On Point: 35. Search & Seizure

State v. Kelly C. Richardson, 2019AP1650-CR, District 2, 3/11/20, (1-judge opinion, ineligible for publication); case activity (including briefs)

Police received a tip that Richardson appeared to be drunk while at a bank at 11:30 a.m. She left and drove to a Wal-Mart to shop. As she returned to her car, a sergeant approached and questioned her. He observed that she smelled of alcohol, slurred her speech, and had glassy eyes. He arrested her and she was charged with OWI 3rd and pleaded no contest.

State v. Rosalee M. Tremaine, 2016AP1963-CR, 2/27/20, District 4, (1-judge opinion, ineligble for publication); case activity (including briefs)

An officer stopped Tremaine for a traffic violation and called another car to bring some warning forms. While the officer was filling them out, another officer arrived with a dog. The first officer handed Tremaine the forms, but did not allow her to leave. Then the third officer conducted a sniff, which led to a search of Tremaine’s purse revealing marijuana and a pipe. Defense counsel filed a suppression motion, but made the wrong argument. The court of appeals now finds him ineffective.

State v. Lois M. Bertrand, 2019AP1240-CR, 2/26/20, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs).

The 4th Amendment prohibits a warantless entry into the curtilage of a home unless it is supported by probable cause and exigent circumstances. State v. Weber, 2016 WI 96, ¶19, 372 Wis. 2d 202, 887 N.W.2d 554. In this case, the officer lacked a warrant, probable cause and exigent circumstances when he seized Bertrand in the garage attached to her house. Thus, the circuit court should have granted the motion to suppress evidence obtained as a result of her seizure.

State v. Bartosz Mika, 2019AP1488, District 2, 2/19/20 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court appropriately exercised its discretion in continuing Mika’s refusal hearing so the state could call another witness, and the testimony of the additional witness established police had reasonable suspicion to stop Mika.

State v. Jacqueline A. Ziriax Anderson, 2018AP2410-CR, District 3, 2/11/20 (one-judge decision; ineligible for publication); case activity (including briefs)

The state offered Anderson a deal: plead to OWI 2nd and it would recommend the minimum mandatory penalties. The state made that offer because the arresting officer had resigned from the department due to some “mental health issues” and the prosecutor apparently wasn’t eager to call him as a witness. Anderson’s lawyer found this out immediately before Anderson entered her plea—but didn’t tell Anderson. She learned about it afterward. (¶¶3-4, 8-11). While trial counsel performed deficiently by failing to tell Anderson that information before she pled, that doesn’t entitle her to plea withdrawal because she fails to show she would have insisted on going to trial if trial counsel would have told her, as required by State v. Bentley, 201 Wis. 2d 303, 312, 548 N.W.2d 50 (1996).

State v. Justin T. Kane, 2018AP1885-CR, District 4, 2/6/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Kane’s consent to a blood draw after his arrest for OWI was voluntary under all the circumstances.

State v. Anthony J. Madland, 2019AP146-CR, District 3, 1/28/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Madland asserted that he requested an alternative chemical test under § 343.305 and that the officer who read the “informing the accused” form to him misled him as to his right to request an alternative test. The court of appeals rejects the claims in light of the circuit court’s fact findings.

Wood County v. Trevor J. Krizan, 2019AP350, 12/12/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

A sheriff’s deputy on patrol at 2:00 a.m. happened by a parking lot for a boat landing. The lot was open to the public 24 hours a day, and he saw a vehicle parked, not running, with its lights off. The officer pulled behind it and shined his spotlight and “takedown lights” (these are apparently very bright lights that may temporarily blind occupants of a vehicle on which they are shined) at the car. He saw two occupants and no signs of distress, but he approached the vehicle, spoke to the occupants, and took their identification. Eventually he noted signs of intoxication that led to Krizan’s arrest for first-offense OWI. But Krizan challenged the stop and won in the trial court, and the county appealed.

State v. Alfonso Lorenzo Brooks, 2018AP1774, review of a per curiam decision granted 12/10/2019; reversed 6/25/20; case activity (including briefs)

Issue presented:

Whether the community caretaker exception permits law enforcement to inventory and tow a vehicle after discovering that the driver does  not have a valid license, when the vehicle is lawfully parked and not obstructing traffic?

State v. Roy S. Anderson, 2019 WI 97, 11/15/19, affirming a per curiam court of appeals decision; case activity (including briefs)

Act 79 permits law enforcement to search a person on probation, parole or extended supervision based on reasonable suspicion (not probable cause) that the person, is is about to, or has committed a violation of a condition of his release. In its first decision on this law, SCOW holds 7-0 that the officer here had (a) knowledge of Anderson’s supervision status before conducting the search at issue, and (b) the reasonable suspicion needed to conduct the search.