On Point: 35. Search & Seizure

State v. George Toland Ziedonis, 2005 WI App 249
For Ziedonis: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding:

¶14      One such exception is the community caretaker function, which arises when the actions of the police are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” State v. Anderson, 142 Wis. 2d 162, 166, 417 N.W.2d 411 (Ct.

State v. David J. Roberson, 2005 WI App 195, affirmed on other grounds, 2006 WI 80
For Roberson: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding: “(E)vidence acquired outside of the home after an in-home arrest in violation of Payton is not a product of the illegal governmental activity, if officers had probable cause to arrest developed apart from the illegal entry,” ¶23;

State v. Shaun E. Kelley, 2005 WI App 199
For Kelley: Gregory Bates

Issue/Holding:

¶13      Kelley also argues that the search violated the scope of consent. He contends that an accelerant and phone handset could not have been found under his bed and therefore that place should not have been searched. We disagree. …

¶14      Here, the police were searching for a telephone handset and an accelerant.

State v. Shaun E. Kelley, 2005 WI App 199
For Kelley: Gregory Bates

Issue/Holding:

¶12      Kelley contends that the police should have disclosed that they had reason to believe he had child pornography in his apartment. We are not persuaded that the detectives’ failure to disclose all their suspicions invalidated an otherwise validly obtained consent. This was not a case of deception or false pretext.

State v. Joshua O. Kyles, 2004 WI 15, affirming court of appeals’ unpublished decision
For Kyles: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding:

¶22 … The State’s principal position is two-fold: First, the State argues that an officer’s “subjective fear of the suspect” being searched, as the state poses the issue, is not a prerequisite to a valid frisk. Second, the State argues that this court should bar any questioning of an officer about his or her “subjective fear of the suspect”

State v. Christopher M. Repenshek, 2004 WI App 229, PFR filed 12/17/04
For Repenshek: Stephen E. Mays

Issue/Holding: Refusal to submit to a PBT may support a conclusion of reasonable suspicion for a blood draw:

¶25. Key to understanding our analysis is understanding that Wis. Stat. § 343.303 does not contain a general prohibition on police requesting a PBT. Rather, the statute only imposes a limitation on the use of a PBT result in a particular situation,

State v. Joshua O. Kyles, 2004 WI 15, affirming court of appeals’ unpublished decision
For Kyles: Eileen A. Hirsch, SPD, Madison Appellate

Issue: Whether a per se rule should be adopted allowing a frisk whenever individuals fail to comply with police directives to keep their hands out of their pockets.

Holding:

¶48. We do not adopt, as the State urges,

State v. Jack P. Lindgren, 2004 WI App 159, PFR filed 8/20/04
For Lindgren: Stephen M. Compton

Issue/Holding: Search warrant application was supported by probable cause to search the defendant’s home and his computer, based on allegation of 15-year-old victim, that defendant had taken photographs of her posing nude, and had touched her vaginal area and admission of defendant that he had taken nude photos of her;

State v. John R. Maloney, 2004 WI App 141, affirmed, 2005 WI 74

Issue/Holding: The WESCL bars interception of a communication where the intent is to commit an “injurious act,” a showing that Maloney can’t make:

¶16. Generally, intent presents a question of fact that we are not allowed to resolve. See, e.g., State v. Lossman, 118 Wis.

State v. Jeffrey P. Powers, 2004 WI App 143
For Powers: Walter Arthur Piel, Jr.

Issue/Holding:

¶8. Before addressing Powers’ arguments, we will clarify when a seizure occurs. The trial court held that Powers was seized when Bethia activated his emergency lights. That is not the law in Wisconsin. In State v. Kelsey C.R., 2001 WI 54, ¶33, 243 Wis.