On Point blog, page 10 of 141
COA holds OWI arrest supported by probable cause
County of Jefferson v. Julianne Trista Wedl, 2022AP328, 9/9/22, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Wedl was driving her car when she came upon another vehicle engulfed in flames. An off-duty police officer also happened by and stopped. When the first on-duty officer arrived, he approached Wedl, who seemed to be in shock. He conversed with her and detected an odor of intoxicants when she spoke. He didn’t tell her he suspected anything, though: he said someone would get her statement about the burning car shortly, and suggested she wait in the back of his squad as it was chilly out.
Court of Appeals weighs in on process for defendant to petition for return of property after criminal charges are dismissed
State v. John Dean Pleuss, 2021AP504-CR, District 4, 8/25/22 (not recommended for publication); case activity (including briefs)
The deadline for filing a return of property application under § 968.20 is “directory” rather than mandatory, so failing to comply with the deadline doesn’t deny a circuit court the competency to decide the application if the petitioner can establish excusable neglect for not complying with the deadline. Further, the state can’t meet its burden of proving the property was used in the commission of a crime, and thus shouldn’t be returned, by simply referring to the contents of a criminal complaint related to the seizure of the property.
COA holds leaving tavern at 2:00 a.m. + open drink in car + odor of intoxicants = probable cause to arrest
State v. Randaro V. Jones, 2020AP1046, District 1 (one-judge decision; ineligible for publication) 9/7/22, case activity (including briefs)
This is not an OWI case; rather, it’s an appeal from a conviction of recklessly endangering safety by using a firearm while intoxicated. But the blood test that led to this charge came as a result of an arrest for OWI-first, so the issue is whether there was probable cause for that arrest.
Traffic stop was extended lawfully
State v. Brynton C. Foston, 2022AP387, 9/14/22, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)
An officer saw Foston driving without headlights between 2:00 and 3:00 a.m. and activated his emergency lights. Foston didn’t stop. He accelerated, pulled into his driveway, and stumbled as he tried to reach his back door. The officer started giving commands, and Foston, who had bloodshot eyes and slurred speech became argumentative.
COA upholds extension of traffic stop based on half the totality of the circumstances
City of West Bend v. Peter F. Parsons, 2022AP98, 8/17/22, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
This is an appeal of convictions for violating local ordinances in conformity with the state laws outlawing OWI. The court of appeals affirms.
Warrantless arrest on porch unlawful, but probable cause to arrest means no suppression
State v. Kallie M. Gajewski, 2020AP7-CR, District 3, 8/2/22 (not recommended for publication); case activity (including briefs)
Police arrested Gajewski in the curtilage of her home without a warrant and exigent circumstances. While this makes the arrest unlawful, the evidence obtained from the arrest is not subject to suppression because police had probable cause to arrest her.
Defense win: Odor of marijuana didn’t provide probable cause to arrest
State v. Quaheem O. Moore, 2021AP938-CR, District 4, 7/28/22 (not recommended for publication), state’s petition for review granted 12/21/22; reversed 2023 WI 50; case activity (including briefs)
Police stopped Moore for speeding and, after detecting the odor of what the officer believed to be marijuana, searched Moore. (¶¶2-9). Distinguishing State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999), the court of appeals affirms the circuit court’s suppression order, holding that the odor of marijuana, by itself or coupled with other information, did not provide probable cause to arrest Moore and search him incident to arrest.
Challenge to telephonic search warrant procedure fails
State v. Donald A. Whitaker, 2022AP204-CR, District 2, 7/27/22 (one-judge decision; ineligible for publication); case activity (including briefs)
A telephonic warrant may be valid even if the court did not arrange for an electronic or written recording of the officer’s telephone call to be made.
Police had probable cause to arrest for OWI
State v. Andrew Austin Keenan-Becht, 2022AP73-CR, District 2, 8/3/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Under the long-standing test for probable cause, Keenan-Becht’s arrest was lawful.
SCOW addresses use of ShotSpotter alert in assessing reasonableness of Terry stop
State v. Avan Rondell Nimmer, 2022 WI 47, June 23, 2022, reversing an unpublished court of appeals decision; case activity (including briefs)
This decision ultimately involves only the application of well-settled 4th Amendment law to the particular facts of the case rather than development of the law. But it comes perilously close to something worse, for three justices embrace a modification of the quantum of evidence needed to justify an investigatory stop and accept uncritically the claims that the manufacturer of ShotSpotter acoustic sensors makes for the accuracy of its product and touts the device’s asserted accuracy in assessing reasonable suspicion in future cases.