On Point: 35. Search & Seizure

State v. Andrew W. Bunn, 2019AP2127-CR, 9/9/20, District 1 (1-judge opinion, ineligible for publication); case activity

One evening, an unknown woman approached a cop car in a church parking lot near a playground and said that two adults were having oral sex in a pickup truck on the other side of a fence. The cops saw the truck but no activity inside. They didn’t ask for the woman’s name, but they did go investigate.

State v. Heather Jan VanBeek, 2019AP447, 8/12/20, District 2; certification granted 9/16/2020; case activity (including briefs)

VanBeek was sitting with a companion in her parked truck when an officer approached. There’d been a tip that people were sitting in the truck for an hour and that someone had come to the truck with a backpack, then departed. The officer asked a few questions, got satisfactory answers, and then asked for ID, purportedly for his report of the contact. The truck’s occupants were reluctant to hand over their licenses, but the officer insisted, and they did. He held onto them for more than five minutes and summoned a drug dog, who eventually alerted. At some point in this time frame, reasonable suspicion developed, but it wasn’t present when the officer took the IDs. So, was the encounter, at that point, “consensual” (as the state argues) or were the truck’s occupants seized–which, without reasonable suspicion, would be unconstitutional?

State  v. Catherine Cuskey Large, 2019AP1966-CR, 8/13/20, District 4 (1-judge opinion, ineligible for publication; case activity (including briefs)

The court of appeals correctly affirmed the circuit court’s decision to suppress OWI evidence in this case, where an officer admitted that the New Glarus Police Department’s “protocol” was to administer PBTs on motorists whether they had probable cause for OWI or not. But court of appeals did so by taking a heavy-handed approach to waiver, a rule of administration that appellate courts have the discretion to apply or not.

State v. Christopher J. Vaaler, 2019AP2174, 8/6/20, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer pulled Vaaler over in the very early morning for not having his headlights on. Per the court of appeals, Vaaler’s unusual manner of speech, the odor of intoxicants, and the fact of an open beer next to him were enough for the officer to conduct the OWI investigation that ultimately led to Vaaler’s arrest and conviction:

State v. Michael Thomas Martell, 2019AP927-CR, District 3, 7/21/20 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer located and started following Martell’s SUV after getting dispatchers relayed a tip describing a vehicle driving erratically. What the officer saw provided reasonable suspicion for a traffic stop.

State v. Yancy Kevin Dieter, 2020 WI App 49; case activity (including briefs)

Dieter called 911 at about 6 in the morning and reported that he’d crashed his car after drinking at a bar. The crash happened about four hours before Dieter made the call; he was badly injured and the car’s other occupant was killed.

State v. Donnie Gene Richards, 2020 WI App 48; case activity (including briefs)

Richards was found lapsing in and out of consciousness and severely injured behind the wheel of a crashed vehicle. There was evidence he was intoxicated, and he would soon be transported to a distant hospital by helicopter. Believing there wasn’t enough time to get a warrant by this time, the officer on scene requested that Richards’s blood be drawn before the flight, and it was.

State v. Samuel L. Nichols, Jr., 2019AP802-CR, District 4, 7/16/20 (not recommended for publication); case activity (including briefs)

Nichols was charged with capturing images of nudity without consent and sexual assault. He argues the police didn’t have probable cause to seize his cell phone and therefore the images they found on it must be suppressed. He also asserts other-acts evidence was erroneously admitted at his trial. The court of appeals rejects both claims.

State v. Brandon Daniel Mulvenna, 201AP2341-CR, 7/9/20, District 4 , (1-judge opinion, ineligible for publication); case activity (including briefs)

Mulvenna wasn’t operating his motorcycle when an officer, responding to a call, arrived to find him trying to lift it while it was facing south on a northbound only roadway. Mulvenna had bloodshot eyes and slurred speech and smelled of alcohol. He refused field sobriety tests, so the officer cuffed him and placed him in the back of his squad car. The sole issue is whether the officer had probable cause for the arrest. The court of appeals answered “yes,” and noted some appellate rules violations.

State v. David M. Hay, 2020 WI App 35; case activity (including briefs)

Hay was pulled over in the early morning and blew a .032 on the PBT. He had several drunk-driving priors, so it would be illegal for him to drive with a BAC over .02. The officer never sought a warrant; instead he searched the car (though another officer on-scene could have done that), waited for another officer to show up to “sit” with the vehicle until a tow truck came, then headed to the hospital with Hay. Only then–about an hour after the initial stop–did the officer ask Hay whether he’d agree to a blood test. When Hay refused, the officer, in consultation with an ADA, decided the situation was exigent. The thinking was that given the low PBT result, further passage of time might reduce Hay’s BAC to .00 thus and make a blood test useless as evidence. So, the officer ordered a warrantless blood draw. Because there was only one phlebotomist in the hospital, that draw didn’t actually happen until 35 minutes had passed. Hay had no alcohol in his blood, but there was cocaine, so he was charged with the “restricted controlled substance” variety of OWI. He moved for suppression, the circuit court granted it, and the state appealed.