On Point blog, page 20 of 141
Defense win! “black male in black hoodie” not good enough to stop black male in maroon sweatshirt
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.
Defense win! Police unlawfully extended seizure and searched purse during it
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.
Anonymous tip about oral sex in truck supports traffic stop
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.
Is taking ID a “seizure”? Certification shows constitutional problem with “routine” license checks
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?
Defense win! COA affirms suppression due to State’s failure to refute the basis for the circuit court’s ruling
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.
COA: officer had reasonable suspicion of OWI for stop
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:
Tip, observations provided reasonable suspicion for traffic stop
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.
COA holds exigency justified warrantless blood draw
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.
COA gives lengthy gloss on Mitchell v. Wisconsin, affirms conviction
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.
Seizure of cell phone was lawful; admission of other acts evidence was appropriate
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.