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.

There is no bright-line rule mandating that courts exercise caution in supporting a Terry, 392 U.S. 1 (1968), stop whenever the stop is for a “minor crime.” State v. Rissley, 2012 WI App 112, 344 Wis. 2d 422, 824 N.W.2d 853, 11-1789.

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.

The 4th amendment does not inflexibly require that officers be concerned about specific, known individuals in order to be acting as community caretakers. State v. Matalonis, 2016 WI 7, 366 Wis. 2d 443, 875 N.W.2d 567, 14-0108. But see Caniglia v. Strom, 593 U.S. ___, 141 S. Ct. 1596, 209 L. Ed. 2d 604 (2021).

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.

Under Purtell, 2014 WI 101, when a condition of probation prohibits the possession of a certain item, and the subject of the search knowingly breaks that condition, in most situations a probation agent would presumably have reasonable grounds to search the contents of the item. Purtell tells us that as long as there are “reasonable grounds” to believe a probationer has contraband, a probation agent will almost always have the right to search the contraband itself without a warrant. State v. Keller, 2017 WI App 19, 374 Wis. 2d 325, 893 N.W.2d 276, 16-0500.