On Point blog, page 114 of 141
Search & Seizure – Applicability of Exclusionary Rule – Violation of Non-Constitutional Right: Patient Records (HIPAA, § 146.82)
State v. Ellen T. Straehler, 2008 WI App 14
For Straehler: Daniel P. Fay
Issue: Whether suppression is a remedy for violation of health care privacy laws (HIPAA; § 146.82).
Holding1:
¶10 Straehler’s argument does not carry for a number of reasons. First, Straehler ignores the fact that HIPAA is limited in its scope and applicability. Investigating authorities, i.e., police officers, are not among the “covered entities” expressly subject to HIPPA.
Search & Seizure – Applicability of Exclusionary Rule – Violation of Statutory Right: § 968.135, Subpoena Procedure for Production of Documents – Suppressibility of Documents Themselves
State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16
For Popenhagen: James B. Connell
Issue: Whether documents produced in violation of § 968.135 subpoena procedure are suppressible.
Holding:
¶30 The State concedes, and properly so, that contrary to the requirements of Wis. Stat. § 968.135 no showing of probable cause was made to the circuit court before the circuit court issued the subpoenas.
Search & Seizure – Applicability of Exclusionary Rule – Violation of Statutory Right: § 968.135, Subpoena Procedure for Production of Documents – Suppressibility of Statements Made When Confronted with Improperly Subpoenaed Documents
State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16
For Popenhagen: James B. Connell
Issue: Whether statements made when confronted with documents produced in violation of § 968.135 subpoena procedure are suppressible.
Holding:
¶81 The defendant’s motion to suppress the incriminating statements in the present case is substantially similar in nature to a motion to quash the subpoena.
Reasonable Suspicion – Basis – Traffic Stop – Deviations within Lane – No Bright-Line Rule, Stop Permissible under Totality of Particular Circumstances
State v. Robert E. Post, 2007 WI 60, reversing unpublished decision
For Post: T. Christopher Kelly
Issue/Holding1: Weaving within lane of travel doesn’t support bright-line rule justifying stop for suspicion of drunk driving:
¶14 The State contends that Sergeant Sherman had reasonable suspicion to stop Post. It advocates the view that repeated weaving of a motor vehicle within a single lane (absent an obvious innocent explanation) provides the reasonable suspicion to make an investigatory stop.
Reasonable Suspicion – Basis – Traffic Stop – Deviations within Lane, et al – Stop Permissible, Totality of Particular Circumstances
State v. Robert E. Post, 2007 WI 60, reversing unpublished decision
For Post: T. Christopher Kelly
Issue/Holding:
¶28 As in Waldner, the police officer in the present case did not observe any actions that constituted traffic violations or which, considered in isolation, provided reasonable suspicion that criminal activity was afoot. However, when considered in conjunction with all of the facts and circumstances of the case,
Frisk of Automobile – Generally
State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15
For Johnson: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding:
¶23 In Pennsylvania v. Mimms, 434 U.S. 106 (1977), and Michigan v. Long, 463 U.S. 1032 (1983), the United States Supreme Court applied the principles of Terry to the validity of protective searches executed during a roadside stop.
Expectation of Privacy – Automobile: (Non-Owner) Driver – “Standing” to Challenge Search of Car
State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding: Bruski did not establish an expectation of privacy in the automobile from which evidence was seized, where his only connection to the automobile was that he had passed out in it; further, he did not know how he’d gotten to his current location and didn’t know where the car key was.
Expectation of Privacy – Generally: In Relation to Area Searched
State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶23 Whether an individual had a reasonable expectation of privacy in an area subjected to a search depends on two prongs. Smith v. Maryland, 442 U.S. 735, 740 (1979); Dixon, 177 Wis.
Expectation of Privacy – Generally: Proof of (and: “Standing” Contrasted)
State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶20 …Bruski, as the proponent of a motion to suppress, has the burden of establishing that his Fourth Amendment rights were violated by the search. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Rakas v.
Consent — Acquiescence – Response to Stated Intent to Search
State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15
For Johnson: Eileen A. Hirsch, SPD, Madison Appellate
Issue: Whether Johnson’s statement, “I don’t have a problem with that,” made in response to an officer’s assertion that they were “going to search the vehicle” was voluntary consent or mere acquiescence.
Holding:
¶19 As the record indicates,