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Arrest — Search Incident to Arrest — “Protective Sweep” Doctrine: Search of Canister

State v. Dwight M. Sanders, 2008 WI 85, affirming as modified2007 WI App 174
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate


¶35      Accepting for the moment the State’s position that articulable facts exist to demonstrate that the officer had reasonable suspicion that other persons may be lurking in the defendant’s bedroom who would pose a danger to the officers and that a protective search of the bedroom was therefore justified, we nevertheless must conclude that Officer Garcia’s search of the canister and seizure of its contents clearly were not within the purpose of the protective sweep. The search of the canister and seizure of its contents were not part of a search for persons who might pose a danger to law enforcement officers or to others. No person could be hiding in the canister. Furthermore, the officers had no articulable suspicion that weapons were involved in the instant case. The search of the canister and seizure of its contents therefore do not fall within the “protective sweep” exception to the search warrant requirement.

“No person could be hiding in the canister.” About sums it up, doesn’t it? Of note, though: the court draws an analogy to Arizona v. Hicks, 480 U.S. 321, 324-25 (1987), to draw a larger principle:

¶39      Hicks teaches that even in the face of a lawful entry and reasonable suspicion that an object is evidence of a crime, a slight movement of the object is an impermissible search whenever it is “unrelated to the objectives of the authorized intrusion.” [23]

A lengthy, 3-Justice concurrence (¶¶61-136) joins the majority, making the holding unanimous, but would decide an issue not reached by the majority, “namely, whether warrantless police entry into a home under the exigency of “hot pursuit” to arrest a person for a misdemeanor violates the Fourth Amendment, as stated in State v. Mikkelson, 2002 WI App 152, 256 Wis. 2d 132, 647 N.W.2d 421.” The concurring Justices would overrule that case, so as to allow warrantless hot pursuit entry into a home to arrest on probable cause for any “jailable offense.”


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