On Point: 35. Search & Seizure

State v. George Steven Burch, 2019AP404-CR, District 3 (10/20/20), review granted 11/18/20, circuit court judgment affirmed, 2021 WI 68; case activity (including briefs)

Burch … contends the [Green Bay Police Department] and the [Brown County Sheriff’s Office] violated his Fourth Amendment rights in three ways: (1) the GBPD exceeded the scope of his consent to search his cell phone by downloading the phone’s entire contents, rather than only the text messages; (2) the GBPD unlawfully retained the entire cell phone download after it completed its June 2016 investigation into the vehicle incidents; and (3) the BCSO had no lawful authority to conduct a second search of the cell phone download in August 2016. Because these issues raise novel questions regarding the application of Fourth Amendment jurisprudence to the vast array of digital information contained in modern cell phones, we certify this appeal to the Wisconsin Supreme Court.

Lange v. California, USSC No. 20-18, certiorari granted 10/19/20; vacated and remanded, 6/23/21

Question presented:

Does pursuit of a person who a police officer has probable cause to believe has committed a misdemeanor categorically qualify as an exigent circumstance sufficient to allow the officer to enter a home without a warrant?

State v. Sarah J. Katula-Talle, 2019AP1622-CR, District 3, 10/6/20 (one-judge decision; ineligible for publication); case activity (including briefs)

A police officer had contact with Katula-Talle while responding to a domestic disturbance call. The department’s standard procedure in those situations is to run a driver’s license and warrant check on everyone the officers have contact with. The check on Katula-Talle showed she was revoked for an OWI-related offense. Two weeks later the officer saw her driving and stopped her on suspicion she was operating after revocation. (¶¶3-5). Was the two-week-old check enough to justify the stop, or was it only enough to give the officer a hunch?

State v. Synika Antonio Kirk, 2019AP175, 9/22/20, District 3 (not recommended for publication); case activity (including briefs)

You know, those semis that carry like 6 or 10 cars. Kirk owned a 1989 Jaguar that was riding on such a vehicle along with several other cars. A Kansas trooper pulled the truck over and asked to inspect the driver’s paperwork. The trooper would testify that the driver’s logbook had an entry he found strange: a two-day stay in Reno, Nevada after the truck was loaded–a stop the trooper called “not normal.” He also didn’t buy the driver’s explanation that he had spent those two days trying to find tires for his truck.

State v. Scott W. Heimbruch, 2020 WI App 68; case activity (including briefs)

When an officer arrests a driver either for OWI or for causing death or great bodily harm without suspicion of OWI and requests a chemical test, he must read  the driver the legislatively prescribed “Informing the Accused” form. See §343.305(3) and (4). The form describes the potential penalties the driver faces for refusing the chemical test. In 2017, the Wisconsin Supreme Court declared that the form’s information for drivers accused of causing death or great bodily harm without suspicion OWI was inaccurate. See State v. Blackman, 2017 WI 77, ¶¶5, 38, 377 Wis. 2d 339, 898 N.W.2d 774. Unfortunately, the legislature has never bothered to change the form.

State v. Heather Jan VanBeek, 2019AP447, certification granted 9/16/20; District 2; case activity (including briefs)

We wrote about this case less than a month ago, when the court of appeals issued its certification to the supreme court. Now the certification is granted, so SCOW will have a chance to deal with the inconvenient fact that our state’s cases permit police to seize people without reasonable suspicion in order to verify their identities.

State v. James Timothy Genous, 2019AP435, review of a per curiam court of appeals decision granted 9/16/20; case activity (including briefs)

Issue presented:

Do the following facts contribute to reasonable suspicion of illegal drug activity: a brief encounter in a car between two or more people, an officer’s belief that one or more of those people is a known drug user, the time of day or night,

State v. Johnathan L. Johnson, 2019AP1398, 9/9/20, District 3 (not recommended for publication); case activity (including briefs)

Johnson was arrested for OWI in a McDonald’s parking lot. He’d ordered some food at the drive-through, and an employee had noticed his intoxication and called police.

State v. James E. Brown, 2020AP489, 9/9/20, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

Officers responded to a call for shots fired; the caller apparently described the shooting party as a “black male wearing a black hoodie and shorts.” On arriving in the “vicinity” they saw a black man, Brown, driving a vehicle. Illuminating the interior of the vehicle, an officer thought he saw that Brown was wearing a dark-colored hoodie, and he stopped Brown. On approach, though, the officer saw that Brown was wearing a maroon sweatshirt and pants.

State v. Ashley L. Monn, 2019AP640-CR, 9/9/20, District 3, (1-judge opinion, ineligible for publication); case activity

When police executed an arrest warrant for a man at his trailer home, they found Monn there too. They cuffed her, conducted a protective search, confirmed she had no outstanding warrants, and told her she would be released without charges. Unfortunately, she asked to get her purse from the trailer.