On Point: A. Expectation of privacy

State v. Johnny K. Pinder, 2017AP208-CR, District 2, certification filed 12/13/17, certification granted 3/14/18, affirmed, 2018 WI 106; case activity (including briefs)

Issue (from certification):

If a search warrant issued under WIS. STAT. § 968.12 for the placement and use of a GPS tracking device on a motor vehicle is not executed within five days after the date of issuance per WIS. STAT. § 968.15(1) is the warrant void under § 968.15(2), even if the search was otherwise reasonably conducted?

State v. Bryan J. Landwehr, 2016AP2536-CR, 11/7/17, District 3 (one-judge decision; ineligible for publication) case activity (including briefs)

The court of appeals holds that officers lacked a valid community caretaker basis to seize Landwehr from his garage based on speculation that he might engage in a domestic dispute in the future.

United States v. Microsoft Corp., USSC No. 17-2, certiorari granted 10/16/17

Question presented:

Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.

Collins v. Virginia, USSC No. 16-1027, cert granted 9/28/17; lower court opinion; USSC docket; SCOTUSblog page

Question presented: Whether the Fourth Amendment’s automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Byrd v. United States, USSC No. 2016-1371, cert granted 9/28/17; 3rd Circuit’s opinion; docket; SCOTUSblog page
Question presented:

A police officer may not conduct a suspicionless and warrantless search of a car if the driver has a reasonable expectation of privacy in the car–i.e., an expectation of privacy that society accepts as reasonable. Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement.

Question presented:

Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.

You’ve no doubt heard about digital devices from outfits like Nest or Amazon Echo or Google Home that allow you remotely to control your thermostat or your lights and blinds or take video of the goings-on in your yard or on your porch. Perhaps you’ve also heard about the case in Arkansas in which the prosecution was seeking audio from the defendant’s Amazon Echo to determine if it contained evidence about his culpability for a murder.

State v. Steven T. Delap, 2016AP2196-CR, 4/20/17, District 4 (one-judge decision; ineligible for publication), petition for review granted 7/18/17, affirmed, 2018 WI 64; case activity (including briefs)

Police tried to arrest Delap outside his home on warrants for fleeing from a couple of traffic stops, but when they approached and said “stop, police,” Delap fled into his home. The police followed and arrested him inside. (¶¶3-6). Delap’s challenge to his arrest is no more successful than his attempt to flee.

State v. Steven J. Schaefer, 2015AP2555-CR, District 3, 11/1/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Schaefer challenged evidence seized after he was arrested outside his home. He argued the arresting officer entered the curtilage of his home without a warrant. The court of appeals holds the area was not curtilage under the four-factor test established by United States v. Dunn, 480 U.S. 294 (1987).

State v. Andrew S. Sato, 2015AP1815-CR, 10/18/2016, District 1 (not recommended for publication); case activity (including briefs)

Police investigating an armed robbery the previous evening learned their suspect was at home in his apartment. One officer initiated a “knock and talk,” banging on the front door of the apartment and yelling for five to ten minutes while another officer positioned himself outside near the apartment’s bedroom window. After that second officer heard loud noises, the first kicked in the door and arrested Sato. The officers then went and got a search warrant for the apartment, which turned up evidence of the crime.