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I.

STOPPING A SUSPECT
• When does a stop or seizure occur?
• A stop occurs when an officer uses his or her authority to limit a person’s freedom
of movement

• Factors that a judge will consider when determining whether a person has
been stopped or seized
• Orders to “stop”, “freeze”, or “come over here”
• Statement of “You’re under arrest” v. “I am placing you in handcuffs for your safety
and mine, you are not under arrest”
• Emergency lights and/or sirens
• Hands on the suspect
• Handcuffs
• OC spray
• Gun drawn
• Placed in the back of a squad car
• Taken to the police station
• Taken to jail
• Note – the more dangerous the situation, the more the police can use force or
restraints without there being an arrest.

• CONSENSUAL CONVERSATIONS – no evidence needed & no Miranda needed


• Mere police questioning does not constitute a seizure
• No seizure occurs when the police, without reasonable suspicion justifying an
investigative detention, ask questions of an individual and ask to search him or
her, so long as the police do not convey that compliance with the request is
required
• Plainly stated – an officer can talk to anyone, anyplace, and at any time, as long as
the person agrees to the conversation, the officer can legally be in the place of the
conversation, and there are no arrest/custody/Miranda issues.

• INVESTIGATIVE DETENTION OR TERRY STOP – reasonable suspicion & no Miranda


needed
• The Fourth Amendment protects the right of people against unreasonable searches
and seizures (i.e. stops, arrests, pat-downs and searches).
• However, under appropriate circumstances a police officer may detain a person for
the purposes of investigating possible criminal behavior even though there is no
probable cause to make an arrest
• This is a permissible “seizure” without probable cause to arrest
• An investigative detention may occur when an officer’s observations lead him or
her to reasonably suspect that a person has committed, is committing, or is about
to commit a crime.
• An officer’s reasonable suspicions must be based upon specific, articulable facts
and the reasonable inferences that arise from these facts
• An officer may not rely upon a unparticularized suspicion or hunch
• In determining whether reasonable suspicion exists, an judge is to use “common
sense” in examining the totality of the circumstances
• How long may an investigative detention last?
• The purpose of a stop is to allow an officer to freeze the situation and conduct a
limited investigation by asking the suspect questions directed at identifying the
suspect and resolving the situation that led to the stop
• The stop may continue for a “a reasonable period of time” – the time it takes an
officer to diligently pursue the limited investigation
• A “reasonable period of time” will vary with the circumstances
• A suspect’s lack of cooperation will justify a longer period of time
• At the end of an investigative detention, an officer may ask for consent to
search a person’s person, property, vehicle, or residence
• See page 7, “Consent”
• Factors to be considered when making an investigatory stop
• Collective knowledge – an officer may rely on information received from
another officer in making a stop
• Suspicions of trained officers are different from those of ordinary
observers
• An officers training and experience adds to the totality of the circumstances
• Note – judges vary greatly in the importance they will place in this factor!
• “The fact that an officer is experienced does not require a court to accept
that all of his suspicions are reasonable, nor does mere experience mean
that an officer’s perceptions are justified by the objective facts.” State v.
Young, 212 Wis. 2d 417 (Ct. App. 1997).
• Flight
• Flight at the sight of the police is suspicious behavior that justifies an
investigative detention
• High crime area
• The type of area were an officer’s observations are made will add to the
totality of the circumstances
• However, “this factor standing alone, does not provide the reasonable
suspicion required for [an investigative detention].” State v. Young
• When using this factor, document why the area of the investigative detention
is a high crime area. For example:
• Frequent sales of controlled substances (How often? what type of drugs?
How much?)
• Drug dealers with weapons
• Citizens with weapons
• Citizens using controlled substances
• Prostitution
• Crimes against persons (e.g., gangs of kids beating people up, robberies,
etc.)
• Crimes against property (e.g., thefts, car break-ins, burglaries, etc.)
• “Short term contact” or “Hand-to-hand exchange”
• Very fact specific. The more observations that are made and accurately
recorded in your report, the better your case will be!
• Cases in which certain courts have determined there were sufficient facts
• Late at night a suspect is observed in a car stopped at a curb; another
individual gets in the car for approximately 20 seconds; the suspect
drives a short distance and lets the individual out; the individual walks
back to where he was originally picked up.
• Suspect went up to car that had been identified as selling narcotics in
the neighborhood and was observed obtaining small objects from
someone in the car in exchange for cash.
• Individual in a high drug-trafficking area is observed exchanging
objects in another’s hands, together with evasive action once he spots
the police.
• Cases in which certain courts have determined there were not sufficient
facts
• Where a suspect stops briefly on the street in a drug area and meets
another person. The officer did not know if any item was exchanged or
what that item may have looked like.
• In a drug area, an officer observes an individual leaning into a car
talking to a suspect who was in the driver’s seat.
• The suspect was observed with a known drug dealer in a car. The two
were observed huddling and talking with their hands close together,
but the officers did not observe anything in their hands. The car drove
away in a normal manner.
• Suspect who appears to be “casing”
• Very fact specific
• The court ruled that an officer legally performed an investigative
detention of two suspects who were observed continuously walking back-
and-forth in front of a store window at 2:30 p.m. and then conferred with
each other.
• Civil forfeitures
• An investigative detention is permissible when the suspect’s conduct may
constitute a civil forfeiture
• This includes, but is not limited, to all Racine County ordinances.
• Traffic stops
• Traffic stops and OWI stops are investigative detentions
• An officer may stop a vehicle if the officer has a reasonable suspicion, in
light of his training and experience, that some kind of criminal activity or
traffic violation has taken place or is taking place.
• Once stopped, an officer may demand the operators name, address, and
an explanation for the activity
• If an officer has information from a named complainant of a traffic
violation or illegal activity, a stop may be made without any independent
observations of the violations
• If an officer has information from an anonymous complainant, the officer
must make independent observations to justify the stop
• See below for a more in-depth explanation of stops based upon
anonymous complainants
• Pursuing an unknown offender
• Factors to be considered
• The particularity of the description of the suspect or vehicle
• The size of the area the in which the suspect may be found
• The elapsed time since the crime occurred
• The known or probable direction of flight
• The observed actions of the suspect being stopped
• The knowledge or suspicion that the person or vehicle stopped has
been involved in other similar criminal activity of the type presently
under investigation.
• Florida v, J. L., 520 U.S. ___ (2000) – a defense attorney’s best friend
• Facts: After an anonymous caller reported to the Miami-Dade Police that a
young black male standing at a particular bus stop and wearing a plaid
shirt was carrying a gun, officers went to the bus stop and saw three black
males, one of whom, respondent J. L., was wearing a plaid shirt. Apart
from the tip, the officers had no reason to suspect any of the three of
illegal conduct. The officers did not see a firearm or observe any unusual
movements. One of the officers frisked J. L. and seized a gun from his
pocket. J. L., who was then almost 16, was charged under state law with
carrying a concealed firearm without a license and possessing a firearm
while under the age of 18.
• Held: An anonymous tip that a person is carrying a gun is not, without
more, sufficient to justify a police officer’s stop and frisk of that person.
An officer, for the protection of himself and others, may conduct a
carefully limited search for weapons in the outer clothing of persons
engaged in unusual conduct where, inter alia, the officer reasonably
concludes in light of his experience that criminal activity may be afoot
and that the persons in question may be armed and presently dangerous.
Here, the officers’ suspicion that J. L. was carrying a weapon arose not
from their own observations but solely from a call made from an unknown
location by an unknown caller. The tip lacked sufficient indicia of reliability
to provide reasonable suspicion to make a Terry stop: It provided no
predictive information and therefore left the police without means to test
the informant’s knowledge or credibility
• This Court also declines to adopt the argument that the standard Terry
analysis should be modified to license a “firearm exception,” under which
a tip alleging an illegal gun would justify a stop and frisk even if the
accusation would fail standard pre-search reliability testing.
• State v. Williams, 241 Wis. 2d 631 (2001)
• The Wisconsin Supreme Court upheld a stop based upon an anonymous
911 telephone caller because the call contained indictia of reliability
within the call itself
• The caller provided the location of the crime with particularity
• The location could be verified immediately by 911 equipment
• The caller was a citizen informant reporting ongoing criminal activity
(inferred from the nature of the conversation).
• The call reveals the source of the caller’s knowledge: actual
observation of the events
• The stop was not based on the 911 call alone
• The police corroborated readily observable information provided in
the tip
• The vehicle largely matched the description of the vehicle
described by the anonymous caller
• The police observed two people in the vehicle. The caller used a
plural indicating more than one person
• The location of the vehicle matched the caller’s description
• The police also verified the description of the parking lot and
alley which the anonymous caller described
• The time between the completion of the 911 call and the dispatch
was relatively short. The officers arrived on the scene four minutes
after dispatch.
• The vehicle did not have license plates
• The officers could not view the defendant’s hands which was hidden
behind the passenger seat as they approached the vehicle from the
front.
• Bottom line – the information from an anonymous complainant can be
sufficient to allow for an investigative stop or traffic stop if the police can
verify enough of the complainant’s information. The complainant’s
information must be accurately recorded with enough information as
possible. The officer must then write an extremely detailed report that
corroborates the complainant’s information.
• These same principles apply to traffic stops.

• ARREST – probable cause & Miranda needed


• Do I have probable cause to arrest?
• The court looks at the totality of the circumstances to determine if the arresting
officer has probable cause
• The question is whether the arresting officer’s knowledge at the time of the
arrest would lead a reasonable police officer to believe the suspect committed
the offense
• Probable cause to arrest does not require proof beyond a reasonable doubt or
even that guilt is more likely than not
• It is sufficient that a reasonable officer would conclude based upon the
information in the officer’s possession that the defendant probably committed
the offense. State v. Babbitt, 188 Wis. 2d 349 (Ct. App. 1994)
• Is the suspect under arrest?
• “The standard used in determining the moment of arrest is whether a
reasonable person in the defendant’s position would have considered himself or
herself to be in custody, given the degree of restraints under the
circumstances.” State v. Kiekhefer, 212 Wis. 2d 460 (Ct. App. 1997).
II. SEARCH AND SEIZURE
• SEARCH
• A search occurs when the State infringes upon an expectation of privacy which
society is prepared to consider reasonable
• Private party searches – the Fourth Amendment does not apply to a search or
seizure conducted by a private individual
• State action not considered a search
• Open or public view – surveillance of conduct occurring in public places does not
constitute a search.
• Open fields v. Curtilage – a person has no reasonable expectation of privacy in
an open field. Courts consider the following factors in assessing whether an
area falls within an open field or whether it is curtilage
• The proximity of the area claimed to be curtilage to the home
• Whether the area is included within an enclosure surrounding the home
• The nature of the uses to which the area is put
• The steps taken by residents to protect the areas from observations by
persons passing by
• Perception enhancement – the use of certain investigative tiils to enhance an
officer’s perception does not alone convert the office’s conduct into a search
• Fly overs – must be done from navigable airspace
• Canine sniff
• Flashlights
• Binoculars
• Telescopes

• WARRANT
• Physical entry of the home is the chief evil against which the wording of the Fourth
Amendment is directed . . . At the very core of the Fourth Amendment stands the
right of a man to retreat into his own home and there be free from unreasonable
governmental intrusions . . . The Fourth Amendment has drawn a firm line at the
entrance to the house . . . Absent exigent circumstances [or consent], that
threshold may not reasonable be crossed without a warrant. State v. Phillips, 209
Wis. 2d 559 (Ct. App. 1997).
• “Entry” is defined very strictly by the courts.
• Examples of entry
• An officer’s step into the threshold of a doorway in order to prevent the door
from closing
• Reaching into a window frame to move a drape in order to confirm there is a
gun on the bed

• WARRANTLESS SEARCHES – EXCEPTIONS TO THE WARRANT REQUIREMENT


• Plain view exception
• Under this exception, a seizure may be justified where the following criteria are
met:
• The officer must have a prior justification for being in the position from which
the “plain view” discovery was made
• The evidence must be in plain view of the discovering officer
• The discovery must be inadvertent
• The evidence seized, with the facts known to the officer at the time of the
seizure, provides probable cause to believe there is a connection between
the evidence, the suspect, and criminal activity
• Consent
• A search of a person, object, or place may be made and things may be seized
when the search is made with consent. See Wis. Stats. § 968.10(2)
• Consent must be given freely, intelligently, unequivocally, and specifically
• Consent must be given without any actual or implied duress or coercion
• A suspect may define the extent or scope of the search and may terminate the
search at any time
• If the State asserts the consent exception in court, it is the State’s burden to
show by clear and convincing evidence that the consent was voluntary.
• In analyzing the voluntariness of the consent, a judge must consider the totality
of the circumstances. Phillips, 209 Wis. 2d 559 (Ct. App. 1997).
• Examples of specific fact patterns:
• Traffic stop or any other investigative detention – an officer may ask
the one additional question of:
• “May I search your vehicle”
• NEW LAW – THERE MUST BE AN OBVIOUS BREAK BETWEEN THE
COMPLETED STOP AND THE REQUEST FOR CONSENT TO SEARCH
• This stop is completed and you can be on your way . . . oh, by the way
. . . |”
• May I search your person?”
• “May I search your house, room, garage, etc?”
• “May I search your vehicle?”
• Note – it must be one quick question and then you are done. There
cannot be a prolonged discussion or multiple requests.
• Suspect opens the door to the home
• Standing alone, this fact does not equal consent to enter
• An officer may not even place his foot in the doorway of the home to
prevent the door from closing without consent to enter
• Threats to obtain a warrant
• When probable cause does exist to get a lawful warrant, the police may
inform the suspect of this fact while attempting to get consent to search.
• When probable cause does NOT exist to get a lawful warrant, the police
may not threaten to get a warrant when attempting to get consent to
search.
• Third party consent – “I’m staying at my baby’s momma’s house”
• Third parties at a residence may consent to a search as long as they have
common authority
• Authority to consent to search does not depend on legal property rights,
but rather on the relationship in fact of the consenting party to the
searched premises. By sharing control over a place or object, a person
assumes the risk that the other person will allow someone to search the
place or object.
• However, even if the third party did not have common authority, the
search may be upheld if the police had a reasonable belief that the person
who consented is a resident of the premises
• Examples of various fact patterns:
• Child at his or her parents’ house – this is a very fact specific case
that should be handled with great care. The courts will consider the
following factors:
• Age of child
• Apparent intelligence or competence of child
• Education of child
• Physical and mental condition of child
• Under the influence of drugs or alcohol
• Prior experience with police
• NOTE – a child can only give consent to search the common areas of
a home and may not lawfully give consent to search the parents’
bedroom or other private areas
• Parent of minor child – the parent can give consent to search the
minor child’s room despite any agreement of paying rent or attempts
to make the room private (e.g. separate lock on the door, etc.)
• Parent of an adult child living at the parents’ house
• If the child does not pay any rent and the child has not made any
attempts to make the room private (e.g. separate lock on the door,
etc.), the parent probably can give consent to search the room
• If the child pays rent or the child makes some attempt to make the
room private (e.g. separate lock on the door, etc.), the parent
probably cannot give consent to search the room
• Two or more roommates living in one residence – NEW LAW –
consent given by one occupant is not valid in the face of the refusal of
any other physically present occupant. If the other occupant is asleep
in the other room or not available for some other reason, they do not
get to participate in the granting or denial of consent. However, the
police cannot purposefully remove the potentially objecting tenant to
avoid a possible objection to consent to search.
• Stop and Frisk for weapons
• When can I do a pat down for weapons?
• When a reasonably prudent man in the circumstances of the officer would be
warranted in the belief that his safety or that or others was in danger
because the suspect may be armed
• When determining the reasonableness of the officers actions, due weight
must be given to the officers training/experience and the totality of the
circumstances
• Factors to consider when evaluating reasonableness
• High crime area -- the police must prove that the area is a high crime
area. Unspecified assertions that there is a crime problem in a particular
area will be given little weight, at least compared to more particular
indications that a certain type of criminal conduct of the kind suspected is
prevalent in that area
• Time of day
• Suspect is more nervous than the typical person
• Suspect will not follow police commands
• Suspect “squaring up” to an officer
• Plain view/plain touch while searching for weapons
• If during the course of the pat down search an officer feels an object that
is immediately recognizable as a weapon, the officer may reach into the
suspects clothing and remove the object
• If during the course of the pat down search an officer feels an object that
is immediately recognizable as illegal contraband, the officer may reach
into the suspects clothing and remove the object
• If the object is not immediately recognizable, an officer may not
continually squeeze, slide, or manipulate the object through the suspect’s
clothing
• Exigent circumstances
• The exigent circumstances inquiry is limited to the objective facts reasonably
known to, or discoverable by, the officers at the time of the entry
• There are four basic categories:
• Arrest made in hot pursuit – Officers may conduct a warrantless entry to
locate a suspect whom they are pursuing. However, a judge will uphold such
an entry only if the pursuit from the crime scene is “immediate” or
“continuos.”
• Threat of safety to suspect or others – Officers may conduct a
warrantless entry if they are motivated to render aid rather than gather
evidence of criminal wrongdoing
• Risk that evidence will be destroyed – Officers may conduct a
warrantless search or seizure if it is necessary to prevent the destruction of
evidence. However, when the drugs or evidence being searched for are
impossible to destroy quickly due to quantity or location, exigent
circumstances do not exist.
• Likelihood that the suspect will flee – not often authorized by the court
• Note – The State bears the burden of establishing that exigent circumstances
exist, and the State cannot justify a search on the basis of exigent
circumstances that are the police officers’ own making.
• A search of a vehicle at a traffic stop
• Because of the inherent mobility of vehicles, officers may seize and search a
vehicle when they have probable cause to believe that it contains contraband or
other evidence of a crime. Vehicles are per se exigent circumstances.
• An officer may seize any illegal objects or contraband that he or she
observes in plain view
• During a search incident to a lawful arrest, an officer may search passenger
compartment of the vehicle including any closed containers or locked
compartments so long as the arrestee is still on scene
• Scope – the search of the vehicle may extend to any area within the vehicle
where the officers believe the item sought may be found. The search also
extends to any container in which the item may be hidden.
• Therefore to get into the trunk of the vehicle, an officer must have
probable cause to believe illegal objects or contraband.
• Search incident to a lawful arrest
• A search may be incident to a subsequent arrest if the officers have probable
cause to arrest prior to the search.
• Scope of the search – an officer may search the suspects person and the area
“within his immediate control”
• Within his immediate control” is defined as the area from which the suspect
might gain possession of a weapon or destroy evidence
• Actual accessibility by the suspect is not an issue – police may perform a
contemporaneous, limited search of the area immediately surrounding the
suspect measured at the time of arrest without consideration to actual
accessibility to the area searched.
• Police cannot just generally search the entire premises except for the protective
sweep doctrine:
• During an in-home arrest, officers may conduct a protective sweep when
they possess a reasonable and articulable suspicion that the area to be
swept harbors a person posing a danger to the officers or others
• If evidence of another crime is located, it may be used to prosecute the suspect
or to get an additional search warrant
• Monitoring the movements of an arrested person
• An officer has a right to remain at an arrested person’s elbow at all times.
• Officer safety and flight of the arrested person requires such close proximity
regardless of the underlying offense or the remote possibility of escape
• Inventory searches
• Must be done pursuant to standardized procedures
• No probable cause needed to conduct this search because:
• It protects a suspect’s property from damage or loss
• It protects the officers from claims of theft or damage
• Even after officers inventory items, they may, without a showing of probable
cause, reexamine those items for evidence of a crime. However, absent a
warrant, their second examination should be no more invasive than the original
inventory search. State v. Betterly, 191 Wis. 2d 407 (1995). Practice point – if
possible, get a warrant!
• Community caretaker function
• Courts have recognized that officers may act for purposes other than to
investigate crimes, such as to render aid to a person in distress
• Community caretaking should be totally devoid from investigation, detection, or
acquisition of evidence related to the commission of a crime
• Courts will consider the following criteria in determining whether conduct fell
within community caretaking function:
• The degree of public interest and the exigency of the situation
• The attendant circumstances surrounding the search, including: time,
location, degree of overt authority, and force displayed
• Whether an automobile is involved
• The availability and effectiveness of alternatives to the type of intrusion
actually accomplished
• Note – entry into private areas are unreasonable if other options are
available
• School searches
• Performed by school authorities or by a school liaison officer in concert with
school officials – no probable cause or warrant is needed
• The legality of a search of a student by a school authority/liaison officer is
dependent on the reasonableness under all the circumstances of the search.
The courts have established a two prong test in determining reasonableness:
• The action must be justified at its inception
• The search, as actually conducted, must be reasonably related in scope to
the circumstances that justified the interference in the first place.
• Note – school personnel may search for evidence of violation of the law or
the rules of school
• Reason for different standard: schools often search students and their
belongings out of a motivation to protect the students from harmful
materials rather than gathering evidence of a crime.
• Note – students have no reasonable expectation of privacy in a locker when
the school has a written policy and school personnel conduct the search
• Abandonment – an officer may search abandoned property without a warrant

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