On Point: F. Private search or seizure

State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell

Issue/Holding1: Viewing of memory stick, concededly obtained in “private” search not covered by 4th amendment, ¶13 n. 6, by off-duty police lieutenant who was defendant’s brother-in-law, was not a “government search”:

¶14      “Private searches are not subject to the Fourth Amendment’s protections because the Fourth Amendment applies only to government action.” State v.

State v. Paul Anthony Butler, 2009 WI App 52, PFR filed 4/20/09
For Butler: Trisha R. Stewart Martin

Issue/Holding: Seizure and detention by security guard, until police arrived to conduct search, didn’t amount to government action so as to trigger 4th amendment analysis, under 3-factor test of State v. Tomas Payano-Roman, 2006 WI 47:

¶14      As we see from Butler’s submissions that are in the Record,

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue/Holding: The exclusionary rule applies only to government action, not private searches, ¶12. If the State asserts that the action was private in nature the burden shifts to the defendant to prove by governmental involvement, preponderance of evidence, id.

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue: Whether the action of a police officer in opening a letter misaddressed to the officer’s residence from a House of Correction inmate was private and therefore outside fourth amendment scrutiny.

Holding:

¶13   There appears to be no Wisconsin case addressing the issue when an off-duty law enforcement officer acts in a private capacity rather than as a government agent for purposes of the Fourth Amendment.

State v. Christopher D. Sloan, 2007 WI App 146
For Sloan: Thomas E. Hayes

Issue/Holding: Inspection of package by UPS personnel and subsequent disclosure of its contents to police didn’t require a warrant, because of lack of governmental involvement in the initial search.

¶10 A private party’s discovery, and subsequent disclosure to law enforcement, of contraband is not prohibited by the Fourth Amendment where there is not a reasonable expectation of privacy in dealings with the private party. 

State v. Tomas Payano-Roman, 2006 WI 47, reversing 2005 WI App 118
For Payano-Roman: Timothy A. Provis

Issue: Whether the administration to an arrestee of a laxative at a hospital was under 4th amendment constraints because of the involvement of the police (including keeping the defendant handcuffed in the hospital room; police administration of the laxative; their palpable goal to recover a controlled substance that the defendant had swallowed).

State v. Tomas Payano-Roman, 2006 WI 47, reversing 2005 WI App 118
For Payano-Roman: Timothy A. Provis

Issue/Holding:

¶17      … Private searches are not subject to the Fourth Amendment’s protections because the Fourth Amendment applies only to government action. State v. Rogers, 148 Wis.  2d 243, 246, 435 N.W.2d 275 (Ct. App. 1988) ….¶18      The court of appeals in Rogers stated three requirements that must be met for a search to be a private search:

(1) the police may not initiate,

State v. Robert C. Knight, 2000 WI App 16, 232 Wis.2d 305, 606 N.W.2d 291.
For Knight: Scott B. Taylor.

Issue: Whether seizure of a disbarred attorney’s client files by a court-ordered trustee amounted to governmental action so as to trigger fourth amendment protections.

Holding:

¶8 Here, Garczynski’s seizure and search of Knight’s client files were conducted pursuant to an order issued by Judge Carlson under the authority conferred on the circuit courts by the Wisconsin Supreme Court in Rule 22.271(2).