On Point blog, page 13 of 25
Police had probable cause to arrest, and exigent circumstances to conduct warrantless blood draw
State v. Kent W. Hubbard, 2014AP738-CR, District 2, 8/13/14 (1-judge; ineligible for publication); case activity
The totality of the circumstances established probable cause to arrest Hubbard for operating with a detectable level of restricted controlled substance. Further, the warrantless blood draw was justified under the exigent circumstances test articulated in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), because there was evidence that Hubbard had used marijuana and alcohol, and evidence regarding the latter would be lost if the police took time to get a warrant.
SCOW: Stop and search of car based on officer’s misunderstanding of tail lamp statute violates 4th Amendment
State v. Antonio D. Brown, 2014 WI 69, 7/16/14, affirming a published court of appeals decision; majority opinion by Justice Bradley; case activity
Another defense victory! Police stopped Brown’s car due to an alleged violation of §347.13(1), which prohibits the operation of a vehicle at night unless its tail lamps are in “good working order.” In a 4-3 decision, the majority holds that the police here misunderstood the statute, so the stop was illegal. Furthermore, a stop based upon an officer’s mistake of law, is unlawful, and the results of the ensuing search must be suppressed. Justice Prosser, dissenting, predicts the majority’s interpretation will be “a bonanza for litigants seeking to challenge motor vehicle stops.” ¶79.
Collateral attack on prior OWI failed to make prima facie showing
State v. Andre Durand Reggs, 2013AP2367-CR, District 4, 7/3/14 (1-judge; ineligible for publication); case activity
Applying State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, the circuit court properly concluded that Reggs failed to make a prima facie showing that he did not knowingly, intelligently, and voluntarily waive the right to counsel for an earlier OWI conviction.
SCOTUS: A warrant is required to search a cell phone seized incident to arrest
Riley v. California, USSC No. 13-132 (together with United States v. Wurie, USSC No. 13-212), 2014 WL 2864483 (June 25, 2014), reversing People v. Riley, No. D059840 (Cal. App. 4th Dist. 2013) (unpublished) (and affirming United States v. Wurie, 728 F.3d 1 (1st Cir. 2013)); Scotusblog case page (which includes links to briefs and commentary) and symposium page (additional opinion commentary)
In a sweeping and significant ruling, a unanimous Supreme Court holds that officers must generally secure a warrant before conducting such a search of a cell phone found on a defendant at the time of his or her arrest.
Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life[.]” ... The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant. (Slip op. at 28).
Police had probable cause to arrest for OWI despite lapse between time of driving and time of police contact
State v. Dale F. Wendt, 2014AP174, District 2, 6/18/14 (1-judge; ineligible for publication); case activity
The information known to the deputy at the time he requested Wendt to take a blood test provided probable cause to believe Wendt had driven his vehicle while intoxicated earlier that evening, despite the deputy’s lack of information as to whether Wendt drank during the time that lapsed between his driving and his contact with the deputy.
Police officers who entered and searched home and seized firearm–all without a warrant– are not civilly liable
Krysta Sutterfield v. City of Milwaukee, No. 12-2272 (7th Cir. May 9, 2014)
Nine hours after obtaining a § 51.15 emergency detention order, Milwaukee police officers forcibly entered Sutterfield’s home without a warrant, opened a locked container, and seized the handgun and concealed carry licenses that were in the container. Sutterfield filed a civil rights suit against them, but the district court granted summary judgment in favor of the defendants. The Seventh Circuit affirms in a long (76-page) decision with plenty to digest, even though it declines to resolve some of the constitutional issues raised because they were not preserved or fully argued. The court does conclude the entry was justified because the police reasonably believed Sutterfield was going to harm herself. And the court assumes the search of the closed container and seizure of the gun were unlawful, but holds the officers are immune from civil liability.
Officer’s out-of-jurisdiction traffic stop justified by both “emergency situation” and “fresh pursuit” rules
New Berlin v. John Francis Downey, 2013AP 2352-FT, District 2, 5/14/14 (1-judge; ineligible for publication); case activity
An on-duty police officer had authority to stop Downey outside his jurisdiction because he was acting in response to an “emergency situation,” § 175.40(6)(a), and because he was in fresh pursuit of a law violator, § 175.40(2).
Police had probable cause to ask for PBT
Village of Grafton v. Carl J. Schlegel, 2013AP2521, District 2, 5/7/14 (1-judge; ineligible for publication); case activity
Police had probable cause to ask Schlegel to submit to a preliminary breath test under § 343.303 even though he wasn’t asked to perform field sobriety tests first, and the result of the PBT, along with the rest of the facts, gave police probable cause to arrest Schlegel for OWI.
Stop converted to arrest where police moved OWI suspect 10 miles to hospital before performing sobriety tests
State v. Dean M. Blatterman, 2013AP2107-CR, District 4, 4/24/14 (one-judge; ineligible for publication), petition for review granted 9/24/14, reversed, 2015 WI 46; case activity
You don’t see this very often. The court of appeals just reversed a circuit court decision denying a motion to suppress evidence of intoxication. The police performed field sobriety and blood tests after moving the suspect out of the general vicinity of the stop. This converted the stop into an arrest for which there was no probable cause.
Probable cause for OWI arrest found; conviction upheld
City of Oshkosh v. Jonathan D. Berger, 2013AP2804, District 2, 4/23/14 (one-judge, ineligible for publication); case activity
Applying the settled test for deciding whether the police had probable cause to arrest for OWI, the court of appeals examined the facts and circumstances of this case and found probable cause.