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Lawmaker: Rough day for the Fourth Amendment in Wisconsin

By   /   February 19, 2016  /   News  /   No Comments

MADISON, Wis. – Thursday was a great day for expanded police power in Wisconsin, but a lousy day for the Fourth Amendment.

The Assembly passed bills that give the state Attorney General administrative subpoena authority and expand jailhouse strip searches.

Libertarian-minded lawmakers fought a quixotic battle to kill the bills, which received widespread bipartisan support, including 87 votes in favor of the administrative subpoena bill.

“I have to take a vote on the constitution and what the government is capable of, particularly with recent events,” said state Rep. Dave Craig, R-Town of Vernon. The “recent events” of which Craig refers is the unconstitutional John Doe investigation that included sweeping warrants used to tap into conservatives’ communications.

Photo by wikipedia.org

EXPANDED POWER: The Wisconsin Legislature passed two bills Thursday expanding the search powers of law enforcement.

Craig was one of seven Assembly members to cast a “nay” vote against the  subpoena bill. He was joined by:

Reps. Rob Brooks, R-Saukville, Rob Hutton, R-Brookfield, Fred Kessler, D-Milwaukee, Joe Sanfellipo, R-New Berlin,  Mike Schraa, R-Oshkosh,  and Jeremy Thiesfelt, R-Fond du Lac.

Dean Knudson, R-Hudson, voted against the bill as a paired vote. Three representatives did not participate.

State Rep. Adam Jarchow, R-Balsam Lake, led an effort to water down the subpoena power. In exchange for language that clarified the subpoena’s limits, Jarchow agreed to support the final version of the legislation.

The bill, known as ‘Alicia’s Law,  grants the state attorney general’s office administrative subpoena power to help agents track down online sexual predators targeting children.

It does not require judicial oversight of the subpoenas, a fact that is unsettling for public defenders and others, like Craig, concerned the law would leave the door open to prosecutorial mischief.

RELATED: Schimel: There’s nothing wicked about AB 666, ‘Alicia’s Law

“This isn’t a rank and file administrative agency, this is the ultimate sword of government, the Justice Department,” Craig said. “They are now going to be able to access this information without a warrant.”

Supporters of the bill, including Attorney General Brad Schimel say the intention of the subpoena power is to compel Internet service providers to turn over online addresses of suspected predators and child pornographers. And amendments attached to the bill would restrict law enforcement from searching through content without a warrant.

But the bill’s wording still raises questions about how far investigators would be allowed to go in their search for a suspect, critics say.

“The other side says the subpoenas would involve a minimal amount of information, but there are two things to look at: the Fourth Amendment and the jurisprudence in the history of our country,” Craig said. “Do I trust this attorney general to only use it for this purpose? Yes. Do I trust a future attorney general? No.”

The lawmaker called the bill the “worst vote” he has ever taken, politically speaking.

Earlier Thursday, the Assembly approved a bill that widens the parameters of strip searches.

In the last legislative session, lawmakers passed legislation that states anyone arrested or detained on allegations of a crime other than a felony may be strip-searched if they are to be detained for at least 12 hours and they have to be housed with other inmates.

The Republican bill removes the 12-hour requirement.

Proponents of the measure say it’s about safety.

St. Croix County Sheriff John Shiltz last month told Wisconsin Watchdog that he just wants to prevent inmates and staff from being harmed by contraband coming into cells. He said his rural sheriff’s department has a limited number of holding cells, and those individual cells can fill up fast.

Craig said the “ink was barely dry” on the 12-hour rule that he and his conservative colleagues negotiated in 2013 before the law enforcement community came back for the rest.

“We absolutely need to protect our law enforcement in our statutes, but we have to keep civil rights in that balance as well,” the lawmaker said.

The bill now moves on to Gov. Scott Walker’s desk, among a flurry of legislation passed during the last long day of the current legislative session.

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M.D. Kittle is national First Amendment reporter at Watchdog.org. Contact him at mkittle@watchdog.org.