On Point blog, page 2 of 11
Defense win: Odor of marijuana didn’t provide probable cause to arrest
State v. Quaheem O. Moore, 2021AP938-CR, District 4, 7/28/22 (not recommended for publication), state’s petition for review granted 12/21/22; reversed 2023 WI 50; case activity (including briefs)
Police stopped Moore for speeding and, after detecting the odor of what the officer believed to be marijuana, searched Moore. (¶¶2-9). Distinguishing State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999), the court of appeals affirms the circuit court’s suppression order, holding that the odor of marijuana, by itself or coupled with other information, did not provide probable cause to arrest Moore and search him incident to arrest.
Police had probable cause to arrest for OWI
State v. Andrew Austin Keenan-Becht, 2022AP73-CR, District 2, 8/3/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Under the long-standing test for probable cause, Keenan-Becht’s arrest was lawful.
COA rejects defendant’s changed story, affirms probable cause for OWI
State v. Smolarek, 6/16/22, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)
Smolarek was involved in a motorcycle accident. After allegedly admitting that he had smoked marijuana much earlier that day, an officer arrested him. A blood test showed that he had been driving under the influence of THC. Smolarek moved to suppress arguing that the officer got his story wrong. He admitted that he had smoked marijuana after the accident. So the officer lacked probable cause to arrest him.
Counsel wasn’t ineffective in OWI/PAC prosecution
State v. Eric Trygve Kothbauer, 2020AP1406-CR, District 3, 5/3/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Kothbauer challenges his trial lawyer’s representation in a prosecution for operating while intoxicated and with a prohibited alcohol concentration. The court of appeals holds trial counsel wasn’t deficient or, even if he was, the deficiency wasn’t prejudicial.
Police had probable cause to arrest for OWI for purposes of refusal statute
State v. Taras O. Haliw, 2021AP1095, District 4, 1/13/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Haliw argues his license shouldn’t be revoked for refusing a chemical test for alcohol because the police didn’t have probable cause to arrest him for OWI, see § 343.305(9)(a)5.a. The court of appeals rejects his argument.
Circuit court’s finding of refusal upheld
State v. Derek V. Schroth, 2021AP733, District 2, 8/25/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Schroth challenges the probable cause to arrest him for OWI and the finding that he refused a blood draw. There were ample facts for probable cause. (¶¶3-8, 13-15). And though the arresting officer couldn’t recall whether Schroth said “no” or “something else” when asked to submit to a blood draw,
Fourth Amendment reasonableness requirement doesn’t mandate field sobriety tests be done a location sheltered from inclement weather
Portage County v. Sean Michael Dugan, 2021AP454 & 2021AP455, District 4, 8/5/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Dugan was stopped in a snowstorm. The officer had him do field sobriety tests at the scene of the stop, in a rut in the snow crated by the squad’s tires. (¶¶3-4). Having Dugan do the FSTs in the snow didn’t make his detention unreasonable under the Fourth Amendment.
Befuddled court rejects challenge to OWI conviction
State v. Timothy M. Argall, 2020AP907-CR, District 2, 11/18/20 (one-judge decision; ineligible for publication); case activity (including briefs)
Argall was arrested for OWI based on a plethora of evidence—viz., driving after dark without headlights, slurred speech, odor of alcohol, inability to follow questions or give direct answers, admission of drinking 4 to 6 beers, 0.201 PBT. His gripe, though, is with the pre-FST pat down that found a pot pipe in his pocket.
Challenges to OWI arrest, jury instruction rejected
State v. Steven L. Sternitzky, 2019AP2185-CR, District 4, 11/5/20 (one-judge decision; ineligible for publication); case activity (including briefs)
Sternitzky argues he was arrested for OWI without probable cause and that his trial on the charge was marred by the judge’s instruction to the jury regarding the presumption of intoxication and automatic admissibility of chemical test results. The court of appeals rejects both arguments.
Anonymous tip about oral sex in truck supports traffic stop
State v. Andrew W. Bunn, 2019AP2127-CR, 9/9/20, District 1 (1-judge opinion, ineligible for publication); case activity
One evening, an unknown woman approached a cop car in a church parking lot near a playground and said that two adults were having oral sex in a pickup truck on the other side of a fence. The cops saw the truck but no activity inside. They didn’t ask for the woman’s name, but they did go investigate.