On Point: 35. Search & Seizure

State v. Aaron E. Applewhite, 2008 WI App 138, PFR filed 9/19/08
For Applewhite: Pamela Moorshead

Issue/Holding:

¶12      The next question before us is whether Bastil’s discovery of contraband in Applewhite’s pockets is supported by the “plain touch” doctrine. When the pat-down itself is based on reasonable suspicion, the “plain feel” or “plain touch” exception to the warrant requirement may apply, and “when an officer touches or feels an object during a pat[-]down which his or her training and experience lead the officer to believe may be contraband,

State v. Tamara C. Limon, 2008 WI App 77, PFR filed 5/7/08
For Limon: Wm. Tyroler, SPD, Milwaukee Appellate; Lisa A. Packard, Law Student

Issue/Holding:

¶36      In her final argument, Limon argues that when the officer opened her purse, the search exceeded the scope of a valid weapons frisk under Terry. Although Terry provides only for an officer “to conduct a carefully limited search of the outer clothing … in an attempt to discover weapons which might be used to assault him,” id.

State v. Michael Anthony King, 2008 WI App 129
For King: Mark S. Rosen

Issue/Holding: Although an “anticipatory” search warrant may be issued to seize property in transit, a warrant may not condition its execution on verification of an address, ¶¶16-24

State v. Juan A. Casarez, 2008 WI App 166
For Casarez: Adam C. Essling

Issue/Holding:

¶12      Although Casarez concedes the affidavit establishes probable cause that he committed a crime, he asserts that it contains no evidence to establish that a crime was committed at his home, that the gun was ever observed at his home, or that he was ever seen with the gun at his home.

State v. Adrian J. Jackson, 2008 WI App 109
For Jackson: Craig S. Powell; Brian Kinstler

Issue: Whether a warrant established probable cause to search either the entirety of a multi-unit residential building.

Holding:

¶19      The magistrate was told only that the informant saw Jackson with two guns “at the residence of 4124 N. 21st Street” and that a booking record shows Jackson used that address eight months earlier.[9] Nothing in the Affidavit states that Jackson had been observed using both of the two-story duplex units,

State v. Michael Anthony King, 2008 WI App 129
For King: Mark S. Rosen

Issue/Holding: A search warrant that conditions its execution on verification of the target’s address violates the 4th amendment’s particularity requirement:

¶25      … The Fourth Amendment clearly sets forth the particularity requirement that must be satisfied prior to issuance of a warrant. … The particularity requirement is necessary “to direct the officer to the exact place to be searched and to guard against abuses that prevailed under the old writs of assistance which left the place to be searched to the discretion of the searching officer.” Rainey v.

State v. Adrian J. Jackson, 2008 WI App 109
For Jackson: Craig S. Powell; Brian Kinstler

Issue/Holding: A warrant describing the building to be searched only as “a two-story duplex residence” did not satisfy the particularity requirement:

¶9    If the location to be searched is not described with sufficient particularity to inform officers which unit in a multi-unit building they are to search, the particularity required by the Fourth Amendment has not been satisfied. 

State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly

Issue: Whether execution of a search warrant for business records exceeded the warrant’s scope in that the warrant: authorized only the search for and seizure of records that related to a specific business with specifically named clients; and also authorized only a search of that business’s office space and not the defendant’s personal office within that space.

State v. Michael Anthony King, 2008 WI App 129
For King: Mark S. Rosen

Issue/Holding: Search warrant based on drug transaction occurring 30 days earlier lacked probable cause, ¶32 n. 7:

… From our review of the record, it would appear that probable cause as to the search of his residence was stale. The most recent information directly tied to King was thirty days old.

State v. Eric Dwayne Rogers, 2008 WI App 176, PFR filed 12/12/08
For Rogers: Mark D. Richards

Issue/Holding: Incorrect identification of automobile on face of warrant was mere technical irregularity based on “scrivener’s error”:

¶15      In this case, the executing officer had personal knowledge and the officer attached and incorporated a correct affidavit. The affidavit correctly identified Rogers’ car three times, describing the correct color,