00-1444 State v. Hart

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Although there may be circumstances when, based on probable cause, an arrest is inevitable and therefore it is a mere formality whether arrest comes before or after the search, in this case no arrest was going to occur at the time of the search.

“The Neiman court’s analysis of the relevant interests was not fact-specific and did not inquire into the actual harm suffered by the defendant-insurer. Instead, the primary private interest identified by the court was an interest that is universal to all tort defendants: the substantive right, in cases where damages are specified by statute, to have the amount of liability fixed as of the date of injury.

Accordingly, because the pipe was the fruit of an unlawful search, it should have been suppressed and defendant’s conviction for possession of drug paraphernalia is reversed.

Affirmed in part, reversed in part and remanded.

Recommended for publication in the official reports.

Dist II, Waukesha County, Gempeler, J., Brown, P.J.

Attorneys:

For Appellant: Jon Deitrich, Milwaukee

For Respondent: Paul E. Bucher, Waukesha; Kathleen M. Ptacek, Madison; Mark A. Langholz, Waukesha