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Section 968.11 – Scope of search incident to lawful arrest

May 14, 2021 | Criminal Procedure, Wisconsin

When a lawful arrest is made, a law enforcement officer may reasonably search the person arrested and an area within such person’s immediate presence for the purpose of:

(1) Protecting the officer from attack;
(2) Preventing the person from escaping;
(3) Discovering and seizing the fruits of the crime; or
(4) Discovering and seizing any instruments, articles or things which may have been used in the commission of, or which may constitute evidence of, the offense.

The holding of Arizona v. Gant, 556 U.S. 332, that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle is adopted as the proper interpretation of the Wisconsin Constitution’s protection against unreasonable searches and seizures. State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, 07-1894.

Wis. Stat. ยง 968.11

See also the notes to Article I, section 11, of the Wisconsin Constitution.