On Point blog, page 3 of 5
Even if officer’s opening of vehicle door was an unreasonable search, evidence obtained would have inevitably been discovered
State v. Mitchell M. Treiber, 2013AP2684-CR, District 3, 3/11/14; court of appeals decision (1-judge; ineligible for publication); case activity
The inevitable discovery doctrine, which provides that “evidence obtained during a search which is tainted by some illegal act may be admissible if the tainted evidence would have been inevitably discovered by lawful means,” State v. Lopez, 207 Wis. 2d 413, 427, 559 N.W.2d 264 (Ct.
Illegal arrest of driver in her garage doesn’t require suppression of blood test
State v. Kari L. Schiewe, 2012AP2767-CR, District 4, 10/24/13; court of appeals decision (1-judge; ineligible for publication); case activity
Applying well-established principles the court of appeals holds that despite the lack of field sobriety tests or other additional investigatory steps there was probable cause to arrest Schiewe for OWI based on information from witnesses and the officer’s own observations of Schiewe at her home. (¶¶14-19). Further, the subsequent blood draw from Schiewe was not tainted by the fact that the police arrested Schiewe in her garage,
Arrest and warrantless search of a home – no probable cause, exigent circumstances, community caretaker exception, or consent.
State v. Daniel Cervantes, 2011AP1858-CR, District 1, 2/12/13; court of appeals decision (not recommended for publication); case activity
The police lacked probable cause to arrest Cervantes when he opened the door of his apartment (¶¶10-16); there were neither exigent circumstances nor community caretaker grounds for the police to enter Cervantes’s apartment following his arrest to do a protective sweep (¶¶14-23); and his subsequent “consent” to search the apartment was not sufficiently attenuated from the illegal arrest and entries (¶¶24-30).
Payton v. New York Violation (Unlawful Entry of Residence, but with Probable Cause) and New York v. Harris Attenuation Doctrine
State v. Devin W. Felix, 2012 WI 36, reversing unpublished decision; for Felix: Leonard D. Kachinsky; case activity
Under Payton v. New York, 445 U.S. 573 (1980), warrantless arrest following nonconsensual entry of a home is illegal unless supported by probable cause and exigent circumstances. However, New York v. Harris,
Search & Seizure – Community Caretaker; Attenuation Doctrine – Witness Statements
State v. Ricky O. Halverson, 2011AP240-CR, District 2, 9/14/11
court of appeals decision (1-judge, not for publication); for Halverson: Walter R. Andrew; case activity
Officer, whose investigation of single-car crash led him to Halverson’s home, wasn’t properly engaged in community caretaker exercise when he took Halverson into custody, supposedly for his own good, ¶¶8-14. Community caretaker test, State v. Kramer, 2009 WI 14,
Search Warrant: Execution Reasonableness – Inevitable Discovery; Evidence: Denny (Third-Party Liability); Juror: Removal, During Deliberations – Substitution of Alternate, After Deliberations Commence
State v. Steven A. Avery, 2011 WI App 124 (recommended for publication); for Avery: Martha K. Askins, Suzanne L. Hagopian, SPD, Madison Appellate; case activity
Search Warrant – Execution – Reasonableness
Warrant-based search of Avery’s property was a reasonable continuation of the original search 3 days earlier.
General statement:
¶18 Generally, searches are subject to the “one warrant, one search” rule.
Warrantless Entry: Community Caretaker Exception
State v. Kathleen A. Ultsch, 2011 WI App 17(recommended for publication); for Ultsch: Shelley Fite, SPD, Madison Appellate; case activity; Ultsch BiC; State Resp.; Reply
Warrantless entry into a home, supposedly to check on the well-being of a suspected drunk driver just involved in an accident, wasn’t justified under the community caretaker doctrine; State v.
Jose Tolentino v. New York, USSC No. 09-11556, Cert. Granted 11/15/10
Dismissed as improvidently granted, 3/29/11
Decision below (New York Court of Appeals)
Question Presented (phrasing by On Point; check Docket or Scotusblog links for subsequent posting of official recitation)
Whether someone’s driving record is suppressible as the fruit of an illegal stop or arrest.
A mere 6 days ago, Mr. Badger raised an alert on the core of this issue:
Warrantless Entry – Consent – Attenuation of Taint
State v. Robert L. Artic, Sr., 2010 WI 83, affirming 2009 WI App 12; for Artic: Keith A. Findley, James D. Cooley; BiC; Resp.; Reply
Notwithstanding an unlawful, forcible police entry into his residence, Artic voluntarily consented to the subsequent search of the house, which was also sufficiently attenuated from the illegal entry to purge the taint of the illegal entry.
Kenneth E. Gentry v. Sevier, 7th Circuit App. No. 08-3574, 2/26/10
Terry Stop / Frisk
1. Pulling up in a patrol car and telling Gentry to keep his hands up amounted to a stop for purposes of Terry analysis.
2. The stop, which was based on a report of a “suspicious person,” without reference to any specific facts concerning a crime, was not supported by reasonable suspicion to believe Gentry had either committed a crime or was armed.