On Point: 3. Exigent circumstances

State v. Ashley L. Eirich, 2014AP1901-CR, District 2, 11/26/14 (1-judge decision; ineligible for publication); case activity

Saying that “[t]raining and experience do not turn police officers into drug-detection canines,” the court of appeals holds that probable cause to search a vehicle based on the odor of raw marijuana did not extend to a search of the bill compartment of the driver’s wallet.

State v. Jennifer M. Parisi, 2014 WI App 129; case activity

The warrantless entry into Parisi’s apartment was lawful because police had probable cause to believe the apartment contained evidence of a crime and there were exigent circumstances justifying entry without a warrant.

State v. Walter J. Kugler, 2014AP220, District 2, 9/17/14 (one-judge opinion, ineligible for publication); case activity

Kugler challenged his first OWI conviction by arguing that the state trooper who stopped him did not have the requisite probable cause and improperly requested, as a community caretaker, that he submit to a PBT (which he refused). The court of appeals reframed the issue as whether the trooper had reasonable suspicion of an OWI when he detained Kugler for field sobriety tests. You can guess the result. The court of appeals also rushed ahead to decide a McNeely issue that the Wisconsin Supreme Court is literally poised to decide.

State v. Andrew J. Kuster, 2014AP109-CR, District 2, 9/17/14 (one-judge opinion, ineligible for publication); case activity

This seemingly run-of-the-mill OWI appeal has an interesting little wrinkle.  The police conducted a warrantless blood draw on Kuster before SCOTUS decided Missouri v. McNeely, 569 U.S.__, 133 S.Ct. 1552 (2013), but they didn’t have the blood tested until after the  decision came out.  This sequence of events did not trouble the court of appeals because it views the seizure and subsequent analysis of a person’s blood as a single event.

State v. Kent W. Hubbard, 2014AP738-CR, District 2, 8/13/14 (1-judge; ineligible for publication); case activity

The totality of the circumstances established probable cause to arrest Hubbard for operating with a detectable level of restricted controlled substance. Further, the warrantless blood draw was justified under the exigent circumstances test articulated in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), because there was evidence that Hubbard had used marijuana and alcohol, and evidence regarding the latter would be lost if the police took time to get a warrant.

State v. Bobby L. Tate, 2014 WI 89, 7/24/14, affirming an unpublished court of appeals decision; majority opinion by Justice Roggensack; case activity

State v. Nicolas Subdiaz-Osorio, 2014 WI 87, 7/24/14, affirming an unpublished per curiam court of appeals decision; lead opinion by Justice Prosser; case activity

In two decisions consisting of 8 separate opinions spread out across almost 200 pages, the supreme court is unable to muster a majority on the central issue presented: Whether cell phone location tracking is a search under the Fourth Amendment. Instead, in both cases a majority assumes without deciding that cell phone tracking is a search and then affirms the convictions, although on different grounds. If you’re looking only for the holdings, here they are: In Tate, a majority holds that the circuit court’s “order” that a cell phone service provide information about the cell phone location was reasonable because it met the requirements for a search warrant. In Subdiaz-Osorio, a majority holds that the warrantless acquisition of the cell phone location data was supported by probable cause and exigent circumstances. If you’re looking for more information, read on.

Riley v. California, USSC No. 13-132 (together with United States v. Wurie, USSC No. 13-212), 2014 WL 2864483 (June 25, 2014), reversing People v. Riley, No. D059840 (Cal. App. 4th Dist. 2013) (unpublished) (and affirming United States v. Wurie, 728 F.3d 1 (1st Cir. 2013)); Scotusblog case page (which includes links to briefs and commentary) and symposium page (additional opinion commentary)

State v. Cordarol M. Kirby, 2014 WI App 74; case activity

The court of appeals holds that “while exigent circumstances may justify entry, the fact that entry has already been made does not necessarily invalidate reliance on the exigent circumstances doctrine.” (¶22). Thus, because in this case there were exigent circumstances justifying police entry into an apartment to locate a backpack the police believed contained firearms, it “does not matter” that an officer had earlier stepped over the threshold of the apartment door to converse with people inside. 

Krysta Sutterfield v. City of Milwaukee, No. 12-2272 (7th Cir. May 9, 2014)

Nine hours after obtaining a § 51.15 emergency detention order, Milwaukee police officers forcibly entered Sutterfield’s home without a warrant, opened a locked container, and seized the handgun and concealed carry licenses that were in the container. Sutterfield filed a civil rights suit against them, but the district court granted summary judgment in favor of the defendants. The Seventh Circuit affirms in a long (76-page) decision with plenty to digest, even though it declines to resolve some of the constitutional issues raised because they were not preserved or fully argued. The court does conclude the entry was justified because the police reasonably believed Sutterfield was going to harm herself. And the court assumes the search of the closed container and  seizure of the gun were unlawful, but holds the officers are immune from civil liability.

Waukesha County v. Dushyant N. Patel, 2013AP2292, District 2, 5/14/14 (1-judge; ineligible for publication); case activity

The result of a blood draw done in violation of Missouri v. McNeely, 133 S. Ct. 1552 (2013), are admissible under the good-faith exception to the exclusionary rule because police acted in conformity with clear, well-settled Wisconsin law that permitted the blood draw at the time it was done, even if the arresting officer didn’t cite that law in justifying the blood draw.