On Point: 35. Search & Seizure

State v. Annika S. Christensen, 2022AP500, 9/9/22, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Christensen was one of two occupants of a parked car after dark. A police truck approached, parked close behind her, and shined its takedown light into the car. At least one officer got out of the car and knocked on the window. In a carefully-reasoned, well-explained decision, the court of appeals affirms the circuit court’s holding that Christensen was seized at this moment, and that the police lacked reasonable suspicion for that seizure.

State v. Todd W. Vaughn, 2022AP644-Cr, 9/29/22, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Vaughn was convicted of operating a vehicle with a PAC, second offense. He claimed that the deputy who stopped him lacked reasonable suspicion because he acted solely on an uncorroborated anonymous tip. The court of appeals held that the tip provided reasonable suspicion for the stop because  it had “indicia of reliability” that were “suitably corroborated” as required by State v. Williams, 2001 WI 21, ¶31, 241
Wis. 2d 631, 623 N.W.2d 106.

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.

State v. John Dean Pleuss, 2021AP504-CR, District 4, 8/25/22 (not recommended for publication); case activity (including briefs)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.

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.

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.

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.

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.

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.

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.