On Point: 35. Search & Seizure

State v. Dylan D. Radder, 2018 WI App 36; case activity (including briefs)

In a decision every trial-level criminal defense lawyer must read, the court of appeals affirms the denial of a motion to suppress without an evidentiary hearing because the motion failed to allege sufficient facts to raise a question of disputed fact that must be resolved at a hearing. Understand the standards set out in this decision, make sure your motions attempt to adhere to them, and be prepared to argue your suppression motions satisfy them, as every prosecutor and trial judge will be eager to invoke this decision to deny your motions without a hearing.

State v. Royce O. Bernard, 2017AP2162-CR, District 1, 5/22/18 (one-judge decision; ineligible for publication); case activity (including briefs)

After being charged with carrying a concealed weapon, Bernard challenged the Terry stop that led to the charge. His suppression motion was denied. Postconviction he argued trial counsel was ineffective because he failed in various ways to undermine the credibility of the officer who stopped Bernard. The court of appeals holds Bernard’s postconviction motion failed to allege sufficient facts to get a Machner hearing.

State v. Keith A. Wall, 2017AP2367-CR, District 4, 5/17/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Wall sought the suppression of the results of the test of his blood, which showed he had a BAC of 0.178 after his arrest for OWI. He argues the blood was seized unlawfully because police didn’t have a warrant and they used excessive force to draw the blood. The court of appeals rejects both claims.

Fond du Lac County v. Isaac Anthony Dahlke, 2017AP1417, District 2, 5/9/18 (one-judge decision; ineligible for publication); case activity (including briefs)

The stop of Dahlke’s car was unlawful because the officer didn’t have an objectively reasonable belief that Dahlke entered a wayside in violation of an ordinance prescribing hours when the wayside is closed.

Dahda v. United States, USSC No. 17-43, 2018 WL 2186173 (May 14, 2018), affirming United States v. Dahda, 853 F.3d 1101 (10th Cir. 2017); Scotusblog page (including links to briefs and commentary)

This decision will be important to federal criminal defense practitioners dealing with evidence obtained with wiretap orders issued under 18 U.S.C. § 2510 et seq, as a unanimous Court clarifies the application of United States v. Giordano, 416 U.S. 505 (1974), to suppression challenges under 18 U.S.C. § 2518(10)(a)(ii).

Byrd v. United States, USSC No. 16-1371, 2018 WL 2186175 (May 14, 2018), vacating United States v. Byrd, 679 Fed. Appx. 146 (3rd Cir. 2017); SCOTUSblog page (includes links to briefs and commentary)

Terrence Byrd was pulled over while driving a rental car with no passengers. Officers quickly realized the rental agreement for the car did not name him as the renter or an authorized driver. Though Byrd told the officers his friend had rented it, they decided he had “no expectation of privacy” and searched the car, finding body armor and heroin.

Both the district court and Third Circuit agreed with the officers: a driver not on the rental contract has no standing to complain about the search of a rental car. But all nine members of the Court conclude to the contrary: at least where a driver’s possession of the vehicle is not akin to having stolen the car (a murky caveat the Court does not today clarify), mere breach of the rental contract does not negate a reasonable expectation of privacy.

State v. Jacqueline M. Datka, 2017AP1886, 4/18/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Datka challenges the officer’s decision to ask for a preliminary breath test after she was stopped on suspicion of OWI.

Kerr’s latest post considers 2 recent federal district court decisions on this subject. One raises the question of whether, under the 5th Amendment, the government may compel a suspect to enter a passcode to unlock his device.  The other considers whether the government may use a passcode obtained from a suspect in violation of Miranda to unlock his phone. Read the full post here.

State v. Collin M. Gallagher, 2017AP1403, 4/5/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Police took Gallagher’s blood by a warrant that the parties agree was supported by probable cause of operating while intoxicated. He argues, though, that the warrant did not, by its terms, authorize the subsequent testing of his blood–or, that if it did authorize testing, its failure to specify what sorts of testing were permitted rendered it an unconstitutional “general warrant.”

State v. Marque D. Cummings, 2017AP1587-CR, District 1, 4/3/18 (1-judge opinion, ineligible for publication); case activity (including briefs)

This is another one of those cases where the police seized and searched a person for being normal in a high crime area. “But OMG he was wearing a backpack–it might have contained drugs or burglary tools!!!” We are pleased to report that calmer minds prevailed both in the circuit court and the court of appeals.