On Point blog, page 109 of 142
Community Caretaker – Test – Generally
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.
Community Caretaker – Investigation of Stopped Car Late at Night
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.
Warrantless Entry – Exigent Circumstances, Generally
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.
Warrantless Entry of Residence – Exigent Circumstances, Generally
State v. Kevin Raphael Lee, 2009 WI App 96, PFR filed 7/1/09
For Lee: 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.
The court goes on to collapse the 2nd and 3rd categories of exigencies,
Arrest – Search Incident – Search Incident to Arrest – Warrantless Blood Test – Generally
State v. Mitchell A. Lange, 2009 WI 49, reversing unpublished opinion
For Lange: Steven M. Cohen
Issue/Holding:
¶2 We are asked to determine whether a law enforcement officer complied with the Fourth Amendment to the United States Constitution when obtaining a blood sample from the defendant without a warrant to do so. Our prior cases establish that a warrantless blood sample taken at the direction of a law enforcement officer is consistent with the Fourth Amendment under the following circumstances: “(1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime,
Search & Seizure – Applicability of Exclusionary Rule: Private Government Search – Off-Duty Police Officer Acting in Private Capacity – Viewing Memory Stick Containing Child Pornography
State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell
Issue/Holding1: Viewing of memory stick, concededly obtained in “private” search not covered by 4th amendment, ¶13 n. 6, by off-duty police lieutenant who was defendant’s brother-in-law, was not a “government search”:
¶14 “Private searches are not subject to the Fourth Amendment’s protections because the Fourth Amendment applies only to government action.” State v.
Search & Seizure – Applicability of Exclusionary Rule: Seizure and Detention by Private Security Guard
State v. Paul Anthony Butler, 2009 WI App 52, PFR filed 4/20/09
For Butler: Trisha R. Stewart Martin
Issue/Holding: Seizure and detention by security guard, until police arrived to conduct search, didn’t amount to government action so as to trigger 4th amendment analysis, under 3-factor test of State v. Tomas Payano-Roman, 2006 WI 47:
¶14 As we see from Butler’s submissions that are in the Record,
Administrative Searches – School Search – School Grounds Extended to Parking Lot
State v. Colin G. Schloegel, 2009 WI App 85
For Schloegel: Sarvan Singh
Issue/Holding1: School grounds are extended to the school parking lot, so that the test for searches of students, New Jersey v. T.L.O., 469 U.S. 325 (1985), applies to search of a student’s car parked in the lot, ¶¶15-19.
Issue/Holding2: Search of student’s car in school parking lot was reasonable:
¶21 In this case,
Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) — “Oral Communications” — Reasonable Expectation of Privacy Embedded in Definition
State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether tape-recorded statements were “oral communication” as defined in Wis. Stat. § 968.27(12).
Holding:
¶16 The legislative history of Title III indicates that Congress intended the definition of “oral communication” in Title III, which reads nearly identically to the definition contained in the Electronic Surveillance Control Law,
Arrest, Search Incident to – Timing
State v. Jordan A. Denk, 2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding:
¶33 We note at the outset that Officer Hahn testified he did not place Pickering under arrest until after he had performed searches of the eyeglass case and Denk’s clothing. This fact does not alter our analysis. In State v.