On Point: 35. Search & Seizure

court of appeals decision (1-judge; not for publication); for Pintar: Sarvan Singh; BiC; Resp.; Reply

Probable Cause – Traffic Violation
The police had probable cause to believe Pintar violated § 343.13(1), given uncontroverted testimony that his vehicle “moved across the center skip line (of I-94) into the lane of a car that was approaching from the rear, causing the car to activate its break lights and move out of the way.”

court of appeals decision (1-judge; not for publication); for Able: Francesco G. Mineo; BiC; Resp.; Reply

Reasonable Suspicion, Stop
Police had reasonable suspicion for temporary detention: after business hours, car pulled into parking lot of fitness club that had been subject of recent burglaries.

Conclusion unremarkable save perhaps court’s inexplicable emphasis that event occurred “close to bar closing time,” ¶12.

court of appeals decision (1-judge; not for publication); for Schlapper: Owen R. Williams; BiC; Resp.; Reply

Probable Cause Based Search of Car, After Arrest of Passenger
Police had probable cause to search car, after passenger threw marijuana out window; search-incident limitations imposed by Arizona v. Gant therefore inapplicable.

court of appeals decision (3-judge; not recommended for publication); pro se; Resp. Br.

Forfeiture
Refusal of request to return seized cash upheld, where Morton was convicted of drug offenses: separate forfeiture action was unnecessary (Leonard L. Jones v. State, 226 Wis.2d 565, 594 N.W.2d 738 (1999), controlling); trial court forfeiture decision is discretionary, and Morton’s failure to provide transcript of trial court reasoning dooms attack.

court of appeals decision (i-judge; not for publication); for Rice: Tracey A. Wood; BiC; Resp.; Reply

Search & Seizure – Denial of Motion to Suppress without Evidentiary Hearing

¶6        Regarding the applicability of [State v.] Garner [, 207 Wis. 2d 520, 558 N.W.2d 916 (Ct. App. 1996) to the present case, we find no published cases applying Garner’s modified Nelson test to a pretrial motion to suppress anything other than witness identification evidence.

court of appeals decision (1-judge; not for publication)

Traffic Stops
No seizure, given that police neither “prompted” Hennessey to park car not blocked him in; therefore reasonable suspicion not necessary to approach car.

court of appeals decision (1-judge; not for publication); BiC; Resp. Br.; Reply Br.

Miranda – Suppressed Statement and Probable Cause

¶7        First, we will address the State’s argument that Kohel’s statement “[w]e just smoked an hour ago” was voluntary and should not be suppressed. The trial court found, and we agree, that Kohel’s statement was the result of a custodial interrogation and should be suppressed.

State v. Robert A. Tomaszewski, 2010 WI App 51; for Tomazewski: Devon M. Lee, SPD, Madison Appellate; Resp. Br.; Reply Br.

¶6 n. 3:

Tomaszewski argues this is not a case in which reasonable suspicion that he was violating a traffic law would justify the stop. In Tomaszewski’s view, a temporary detention may be justified by reasonable suspicion only where an officer cannot determine,

court of appeals decision (1-judge, not for publication) BiC; Resp. Br.; Reply Br.

Traffic Arrest
Probable cause to believe Broad drove on public roadway, hence to arrest for OWI, where car was found off the road, Broad was in driver’s seat and admitted to being driver, car “was warm and running.”

Right to Testify
Violation of rule requiring contemporaneous colloquy as to waiver of right to testify at trial doesn’t lead to automatic reversal of conviction;

court of appeals decision (1-judge, not for publication) BiC; Resp. Br.; Reply Br.

Terry Stop
Reasonable suspicion found, based on citizen informant report of pickup truck slowly going back and forth down a residential street at 3:30 in the morning and “approaching various houses”; “lawful but unusual and suspicious driving may be the basis of an officer’s reasonable suspicion.”