On Point blog, page 10 of 24
Police had probable cause to arrest for OWI despite not knowing exactly when defendant drove
Winnebago County v. Kelli M. Kosmosky, 2015AP585, District 2, 8/5/15 (one-judge decision; ineligible for publication); case activity (including briefs)
A reasonable officer would be led to believe there was more than a possibility Kosmosky had been operating a motor vehicle while intoxicated under the facts presented, even though he didn’t know exactly when she operated her vehicle.
SCOW, reversing itself, holds that officer’s traffic stop can be based on mistake of law
State v. Richard E. Houghton, 2015 WI 79, 7/14/14, reversing an unpublished court of appeals opinion, 2013AP1581-CR; majority by Prosser, dissent by Abrahamson (joined by Bradley); case activity (including briefs)
You’ve seen this before. An officer makes a traffic stop based on a “misunderstanding” of the law, then conducts a search and finds incriminating evidence. Last July, in State v. Antonio Brown, SCOW held that a seizure based on such a mistake violates the 4th Amendment. Six months later, SCOTUS reached the opposite result in Heien v. North Carolina. In this case, SCOW overturns Brown to hold that: (1) “pretextual stops . . . are not per se unreasonable under the 4th Amendment”; (2) probable cause is never required for a traffic stop; (3) the officer here “misunderstood” multiple provisions of Ch. 346, but his mistakes were “objectively reasonable”; and (4) Article I §11 of Wisconsin’s Constitution extends no further than the 4th Amendment. Slip op. ¶¶ 4, 5, 6, 50.
The 4th Amendment: Persona Non Grata in SCOW?
The 4th Amendment has been described by Conservative HQ as “one of the most important arrows in the quiver against bullying big government.” Because the government doesn’t just search and seize paper–it also goes after your cell phones, your Facebook account, your email (even when stored on Google’s server), your tweets, your DNA (by definition, your family’s DNA) etc.–we want a sturdy Fourth Amendment, right? Justice Scalia thinks so. He’s been called the 4th Amendment’s “
Police had probable cause to believe motorcyclist they located in a bar was intoxicated before he got to the bar
State v. Kirk L. Griese, 2015AP180, District 4, 6/18/15 (one-judge decision; ineligible for publication); case activity (including briefs)
There was probable cause to believe Griese was operating under the influence, even though the officer arrested Griese while he was having a Bacardi and Coke in the bar to which he had driven.
SCOW: Moving suspect 10 miles to hospital exceeded permissible scope of investigative stop; but detention lawful because there was probable cause to arrest and community caretaker doctrine applied
State v. Dean M. Blatterman, 2015 WI 46, 5/5/15, reversing an unpublished court of appeals decision; opinion by Chief Justice Roggensack; case activity (including briefs)
Though police moved Blatterman beyond the “vicinity” of the traffic stop and therefore exceeded the permissible scope of the stop, the detention of Blatterman was nonetheless reasonable because police had probable cause to arrest him for OWI and, in the alternative, the detention was justified under the community caretaker doctrine.
Officers’ observations and information from other witnesses provided probable cause to arrest for OWI
State v. Zach Geyer, 2014AP2625-CR, District 4, 4/23/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Under the totality of the circumstances, police had probable cause to arrest Geyer for OWI.
Driver’s refusal of blood test held unreasonable despite evidence that he didn’t understand his rights
County of Eau Claire v. Scott S. Mahler, 2014AP1696-FT, 3/31/15, District 3 (1-judge opinion; ineligible for publication) click here for docket and briefs
Mahler, who was arrested for OWI, refused to consent to a chemical test of his blood. The court of appeals found his refusal unreasonable even though the arresting officer failed to have Mahler sign the “Informing the Accused” form and Mahler testified that he did not understand the information on it.
Search of detained passenger was legal because police had probable cause to arrest him
State v. Antwan D. Hopson, 2014AP1430-CR, District 2, 3/25/15 (not recommended for publication); case activity (including briefs)
Even though Hopson was not formally under arrest at the time police searched him in a manner that exceeded the allowable scope of a frisk, the search was legal because the police had probable cause to arrest Hopson for possession of marijuana.
Court of appeals affirms suppression; sees one-shot-sized container exception to Gant
State v. Miranda K. Hinderman, 2014AP1787-CR, 2/12/15, District 4 (one-judge opinion; ineligible for publication); click here for briefs
Just because police had grounds to arrest Hinderman for OWI didn’t mean that they also had reason to believe that evidence relating to the OWI might be found in a 3″x3″ pouch inside her purse, inside her car, where they happened to find marijuana and drug paraphernalia.
After lawful arrest for OWI, police may search car for more evidence
State v. Darrell G. Lewis, 2014AP2289-CR, 2/12/14; District 4 (one-judge opinion, ineligible for publication); click here for briefs
After arresting Lewis for OWI, police searched his car and found marijuana. Lewis moved to suppress based on Arizona v. Gant, 556 U.S. 332 (2009), which permits a warrantless search of a car and containers within incident to arrest when it is reasonable to believe evidence relevant to the crime might be found there. Lewis lost his motion and appeal.