On Point: 35. Search & Seizure

State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue/Holding:

¶15 Extrinsic sources include legislative history. Id. The drafting records of the Electronic Surveillance Control Law state that the law “represents Wisconsin implementation of the electronic surveillance portion of [Title III],” the Omnibus Crime Control and Safe Streets Act of 1968.

State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue: Whether a school bus driver’s statements surreptitiously recorded by a voice-activated tape recorder in the student’s backpack were suppressible under WESCL.

Holding:

¶2  The dispositive issue in this appeal is whether Duchow’s tape-recorded statements were “oral communication” as defined in Wis.

State v. Timothy L. Neitzel, 2008 WI App 143
For Neitzel: David A. Nelson

Issue/Holding: Under the particular circumstances, the sole occupant of a locked, public restroom had no reasonable expectation of privacy given that he occupied the room for at least 25 minutes and then failed to respond to pounding on the door.

The court follows the 6-factor test adopted by State v.

State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding: Displayed image on cell phone satisfied plain view doctrine (lawful position of officer, inadvertent discovery, probable cause to be images displayed contraband), ¶¶23-25.

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

Issue/Holding: Reasonable suspicion supported the frisk, given: the type of crime being investigated (residential burglary); the suspect’s admitted possession of, but initial reluctance to produce, two knives; and, his repeated reaching into his pants pockets, ¶¶3-11.

State v. Nathaniel L. Sumner, 2008 WI 94, reversing unpublished opinion
For Sumner: Craig Albee, Carol S. Josten

Issue/Holding:

¶23      Our protective search or “frisk” jurisprudence has consistently emphasized that the totality of all circumstances present and known to the officer must be taken into account to assess the legality of the procedure. Naturally, some factors will be of greater import than others in the reasonable suspicion calculus in a particular case.

State v. Clemente Lamont Alexander, 2008 WI App 9
For Alexander: Michael C. Demo

Issue: Whether the police had reasonable suspicion to search the glove compartment of a car, stopped for a minor traffic violation (right turn on red without stopping), based on multiple factors: delay in pulling over, furtive movements, high-crime area, and post-stop observation of items on the driver seat normally found in the glove compartment.

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/Holding1:

¶17      The investigative stop stemmed from an anonymous citizen’s tip of drug use and loitering on the porch of the residence. … Where an anonymous tipster is involved, police are required to conduct an independent investigation to corroborate the information provided.

State v. Ramon Lopez Arias, 2008 WI 84, on Certification
For Arias: Lora B. Cerone, SPD, Madison

Issue: whether extending a routine traffic stop by 78 seconds so that a dog could perform (without reasonable suspicion) a “drug sniff” amounted to an unlawful seizure.

Holding:

¶34      … . There remains no hard-and-fast time limit for when a detention has become too long and therefore becomes unreasonable. 

State v. Sean R. Fox, 2008 WI App 136
For Fox: Daniel M. Berkos

Issue/Holding: Permissive guest who had not stayed overnight lacked expectation of privacy in a mobile home:

¶21      The facts of this case contrast with those of Trecroci and more closely resemble those of Carter. Fox’s relationship to his hosts, Terry and McCoy,