On Point: 35. Search & Seizure

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.

State v. Courtney C. Brown, 2020 WI 63, 7/3/20, affirming a published court of appeals opinion, 2017AP774-CR, case activity (including briefs)

“Supreme Court affirms wide discretion in traffic stops; dissent says implicit bias will go unchecked” That’s the JSOnline’s pithy description of SCOW’s 4-1 decision in this case. Also noteworthy, Justice R.G. Bradley filed a strident, bias-denying concurring opinion suggesting that court of appeals Judge Reilly should be disciplined for writing a strident, bias-acknowledging concurrence that dared to criticize two recent 4th Amendment decisions from SCOW.

State v. Dawn J. Levanduski, 2020 WI App 53; case activity (including briefs)

This published decision resolves an issue arguably left open by Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).  The court of appeals holds that when an officer reads Wisconsin’s “Informing the Accused” form to an OWI suspect, and she refuses a blood draw, her refusal can be used against her at her OWI trial.

State v. Dawn M. Prado, 2020 WI App 42, cross petitions for review granted, 10/21/20, affirmed, 2021 WI 64; case activity (including briefs)

They must have gotten tired of waiting. After SCOW failed (or refused) to decide the question in Howes, Brar, Mitchell, and Hawley, and SCOTUS likewise punted in Mitchell v. Wisconsin, the court of appeals now does what those higher courts could or would not: it rules on the constitutionality of Wis. Stat. § 343.305‘s provisions that permit police to withdraw blood from an incapacitated or unconscious motorist on the theory that they’ve “consented” to this by driving. And, like the vast majority of jurisdictions to consider similar questions, our court holds this provision unconstitutional, rejecting the state’s argument that statutorily-imputed consent is the type of “consent” that provides an exception to the warrant requirement. But the court also says the statute was not, at the time of Prado’s arrest, so plainly unconstitutional that the officer could not rely on it in good faith. Thus the court declines to suppress the test results.

State v. Alfonso Lorenzo Brooks, 2020 WI 60, 6/25/20, reversing a per curiam court of appeals decision, 2018AP1774, case activity (including briefs)

The police stopped Brooks for speeding in Milwaukee. Specifically, they pulled him over to the side of a residential/commercial road. The police quickly learned Brooks had a suspended license and was a convicted felon. They wrote him tickets for the speeding and operating on a suspended license. Brooks wasn’t arrested then, but he couldn’t drive away either, on account of the license issue. So, police told him, they were towing his car to impound–even though he told them his girlfriend (to whom the car was registered) was nearby and could pick it up. The police said no, that was against department policy, and then did an inventory search of the car. That search turned up a gun, which Brooks, as a felon, could not have. Then he was arrested.

County of Milwaukee v. Christann Spannraft, 2018AP1553 & 1554, 6/23/20, District 1 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)

This is a pro se appeal of an OWI-1st conviction. Spannraft raises three claims, all of which are rejected.

State v. Michelle Greenwood, 2019AP248, 6/9/20, District 3 (one-judge decision; ineligible for publication) case activity (including briefs)

Greenwood was pulled over for going 81 when the speed limit was 70. The officer testified her eyes were glassy and bloodshot and that her pupils were quite dilated, and did not constrict quickly when he shined his flashlight on them. Per the court of appeals, this was good enough to continue to detain her after the speeding was addressed in order to investigate suspected marijuana intoxication.

State v. Mose B. Coffee, 2020 WI 53, 6/5/20, affirming a published court of appeals decision, 2018AP1209; case activity (including briefs)

Under Arizona v. Gant, 556 U.S. 332, 335 (2009), police can search a vehicle after arresting a recent occupant “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” But how do courts decide when it’s “reasonable to believe” this: is it a typical totality-of-the-circumstances analysis examining all the facts around an arrest? Or, as many courts have concluded, do the elements of the crime suspected–the “offense of arrest”–determine categorically when a search is permitted and when it isn’t? A majority of justices in this case would adopt the former view, but, as we’ve often seen lately, their votes are split between the lead and dissenting opinions. This arguably means there’s no binding holding on the question of law; the only thing we know for sure is that the search in this case is upheld.

State v. Barry J. Krull, 2019AP370-CR, 6/2/20, District 3, (1-judge opinion, ineligible for publication); case activity, (including briefs)

Deputies noticed Krull speeding and followed him to his co-worker’s residence. Krull drove 30-40 feet into the driveway when the deputies stopped him, noticed the usual signs of intoxication, conducted FSTs and then took him to the hospital for a blood draw. He moved to suppress arguing that the stop was unlawful and his consent to the blood draw wasn’t voluntary. He lost and appealed.