On Point: 6. Search incident to arrest

State v. Nicholas J. Nero, 2023AP543, District III, 6/10/25 (one-judge decision; ineligible for publication); case activity

The COA found that law enforcement had probable cause that Nicholas Nero was driving under the influence, independent from his compelled statement to his probation officer and un-Mirandized statement to a deputy sheriff, and therefore affirmed the circuit court’s order denying his motion to suppress the results of his blood draw.  The COA also found that Nero’s claims for ineffective assistance of counsel at trial were conclusory and undeveloped.

State v. Jonah Michael Hoffman, 2024AP1221-CR, 4/24/25, District IV (1-judge decision, ineligible for publication); case activity

The sole issue on appeal is whether the deputy who arrested Hoffman had probable cause to search his truck for evidence of an open container. COA concludes that probable cause was lacking, and accordingly reverses and remands with directions that any evidence derived from the search be suppressed.

State v. Quaheem O. Moore, 2023 WI 50, 6/20/23, reversing an unpublished court of appeals decision; case activity (including briefs)

As many surrounding states continue to legalize marijuana–and with the explosion of CBD and other legal hemp-derived products throughout Wisconsin–some observers have questioned the continued viability of Fourth Amendment rules permitting intrusive law enforcement action when officers smell what they believe to be THC. However, because THC remains illegal under Wisconsin law, these arguments fail in light of well-settled Fourth Amendment principles.

State v. Craig R. Thatcher, 2020AP1734, 2/7/23, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs).

A state trooper stopped Thatcher for a suspected OWI, the trooper read the Informing the Accused Form, and, according to Thatcher, provided additional, misleading information that influenced his decision to consent to a breath test in violation of County of Ozaukee v. Quelle, 198 Wis. 2d 269, 280, 542 N.W.2d 196 (Ct. App. 1995). The court of appeals affirmed the circuit court’s decision to suppress the results of the breath test and also the results of the subsequent blood.

County of Dunn v. Kevin J. Cormican, 2020AP1895, 2/7/23, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs)

After being convicted of OWI 1st, Cormican appealed the denial of his motion to suppress the results of his blood test. He first argued that the arresting officer gave him information beyond what is on the Informing the Accused (ITA) card that was misleading and affected his decision to consent to the test. He also argued that due to the misleading information, his consent to the blood test was involuntary. The court of appeals affirmed.

State v. Quaheem O. Moore, 2021AP938-CR, petition for review of an unpublished court of appeals decision granted 12/21/22; reversed 2023 WI 50; case activity (including PFR, Response, and briefs)

Issues presented (from State’s PFR):

1. Did the court of appeals correctly read State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999), to establish a standard of evidence for search and arrest based on the odor of a controlled substance that is more demanding than the constitutional standard of probable cause?

2. Did police have probable cause to search Moore incident to arrest under the totality of the circumstances, which included a “strong” odor of raw marijuana coming from the vehicle of which Moore was the sole occupant?

State v. Kody R. Kohn, 2020AP2147-CR, District 2, 9/22/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Kohn argues the circuit court erred in: 1) denying his motion to suppress evidence obtained from the blood drawn from him after his arrest; 2) excluding exhibits he wanted to use to cross examine the state’s blood analyst; and 3) rejecting his motion to dismiss a bail jumping charge. The court of appeals affirms all the circuit court’s decisions.

State v. Charles L. Neevel, 2021AP36, 7/1/21, District 4 (one-judge decision ineligible for publication) case activity (including briefs)

Neevel was arrested on suspicion of drunk driving. The officer read him the implied consent “informing the accused” form, and Neevel agreed to a blood draw. He moved to suppress, lost, and pleaded no contest to OWI. On appeal, he renews the argument he made in trial court: that the officer should instead have ordered a less intrusive test, such as a breath test. (The officer did, in reading the form, tell Neevel he could have an alternative in addition to the blood draw; Neevel’s contention is that he should have been offered a different test instead of the blood draw.)

State v. Dawn Prado, 2021 WI 65, 6/18/21, affirming a published court of appeals decision; case activity (including briefs)

Third try wasn’t a charm, and we’ve lost track of what try this is, but SCOW has finally achieved a majority decision on the constitutionality of Wis. Stat. § 343.305(3)(b), which permits the police to take the blood of an unconscious OWI suspect without a warrant. As the court of appeals held below, it’s unconstitutional.

State v. Scott W. Heimbruch, 2020 WI App 68; case activity (including briefs)

When an officer arrests a driver either for OWI or for causing death or great bodily harm without suspicion of OWI and requests a chemical test, he must read  the driver the legislatively prescribed “Informing the Accused” form. See §343.305(3) and (4). The form describes the potential penalties the driver faces for refusing the chemical test. In 2017, the Wisconsin Supreme Court declared that the form’s information for drivers accused of causing death or great bodily harm without suspicion OWI was inaccurate. See State v. Blackman, 2017 WI 77, ¶¶5, 38, 377 Wis. 2d 339, 898 N.W.2d 774. Unfortunately, the legislature has never bothered to change the form.