On Point: 3. Exigent circumstances

State v. Jeffrey L. Ionescu, 2019 WI App 68; case activity (including briefs)

A homeowner told police that he found a burglar in his car and saw him run west across his yard. About 10 minutes later, officer and a trained tracking dog headed in that direction for about 30 minutes. The officer saw footprints, and the dog detected scent, off and on along the way. Eventually they reached the yard of burglar’s mother and entered it without a warrant. She let them enter her home where they found Ionescu. Was this pursuit cold, warm or hot?

Mitchell v. Wisconsin, No. 18-6210, 6/29/19, vacating and remanding State v. Mitchell, 2018 WI 84, Scotusblog page (including links to briefs and commentary)

This is the decision we’ve all been waiting for on whether a blood draw from an unconscious OWI suspect requires a warrant. Wouldn’t you know–the opinion is splintered. Alito, writing for 4 justices (a plurality, not a majority), concludes that when a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood draw with out a warrant. The plurality vacates the judgment and remands the case for a hearing so that Mitchell has a chance to show that there were no exigent circumstances in his case. Way to go, Andy Hinkel, for fending off the State’s contention that implied consent is actual consent.

State v. Jordan Bennett Micklevitz, 2018AP637-CR, District 1, 1/23/19 (not recommended for publication); case activity (including briefs)

The court of appeals rejects Micklevitz’s challenges to the search of his apartment.

State v. Faith N. Reed, 2018 WI 109, reversing an unpublished court of appeals decision, 2016AP1609; case activity (including briefs)

Here’s something not seen in a while: our state supreme court suppressing evidence because the police violated the Fourth Amendment.

State v. Kathryn M. Cooper, 2018AP1154, 11/21/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Cooper’s vehicle was involved in an accident and was found, damaged, in her driveway. An officer saw a light on near the back door of her home and went around back and knocked. Cooper waved him in. The officer told her he was investigating an accident.

State v. Jonalle L. Ferraro, 2018AP498, 11/8/18, District 4 (one-judge decision; ineligible for publication); case activity

As in Palmersheim just last week, here we have another successor to Weber from the 2016 term – an officer follows a driver (or recent driver) into his or her garage to arrest.

State v. Steven D. Palmersheim, 2018AP746, 10/31/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

This is the state’s appeal of the circuit court’s grant of a suppression motion. A motorist called the police saying another car on the road was wildly swerving; the caller stayed with the swerving vehicle until it stopped on a residential street. When a police officer arrived in response to the car, the caller told him the driver, Palmersheim, had gotten out of the car and urinated in the street.

State v. Gerald P. Mitchell, 2018 WI 84, 7/3/18, on certification from the court of appeals; 2015AP304-CR, SCOTUS cert. granted, 1/11/19, vacated and remanded, 6/29/19; case activity (including briefs)

This is the supreme court’s third attempt to decide whether provisions of Wisconsin’s implied consent law comport with the Fourth Amendment. If you’ve been following along, you might have predicted the result: no majority opinion, no binding holding, and, as the lead opinion laments, a state of confusion going forward. Briefly: the lead, 3-justice opinion says “we overrule State v. Padley,” a court of appeals decision addressing a related (though not identical) issue, but it in fact does no such thing: it seems, in fact, to echo much of the discussion in Padley, and anyway, it’s a three-justice minority, and can’t overrule anything. A two-justice concurrence says the legislature can’t legislate away a motorist’s right to refuse consent to a search, but would hold that a blood draw of an unconscious OWI suspect doesn’t require a warrant anyway, despite a pretty clear statement to the contrary from SCOTUS. And a two-justice dissent also says the implied consent law doesn’t equal constitutional consent. So, just as in State v. Hager from this term, you have a result that favors the state, even though a majority of justices disagree with the state’s constitutional argument.

State v. Patrick H. Dalton, 2018 WI 85, 7/3/18, reversing in part and remanding an unpublished court of appeals decision; case activity (including briefs)

The supreme court holds there were exigent circumstances that allowed police to draw blood from Dalton without a warrant after he refused to consent to a blood draw. But a majority of the court also holds that the sentencing judge erred by explicitly imposing a harsher sentence on Dalton because he refused to consent to the blood draw.

Collins v. Virginia, USSC No. 16-1027, 2018 WL 2402551, 5/29/18, reversing Collins v. Commonwealth, 790 S.E.2d 611 (Va. 2016); SCOTUSblog page (includes links to briefs and commentary)

Police learned a stolen motorcycle that had evaded them on two occasions was likely parked at a house where Collins stayed. When they got to the house, they saw a motorcycle parked in the driveway with a tarp over it. They walked up the driveway, lifted the tarp, and confirmed that it was the stolen bike. The Supreme Court now holds that, though the motorcycle was an automobile–and hence subject to the “automobile exception,” which dispenses with the warrant requirement where there’s probable cause to search a vehicle–this fact does not justify the officers’ invasion of the home’s curtilage to search it.