On Point: C. Warrant unnecessary

State v. Gerald P. Mitchell, 2022 WI App 31; case activity (including briefs)

Mitchell v. Wisconsin, 139 S.Ct. 2525 (2019), held that when police have probable cause to believe a driver has committed a drunk driving offense and the driver is unconscious or stupefied to a point that requires hospitalization and precludes a breath test, police will be justified in getting a blood test without a warrant under the exigent circumstances exception unless the driver can show that; (1) his or her blood wouldn’t have been drawn if police weren’t seeking blood alcohol information; and (2) police didn’t reasonably conclude they had no time to seek a warrant given their other pressing needs or duties. See also State v. Richards, 2020 WI App 48, 393 Wis. 2d 772, 948 N.W.2d 359. Applying that test to Mitchell himself on remand, the court of appeals holds Mitchell hasn’t made the first showing and therefore the warrantless blood draw of him was reasonable.

County v. Buffalo v. Kevin J. Rich, 2020AP1526, 6/7/22, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)

The court of appeals rejected all three of Rich’s challenges to his OWI 1st conviction. It held that the deputy did have reasonable suspicion to stop Rich’s jeep and to expand the stop to require field sobriety tests. It also held that even though Rich gave six breath samples, he consented to and completed just one breath test.

State v. Eric D. Bourgeois, 2022 WI App 18; case activity (including briefs)

Police went looking for Bourgeois at a hotel because he might have been in possession of stolen handgun, he had PTSD, and he had a drug problem. At 2:00 a.m., despite a “do not disturb” sign, 3 officers tried to enter his room unannounced first using a key card and then a master key. Due to the chain lock, they could only peek through but they saw that Bourgeois alone and unarmed  He declined to let them in and turned away. Claiming exigent circumstances, police busted through the hotel door.

State v. Christina Marie Wiederin, case activity (including briefs)

Wiederin was a driver in a fatal head-on collision. She was seriously injured in the crash and was trapped inside the car for nearly an hour afterward; she was then taken by ambulance to a hospital in Minnesota, where she would undergo medical imaging followed by surgery. The court of appeals now affirms the trial court’s conclusion that the circumstances of the crash, transportation and treatment presented an exigency such that the sheriff’s sergeant who drew her blood could reasonably conclude seeking a warrant would risk losing evidence, and that the draw was thus valid under Missouri v. McNeely, 569 U.S. 141, 149 (2013).

State v. Randy J. Promer, 2020AP1715-CR, 12/21/21, District 3 (not recommended for publication); case activity (including briefs).

Last term, SCOTUS rejected the idea that “community caretaking” is a standalone doctrine that justifies warrantless searches and seizures in the home. See Caniglia v. Strom, 141 S. Ct. 1596 (2021). Concurring opinions raised the possibility that the doctrine either no longer exists or applies only to the search of impounded vehicles.  See our post. The court of appeals holds that the community caretaker doctrine continues to apply to traffic stops,  and it justified the search and seizure in this case.

State v. Christopher D. Wilson, 2020AP1014-CR, petition for review of an unpublished decision granted 11/17/21; case activity (including briefs)

Issue presented (from the petition):

Did the police have implicit license to enter the backyard of Mr. Wilson’s home through a gated privacy fence?

State v. Laverne Ware, Jr., 2021 WI App 83; case activity (including briefs)

When the parties filed their initial briefs in this appeal, it was a community-caretaker case. But during briefing, the Supreme Court decided Caniglia v. Strom, which made clear that this doctrine doesn’t permit searches in the home (in the process invalidating some Wisconsin cases). So now–as the Caniglia concurrences foretold–it’s instead a case about the “emergency aid exception.”

State v. Terence S. O’Haire, 2021AP564, District 4, 11/4/21, (i-judge opinion, ineligible for publication); case activity (including briefs)

O’Haire argued that an officer coerced his consent to a PBT , so its results and his refusal to submit to an evidentiary breath test should have been suppressed. The officer told O’Haire that he didn’t have to consent to a PBT, but then the officer threatened to take O’Haire to jail if he refused. When O’Haire hesitated, the officer ordered him to turn around and place his arms behind his back. The court of appeals held that the officer’s threat did not vitiate O’Haire’s consent.

State v. Jesse Rogalla, 2019AP1486-CR, 10/26/21, District 3 (1-judge opinion, ineligible for publication; case activity (including briefs)

Officer Klieforth was dispatched to a home after someone reported that Rogalla was yelling at a woman inside. Klieforth heard both parties screaming, peeked in a window, saw Rogalla yelling as a woman knelt before him crying “You don’t have to do this” and “Why?” After hearing a loud slap, Klieforth entered without a warrant based on fear for the woman’s safety.

State v. Jeremy J. Deen, 2020AP1399, 8/24/21, District 3 (not recommended for publication); case activity (including briefs)

Police received a tip that an IP address associated with Deen’s home had uploaded child pornography. They went to the home and Deen let them in. While inside, officers noted Deen was carrying a knife, so they frisked him, which turned up a cell phone. In response to officers’ questions about child porn, Deen made some equivocal statements about whether there might be any on the phone, and the officers took it. The court of appeals holds that the possibility that Deen would hide or destroy the phone or delete the images it might contain supplied sufficient exigent circumstances that the police could seize it without a warrant.