On Point: 35. Search & Seizure

State v. Dennis E. Bailey, 2009 WI App 140
For Bailey: Jeffrey W. Jensen

Issue/Holding: Court upholds frisk of vehicle, following stop for minor equipment violation (excessive window tint) in high crime area, where driver made furtive gesture (kicking motions under front seat) and officer testified that he saw a bag, which he thought contained a gun, protruding from under seat, ¶¶24-50. State v. Gary A.

State v. Paul Anthony Butler, 2009 WI App 52, PFR filed 4/20/09
For Butler: Trisha R. Stewart Martin

Issue/Holding: “Frisk” of car supported by concern driver had gun, in that he was wearing an empty gun holster, ¶16.

State v. Elliot B. Russ, Sr., 2009 WI App 68
For Russ: Barry S. Buckspan

Issue/Holding: No expectation of privacy protected papers left in courthouse hallway and subsequently seized and photocopied by court personnel:

¶12   Although Russ’s main brief on this appeal asserts that, as testified-to by Carlson, the affidavits were in a folder when Carlson saw them, the circuit court found that when Commissioner Sweet first saw them they “were spread out on a public bench” … .

State v. Elliot B. Russ, Sr., 2009 WI App 68
For Russ: Barry S. Buckspan

Issue/Holding:

¶11   The first issue turns on whether Russ had a reasonable expectation of privacy in the affidavits that he left on the bench. See Roberts, 196 Wis.  2d at 453, 538 N.W.2d at 828 (“[B]efore a defendant can invoke the protections of the Fourth Amendment,

State v. Antonio K. Phillips, 2009 WI App 179, PFR filed 11/25/09
For Phillips: Michael J. Backes

Issue/Holding: Warrantless entry of residence, following controlled buy within it, was justified by the threat of destruction of evidence, given that, “after seeing the police outside the residence, Phillips retreated into the residence and shut the door after the police ordered him to stop,” ¶11. State v.

State v. Kevin Raphael Lee, 2009 WI App 96, PFR filed 7/1/09
For Lee: Robert E. Haney

Issue/Holding: Police investigating complaint of drug dealing were entitled to enter apartment and conduct “protective sweep” when they saw, through the open front door, clear evidence of drugs:

¶13      The officers who presented themselves at Lee’s front door were investigating a complaint of drug activity at Lee’s address.

State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62
For Kramer: Stephen J. Eisenberg, Marsha M. Lysen

Issue/Holding:

¶25      Kramer argues that the “totally divorced” language from Cady means that the officer must have ruled out any possibility of criminal activity before the community caretaker function is bona fide. The State, on the other hand,

State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62
For Kramer: Stephen J. Eisenberg, Marsha M. Lysen

Issue/Holding: The 3-factor test for determining validity of community caretaker intervention, as articulated by State v. Anderson, 142 Wis.  2d 162, 167, 417 N.W.2d 411 (Ct. App. 1987), and the lead opinion of State v. Kelsey C.R.

State v. Lance F. Truax, 2009 WI App 60, PFR filed 5/4/09
For Truax: Kiley Zellner

Issue/Holding: Largely on community caretaker rationale of State v. Todd Lee Kramer, 2009 WI 14, the court upholds seizure of car observed pulling over on the shoulder late at night. The cop didn’t suspect any traffic violation, but simply thought that a driver who’d pulled off the roadway and remained parked for about 15 seconds merited concern for his well-being.

State v. Antonio K. Phillips, 2009 WI App 179, PFR filed 11/25/09
For Phillips: Michael J. Backes

Issue/Holding:

¶8        There are four exigent circumstances that may justify a warrantless search: “(1) an arrest made in ‘hot pursuit,’ (2) a threat to safety of a suspect or others, (3) a risk that evidence will be destroyed, and (4) a likelihood that the suspect will flee.” State v.