On Point: 35. Search & Seizure

State v. George Steven Burch, 2021 WI 68, on certification from the court of appeals, affirming the judgment of conviction; case activity (including briefs)

We said in our post on the court of appeals’ certification that this case presented novel and important issues about searches of cell phones and their data. So we anticipated a decision addressing the parameters of police searches of digital devices. But the majority doesn’t address those issues or decide whether Burch’s Fourth Amendment rights were violated. Instead, the majority holds that, regardless of the lawfulness of the search of Burch’s cell phone data, “there was no police misconduct to trigger application of the exclusionary rule.” (¶26). The majority’s approach bodes ill for the future of Fourth Amendment litigation and the freedom the Fourth Amendment is intended to protect—as illustrated by this case, given that a majority of the justices (one concurring, three dissenting) concludes the search of Burch’s phone data violated the Fourth Amendment.

State v. Charles L. Neevel, 2021AP36, 7/1/21, District 4 (one-judge decision ineligible for publication) case activity (including briefs)

Neevel was arrested on suspicion of drunk driving. The officer read him the implied consent “informing the accused” form, and Neevel agreed to a blood draw. He moved to suppress, lost, and pleaded no contest to OWI. On appeal, he renews the argument he made in trial court: that the officer should instead have ordered a less intrusive test, such as a breath test. (The officer did, in reading the form, tell Neevel he could have an alternative in addition to the blood draw; Neevel’s contention is that he should have been offered a different test instead of the blood draw.)

State v. Jeffrey L. Moeser, 2019AP2184-CR, District 4, 6/24/21 (not recommended for publication); PfR granted 11/17/21; affirmed, 2022 WI 76; case activity (including briefs)

Over a dissenting vote, the court of appeals holds that, under the facts of this case, the affidavit in support of the warrant to draw Moeser’s blood was sworn to under oath by the officer and therefore the warrant was not defective.

Lange v. California, USSC No. 20-18, 141 S.Ct. 2011, 6/23/21, vacating People v. Lange

Lange was playing loud music with his car windows down and honking his horn when he happened past a California highway patrol officer. The officer turned on his lights to pull Lange over, but Lange was close to home: he continued 100 feet and pulled into his garage. The officer entered the garage and ultimately arrested Lange for misdemeanor drunk driving. The California Court of Appeal held that “hot pursuit” is always an exigency: that is, it excuses an officer from needing a warrant to enter the home, even when the officer is pursuing someone suspected of a misdemeanor. This is the position our state supreme court has adopted as well. State v. Ferguson, 2009 WI 50, ¶¶20-30, 317 Wis. 2d 586, 767 N.W.2d 187. The Supreme Court now rejects this per se rule, holding that the usual “totality of the circumstances” test must govern whether warrantless intrusion of the home is justified.

State v. Dawn Prado, 2021 WI 65, 6/18/21, affirming a published court of appeals decision; case activity (including briefs)

Third try wasn’t a charm, and we’ve lost track of what try this is, but SCOW has finally achieved a majority decision on the constitutionality of Wis. Stat. § 343.305(3)(b), which permits the police to take the blood of an unconscious OWI suspect without a warrant. As the court of appeals held below, it’s unconstitutional.

United States v. Cooley, USSC No. 19-1414, 141 S.Ct. 1638 (June 1, 2021), vacating and remanding 919 F.3d 1135 (9th Cir. 2019); Scotusblog page (including links to briefs and commentary)

A unanimous Court holds that tribal police officers have the power to search and temporarily detain non-Indians suspected of breaking federal or state laws within reservations.

United States v. Cooley, USSC No. 19-1414, 2021 WL 2194835, 6/1/21, vacating 919 F.3d 1135 (9th Cir. 2019)

Cooley’s truck, parked on the side of a US highway running through the Crow Reservation in Montana, attracted the attention of a Crow Police Department officer. The officer said that when he approached the truck, he found Cooley “appeared to be non-native” and showed signs of intoxication; he also had two semiautomatic rifles on his front seat. The officer eventually ordered Cooley out of the truck and patted him down; eventually he would discover methamphetamine and paraphernalia in the vehicle.

State v. Heather Van Beek, 2021 WI 51, 2019AP447-CR, on certification from the court of appeals, 6/4/21; case activity (including briefs)

In a splintered opinion, a majority of SCOW holds that an officer does not necessarily “seize” a driver when he takes her license to run a records check. Seizure depends on the totality of the circumstances. In this case, a seizure occured when the officer continued holding a license and questioning the driver until a drug-sniff dog arrived. And the seizure was unlawful because the officer lacked reasonable suspicion that criminal activity was afoot. Roggensack wrote the majority opinion. The liberals joined some parts of it, and the remaining conservatives joined other parts.

State v. James Timothy Genous, 2021WI 50, reversing an unpublished court of appeals opinion, 2019AP435-CR, 6/4/21; case activity (including briefs)

An officer saw Genous sit in a parked car, engine running and headlights on, in a residential neighborhood at 3:36 a.m.  A woman emerged from a house, entered the car for 10 to 15 seconds, and returned to the house.  Although the officer could not see what happened inside the car, the woman appeared to match the description of a female drug user who was known to live in the house. Plus the officer had heard that this area had a reputation for drug trafficking. In a 4-3 opinion, SCOW held that these facts gave the officer reasonable suspicion to stop Genous for possible drug dealing.

State v. Billy Joe Cannon, 2019AP2296-CR, District 1, 5/25/21 (not recommended for publication; case activity (including briefs)

In 2009, the State charged Cannon with conspiracy to deliver cocaine on Nov. 10, 2005. In 2011, a jury acquitted him. Six weeks later, the State filed new charges alleging that Cannon conspired to deliver cocaine on March 4, 2008 through March 24, 2008. This time, a jury found him guilty. On appeal, Cannon argued that the 2009 and 2011 conspiracy charges concerned a single, continuous conspiracy so the second prosecution violated his to be free from double jeopardy. He also argued that the circuit court erred in denying his motion to suppress wiretap recordings. The court of appeals rejected both claims.