BY-LAW 639-05 PDF

Skip navigation. Rules Indices Miscellaneous Archives Home. Law Districts Session Drafting Files. Schedule Joint Senate Assembly Study. Questioning the defendant's 3-year-old son outside the defendant's presence did not exceed the scope of the defendant's consent to search his home when the child was left with a police officer without any restrictions and there was no evidence of trickery, deceit, or coercion.

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Skip navigation. Rules Indices Miscellaneous Archives Home. Law Districts Session Drafting Files. Schedule Joint Senate Assembly Study. Questioning the defendant's 3-year-old son outside the defendant's presence did not exceed the scope of the defendant's consent to search his home when the child was left with a police officer without any restrictions and there was no evidence of trickery, deceit, or coercion.

The questioning constituted on-the-scene questioning of a potential witness in an ongoing investigation. There was no applicable prohibition against speaking with the boy about whether a gun was in the house. State v. Ragsdale, WI App , Wis. For a search with no probable cause made after a traffic stop to be consensual, the consent must be given under circumstances where a reasonable person granting the consent would have believed that he or she was free to leave.

Some verbal or physical demonstration by the officer, or some other equivalent facts, clearly conveying to the person that the traffic matter is concluded and the person should be on his or her way is necessary. Absent that, it is a legal fiction to conclude that a reasonable person would believe that he or she is free to depart the scene. Jones, WI App 26 , Wis. In a traffic stop context, where the test of consent to search is whether a reasonable person would feel free to disregard the police and go about his or her business, the fact that the person's driver's license or other official documents are retained by the officer is a key factor in assessing whether the person is seized and, therefore, whether consent is voluntary.

Luebeck, WI App 87 , Wis. Orderly submission to law enforcement officers who, in effect, incorrectly represent that they have the authority to search and seize property, is not knowing, intelligent, and voluntary consent under the 4th amendment.

When officers offered the defendant a fleeting glimpse of a subpoena signed by a judge, they suggested authority they did not possess that led the defendant to believe he could not refuse consent for the officers to search his room and seize his computer.

Giebel, WI App , Wis. But see State v. Brar, WI 73 , Wis. The holding of Jones, WI App 26 , is inapplicable to consent to the search of a vehicle made after the defendant had been lawfully seized.

Hartwig, WI App , Wis. The holding of Angelia D. A school search is legal when it satisfies a 2-prong test: 1 the search must be justified at its inception, and 2 reasonably related in scope to the circumstances which justified the interference in the first place. A school official has the responsibility to keep students safe on school grounds. The search here 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.

Schloegel, WI App 85 , Wis. The defendant in this case did not have a legitimate expectation of privacy in a package intercepted by a delivery service and later searched. While the expectation of privacy when using an alias to send or receive mail is something society may accept as reasonable, the coupling of a false name and a false address, along with an unknown sender and a statement by the defendant that the package belonged to someone else did not demonstrate that the defendant had a reasonable expectation of privacy in the package.

Earl, WI App 99 , Wis. In considering the totality of the circumstances surrounding whether consent was given voluntarily the court considered: 1 whether the police used deception, trickery, or misrepresentation; 2 whether the police threatened or physically intimidated the defendant or punished him or her by the deprivation of something like food or sleep; 3 whether the conditions attending the request to search were congenial, non-threatening, and cooperative, or the opposite; 4 how the defendant responded to the request to search; 5 what characteristics the defendant had as to age, intelligence, education, physical and emotional condition, and prior experience with the police; and 6 whether the police informed the defendant that he or she could refuse consent.

Artic, WI 83 , Wis. Voluntary consent is less likely when the defendant answers the door to find officers with guns drawn. However, the fact that an officer has a weapon drawn at the beginning of an encounter does not prevent the situation from evolving into something non-threatening and relatively congenial. A defendant's consent to a search obtained following illegal police activity may be admissible. The court must consider the temporal proximity of the misconduct to the statements by the defendant, the presence of intervening circumstances, and the purpose and flagrancy of the misconduct.

Circumstances may mitigate a short time span including congenial conditions. Meaningful intervening circumstances concerns whether the defendant acted of free will unaffected by the initial illegality. Purposefulness and flagrancy of the police conduct is particularly important because it goes to the heart of the exclusionary rule's objective of deterring unlawful police conduct.

The rule regarding consent to search a shared dwelling in Georgia v. Randolph , U. When the defendant was nearby but not invited to take part in the threshold colloquy in which the defendant's co-tenant granted permission to search, the defendant did not fall within the rule stated in Randolph such that the search should have been barred and the evidence gained from it suppressed.

Martin, WI 44 , Wis. Who may consent to the search of a home hinges not upon the law of property, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes. There is no rigid rule that a weekend guest may not grant consent to search. Whether an individual has the constitutional authority to invite law enforcement into the home of another is determined on a case-by-case basis.

Sobczak, WI 52 , Wis. Specific factors that weigh on whether an individual has the constitutional authority to invite law enforcement into the home of another include: 1 the relationship of the consenter to the defendant, not only in the familial sense, but also in terms of the social ties between the two; 2 the duration of the consenter's stay in the premises; 3 a defendant's decision to leave an individual in his or her home alone; 4 various other miscellaneous facts that may illuminate the depth of an individual's relationship to the premises, such as whether he or she has been given a key, keeps belongings in the home, or lists the residence as his or her address on a or driver's license.

See also State v. Torres, WI App 23 , Wis. To validate the search of an object within a home on consent, the government must satisfy the same requirements as apply to consent to enter, namely, that the consenter had joint access or control of the object for most purposes. Wantland, WI 58 , Wis. Involuntary consent is invalid, regardless of any prior illegality or attenuation therefrom. Attenuation analysis is not voluntariness analysis, and it is not meant to cure the involuntary waiver of rights.

Rather, attenuation analysis examines whether voluntary consent is tainted by prior illegality. Attenuation analysis examines 3 factors to determine whether consent is sufficiently attenuated from illegal action to be removed from the taint of illegality: 1 the temporal proximity of the official misconduct and seizure of evidence; 2 the presence of intervening circumstances; and 3 the purpose and flagrancy of the official misconduct.

Hogan, WI 76 , Wis. The attenuation test is the proper test to apply for analyzing voluntary consent to search a vehicle when that consent comes after the illegal extension of a traffic stop. Attenuation analysis may not be necessary in all cases; it is only appropriate where, as a threshold matter, courts determine that the challenged evidence is in some sense the product of illegal governmental activity. After a traffic stop has ended, police may interact with a driver as they would with any citizen on the street.

If a person is not seized, police may request consent to search even absent reasonable suspicion. When after consenting to a blood draw, the defendant asked the officer if the officer needed to obtain a warrant to draw the defendant's blood and the officer shook his head no in response, the officer's response did not vitiate the voluntariness of the defendant's consent.

The officer did not need a warrant because the defendant already had consented, and the officer was not obligated to explain further than he did. Rakas v. Illinois, U. A court may not suppress otherwise admissible evidence on the ground that it was seized unlawfully from a 3rd party not before court. United States v. Payner, U. Defendants charged with crimes of possession may only claim benefits of the exclusionary rule if their own 4th-amendment rights have in fact been violated.

Salvucci, U. When police entered a 3rd party's house to execute an arrest warrant, evidence discovered during the search was inadmissible. Steagald v. United States, U. A prisoner has no constitutionally protected reasonable expectation of privacy in his or her cell. Hudson v. Palmer, U. The state need not prove that the defendant consenting to search knew of the right to withhold consent.

Florida v. Rodriguez, U. A warrantless entry to premises is permitted under the 4th amendment when entry is based upon 3rd-party consent and officers reasonably believed the 3rd party possessed authority to consent.

Illinois v. An officer's opening of a closed bag found on the floor of a suspect's car during a search of the car, made with suspect's consent was not unreasonable.

Jimeno, U. A defendant can urge suppression of evidence obtained in violation of constitutional protections only if that defendant's rights were violated. Padilla, U. The 4th amendment does not require that a seized person must be advised that he is free to go before his consent to a search can be recognized as voluntary. Ohio v. Robinette, U. A physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.

If a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.

Georgia v. Randolph, U. When a police officer makes a traffic stop, the driver of the car and its passengers are seized within the meaning of the 4th amendment and so may challenge the constitutionality of the stop. Brendlin v. California, U. As a matter of federal law, an appellant cannot assert an alleged violation of his wife's 4th-amendment rights as a basis for suppression, at his trial, of evidence taken from his wife.

Mabra v. Gray, F.


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James E. Bryan D. Bolton, Cheryl A. Affirmed in part and vacated in part by published opinion.



Application for Patent filed September 29, , Serial No. Azatetracyclic Compounds. This appeal arises from the examiner's final rejection of claims 6 through 20, which are all of the claims in the application. In the examiner's answer, page 2, the examiner indicates that the subject matter defined in claims 8 and 10 is allowable over the prior art of record.

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