On Point blog, page 133 of 141

Arrest — Search Incident to Arrest — Probable Cause to Arrest Exists, but Officer Exercises Discretion Not to Arrest

State v. Robert F. Hart, 2001 WI App 283
For Hart: John Deitrich

Issue: Whether seizure of evidence may be sustained on a search-incident-to-arrest rationale, where the officer had probable cause to arrest, but was not going to arrest.

Holding:

¶11. What happens, however, when the police officer does not intend to make an arrest? Here, it is clear there was no intent on the part of the police officer to search Hart incident to the inevitable formal arrest for OWI.

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Arrest — Traffic Offense — Safety Glass Law

State v. Michael M. Longcore II, 2001 WI App 15, on appeal after remand of State v. Longcore I, 226 Wis. 2d 1, 594 N.W.2d 412 (Ct. App. 1999)
For Longcore: William E. Schmaal, SPD, Madison Appellate

Issue: Whether replacing a vehicle’s glass window with a plastic sheet violates the safety glass statute, § 347.43(1), so as to provide probable cause to arrest.

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Attenuation of Taint — Abandonment of Property — Thrown to Ground during Illegal Patdown

State v. Robert F. Hart, 2001 WI App 283
For Hart: John Deitrich

Issue: Whether a person voluntarily abandons property when throwing it to the ground during an illegal pat-down.

Holding:

¶24. Our own research has uncovered cases that are fatal to the district attorney’s contention. In Lawrence v. Henderson, 478 F. 2d 705, 708 (5th Cir. 1973), the court held that drug evidence found in a police car after an unlawful arrest could not have been voluntarily abandoned because the ‘abandonment’

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Attenuation of Taint — Consent

State v. David L. Munroe, 2001 WI App 104
For Munroe: Peter Koneazny, SPD, Milwaukee Appellate

Issue: Whether consent to search was valid notwithstanding illegal police activity.

Holding:

¶13. The three factors that help to determine whether the taint of earlier illegal police activity has been attenuated by the time a consent to search is granted are: “(1) the temporal proximity of the official misconduct and seizure of evidence;

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Consent — Acquiescence — Request Itself Unlawful Assertion of Authority

State v. David L. Munroe, 2001 WI App 104
For Munroe: Peter Koneazny, SPD, Milwaukee Appellate

Issue: Whether Munroe’s acquiescence, under false pretenses, to police entry of his motel room vitiated any consent for their subsequent search of that room, where Munroe refused their initial request to search.

Holding:

¶11 The officers entered Munroe’s room for, ostensibly, one purpose: to check his identification.

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Consent — Authority — Driver’s Consent to Search Passenger’s Property

State v. Jennifer K. Matejka, 2001 WI 5, 621 N.W.2d 891, affirming unpublished decision of court of appeals.
For Matejka: James B. Connell

Issue: “(W)hether, under the consent exception to the Fourth Amendment’s warrant requirement, a driver’s consent to a police officer’s search of a vehicle extends to a passenger’s jacket left in the vehicle at the time of the search.”

Holding:

¶35 Here,

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Search & Seizure – Applicability of Exclusionary Rule – Violation of Nonconstitutional Right — Unauthorized Practice of Law

State v. Debra Noble, 2002 WI 64, reversing 2001 WI App 145, 246 Wis. 2d 533, 629 N.W.2d 31
For Noble: Thomas H. Boyd

Issue/Holding: Suppression of evidence is required only where it has been obtained in violation of the defendant’s constitutional rights or of a statute specifically providing for suppression as a remedy. ¶14.

Issue: Whether, assuming that a detective’s examining defendant at a John Doe proceeding amounted to violation of the unauthorized practice of law statute,

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Search & Seizure – Applicability of Exclusionary Rule — Violation of Nonconstitutional Right – Statutory Building Inspection Procedure

State v. Albert Jackowski, 2001 WI App 187
For Jackowski: Ronald C. Shiroka

Issue: Whether violation of a statutory requirement for issuance of a building inspection warrant (namely, the § 66.0119(2) condition that such a warrant be issued only upon showing that consent to enter was refused) supports suppression of evidence obtained after entry under the warrant.

Holding:

¶17. We accept, however, the State’s alternative argument that refusal of consent is not a constitutional requirement for issuance of an administrative warrant,

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Administrative Searches — Warrants — Building Inspection

State v. Albert Jackowski, 2001 WI App 187
For Jackowski: Ronald C. Shiroka

Issue1: Whether review of issuance of an administrative warrant is entitled to the same deference as a criminal search warrant.

Holding: “Great deference” is no less accorded a magistrate’s decision to issue an administrative warrant than a criminal search warrant. ¶¶9-14.

Issue2: Whether a building inspection warrant must be supported by probable cause to believe code violations then exist in the building.

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Reasonable Suspicion – Frisk – Minor Traffic Violation

State v. Jose C. McGill, 2000 WI 38, 234 Wis. 2d 560, 609 N.W.2d 795, affirming unpublished decision
For McGill: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether the officer had reasonable suspicion to believe McGill armed and dangerous, and therefore to frisk him, following a routine traffic stop.

Holding: Judged by the requisite objective test, the frisk was justified, given that: the driver didn’t stop immediately;

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