On Point: 2. Attenuation of taint

Darryl J. Sutton v. Randy Pfister, 7th Circuit Court of Appeals No. 15-2888, 2016 WL 4446561, 8/24/16

Sutton filed a habeas petition challenging his sexual assault conviction on the ground the evidence connecting him with the crime was obtained by the state through a conceded violation of the Fourth Amendment in a different case. The district court ruled in his favor, but the court of appeals holds there’s no Fourth Amendment violation because the evidence would inevitably have been discovered.

State v. Mastella L. Jackson, 2016 WI 56, 7/1/16, affirming a published decision of the court of appeals, 2015 WI App 49, 363 Wis. 2d 553, 866 N.W.2d 768; case activity (including briefs)

Despite the “flagrant” and “reprehensible” violations of Jackson’s Fifth Amendment rights by police, the supreme court holds that physical evidence seized based in part on information obtained from those violations should not be suppressed because the evidence would have been inevitably discovered. In the course of this ruling, the court alters Wisconsin’s long-established inevitable discovery standard and refuses to rule out using the doctrine in cases where the police intentionally violate a suspect’s rights.

Utah v. Strieff, USSC No. 14-1373, 2016 WL 3369419 (June 20, 2016), reversing State v. Strieff, 357 P.3d 532 (Utah 2015); Scotusblog page (includes links to briefs and commentary)

“This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. ”  –Sotomayor, J., dissenting

State v. Brian I. Harris, 2016 WI App 2, petition for review granted 4/6/16, affirmed 2017 WI 31; case activity (including briefs)

Incriminating statements Harris made while he was in custody were admissible despite the lack of Miranda warnings because the statements were either sufficiently attenuated from the taint of police questioning or were not made in response to police interrogation.

State v. David Jerome Gant, 2015 WI App 83; case activity (including briefs)

Ten months after seizing Gant’s computer as part of their investigation of the death of Gant’s wife, police searched the computer pursuant to a warrant and found child pornography. Assuming it was unlawful for the police to keep Gant’s computer for that long, the child pornography found on the computer should not be suppressed under the independent source and attenuation doctrines.

Review of a published court of appeals decision; case activity (including briefs)

Issues (composed by On Point from the PFR)

1. Does the inevitable discovery doctrine require the State to show that information gained through police misconduct did not prompt or influence the purportedly lawful investigation?
2. Does the inevitable discovery doctrine require the State to show that it was actively pursuing an alternative line of investigation prior to the illegal conduct?
3. Does the Wisconsin Constitution bar use of the inevitable discovery doctrine to allow admission of evidence obtained through an intentional violation of constitutional rights?

Question Presented:

Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful?

State v. Patrick Hogan, 2015 WI 76, 7/10/2015, affirming a court of appeals per curiam decision, 2013AP430-CR, majority opinion by Prosser; concurrence by Ziegler, dissent by Bradley (joined by Abrahamson); case activity (including briefs)

Sixteen seconds. It takes longer than that just to find your keys, get into your car, buckle up and start your engine. Keep that in mind as you read on. SCOW found that a traffic stop (due to a seatbelt violation) was unconstitutionally extended to perform field sobriety tests, but then upheld the subsequent vehicle search based on consent given 16 seconds after law enforcement told Hogan he was “free to leave.” SCOW saw no need to perform an attenuation analysis.

State v. Jeremiah R. Popp & Christopher A. Thomas, 2014 WI App 100; case activity: Popp; Thomas

The search warrant for the home shared by Popp and Thomas was invalid because the primary basis for the warrant was derived from observations made by police when they trespassed on the defendants’ property and peered into their windows.

State v. Thomas J. Anker, 2014 WI App 107; case activity

If a conservation warden shouted “you’re under arrest,” ordered you to stop walking, forcibly handcuffed you, and restrained you in his car until he could turn you over to investigating authorities, would you think you were under arrest or simply “temporarily detained”? The State, with a straight face, claimed these facts showed a Terry stop. The court of appeals, with a stern tone, rebuked the State and sharply criticized its brief.