This is a common question that does not have an easy answer. Bottom line: sometimes they can, sometimes they can't. Attorney Mastantuono has written on the subject of police search and seizure in Wisconsin, and lectured at training seminars for other lawyers on this subject; for more information, see his teaching outline in this area. Generally, a search warrant, supported by probable cause and reviewed and authorized in advance by a magistrate, is required for police to search a person, a person's home, office or car, or a person's private belongings. Probable cause is evidence that would lead a reasonable person to conclude that a crime has probably been committed or illegal items (contraband) probably exists. However, there are many exceptions to this warrant requirement. The main exceptions are listed below:
- Search After Arrest – The police are authorized to fully search a person and his belongings, and the area surrounding him without a warrant, if that person is legitimately placed under arrest. This search may include a full search of a car's interior (not the trunk) if the person is arrested in his car.
- Investigative Detention and Frisk – The police may temporarily stop a person and ask questions without a warrant if they have reasonable suspicion to believe that person may be committing a crime. Investigative detentions, while common, must be supported by evidence that the person is doing something wrong. Reasonable suspicion means the police can point to specific observations that would cause a reasonable person to believe that a crime or traffic violation may be occurring. This detention must be brief, only for the purpose of a short investigation. The person is not free to leave, and may be questioned regarding his identity and his purpose. The person may not be placed under arrest or transported to a station unless police are satisfied that probable cause exists to arrest the person. Also, if police have reasonable suspicion to believe that the person being detained is armed, the police can conduct a pat-down frisk of the person's clothing to check for weapons.
- Consent Search – The police can always ask permission to search a person or his stuff without a warrant, and the person is always free to consent to – or give permission for – a search. Police are trained in getting a person to give consent even when there is no probable cause or reasonable suspicion to believe a crime has occurred. People often think that they cannot refuse an officer's request to search. If the police ask for permission, they probably need it. If they had a warrant or if a different exception to the warrant requirement existed, they would not ask – they would go ahead and search.
- Plain View – Police are authorized to seize illegal items without a warrant when those items are in the plain view of an officer, and that officer has the legal authority to be where he is. Example: police officer stops a car for speeding and while talking to the driver, he sees a gun in the back seat – he may take the gun without a warrant.
- Emergency Circumstances – Police are authorized to enter areas and conduct a search without a warrant when they have a reasonable belief that such aid is immediately necessary to protect the public from danger.
- Automobile Exception – If the police have probable cause to belief that contraband is in a car, they may search the car without a warrant.
That's basically it. Wisconsin criminal defense attorneys are trained to review police/citizen encounters, and reach a conclusion on whether the police violated their authority in an investigation or search and seizure. If the lawyer concludes that police violated their authority, the lawyer can file a motion in court asking the judge for a remedy – dismissal, suppression of evidence, or other remedies authorized by law. Getting answers to the question of whether the police can do what they did do is one reason people seek legal advice with Mastantuono & Coffee.