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Court of appeals upholds “identification search” after arrest

State v. Janaya L. Moss, 2016AP1856-CR, 7/25/17 (1-judge decision; ineligible for publication); case activity (including briefs)

Moss and another woman had a fight in a bar; responding police found Moss intoxicated to the point of incoherence. They arrested the other woman and frisked her, but could not find any identification (she would give only a first name). One officer noticed a wallet on a nearby table and asked the other woman if it was hers; she did not respond. The officer opened the wallet, revealing Moss’s ID but also cocaine and marijuana.

On appeal, Moss argued that none of the warrant requirement’s exceptions authorized the officer’s search of her wallet. The court of appeals, however, concludes that it was valid as an “identification search”–an doctrine born in Wisconsin and not widely accepted elsewhere.

The genesis of the identification search is State v. Flynn, 92 Wis. 2d 427, 285 N.W.2d 710 (1979). In that case the officer conducted a Terry stop of a suspected burglar who refused to identify himself, though he did tell the officer he had ID in his wallet. The officer took the wallet out of Flynn’s pocket and found the ID, which led to arrest. The supreme court upheld the search, finding the public need outweighed the relatively minor intrusion into the defendant’s privacy.

Moss distinguished Flynn in several ways; most importantly, she pointed out that in this case, the wallet’s owner was already under arrest when the search occurred. This fact undermines the Flynn court’s main justification for allowing a search for ID–that the officer in that case would otherwise have had to let Flynn go, despite his suspicion that he had recently committed a burglary and stolen a firearm. Here, with the suspect already arrested, there’s no similar threat to any criminal investigation, or to public safety.

The court acknowledges this argument but doesn’t really refute it, only commenting rather limply that the officer was still investigating the incident after making the arrest. (¶14). This decision illustrates the all too familiar process by which a Fourth Amendment exception becomes the Fourth Amendment rule: while Flynn carefully limited its decision to “factual situations such as the one presently before us,” this latest decision sanctions a search arising from a very different set of facts, and does so by way of an analysis that suggests no real stopping place.

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