A basic guide to Fourth Amendment protections in Wisconsin drug cases

Given the serious nature of drug offenses in Wisconsin, it is important for those facing drug-related criminal charges to explore every legal defense at their disposal. For instance, one of the most effective defenses used in criminal cases involves the constitutional protections granted by the Fourth Amendment.

Specifically, the Fourth Amendment of the U.S. Constitution - as well as Article 1, Section 11 of the Wisconsin Constitution - guarantees the right of individuals to be "secure in their person, houses, papers and effects against unreasonable searches and seizures." The main purpose of this particular constitutional safeguard is to protect the privacy and security of the public against arbitrary and unreasonable invasions by the government, such as police.

Most importantly, if police conduct an unreasonable search of an individual's home or person - and thus violate the Fourth Amendment - any evidence obtained as a result of this search may be excluded at trial, including evidence of drug-related crimes. And, without evidence, a criminal conviction is significantly less likely.

However, before evidence can be excluded, it must first be shown that the search that obtained the evidence was in fact "unreasonable" - a process that can be quite complex in Wisconsin.

Exception to warrant requirement in Wisconsin: Consent

Typically, in order for the search of a home or other location to valid, police must first obtain a search warrant, which can only be issued upon a finding of probable cause by a judge. In fact, Wisconsin courts have repeatedly stated that warrantless searches are per se unreasonable under the Fourth Amendment. Although, there are several exceptions to the warrant requirement that individuals must be aware of if facing drug charges in Wisconsin.

First, if an individual consents to a search, there is no need on the part of police to obtain a search warrant. However, before consent may function as an exception to the warrant requirement, two very crucial conditions must be met:

  • The consent must be given freely and voluntarily
  • The consent must be given by an individual who has actual or apparent authority over the location to be searched

If the police rely upon consent to conduct a search, the government bears the burden of proving in court that the consent was voluntary. Generally, whether a search is considered voluntary or not is based upon the "totality of circumstances," which may take into consideration any coercive or improper tactics used by police when obtaining consent.

Additionally, consent is only valid if given by someone who actually has authority to give such consent. In some instances, consent can be provided by a third party - such as a roommate - but only if he or she has "common authority" over the location to be searched. Furthermore, if police do not reasonably believe that a third party has the authority to give consent, they cannot rely upon this consent when electing to conduct the search.

Searches based upon exigent circumstances

Another well-known exception to the warrant requirement is the exigent circumstance rule, which is also known as the "emergency doctrine" in Wisconsin.

Essentially, this particular rule is based on the idea that police may have a compelling need - due to exigent circumstances - to enter a premises without a warrant. Such exigent circumstances may include:

  • When police are attempting to apprehend a suspect and are in hot pursuit from the scene of the crime
  • When police need to assist a victim
  • When police need to prevent the imminent destruction of evidence

Wisconsin courts employ a two-pronged test when determining whether a warrantless search based upon exigent circumstances if valid. First, the searching officer must be "actually motivated" by the perceived need for the search. And second, a reasonable person, given the circumstances, would have also thought the exigency or emergency existed.

Importantly, if police "create" or "manufacture" the exigent circumstances themselves, they may not rely upon the need to prevent the destruction of evidence when conducting a warrantless search.

Additional warrant exceptions: Plain view and searches incident to arrest

It is also worth mentioning that police do not need to get a warrant to search for evidence that is in plain view, so long as the discovery is inadvertent and the officer has justification for being in the position to make the discovery.

In addition, police may also search a person who has been lawfully arrested. This particular legal tenet is commonly referred to as a "search incident to arrest," and is actually codified in statute in Wisconsin. However, it is important to note that if an arrest is based upon an illegal arrest warrant, any evidence seized during the search may be excluded.

Excluding evidence even when a warrant exists

Even if police go through the trouble of obtaining a warrant, it does not necessarily guarantee that evidence collected can be used to convict an individual of a drug crime. Indeed, evidence can be suppressed if police exceed the scope of the search warrant when collecting it.

For instance, if police obtain a warrant to search an individual's home for evidence of drug crimes, they cannot also search his or her place of business for additional evidence simply because they feel like it.

Additionally, if a search warrant lacks probable cause, or is issued based upon false information, it may be considered invalid, meaning any evidence obtained may also be suppressed. In fact, when false statements are used in a warrant affidavit - including false statements made knowingly, intentionally or simply with reckless disregard for the truth - the court may exclude any evidence seized pursuant to that warrant.

Seek counsel from an experienced criminal defense attorney

There are few constitutional protections as fundamental as the one provided by the Fourth Amendment. However, since this area of the law is so vast and complex, this article is barely able to scratch the surface of what an individual needs to know when charged with a drug crime in Wisconsin. For example, there are many additional complicated rules of law that pertain to other types of searches, including those involving automobiles as well as "stop and frisk" searches.

Accordingly, if you are currently facing drug charges in Wisconsin, you should turn to attorney Stephen Govin for expert guidance and committed representation. He can review the circumstances of your arrest and help explain any constitutional defenses that may exist. Contact Stephen today at 414-395-5620.