(dissenting). I dissent from the majority opinion which holds that it is constitutionally permissible for law enforcement officers to compel a person under arrest for violation of a civil municipal ordinance1 to participate in a lineup in a criminal investigation when the crime is unrelated to the civil arrest and when there is neither probable cause to believe nor reasonable suspicion that the civil arrestee committed the crime. Accordingly I would suppress the *108identification evidence obtained from the lineup. Other identifications based on independent sources might be admissible at trial. United States v. Crew, 445 U.S. 463 (1980).
If there were probable cause to believe that the civil arrestee committed the crime for which the lineup is held, I would conclude that the civil arrestee could be compelled to participate in a lineup investigating that charge.2 If the court were to conclude that a civil ar*109restee may be compelled to participate in a lineup when there is merely reasonable suspicion to believe that the civil arrestee committed the crime for which the lineup will be held, the court would, I believe, have to assure the civil arrestee protections, such as requiring a judicial order and the right to counsel at the lineup.3
Civil arrestees are not shorn of all reasonable expectations of privacy. The fourth and fourteenth amendments *110are involved in this case because compelling a person (even one under arrest) to participate in a lineup constitutes a seizure (albeit a seizure less intrusive than the arrest) within the meaning of the constitution. The purpose of the fourth amendment is to impose a standard of reasonableness upon law enforcement officers in order to safeguard an individual’s privacy and security against arbitrary invasions by law enforcement officers. Terry v. Ohio, 392 U.S. 1, 19 (1968); Delaware v. Prouse, 440 U.S. 648, 654 (1979); Brown v. Texas, 443 U.S. 47, 50-51 (1979).
The reasonableness of compelling a civil arrestee’s participation in a lineup is judged by balancing the intrusion on the constitutionally protected individual interests against the promotion of legitimate governmental interests. The court weighs the severity of the interference with individual liberty, the gravity of the public concerns served by the seizure, and the extent to which the seizure advances the public interest. Brown v. Texas, 443 U.S. 47, 50-51 (1979).
The state contends that law enforcement officers should have unlimited discretion to compel any civil arrestee to participate in a lineup. The state asserts that this practice is reasonable under the fourth amendment because the state’s interest in using the lineup as a means of solving crime outweighs the intrusion involved.
The individual interests to be protected from compelled participation in a lineup include the individual’s right to privacy, the individual’s control over information about herself or himself, and the individual’s ability to decide the use of her or his time. The individual’s interests also include the right to personal security free from arbitrary interference by law enforcement officers, including the individual’s right to be left alone and the individual’s right to be free from being thrust into a criminal atmosphere associated with a lineup. Furthermore the indi*111vidual has an interest in her or his dignity. Finally the individual has an interest in not being subjected to the stigma of a lineup and the significant risk of a false identification inherent in any lineup.4
While individuals have no legitimate expectation of privacy in their appearance, they do have a legitimate expectation not to be placed in a lineup. Society recognizes this expectation for persons at liberty who are not under arrest by not allowing law enforcement officers to compel individuals to participate in lineups.
Since the defendant in this case was under arrest, compelling him to participate in a lineup at the police station does not detain him or interfere with his personal liberty to the same extent that such compulsion would intrude on a person at liberty. Nevertheless compelling a civil arrestee to participate in a lineup does interfere with certain aspects of that person’s right to privacy and personal security.
Although apparently there is authority that civil arrestees may be photographed and fingerprinted, these practices are less intrusive and less offensive than the lineup. They involve less stigma and less offense to the person’s dignity. Unlike photographs and fingerprints, lineups may be time consuming and may be performed repeatedly. Furthermore lineups subject the civil arrestee to observation by members of the public, to the stigma of involvement in the criminal justice system, and to the possible abuse of an improper lineup.
Even if the lineup is viewed as a minimal intrusion on the personal rights of the civil arrestee — at least when compared to a similar intrusion on a person at liberty— the balancing test requires a determination of whether *112this intrusion outweighs the governmental interest or is outweighed by it.
The legitimate governmental interests promoted by compelling an individual to participate in a lineup is the identification of perpetrators of unsolved crimes, the detection of crime and the prevention of crime.
The state has a legitimate interest and need to investigate unsolved crimes, and the lineup is a useful tool by which victims and witnesses may identify offenders. The question remains, however, whether compelling a civil arrestee to participate in a lineup under the circumstances of this case sufficiently furthers the legitimate governmental interest in identifying perpetrators of unsolved crime to justify the intrusion on the civil arrestee. As the United States Supreme Court observed, the court must determine whether the law enforcement practice “is a sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests . . . .” Delaware v. Prouse, supra, 440 U.S. at 659. Stated another way, the question is whether there is a rational relationship between compelling a civil arrestee under the circumstances of this case to participate in a lineup and detecting perpetrators of crime. On the basis of this record, the answer is no.
The state does not argue that the law enforcement officers had a reasonable suspicion that the defendant participated in the crime under investigation or that the defendant’s identifying characteristics would be of value in the lineup. The state did not show a need for, or the possible fruitfulness of, identification through the lineup used in this case.
Since in this case there is no probable cause to believe or reasonable suspicion that the defendant committed a crime in this case and since the civil offense is not related to the crime under investigation, there is insufficient basis upon which to conclude that compelling the defendant to participate in a lineup is a sufficiently pro*113ductive mechanism to justify the intrusion. The state has brought forth no evidence, no case law and no empirical data to support the premise that apparently underlies its position. The premise appears to be that civil violators (a category which includes certain traffic offenders and violators of civil ordinances, persons in arrears for child support or sued for paternity, as well as “loiterers”) are persons apt to commit crimes and that therefore their participation in a lineup is needed for crime detection and prevention. Without evidence that shows any relationship between civil arrestees and perpetrators of crime, it is unreasonable to conclude that civil arrestees are any more likely to be perpetrators of erime than the general public. Accordingly, it is unreasonable to compel their participation in a lineup for criminal charges. Such compulsion would be insufficiently productive of information for crime detection to justify the intrusion on the individual as a reasonable law enforcement practice.
In sum, prohibiting the state from compelling a civil arrestee to participate in a lineup will not harm the state’s interest in the investigation of crime. It is apparent that the state could use less intrusive means than compelling all civil arrestees to participate in lineups to further the state’s interest of investigating unsolved crimes. Identification of the offender might have been made from photographs and fingerprints. Furthermore, since the civil arrestee’s name and address are known to the law enforcement officers, the civil arrestee will be available for an ongoing investigation.
I conclude that when law enforcement officers seek to compel a civil arrestee to participate in an identification procedure for purposes of a criminal investigation and there is no probable cause to believe or reasonable suspicion that the civil arrestee committed the crime, the state must show a need for the procedure before undertaking it. Compare 3 LaFave, Search and Seizure, sec. *1149.6, p. 160 (1978). If nothing more connects the individual with a crime than the individual’s incarceration in a civil forfeiture action, the balance tips in favor of the individual’s privacy rights and the right to be free from the unreliability of a lineup.
The analysis and conclusion that I have set forth comports with the decision in Tinetti v. Wittke, 479 F. Supp 486 (E.D. Wis. 1979), aff’d. 620 F.2d 160 (7th Cir. 1980). In Tinetti, the civil arrestee, a traffic violator, was strip searched. The governmental interest in undertaking the search was to discover weapons and contraband. The court found that traffic violators, unlike detainees charged with criminal offense, were incarcerated solely due to their inability to post cash bail and that there was no reason to believe that traffic violators will conceal weapons or contraband. The court concluded that a routine strip search of traffic violators lacked a sufficient relationship to the state’s legitimate interest in discovering concealed weapons or contraband. When the court applied the balancing test, it concluded that the intrusion on the personal dignity of the civil arrestee without any relation to the likelihood of concealment of weapons or contraband was unconstitutional. Thus the Tinetti court enjoined law enforcement officers from strip searching persons charged with traffic offenses, which are not crimes, except where the officers have probable cause to believe that contraband or weapons are being concealed on the persons of the arrestees.
The Tinetti case is apposite. In this case, as in Tinetti, the individual was arrested for a civil ordinance violation. In both cases there was no probable cause to believe or reasonable suspicion that the individual was involved in a crime. In both cases the police originally exercised dominion over the liberty of the civil arrestee solely to ensure bail for the civil action. According to the Tinetti decision, when a person is under civil arrest, there must be a rational relationship between the subse*115quent intrusion and the governmental interest. In this case the intrusion was less offensive than in Tinetti, but in this case, as in Tinetti, there was no rational relationship between the intrusion and the governmental interest. Furthermore, in this case, in contrast to Tinetti, there were less intrusive means available to accomplish the governmental interests.
Since I would decide this case on the basis that a civil arrestee may not be compelled to participate in a lineup when the crime is unrelated to the civil arrest and when there is neither probable cause to believe nor reasonable suspicion that the civil arrestee committed the crime, I do not reach the question of the constitutionality of the loitering ordinance. I am, however, uncomfortable with the majority’s treatment of the issue given their disposition of the lineup question. The majority refuses to consider the question of the constitutionality of the Milwaukee loitering ordinance saying that the defendant waived his right to appellate review by not challenging the ordinance in the circuit court.
I agree that a claim of a violation of a constitutional right will be deemed waived unless timely raised in the circuit court and that consideration of a constitutional issue raised for the first time on appeal is discretionary with this court. See State v. Williamson, 84 Wis. 2d 370, 379, 267 N.W.2d 337 (1978); Maclin v. State, 92 Wis. 2d 323, 329, 284 N.W.2d 661 (1979); In Interest of Baby Girl K, 113 Wis. 2d 429, 448, 335 N.W.2d 846 (1983).
The issue, however, is the criteria the court should use to determine whether it will exercise its discretion to review a constitutional issue that was not raised in the circuit court but was briefed before this court and the court of appeals and was considered by the court of appeals.
Citing Sambs v. Brookfield, 66 Wis. 2d 296, 314, 224 N.W.2d 582 (1975), the majority sets forth the “compelling reason” test: “This court has consistently held that *116it will not entertain a constitutional issue raised for the first time on appeal unless there [are] some compelling reasons for doing so.” P. 107, supra. Without discussion, the majority concludes that there is no compelling reason to reach the question of the constitutionality of the ordinance and the legality of the civil arrest.
The more usual statement of the standard this court uses to determine whether it will exercise its discretion to review a constitutional issue in a criminal case is found in Bradley v. State, 36 Wis. 2d 345, 350, 153 N.W.2d 38, 155 N.W.2d 564 (1967): “this court may nevertheless decide a constitutional question not raised below if it appears in the interests of justice to do so and where there are no factual issues that need resolution.” More recently in Maclin v. State, 92 Wis. 2d 323, at 329, 284 N.W.2d 661 (1979), Justice Callow writing for the court noted that “the rule stated in Bradley has been consistently followed by this court (citations omitted).” The Bradley statement of the standard was used in Baby Girl K, in which the court also noted cases setting forth the additional requirement that “both parties have had the opportunity to brief the issue.” Baby Girl K, 113 Wis. 2d at 448.
Since the creation of the court of appeals this court has, in several cases, considered constitutional issues not raised in the circuit court without verbalizing, analyzing or applying the Bradley-Baby Girl K test.5 The court’s willingness in recent cases to consider significant constitutional issues — even though they were not raised in the *117circuit court or were improperly raised — apparently comports with the court’s emphasis, since the creation of the court of appeals, on the law development function of this court. As Chief Justice Heffernan has explained, “it is hardly in the interest of the law-declaring function of this court if matters of serious public concern which are likely to cause judicial disputes in the future are not resolved when a factual basis on which a judicial declaration may be made to guide future conduct is presently before the court.” State ex rel. La Crosse Tribune v. Circuit Court, 115 Wis. 2d 220, 228-229, 340 N.W.2d 460 (1983). Accordingly in State v. Walsted, 119 Wis. 2d 483, 488, 490, 351 N.W.2d 469 (1984), the court decided the merits of the constitutional issue posed by defendant’s motion and refused to decide or consider a party’s arguments that the defendant’s motion was not timely.
In order for the litigants to know whether to brief and argue the merits of the constitutional issue itself or the merits of the effectiveness of the waiver of the constitutional issue, the petitions for review and the responses should address this issue and this court in drafting its orders granting review should take care to set forth the issue it will consider. We should also take greater care in our opinions to explain and apply the criteria we use in determining why we do or do not exercise our discretion in that case to review the constitutional issue.
For the reasons set forth, I dissent.
I am authorized to state that Justice William A. Bablitch joins this dissent.Sound public policy favors the use of appearance tickets for civil offenders, not arrest, unless the circumstances require arrest to protect the public or to ensure appearance. See, e.g., Mendelson, Arrest for Minor Traffic Offenses, 19 Cr. L. Bull. 501 (1983). See also State v. Welsh, 108 Wis. 2d 319, 343-345, 321 N.W.2d 245 (1982).
The fourth amendment probable cause requirement is the best compromise that has been found to accommodate the opposing interests of safeguarding citizens from unreasonable interferences with privacy and giving “fair leeway for enforcing the law in the community’s protection.” 1 LaFave, Search and Seizure, sec. 3.2(a), p. 450 (1978).
In Delaware v. Prouse, 440 U.S. 648, 654 (1979), the court said that to determine the reasonableness of a less-than-arrest seizure (here the lineup) it is necessary that the “facts upon which an intrusion is based be capable of measurement against ‘an objective standard,’ whether this be probable cause or a less stringent test.”
The “objective standard” of probable cause to believe the person committed a crime or a less stringent test is not met in this case. The state does not contend that the officers’ conduct was justified on the ground that the officers had probable cause to believe or had reasonable suspicion that the defendant was involved in the crime investigated by the lineup.
The majority opinion ignores the need for an objective standard and without explanation, treats the civil arrestee like the criminal arrestee. The “objective standard” of probable cause that a person committed a crime is what distinguishes the civil arrestee from the criminal arrestee. Probable cause to believe that the defendant violated a civil ordinance is not the same as probable cause to believe or reasonable suspicion that the defendant committed a crime. In Welsh v. Wisconsin, - U.S. -, 104 S. Ct. 2091 (1984), the Supreme Court concluded that the civil nature of the offense limits the intrusions law enforcement officers are permitted to make.
If police are allowed to compel a civil arrestee to participate in a lineup without probable cause to believe that the civil arrestee committed a crime, the police are in effect permitted to circum*109vent the probable cause requirement for arrest for a crime. There is a temptation for officers to make subterfuge civil arrests in order to subject the arrestee to a lineup. Cf. 2 LaFave, Search and Seizure, sec. 5.3(b) at 320 (1978).
In this ease there is no finding of probable cause or reasonable suspicion. If the “reasonable suspicion” approach is taken— and the constitutionality of such an approach is problematic— then at a minimum the protective conditions recommended by the American Law Institute should be adopted. In its Model Code of Pre-Arraignment Procedures the ALI proposes that a judge must issue an order requiring a person at liberty to appear for nontestimonial identification and that the following conditions be met: (1) reasonable cause exists to believe the described offense has been committed; (2) reasonable grounds exist to suspect that the person named in the order committed the offense and that in view of the seriousness of the offense, it is reasonable to subject the person' to the described identification procedures; (3) the results of the specific identification procedures will be of material aid in determining the identity of the offender; and (4) the evidence cannot practicably be otherwise obtained. Sec. 170.2(6). See also Comment, Detention for Taking Physical Evidence Without Probable Cause, 14 Ariz. L. Rev. 132 (1972); Note, Detention to Obtain Physical Evidence Without Probable Cause: Proposed Rule U of the Federal Rules of Criminal Procedure, 72 Colum. L. Rev. 712 (1972); Note, Fourth Amendment Implications of Compelling an Individual to Appear in a Lineup Without Probable Cause to Arrest, 45 Ford. L. Rev. 124 (1976); Note, Constitutional Law — Search and Seizure — Temporary Detention for Lineup Identification with Less than Probable Cause Permissible under the Fourth Amendment, 18 Wayne L. Rev. 827 (1972); Pridgen, Fourth Amendment Aspects of Compelling Identification, Search & Seizure Law Report, Vol. 4, No. 11 (Nov. 1977), p. 4.
See, e.g., Yarmey, Eyewitness Identification: Psychological Aspects, and Marcus, Eyewitness Identification: Constitutional Aspects, in 2 ENCY. OF CRIME AND JUSTICE 749, 755 (1983); Sobel, Eye-Witness Identification: Legal and Practical Problems, secs. 3-3.02 (1972) (1984 Supp).
See e.g., State v. Gustafson, 119 Wis. 2d 676, 693, 350 N.W.2d 653 (1984); State v. Mosley, 102 Wis. 2d 636, 642, 307 N.W.2d 200 (1981); Manson v. State, 101 Wis. 2d 413, 417-418 n. 2, 304 N.W.2d 729 (1981); State v. Baldwin, 101 Wis. 2d 441, 446, 304 N.W.2d 742 (1981); State v. Wedgeworth, 100 Wis. 2d 514, 528-529, 302 N.W.2d 810 (1981). Compare the court’s careful analysis in exercising its discretion to review in Maclin v. State, supra, 92 Wis. 2d at 328-31.