On Point: 4. Probable cause to arrest

State v. Jarred S. Martens, 2016AP2384, District 4, 7/13/17 (one-judge decision; ineligible for publication) case activity (including briefs)

Martens argues police didn’t have probable cause to arrest him for OWI because he didn’t do field sobriety tests and the absence of those tests means the state has to point to other, especially significant evidence to support probable cause. The court of appeals says the law doesn’t support this proposition, and even if it did there was enough evidence to arrest Martens.

State v. David W. Howes, 2017 WI 18, on certification from the court of appeals; case activity (including briefs)

The supreme court granted certification in this case to decide an important question: Does Wisconsin’s implied consent statute create a categorical “consent” exception to the warrant requirement as to unconscious drivers, thus allowing police to collect blood without having to get a warrant or establish exigent circumstances or some other exception? But the court doesn’t answer that question, leaving the law in a muddle. On top of that, the court reverses the circuit court’s suppression order, though without a majority agreement as to why the blood draw was legal, and with some justices invoking a theory the state didn’t argue in the circuit court.

State v. Michael Chough, 2016AP406-CR, District 2, 1/25/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Chough’s challenge to the reliability of expert testimony regarding his blood alcohol content at the time he was driving fails under State v. Giese, 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687.

State v. Jimmie C. Johnson, 2015AP1233-CR, 2015AP2260-CR, 1/11/17, District 1 (not recommended for publication); case activity (including briefs)

When J.T. stepped out of her car in the parking lot of the West Allis Chuck E. Cheese she spotted a purple “Crown Royal” bag outside the driver’s door of the Chevy Tahoe next to her. It contained 69 aluminum foil folds. She took a photo of the license plate, went into the Chuck E. Cheese where she watched man get into the Tahoe, drive off, turn around, return to the parking spot and search for something. He then when into the Pet World next door where a video camera captured him searching for something.

Washington County v. Daniel L. Schmidt, 2016AP908, District 2, 11/30/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Schmidt makes a three-pronged attack on the revocation of his driving privileges for refusing a chemical test, arguing he was seized without reasonable suspicion, arrested without probable cause, and did not improperly refuse a test. The court of appeals rejects each claim.

Village of Bayside v. Amber E. Schoeller, 2016AP256 & 2016AP257, District 1, 8/9/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court’s factual findings—which Schoeller doesn’t argue are clearly erroneous—doom her claims that the officer didn’t have probable cause to arrest her and that the evidence isn’t sufficient to prove she’s guilty of OWI.

State v. Alejandro Herrera Ayala, 2015AP865-CR, District 3, 7/26/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals affirms the circuit court’s findings that the manner in which standardized field sobriety tests were administered to Herrera Ayala was “fatally flawed” because of “significant communication issues” between the officer and Herrera Ayala (a Spanish speaker with apparently limited English) and that those flaws made the SFSTs “unreliable” for purposes of determining probable cause to arrest. 

State v. Mark G. McCaskill, 2015AP1487-CR, District 4, 7/21/16 (one-judge decision; ineligible for publication); case activity (including briefs)

McCaskill’s challenges to his arrest and conviction for operating with a prohibited alcohol content don’t persuade the court of appeals.

United States v. Gregorio Paniagua-Garcia, 7th Circuit Court of Appeals No. 15-2540, 2/18/16

The stop of Paniagua-Garcia for texting while driving was unlawful because the officer had no basis for concluding Paniagua-Garcia was using his cellphone to send a text or email as opposed to using it in some way that isn’t prohibited.

In Heien v. North Carolina, SCOTUS held that an officer’s “reasonable” mistake of law can give rise to the reasonable suspicion needed to justify a traffic.  And SCOW followed suit in State v. Houghton. If you are researching this issue, you might want to take a look at this new case note in Harvard Law Review. The last few paragraphs, in particular, highlight areas for future litigation.