On Point: 6. Search incident to arrest

State v. Eric R. Burrows, 2018AP770-CR, District 2, 12/26/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Burrows sent threatening and harassing letters to E.W., arranged inflammatory and derogatory voicemail messages on her phone, and delivered a baby python to her apartment. He argues the police lacked probable cause to arrest him for stalking and to search his car and other property. The court of appeals disagrees.

State v. Philip J. Hawley, 2015AP1113, District 4, 11/21/18; case activity (including briefs)

Our supreme court has, three times, set out to decide whether the  implied-consent statute supplies “consent” in a Fourth Amendment sense, such that it constitutes an exception to the warrant requirement. Three times, it has failed to reach a binding majority on the question–or has it? The court of appeals, in this certification, suggests perhaps the supreme court has the answer already, depending how you count the votes.

State v. Jessica M. Randall, 2017AP1518-Cr, District 4, 6/14/18 (1-judge opinion, ineligible for publication), review granted 10/9/18, reversed, 2019 WI 80; case activity (including briefs)

Here’s a rare sighting! One district of the court of appeals has declared that it is not bound by a decision addressing the same set of facts issued by another district. This is what you call SCOW bait (sorry to say, given that this is a defense win). Randall was arrested for OWI, an officer read the “Informing the Accused” card, and she agreed to a blood test. A few days later, her lawyer sent the lab a letter withdrawing her consent. The court of appeals held that Randall had a right to withdraw her consent up to the time when blood was actually tested. But just 6 months ago, the court of appeals reached the opposite result in State v. Sumnicht. 

State v. Keith A. Wall, 2017AP2367-CR, District 4, 5/17/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Wall sought the suppression of the results of the test of his blood, which showed he had a BAC of 0.178 after his arrest for OWI. He argues the blood was seized unlawfully because police didn’t have a warrant and they used excessive force to draw the blood. The court of appeals rejects both claims.

State v. Kaitlin C. Sumnicht, 2017AP280-CR, 12/20/17, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

Sumnicht was convicted of OWI second. She sought suppression of her blood test results on two grounds. First, she argued that that State did not develop an adequate factual record of her interaction with the deputy who allegedly obtained her consent to a blood test. Second, assuming that she did consent, she argued that she revoked it when her lawyer sent a letter to the State Laboratory of Hygiene before any testing was done and asserted her right to privacy in her blood. The circuit court denied suppression, and the court of appeals affirmed but its reasoning is unsatisfying.

State v. Michael J. Mansfield, 2016AP2423-CR, 10/3/17, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Mansfield argued police didn’t have reasonable suspicion to detain him based on a tip from an anonymous Turtle Lake Casino employee. The court of appeals holds the tipster should be treated as a citizen informant and, under the standard for citizen informants, the tip provided reasonable suspicion.

Jeremy Perri guests posts on State v. Adam M. Blackman, 2017 WI 77, 7/7/17, reversing a published court of appeals opinion, 2016 WI App 69, 371 Wis. 2d 635, 886 N.W.2d 94; case activity (including briefs)

SCOW suppresses blood test, holding that the statutory Informing the Accused misrepresented the consequences of a refusal, the consent was coerced, and the exclusionary rule is necessary to deter future violations.

State v. Benjamin Schneller, 2016AP2474, 6/22/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Benjamin Schneller was arrested for OWI and refused to submit to a blood draw, so the police got a warrant and took the blood anyway. He argues on appeal that the warrant only authorized the police to draw his blood, and that a separate warrant was required for them to test it.

State v. Joseph K. Larson, 2016AP1002-CR, 3/21/17, District III, (one-judge decision; ineligible for publication); case activity (including briefs)

Joseph Larson contends on appeal that the circuit court erred when it concluded he consented to a breath alcohol test after his arrest for OWI.

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.