On Point blog, page 115 of 143
Administrative Searches – Probation/Parole: “Forcible” Manner of Entry
State v. Jacob B. Jones, 2008 WI App 154, PFR filed 10/24/08
For Jones: David R. Karpe
Issue/Holding:
¶24 Wisconsin Admin. Code § DOC 328.21(3)(f) (Dec. 2006) provides that probation or parole agents “may not forcibly enter a locked premises to search it if the client whose living quarters or property it is is not present.” Jones argues that the search of his bedroom was not reasonable because use of a locksmith constituted a forced entry in violation of § DOC 328.21(3)(f),
Search & Seizure – Applicability of Exclusionary Rule – Dog Sniff, Wisconsin Constitution
State v. Ramon Lopez Arias, 2008 WI 84, on Certification
For Arias: Lora B. Cerone, SPD, Madison
Issue/Holding: A dog sniff is no more a “search” under the Wisconsin than the U.S. Constitution, at least with respect to vehicles:
¶22 We are unwilling to undertake such a departure here. First, we note that there is no constitutionally protected interest in possessing contraband under the United States Constitution,
Search & Seizure – Applicability of Exclusionary Rule: Private Government Search, Generally – Burden of Proof
State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz
Issue/Holding: The exclusionary rule applies only to government action, not private searches, ¶12. If the State asserts that the action was private in nature the burden shifts to the defendant to prove by governmental involvement, preponderance of evidence, id.
Search & Seizure – Applicability of Exclusionary Rule: Private Government Search – Off-Duty Police Officer Acting in Private Capacity – Opening Misaddressed Letter
State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz
Issue: Whether the action of a police officer in opening a letter misaddressed to the officer’s residence from a House of Correction inmate was private and therefore outside fourth amendment scrutiny.
Holding:
¶13 There appears to be no Wisconsin case addressing the issue when an off-duty law enforcement officer acts in a private capacity rather than as a government agent for purposes of the Fourth Amendment.
Search & Seizure – Applicability of Exclusionary Rule – Violation of § 968.135, Standing to Assert
State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16
For Popenhagen: James B. Connell
Issue: Whether the person whose documents were produced by a bank pursuant to subpoena has standing to seek suppression of the documents.
Holding:
¶24 A person has standing to seek judicial intervention when that person has “a personal stake in the outcome”
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,