On Point: 35. Search & Seizure

State v. Marquis Lakeith Pendelton, 2017AP2081-CR, 6/19/18, District 1, (1-judge opinion; ineligible for publication); case activity (including briefs)

A caller reported to police that 2 suspicious males had been looking into cars parked in a church lot at 1:30 a.m, at 68th and Silver Spring in Milwaukee and had just run away. An officer thought that the dispatcher said that one of the males was Black and wearing a dark hoodie.

Tyson Timbs v. Indiana, USSC 17-1091, certiorari granted 6/18/18

Question presented:

Whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment.

State v. Jessica M. Randall, 2017AP1518-Cr, District 4, 6/14/18 (1-judge opinion, ineligible for publication), review granted 10/9/18, reversed, 2019 WI 80; case activity (including briefs)

Here’s a rare sighting! One district of the court of appeals has declared that it is not bound by a decision addressing the same set of facts issued by another district. This is what you call SCOW bait (sorry to say, given that this is a defense win). Randall was arrested for OWI, an officer read the “Informing the Accused” card, and she agreed to a blood test. A few days later, her lawyer sent the lab a letter withdrawing her consent. The court of appeals held that Randall had a right to withdraw her consent up to the time when blood was actually tested. But just 6 months ago, the court of appeals reached the opposite result in State v. Sumnicht. 

State v. John Patrick Wright, 2017AP2006-CR, 6/12/18, District 1;(1-judge opinion, ineligible for publication), petition for review granted 10/9/18, reversed 2019 WI 45, ; case activity (including briefs)

Police stopped Wright’s car because a headlight was out, but they asked him whether he had a concealed carry permit and weapons in the car. He admitted he had a firearm and explained that he had recently completed the CCW course. Too bad. He was arrested and charged with 1 count of carrying a concealed weapon. He moved to suppress on the grounds that the police lacked reasonable suspicion to question him about a CCW permit and weapons.

State v. Steven T. Delap, 2018 WI 64, 6/6/18, affirming an unpublished court of appeals decision, 2016AP2196, case activity (including briefs)

Police had two warrants to arrest Delap. They went to what someone had told them was his address, and someone they thought was Delap ran from them toward the back door of the residence. They chased him, prevented him from closing the door, and arrested him.

Winnebago County v. Lesa L. Maus, 2017AP1979, 5/30/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Maus challenges her stop on the ground that the citizen witness who called in a driver going the wrong way on the interstate said the car was beige, but her car, the one stopped, was black.

Dane County v. Damian A. Bethke, 2017AP1284, 5/31/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Bethke was acquitted of his OWI charge, so this is an appeal only of his refusal, and his claim is that the officer who detained him violated his Fourth Amendment rights.

State v. Jeffrey A. Jacobi, 2017AP1816, 5/30/18, District 1, (1-judge opinion, ineligible for publication); case activity (including briefs)

Based on facts specific to this case, the court of appeals held that the arresting officer had probable cause to believe Jacobi was intoxicated when he bumped into a car while driving his motorcycle. It also wagged its finger at appellate counsel for carelessness in compiling the record and for misrepresenting the record. It also noted his failure to file a reply brief.

Collins v. Virginia, USSC No. 16-1027, 2018 WL 2402551, 5/29/18, reversing Collins v. Commonwealth, 790 S.E.2d 611 (Va. 2016); SCOTUSblog page (includes links to briefs and commentary)

Police learned a stolen motorcycle that had evaded them on two occasions was likely parked at a house where Collins stayed. When they got to the house, they saw a motorcycle parked in the driveway with a tarp over it. They walked up the driveway, lifted the tarp, and confirmed that it was the stolen bike. The Supreme Court now holds that, though the motorcycle was an automobile–and hence subject to the “automobile exception,” which dispenses with the warrant requirement where there’s probable cause to search a vehicle–this fact does not justify the officers’ invasion of the home’s curtilage to search it.

State v. Jasetta Smith, 2017AP1807-CR, 5/23/18, District 2, (1-judge opinion; ineligible for publication); case activity (including briefs)

Better go easy on the perfume or cologne. An officer ran the license plates on the car Smith was driving at 1:08 a.m. one night. He saw that the registered owner’s license was suspended, stopped the car, learned that Smith was not the owner, and smelled the overpowering odor of perfume and cigarettes.