient saved them, deleted them, forwarded them to others, or shared their content in any way. This lack of control over what was done with the text message and lack of any right to exclude others from reading it were key in the determination that the defendant did not have an objectively reasonable expectation of privacy in the text messages stored in the other person’s phone. State v. Tentoni, 2015 WI App 77, 365 Wis. 2d 211, 871 N.W.2d 285, 14-2387. The statement in Popke, 2009 WI 37, that a police officer may “conduct a traffic stop when, under the totality of the circumstances, he or she has grounds to reasonably suspect that a crime or traffic violation has been or will be committed,” did not purport to circumscribe the universe of possible scenarios within which traffic stops permissibly may occur, or to make such limits contingent on whether the legislature has titled a particular law a “traffic regulation.” A reasonable suspicion that a violation of the littering statute, s. 287.81, a non-traffic civil forfeiture offense, had occurred justified a brief and limited traffic stop. The more onerous standard of probable cause would also therefore justify a traffic stop. State v. Iverson, 2015 WI 101, 365 Wis. 2d 302, 871 N.W.2d 661, 14-0515. In Jardines, 569 U.S. 1 (2013), the U.S. Supreme Court confirmed that the curtilage of a person’s home remains a constitutionally protected area without consideration of whether a reasonable expectation of privacy exists. The Wisconsin Supreme Court has adopted four factors set forth in Dunn, 480 U.S. 294 (1987), relevant to conducting an analysis of whether an area constitutes curtilage of a home: 1) the proximity of the area claimed to be curtilage to the home; 2) whether the area is included within an enclosure surrounding the home; 3) the nature of the uses to which the area is put; and 4) the steps taken by the resident to protect the area from observation by people passing by. These factors did not weigh in favor of curtilage designation when applied to the parking garage located beneath the defendant’s apartment building. State v. Dumstrey, 2016 WI 3, 366 Wis. 2d 64, 873 N.W.2d 502, 13-0857. There was no reasonable expectation of privacy in the defendant’s parking garage located beneath a 30-unit apartment building such that it warranted 4th amendment protection against warrantless entry for arrest. The relevant test is: 1) whether the person exhibits an actual, subjective expectation of privacy in the area; and 2) whether society is willing to recognize such an expectation as reasonable. In making this determination a six-factor test is applied. State v. Dumstrey, 2016 WI 3, 366 Wis. 2d 64, 873 N.W.2d 502, 13-0857. A warrantless blood sample may be justified even when an inferior form of evidence may be available. The fact that morphine remains in the body for several hours after the ingestion of heroin does not mean that it would be unreasonable for an officer to believe that taking the time to obtain a search warrant in this case risked destruction of evidence of heroin use. That the defendant never used a car in this case did not elevate the defendant’s privacy interests to such heights as to render any warrantless blood draw under exigent circumstances unreasonable. State v. Parisi, 2016 WI 10, 367 Wis. 2d 1, 875 N.W.2d 619, 14-1267. A blood draw from the defendant under s. 343.305 while the defendant was unconscious was permissible under the 4th amendment under the exigent circumstances doctrine when a deputy had probable cause to arrest the defendant for operating a vehicle with a prohibited alcohol concentration. State v. Howes, 2017 WI 18, 373 Wis. 2d 468, 893 N.W.2d 812, 14-1870.
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wisconsinconstitution
/constitution/wi/000229/000027/000156
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