On Point blog, page 108 of 143
State v. Kevin Raphael Lee, 2009 WI App 96, PFR filed 7/1/09
Warrantless entry of residence; protective sweep
Click here for court of appeals decision
Defense counsel: Robert E. Haney
Issue/Holding: Warrantless entry of residence is supported when the State demonstrates both probable cause and exigent circumstances, ¶7. Exigent circumstances include: (1) hot pursuit of suspect; (2) threat to someone’s safety; (3) risk of evidence destruction; and (4) likelihood suspect will flee, ¶9.
Analysis: The court goes on to collapse the 2nd and 3rd categories of exigencies,
Warrants – Overbreadth – John Doe Subpoena for Computer Records
Custodian of Records for Legislative Technology Services Bureau v. State, 2004 WI 65, on reconsideration 2004 WI 149
Issue/Holding:
¶34. When we review a John Doe subpoena, a foundational issue may be constitutional in nature. For example, does the issuance of a subpoena in a John Doe proceeding, the sole purpose of such proceeding being to investigate alleged criminal activity, have the potential to affect Fourth Amendment rights?
Warrantless Entry of Residence – Exigency – Effectuate Misdemeanor Arrest
State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion
Issue/Holding: Support for warrantless entry of a residence to effectuate an arrest may be found where the offense is jailable, even if a misdemeanor; State v. Mikkelson, 2002 WI App 152 overruled:
¶27 Our review of the reasoning of Mikkelson, as compared with that of Welsh and Santana,
Arrest – Probable Cause – Specific Examples: Traffic Violation – Deviating from Center Line, § 346.05
State v. Michael L. Popke, 2009 WI 37, reversing unpublished opinion
For Popke: John Miller Carroll, Aaron W. Schenk
Issue/Holding: Police had probable cause to believe Popke violated § 346.05, driving on right-side of highway:
¶16 In this case, the officer testified that he was sitting at a stop sign when the defendant turned left onto the road directly ahead of where the officer was sitting.
Arrest – Probable Cause – OWI
State v. Mitchell A. Lange, 2009 WI 49, reversing unpublished opinion
For Lange: Steven M. Cohen
Issue/Holding: Probable cause to arrest for OWI was based on the following factors:
¶24 First, the driving that Officer Hoffman and Officer Penly witnessed is relevant. The driving was not merely erratic and unlawful; it was the sort of wildly dangerous driving that suggests the absence of a sober decision maker behind the wheel.
Community Caretaker – Investigation of Stopped Car with Hazard Lights on
State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62
For Kramer: Stephen J. Eisenberg, Marsha M. Lysen
Issue/Holding:
¶37 We conclude that Wagner had an objectively reasonable basis for deciding that a motorist may have been in need of assistance when he stopped behind Kramer’s vehicle. Kramer was parked on the side of a highway after dark with his hazard flashers operating.
Reasonable Suspicion – Basis – OWI – Time of Day, Erratic Driving
State v. Michael L. Popke, 2009 WI 37, reversing unpublished opinion
For Popke: John Miller Carroll, Aaron W. Schenk
Issue / Holding:
¶26 In the case at hand, the officer had reasonable suspicion that the defendant was operating a motor vehicle while intoxicated. Similar to the specific and articulable facts observed by the officer in Post, the officer in this case made the following observations over the course of approximately one block at 1:30 a.m.: The defendant was driving with three-quarters of the vehicle left of the center of the road;
Arrest Warrants – Entry, Defendant’s Residence
State v. Terion Lamar Robinson, 2009 WI App 97
For Robinson: Beth A. Eisendrath
Issue/Holding: Given the trial court finding that Robinson either lived or stayed at the apartment, the police were authorized to enter to effectuate his arrest under auspices of an arrest warrant:
¶16 In Blanco, the police, who had an arrest warrant for Blanco, entered an apartment where they believed Blanco was staying.
Search Warrants – Probable Cause – Stalking
State v. Michael A. Sveum, 2009 WI App 81, affirmed on other grounds, 2010 WI 92
For Sveum: Robert J. Kaiser, Jr.
Issue/Holding: A search warrant for seizure of the sorts of items Sveum used or kept in connection with a 1996 stalking conviction established probable cause he was keeping such items in 2003:
¶35 The warrant affidavit stated that the affiant was a detective with twenty-two years of experience who had specialized training in stalking crimes.
Search Warrants – Probable Cause – Statements of Unnamed, Unwitting Participant in Transaction
State v. Jaime Romero, 2009 WI 32, reversing unpublished opinion
For Romero: Thomas E. Hayes
Issue/Holding: Search warrant affidavit, based in part on incriminatory statements of “unwitting” informant (“Mr. X”), established probable cause:
¶29 In the instant case a confidential informant told a law enforcement officer what someone else had told him. In such a case, the veracity of each person in the chain is relevant.