On Point: 35. Search & Seizure

State v. Mata, 230 Wis.2d 567, 602 N.W.2d 158 (Ct. App. 1999)
For Mata: Daniel P. Murray.

Issue: Whether the police had probable cause to search the passenger of a stopped car, based on the odor of “raw” marijuana.

Holding: The odor of marijuana was sufficiently linked to the passenger to justify the search.

The police stopped a car because it didn’t have a front plate.

State v. Michael Wilson, 229 Wis.2d 256, 600 N.W.2d 14 (Ct. App. 1999)
For Wilson: Martha A. Askins, SPD, Madison Appellate.

Holding: After unlawfully intruding on a home’s curtilage and smelling marijuana burning inside the home, an officer approached Wilson and wouldn’t let him go to the bathroom without first patting him down. This, the court says, amounted to an arrest under State v. Swanson, 164 Wis. 2d 437,

State v. Michael Wilson, 229 Wis.2d 256, 600 N.W.2d 14 (Ct. App. 1999)
For Wilson: Martha A. Askins, SPD, Madison Appellate.

Holding: Consent to search was mere acquiescence and therefore involuntary. (“Depriving a defendant of necessities is an indicia that consent is involuntary.”)

County of Jefferson v. Renz, 231 Wis.2d 293, 603 N.W.2d 541 (1999), reversing Jefferson Co. v. Renz, 222 Wis. 2d 424, 588 N.W.2d 267 (Ct. App. 1988)
For Renz: Stephen E. Mays.

Issue: Whether an officer is required to have probable cause to arrest before asking a suspect to submit to a preliminary breath test.

Holding: The “overall scheme” allows an officer to use a PBT to determine whether to arrest a suspect,

State v. Lance Terry Konrath, 218 Wis.2d 290, 577 N.W.2d 601 (1998), affirming unpub. decision
For Konrath: Ralph A. Kalal

Issue/Holding: Forfeiture statute § 346.65(6) authorizes a civil, remedial in rem proceeding, and is not facially unconstitutional; because the statute is civil, double jeopardy doesn’t apply; the proceeding provides sufficient notice to satisfy due process (with caution that immediate seizure appropriate in certain circumstances).

State v. Walter A. Kirch, 222 Wis. 2d 598, 587 N.W.2d 919 (Ct. App. 1998)
For Kirch: Timothy J. Gaskell

Issue/Holding:

The federal courts continue to consider possession, title, control and financial stake when determining ownership under 21 U.S.C. § 881(a)(7). … We therefore consider these factors when determining ownership for the purposes of § 973.075(1)(b)2, Stats.

While Sharon Kirch is listed on the Chevrolet Suburban’s title as the owner,

State v. Melvin Thompson, 222 Wis. 2d 179, 585 N.W.2d 905 (Ct. App. 1998)
For Thompson: Phillip J. Brehm

Issue/Holding:

No published Wisconsin case has specifically addressed whether one has a reasonable expectation of privacy in a hospital emergency room or operating room. Accordingly, we analyze the question under the general approach for determining whether a person has a reasonable expectation of privacy in an area where evidence is gathered.

Kelly L. McCray, 220 Wis. 2d 705, 583 N.W.2d 668 (Ct. App. 1998)
For McCray: Paul LaZotte

Issue/Holding: A guest who has exceeded his authorized stay loses any expectation of privacy in the residence

State v. Dale Gruen, 218 Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998)
For Gruen: Scott F. Anderson

Issue/Holding: Temporary detention of Gruen based on reasonable suspicion that he had caused an automobile accident while intoxicated was not converted into arrest, where the 1st officer detained him for no more than 15 minutes until a 2nd officer, from the appropriate jurisdiction could arrive; and, Gruen consented to sit in the police van to get out of the cold until the 2nd officer arrived.

State v. Luis E. Bermudez, 221 Wis. 2d 338, 585 N.W.2d 628 (Ct. App. 1998)
For Bermudez: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: Consent given following illegal entry was, though, voluntary, the fruit of the illegality:

When applying the attenuation theory, the following must be considered: (1) the temporal proximity of the misconduct and the subsequent consent to search, (2) the presence of intervening circumstances,