search incident to arrest exception in Wisconsin

2026Conversely, the Court concluded that the Fourth Amendment does not permit warrantless blood tests incident to arrests for drunk driving because “[b]lood tests are significantly more intrusive [than breath tests], and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.” Id. ¶16 “Having concluded that the search incident to arrest doctrine does not justify the warrantless taking of a blood sample,” the Birchfield Court next addressed whether “such tests are justified based on the driver’s legally implied consent to submit to them.”

2026Conversely, the Court concluded that the Fourth Amendment does not permit warrantless blood tests incident to arrests for drunk driving because “[b]lood tests are significantly more intrusive [than breath tests], and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.” Id. ¶16 “Having concluded that the search incident to arrest doctrine does not justify the warrantless taking of a blood sample,” the Birchfield Court next addressed whether “such tests are justified based on the driver’s legally implied consent to submit to them.”

2008We then determine whether the reasoning in State v. Pallone, 236 Wis. 2d 162 , applies to the facts of this case. *20 ¶ 39.

2004Pallone, 236 Wis. 2d 162, ¶55 .

2000Fry, 131 Wis. 2d at 165 .

2000Fry, 131 Wis. 2d at 165 .

2022Thus, the warrantless search 6 No. 2021AP708-CR of an arrestee’s person and items found on the arrestee’s person does not violate the Fourth Amendment.4 The Supreme Court directs that “a search incident to the arrest requires no additional justification[,]” Robinson, 414 U.S. at 235 , because “the fact of arrest alone justifies the search.” Thornton v. United States, 541 U.S. 615 , 631- 32 (2004) (Scalia, J., concurring in judgment). ¶13 The search-incident-to-arrest exception also permits police to search items not actually located on the person but also in the area within the arrestee’s reac

2022See, e.g., United States v. Rodriguez, 995 F.2d 776 (7th Cir. 1993) (allowing search of address book); United States v. Molinaro, 877 F.2d 1341 (7th Cir. 1989) (allowing search of wallet).

2020And the Supreme Court expressly limited its holding to the search- incident-to-arrest exception.” (citation omitted)); United States v. Crumble, 878 F.3d 656, 660 (8th Cir. 2018) (“Riley’s holding is limited to cell phones seized incident to arrest.”); United States v. Cano, 973 F.3d 966 , 969 n.7 (9th Cir. 2020) (“In Riley, the Court held ‘a warrant is generally required before … a search [for information on a cell phone], even when a cell phone is seized incident to arrest.’ The Court limited this holding only to the search incident to arrest exception.” (citations omitted; bracketed materia

2020While on the topic of Gant, we note for context that our supreme court has adopted “the reasoning in Gant as the proper reading of Article 1, Section 11 of the Wisconsin Constitution (protecting against unreasonable searches and seizures),” so that under both the state and federal constitutions the vehicular search incident to arrest rule permits a search “only if the person arrested is unsecured and within reaching distance of the passenger compartment at the time of the search,” and when it is “‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’” S

2020While on the topic of Gant, we note for context that our supreme court has adopted “the reasoning in Gant as the proper reading of Article 1, Section 11 of the Wisconsin Constitution (protecting against unreasonable searches and seizures),” so that under both the state and federal constitutions the vehicular search incident to arrest rule permits a search “only if the person arrested is unsecured and within reaching distance of the passenger compartment at the time of the search,” and when it is “‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’” S

2020And the Supreme Court expressly limited its holding to the search- incident-to-arrest exception.” (citation omitted)); United States v. Crumble, 878 F.3d 656, 660 (8th Cir. 2018) (“Riley’s holding is limited to cell phones seized incident to arrest.”); United States v. Cano, 973 F.3d 966 , 969 n.7 (9th Cir. 2020) (“In Riley, the Court held ‘a warrant is generally required before … a search [for information on a cell phone], even when a cell phone is seized incident to arrest.’ The Court limited this holding only to the search incident to arrest exception.” (citations omitted; bracketed materia

2019Kyllo , 533 U.S. at 33 , 121 S.Ct. 2038 ; Brereton , 345 Wis. 2d 563 , ¶¶32-34, 826 N.W.2d 369 ; Riedel , 259 Wis. 2d 921 , ¶16, 656 N.W.2d 789 . ¶67 I also part company with the lead opinion's overly broad application of the search incident to arrest exception to the warrant requirement. 7 No party argued this theory to us, either in briefs or during oral argument. ¶68 Promoting officer safety and preserving evidence are the policies that underlie the search incident to arrest exception to the warrant requirement.

2019Kyllo , 533 U.S. at 33 , 121 S.Ct. 2038 ; Brereton , 345 Wis. 2d 563 , ¶¶32-34, 826 N.W.2d 369 ; Riedel , 259 Wis. 2d 921 , ¶16, 656 N.W.2d 789 . ¶67 I also part company with the lead opinion's overly broad application of the search incident to arrest exception to the warrant requirement. 7 No party argued this theory to us, either in briefs or during oral argument. ¶68 Promoting officer safety and preserving evidence are the policies that underlie the search incident to arrest exception to the warrant requirement.

2019Kyllo , 533 U.S. at 33 , 121 S.Ct. 2038 ; Brereton , 345 Wis. 2d 563 , ¶¶32-34, 826 N.W.2d 369 ; Riedel , 259 Wis. 2d 921 , ¶16, 656 N.W.2d 789 . ¶67 I also part company with the lead opinion's overly broad application of the search incident to arrest exception to the warrant requirement. 7 No party argued this theory to us, either in briefs or during oral argument. ¶68 Promoting officer safety and preserving evidence are the policies that underlie the search incident to arrest exception to the warrant requirement.

2019Kyllo , 533 U.S. at 33 , 121 S.Ct. 2038 ; Brereton , 345 Wis. 2d 563 , ¶¶32-34, 826 N.W.2d 369 ; Riedel , 259 Wis. 2d 921 , ¶16, 656 N.W.2d 789 . ¶67 I also part company with the lead opinion's overly broad application of the search incident to arrest exception to the warrant requirement. 7 No party argued this theory to us, either in briefs or during oral argument. ¶68 Promoting officer safety and preserving evidence are the policies that underlie the search incident to arrest exception to the warrant requirement.

2019Kyllo , 533 U.S. at 33 , 121 S.Ct. 2038 ; Brereton , 345 Wis. 2d 563 , ¶¶32-34, 826 N.W.2d 369 ; Riedel , 259 Wis. 2d 921 , ¶16, 656 N.W.2d 789 . ¶67 I also part company with the lead opinion's overly broad application of the search incident to arrest exception to the warrant requirement. 7 No party argued this theory to us, either in briefs or during oral argument. ¶68 Promoting officer safety and preserving evidence are the policies that underlie the search incident to arrest exception to the warrant requirement.

2019Kyllo , 533 U.S. at 33 , 121 S.Ct. 2038 ; Brereton , 345 Wis. 2d 563 , ¶¶32-34, 826 N.W.2d 369 ; Riedel , 259 Wis. 2d 921 , ¶16, 656 N.W.2d 789 . ¶67 I also part company with the lead opinion's overly broad application of the search incident to arrest exception to the warrant requirement. 7 No party argued this theory to us, either in briefs or during oral argument. ¶68 Promoting officer safety and preserving evidence are the policies that underlie the search incident to arrest exception to the warrant requirement.

2014Swanson, 164 Wis. 2d at 453 & n.6. 21 Instead, the issue in Swanson was whether the search-incident-to-arrest exception to the warrant requirement justified a search that preceded an arrest.

2014Id. at 441-42 . ¶ 40.

2014State v. Hughes, 2000 WI 24, ¶ 17 , 233 Wis. 2d 280 , 607 N.W.2d 621 (citing Payton v. New York, 445 U.S. 573, 575, 583-88 (1980)).

2014State v. Hughes, 2000 WI 24, ¶17 , 233 Wis. 2d 280 , 607 N.W.2d 621 (citing Payton v. New York, 445 U.S. 573, 575, 583-88 (1980)).

2014State v. Hughes, 2000 WI 24, ¶ 17 , 233 Wis. 2d 280 , 607 N.W.2d 621 (citing Payton v. New York, 445 U.S. 573, 575, 583-88 (1980)).

2014State v. Hughes, 2000 WI 24, ¶ 17 , 233 Wis. 2d 280 , 607 N.W.2d 621 (citing Payton v. New York, 445 U.S. 573, 575, 583-88 (1980)).

2010Ortiz, 84 F.3d at 984 . ¶ 37 In subsequent cases, other courts have adopted that rationale when evaluating an officer's ability to search a seized cell phone incident to arrest, and have permitted law enforcement to conduct a warrantless search of a phone's stored data, such as records of calls received and made, so long as the other requirements of the search incident to arrest exception were satisfied.

2008In addition, Littlejohn argued, as does Dearborn, that Soehle v. State, 60 Wis. 2d 72 , 208 N.W.2d 341 (1973), holds a search of a vehicle locked at the time of arrest is an invalid search incident to an arrest.

2008In addition, Littlejohn argued, as does Dearborn, that Soehle v. State, 60 Wis. 2d 72 , 208 N.W.2d 341 (1973), holds a search of a vehicle locked at the time of arrest is an invalid search incident to an arrest.