On Point blog, page 25 of 142
COA upholds car search based on odor of marijuana, presence of digital scale
State v. Deangelo Tubbs, 2019AP644, 10/1/19, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)
Police stopped Tubbs’s car, which lacked a front license plate. The officer who approached the vehicle saw a firearm in the car and immediately opened the door and told Tubbs to show his hands. (Tubbs had a concealed-carry permit.) On opening the door, the officer said, he smelled unburned marijuana and noted a digital scale on the floorboard. The officer then searched the car and found a jar containing weed.
Good faith saves search; no decision on whether “looks like child porn” is probable cause
State v. Garrett German, 2018AP78, 9/24/19, District 3 (not recommended for publication); case activity (including briefs)
Facebook alerted law enforcement that German’s account had uploaded images that “appeared to depict child pornography.” Eventually, an who had looked at the images submitted a warrant application averring that each one did “appear to be an image of child pornography.” Police executing the warrant did, in fact, find child pornography. Was the bare allegation that the images were child pornography (rather than an attachment with the actual images or at least a description of what they showed) good enough to supply probable cause to the warrant-issuing magistrate?
Another defense win on community caretaker home entry; carrying venison is not a crime
State v. Jesse J. Jennerjohn, 2018AP1762, 9/24/19, District 3 (not recommended for publication); case activity (including briefs)
Just last week we had Kettlewell, where the court of appeals rejected the state’s claim that the officers who entered a suspected drunk driver’s home were performing a legitimate community-caretaker search because he might have been injured. Here, we have the police going into a home whose occupant they’ve already arrested outside; the court rejects as merely speculative the state’s argument that someone else might have needed assistance inside, or that firearms in the home might have posed a danger. We also get this gem: “The court did not explain why the fact that Jennerjohn was holding a piece of venison when he came out of his residence supported an objectively reasonable basis for the officers to believe it was necessary to search his residence in order to protect themselves or others.” (¶40).
Defense win! Police lacked probable cause for OWI arrest due to unreliable FST results
State v. Scott J. Faruzzi, 2019AP167-CR, 9/25/19, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)
Don’t pinch yourself! You’re not dreaming. An officer stopped Faruzzi’s truck for a “welfare check” due to some “possible family troubles.” But then he performed a series of FST’s and asked Faruzzi to submit to a preliminary breath test. When Faruzzi refused, the officer arrested him for OWL. The circuit court granted Faruzzi’s motion to suppress, and the court of appeals affirms due to lack of probable cause.
Defense win! COA says no community caretaker search where no good reason to think anybody was hurt
State v. Troy K. Kettlewell, 2018AP926, 9/18/2019, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
This is a very fact-intensive OWI case and the court is to be commended for really critically examining what all these facts add up to: not much. As in, not much reason to think Kettlewell was in any danger, so no good reason to go into his house without a warrant.
DOT rule governing tinted car windows is valid, and so is the stop based on its suspected violation
State v. Richard Rusk, 2019AP135-CR, 8/29/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)
An officer stopped Rusk because he believed that tinting on the windshield of Rusk’s vehicles extended so far down as to violate Wis. Admin § Trans 305.34(6)(c)(May 2014). Rusk argued that this was a mistake of law because the rule was invalid and moved to suppress evidence of an OWI 3rd. He lost the circuit court, and loses again on appeal.
Man bites dog!
State v. Robert L. Kavalauskas, 2019AP610-CR, District 2, 8/21/19 (one-judge decision; ineligible for publication); case activity (including briefs)
And court finds reasonable suspicion to stop and detain driver to investigate OWI!
COA: Good faith OKs blood draw whether or not implied consent statute constitutional
State v. Justin W. Paull, 2017AP1210, 8/15/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Mr. Paull was found bloody and semi-conscious after a motorcycle accident. He smelled of intoxicants and had slurred speech. Police arrested him, and he was taken to the hospital. An officer read the informing the accused form to the now-unconscious Mr. Paull, then drew his blood.
Totality of circumstances justified extension of traffic stop
State v. Yunus E. Turkmen, 2018AP1673-CR, District 3, 8/13/19 (one-judge decision; ineligible for publication); case activity (including briefs)
An officer stopped Turkmen after he made a U-turn in the middle of an intersection and squealed his tires loudly. (¶3). Based on that conduct and information obtained and observations made after the stop, there was a reasonable basis to extend the stop to conduct field sobriety tests.
COA finds reasonable suspicion for drug investigation, FSTs; probable cause for arrest
County of Dunn v. Cashe L. Newville, 2018AP1167, 8/6/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
Newville was pulled over by a sheriff’s deputy who observed that, among other things, his license plate lamps weren’t working. An arrest on suspicion of operating under the influence of methamphetamine followed. The court of appeals blesses every step in the investigation that led to that arrest.