On Point: D. Search incident to arrest

State v. Mose B. Coffee, 2020 WI 53, 6/5/20, affirming a published court of appeals decision, 2018AP1209; case activity (including briefs)

Under Arizona v. Gant, 556 U.S. 332, 335 (2009), police can search a vehicle after arresting a recent occupant “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” But how do courts decide when it’s “reasonable to believe” this: is it a typical totality-of-the-circumstances analysis examining all the facts around an arrest? Or, as many courts have concluded, do the elements of the crime suspected–the “offense of arrest”–determine categorically when a search is permitted and when it isn’t? A majority of justices in this case would adopt the former view, but, as we’ve often seen lately, their votes are split between the lead and dissenting opinions. This arguably means there’s no binding holding on the question of law; the only thing we know for sure is that the search in this case is upheld.

State v. Katelyn Marie Leach, 2019AP1830-CR, 4/16/20, District 4, (1-judge opinion, ineligible for publication; case activity (including briefs)

Leach pled “no contest” to 2nd offense operating a motor vehicle with a restricted substance. She  moved to suppress evidence that she gave an officer after he told her that (a) if she only had paraphernalia or a small amount of marijuana she would just receive a municipal citation, and (b) he was going to search her regardless.

State v. Shannon G. Potocnik, 2019AP523, 4/14/20, District 3 (one-judge decision; ineligible for publication) case activity (including briefs)

There’s a deep split nationwide about whether the community caretaker doctrine can ever permit entry into a home. Wisconsin has held that it can, and this pro se appeal is of course necessarily fact-bound. But the decision is thorough and provides a good summary of state community-caretaker law as it stands, along with a much briefer discussion of blood draws based on exigency.

State v. Anthony J. Madland, 2019AP146-CR, District 3, 1/28/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Madland asserted that he requested an alternative chemical test under § 343.305 and that the officer who read the “informing the accused” form to him misled him as to his right to request an alternative test. The court of appeals rejects the claims in light of the circuit court’s fact findings.

State v. Michael R. McGinnis, 2018AP1388-CR, District 3, 10/8/19 (not recommended for publication); case activity (including briefs)

An officer investigating a hit-and-run at the Happy Hollow Tavern unlawfully pushed his way into McGinnis’s home and then arrested him. The state concedes the officer’s entry was unlawful, so the evidence and statements police obtained while in McGinnis’s home must be suppressed. But the arrest of McGinnis was supported by probable cause, so the evidence obtained after the arrest is admissible.

State v. Scott J. Faruzzi, 2019AP167-CR, 9/25/19, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)

Don’t pinch yourself! You’re not dreaming.  An officer stopped Faruzzi’s truck for a “welfare check” due to some “possible family troubles.” But then he performed a series of FST’s and asked Faruzzi to submit to a preliminary breath test. When Faruzzi refused, the officer arrested him for OWL. The circuit court granted Faruzzi’s motion to suppress, and the court of appeals affirms due to lack of probable cause.

State v. Justin W. Paull, 2017AP1210, 8/15/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Mr. Paull was found bloody and semi-conscious after a motorcycle accident. He smelled of intoxicants and had slurred speech. Police arrested him, and he was taken to the hospital. An officer read the informing the accused form to the now-unconscious Mr. Paull, then drew his blood.

State v. Jessica M. Randall, 2019 WI 80, 7/2/19, reversing an unpublished court of appeals decision; case activity (including briefs)

A majority of the supreme court holds that a person who has been arrested for OWI and consented to a blood draw cannot prevent the testing of the blood sample for alcohol or drugs by advising the state she is revoking her consent.

City of West Allis v. James M. Gregg, 2018AP1326, District 1, 5/14/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Sure, the car wasn’t running by the time the officer pulled up behind it with his squad lights flashing. But that doesn’t mean the officer lacked probable cause to believe the guy behind the wheel had been operating while intoxicated.

State v. Gerald J. Vanderhoef, 2016AP2052-CR, District 1, 4/30/19 (not recommended for publication); case activity (including briefs)

Vanderhoef’s silence in response to the “Informing the Accused” form constituted a refusal to consent to a chemical test, so the subsequent blood draw was unlawful. However, the state subpoenaed the results of his urine test, and that evidence was admissible.