On Point: H. Exclusionary rule

United States v. Cooley, USSC No. 19-1414, cert. granted 11-20-20

Question presented:

Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search respondent, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law.

State v. Daniel J. Van Linn, 2019AP1317, 11/17/20, District 3 (not recommended for publication), petition for review granted 4/27/21, affirmed, 3/22/22; case activity (including briefs)

Police found Van Linn injured and intoxicated near the scene of an accident, and an ambulance took him to the hospital for treatment. At the hospital Van Linn refused an officer’s request that consent to a blood draw; the officer, claiming exigency, ordered blood taken anyway. Van Linn moved to suppress and the court held there was no exigency, and accordingly suppressed the BAC results. Shortly thereafter, the district attorney asked the court to approve a subpoena of Van Linn’s treatment records from the hospital; the court issued the subpoena and the hospital turned over the records, which included the results of the hospital’s own blood test. Van Linn asked the court to suppress those as well, but it declined. He was convicted and appealed.

State v. Dawn M. Prado, 2016AP308, cross-petitions for review of a published court of appeals decision granted 10/21/20; case activity (including briefs and, now, PFRs!)

You’ve heard this one before. Here’s our post on the court of appeals decision, which struck down the unconscious-driver provisions of the implied-consent statute but nevertheless declined to suppress the blood draw results under the good-faith doctrine. Perhaps you imagined the matter resolved, particularly given that after several failures to decide the question, SCOW had begun declining the court of appeals’ certification requests on the topic. No such luck.

State v. George Steven Burch, 2019AP404-CR, District 3 (10/20/20), review granted 11/18/20, circuit court judgment affirmed, 2021 WI 68; case activity (including briefs)

Burch … contends the [Green Bay Police Department] and the [Brown County Sheriff’s Office] violated his Fourth Amendment rights in three ways: (1) the GBPD exceeded the scope of his consent to search his cell phone by downloading the phone’s entire contents, rather than only the text messages; (2) the GBPD unlawfully retained the entire cell phone download after it completed its June 2016 investigation into the vehicle incidents; and (3) the BCSO had no lawful authority to conduct a second search of the cell phone download in August 2016. Because these issues raise novel questions regarding the application of Fourth Amendment jurisprudence to the vast array of digital information contained in modern cell phones, we certify this appeal to the Wisconsin Supreme Court.

State  v. Catherine Cuskey Large, 2019AP1966-CR, 8/13/20, District 4 (1-judge opinion, ineligible for publication; case activity (including briefs)

The court of appeals correctly affirmed the circuit court’s decision to suppress OWI evidence in this case, where an officer admitted that the New Glarus Police Department’s “protocol” was to administer PBTs on motorists whether they had probable cause for OWI or not. But court of appeals did so by taking a heavy-handed approach to waiver, a rule of administration that appellate courts have the discretion to apply or not.

State v. Dawn M. Prado, 2020 WI App 42, cross petitions for review granted, 10/21/20, affirmed, 2021 WI 64; case activity (including briefs)

They must have gotten tired of waiting. After SCOW failed (or refused) to decide the question in Howes, Brar, Mitchell, and Hawley, and SCOTUS likewise punted in Mitchell v. Wisconsin, the court of appeals now does what those higher courts could or would not: it rules on the constitutionality of Wis. Stat. § 343.305‘s provisions that permit police to withdraw blood from an incapacitated or unconscious motorist on the theory that they’ve “consented” to this by driving. And, like the vast majority of jurisdictions to consider similar questions, our court holds this provision unconstitutional, rejecting the state’s argument that statutorily-imputed consent is the type of “consent” that provides an exception to the warrant requirement. But the court also says the statute was not, at the time of Prado’s arrest, so plainly unconstitutional that the officer could not rely on it in good faith. Thus the court declines to suppress the test results.

State v. Rosalee M. Tremaine, 2016AP1963-CR, 2/27/20, District 4, (1-judge opinion, ineligble for publication); case activity (including briefs)

An officer stopped Tremaine for a traffic violation and called another car to bring some warning forms. While the officer was filling them out, another officer arrived with a dog. The first officer handed Tremaine the forms, but did not allow her to leave. Then the third officer conducted a sniff, which led to a search of Tremaine’s purse revealing marijuana and a pipe. Defense counsel filed a suppression motion, but made the wrong argument. The court of appeals now finds him ineffective.

State v. Michael R. McGinnis, 2018AP1388-CR, District 3, 10/8/19 (not recommended for publication); case activity (including briefs)

An officer investigating a hit-and-run at the Happy Hollow Tavern unlawfully pushed his way into McGinnis’s home and then arrested him. The state concedes the officer’s entry was unlawful, so the evidence and statements police obtained while in McGinnis’s home must be suppressed. But the arrest of McGinnis was supported by probable cause, so the evidence obtained after the arrest is admissible.

State v. Garrett German, 2018AP78, 9/24/19, District 3 (not recommended for publication); case activity (including briefs)

Facebook alerted law enforcement that German’s account had uploaded images that “appeared to depict child pornography.” Eventually, an who had looked at the images submitted a warrant application averring that each one did “appear to be an image of child pornography.” Police executing the warrant did, in fact, find child pornography. Was the bare allegation that the images were child pornography (rather than an attachment with the actual images or at least a description of what they showed) good enough to supply probable cause to the warrant-issuing magistrate?

State v. Justin W. Paull, 2017AP1210, 8/15/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Mr. Paull was found bloody and semi-conscious after a motorcycle accident. He smelled of intoxicants and had slurred speech. Police arrested him, and he was taken to the hospital. An officer read the informing the accused form to the now-unconscious Mr. Paull, then drew his blood.