On Point: 35. Search & Seizure

State v. Juiquin A. Pinkard, 2010 WI 81, affirming unpublished decision; for Pinkard: Richard L. Zaffiro; BiC; Resp.; Reply

The community caretaker function, which allows the police “to protect persons and property,” supports warrantless entry of a home. Exercising this function, the police justifiably entered Pinkard’s home in response to an anonymous phone report that “two individuals …

court of appeals decision (1-judge, not for publication); for Franzen: Timothy J. Lennon; BiC; Resp.; Reply

Suppression Hearing – Pleading Requirements for Evidentiary Hearing

Suppression hearing isn’t required on motion which challenged probable cause to administer PBT but failed to specify the relief sought.

¶6        WISCONSIN STAT. § 971.30 deals with the required form of motions and pleadings in criminal matters,

State v. Brittany A. Meye, No. 2010AP336-CR, District II, 7/14/10

court of appeals decision (1-judge, not for publication); for Meye: Kevin G. Keane; BiC; Resp.; Reply

¶6        Meye argues that the odor of intoxicants alone is insufficient to raise reasonable suspicion to make an investigatory stop. We agree. We will not cite, chapter and verse, all the many cases in this state where either we or our supreme court found facts sufficient for an investigatory stop.

State v. Timothy Charles Bauer, 2010 WI App 93; for Bauer: Catherine M. Canright; BiC; Resp.; Reply

Search-Incident – Automobile

By failing to address Bauer’s Arizona v. Gant argument, instead relying solely on State v. Fry, 131 Wis. 2d 153, 174, 388 N.W.2d 565 (1986), the States’ argument compels the court to reverse the suppression order:

¶9 Here,

City of Chippewa Falls v. Kenneth C. Hein, No. 09AP2729, District III, 6/23/10

court of appeals decision (1-judge; not for publication); for Hein: Paul D. Polacek; BiC; (Resp. not on-line); Reply

Stop of Hein’s vehicle was supported by “reports of suspicious activity about 2:30 a.m., the nature of which was unknown:”

¶10      … A prudent officer proceeding into such ambiguity and uncertainty will ensure the availability of witnesses or suspects and freeze the scene in order to further investigate:

[A] law enforcement officer will be confronted with many situations in which it seems necessary to acquire some further information from or about a person whose name he does not know,

Village of Whitefish Bay v. David W. Czirr, No. 2010AP92, District I, 6/22/10

court of appeals decision (1-judge; not for publication); for Czirr: Rex Anderegg; BiC; Resp.; Reply

Driving across median, even for very brief period of time, establishes probable cause to arrest for traffic offense:

¶14      Next, Czirr does not specifically argue that momentarily being on top of the median cannot constitute a violation of WIS.

State v. Joshua O. Kyles, 2004 WI 15, affirming court of appeals’ unpublished decision
For Kyles: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: The following factors did not add up to reasonable suspicion supporting the frisk of a passenger during a routine traffic stop (¶17):

(1) The officer testified that he “didn’t feel any particular threat before searching” the defendant.
(2) The defendant,

State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding: Answering call on lawfully seized cell phone proper, given existence of “probable cause to believe that the cell phone was a tool used in drug trafficking,” plus exigent circumstances (danger of evidence destruction), ¶¶35-42.

Probable cause, of course, is typically fact-specific and in that sense the court’s discussion (¶¶25-29) is mundane.

State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding: Exigent circumstances did not support browsing through image gallery of lawfully seized cell phone:  “That data was not in immediate danger of disappearing before Belsha could obtain a warrant,” ¶33.

The court of appeals had merely assumed that such browsing was improper on the facts,

7th circuit court of appeals decision

Warrantless Entry – Emergency Doctrine – 911 Call

According to David, the police violated the fourth amendment by entering without probable cause and refusing to leave as soon as Karen asked them to go. Like the district judge, we think that a 911 call provides probable cause for entry, if a call back goes unanswered. The 911 line is supposed to be used for emergencies only.