On Point blog, page 22 of 25
Arrest – Probable Cause – Predicated on Officer’s Mistaken View of Law
State v. Christopher M. Repenshek, 2004 WI App 229, PFR filed 12/17/04
For Repenshek: Stephen E. Mays
Issue/Holding: The test for probable cause is purely objective, so that the arresting officer’s intent to arrest for a crime that is in fact non-existent is irrelevant. Because in Repenshek’s instance probable cause to arrest indisputably existed, his arrest was not illegal even though the officer thought he was arresting Repenshek for a crime that,
Arrest — Probable Cause — Preliminary Breath Test — OWI
State v. Ibrahim Begicevic, 2004 WI App 57
For Begicevic: Donna J. Kuchler
Issue/Holding:
¶9. When Kennedy initially made contact with Begicevic, he appeared confused on how to get to Milwaukee. She immediately noticed a strong odor of intoxicants and that his eyes were bloodshot and glassy. … Because Kennedy was giving Begicevic the benefit of the doubt, she had him perform a fourth field sobriety test,
Arrest – Search Incident – Blood Test – Non-Drunk Driving Offense
State v. Christopher M. Repenshek, 2004 WI App 229, PFR filed 12/17/04
For Repenshek: Stephen E. Mays
Issue/Holding: Warrantless blood draw incident to arrest is authorized by State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993) and State v. Seibel, 163 Wis. 2d 164, 471 N.W.2d 226 (1991), even if the arrest is for a non-drunk-driving offense (if the police reasonably suspect that the defendant’s blood contains evidence of a crime).
Arrest – Search Incident – Blood Test, Reasonable Suspicion for, Based on Refusal to Submit to PBT
State v. Christopher M. Repenshek, 2004 WI App 229, PFR filed 12/17/04
For Repenshek: Stephen E. Mays
Issue/Holding: Refusal to submit to a PBT may support a conclusion of reasonable suspicion for a blood draw:
¶25. Key to understanding our analysis is understanding that Wis. Stat. § 343.303 does not contain a general prohibition on police requesting a PBT. Rather, the statute only imposes a limitation on the use of a PBT result in a particular situation,
Arrest — Test for Custody — Dunaway v. New York
A.M. v. Butler, 360 F3d 787 (7th Cir. No. 2004)
Issue/Holding:
We see no meaningful distinction between Dunaway and this case. Like the defendant in Dunaway, Morgan was taken directly to an interrogation room in the police station. He was never told he was free to go. Cassidy, moreover, testified that he would not have allowed Morgan to leave even if Morgan said he wanted to go home.
Arrest — In Residence, Based on Search Warrant
State v. Peter R. Cash, 2004 WI App 63
For Cash: Lynn M. Bureta
Issue/Holding:
¶26. Cash also argues that Grable was ineffective for failing to seek suppression of certain statements he made on the basis that his arrest in his home was accomplished without an arrest warrant. Cash argues that his arrest was unlawful pursuant to Payton v. New York, 445 U.S.
Arrest — Search Incident — Implied Consent, Driver’s Request for Additional Test, §§ 343.305(4) and (5)
State v. James A. Schmidt, 2004 WI App 235
For Schmidt: Daniel S. Diehn
Issue: Whether § 343.305(5)(a) requires that the driver request an additional test after the police have administered the primary test and, if not, whether Schmidt’s pre-blood draw request for a breathalyzer was properly rejected.
Holding:
¶11. Although Wis. Stat. § 343.305(4) and (5) use the term “alternative test,”
OWI – PBT – Probable Cause to Administer
State v. Guy W. Colstad, 2003 WI App 25
For Colstad: T. Christopher Kelly
Issue/Holding: Authority to administer a preliminary breath test requires probable cause to believe a drunk driving law has been violated. ¶23. Probable cause existed here, given the driver’s (mild) odor of intoxicants; the “suspicious circumstance” of the collision (i.e., with a child on an unobstructed street, and the driver allegedly watching for children);
Arrest — Probable Cause — Specific Examples: Homicide — Husband’s Involvement in Wife’s Disappearance
State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly
Issue/Holding: The police had probable cause to arrest Kutz for involvement in his wife’s disappearance where: there was reason to believe that she had suffered serious harm given that she hadn’t returned to her mother’s house as expected, her family had unsuccessfully looked for her, and it was unlike her not to notify her family of a change in plans,
Arrest — Probable Cause — OWI
State v. James L. Larson, 2003 WI App 150
For Larson: Rex Anderegg
Issue/Holding:
¶16. To determine if probable cause exists, the court must consider whether “the totality of the circumstances within the arresting officer’s knowledge at the time of the arrest would lead a reasonable police officer to believe … that the defendant was operating a motor vehicle while under the influence of an intoxicant.”