On Point: 35. Search & Seizure

State v. Lindsey Dawayne Neal, 2017AP1397-CR, 4/3/18, District 1, (not recommended for publication); case activity (including briefs)

According to the court of appeals, yes. The State’s allegations in its complaint and a dashcam video were sufficient to prove reasonable suspicion that Neal parked his car in a manner to obstruct traffic on a highway in violation of Milwaukee Traffic Code 101-24.1. Neal himself asked to call the arresting officers to testify, but the circuit court refused. Who needs witnesses? Hearings are much more efficient without them.

State v. Ricardo L. Conception, 2016AP1282-CR, 3/28, District 2 (not recommended for publication); case activity (including briefs)

Concepcion pled to 10 counts of possession of child pornography. The court of appeals affirmed the denial of his suppression motion because the search of his home was a private-party search, not a government search. It also held that Concepcion’s sentence (9 in, 6 out) was not unduly harsh, and his trial counsel did not perform deficiently by failing to tell the sentencing court that he is a “hero” of “exemplary character and stature.”

State v. Dorian M. Torres, 2018 WI App 23; case activity (including briefs)

Dorian Torres’s mother Shelly allowed police into the apartment Dorian was living in with his father, Emilio. The police found Emilio’s body during a search of the apartment, leading to Dorian being charged with homicide. The court of appeals holds the police reasonably relied on Shelly having authority to consent to their entry and search of the apartment.

State v. Robert L. Bentz, 2017AP1436-CR, 3/21/18, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

The State charged Bentz with OWI 3rd and PAC 3rd. Bentz moved to suppress evidence for lack of reasonable suspicion to detain and lack of probable cause to arrest. The circuit court denied his motion. The appeal concerned the point at which the law enforcement officer seized Bentz and the evidence supporting reasonable suspicion and probable cause.

State v. Faith N. Reed, 2016AP1609-CR, petition for review of an unpublished court of appeals decision granted 3/13/18; case activity (including briefs)

Issues (composed by On Point):

1. Whether an apartment dweller consented to police entry of his apartment by leading an officer to the door and going in.

2. If such consent was given, whether it was revoked by trying to close the door on the officer.

3. Whether any such consent was free and voluntary where the officer directed the resident to take him to the apartment to speak to someone.

State v. Johnny K. Pinder, 2017AP208-CR, certification granted 3/14/18; case activity (including briefs)

Issue (from certification)

If a search warrant issued under Wis. Stat. § 968.12 for the placement and use of a GPS tracking device on a motor vehicle is not executed within five days after the date of issuance per Wis. Stat. § 968.15(1) is the warrant void under § 968.15(2), even if the search was otherwise reasonably conducted?

State v. Angela J. Coker, 2017AP1555, District 2, 2/14/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Coker was charged with OWI after police stopped her car because other drivers called police to report an erratic driver. The court of appeals rejects her claim that the information from the callers wasn’t sufficiently reliable because it was offered anonymously and wasn’t corroborated by the arresting officer’s observations.

State v. Dustin R. Willette, 2017AP888, District 3, 2/6/18 (1-judge opinion, ineligible for publication); case activity (including briefs)

A police dispatcher informed officer Hughes that a caller saw a man drive into gas station, exit his car, and walk away. Then another officer reported seeing a similarly-dressed man walking down the a road about a mile away. That man was Willette. Officer Hughes picked him up, drove him back to the car at the gas station, performed FSTs, arrested him for OWI, and asked him to submit to a blood test. Willette did not say  “yes” or “no.” He said “I want to speak to a lawyer.” Here’s why the circuit court found probable cause to arrest and improper refusal to submit to a blood test.

Milwaukee County v. Nicholas O. Moran, 2017AP1047 & 2017AP1048, District 1, 1/23/18 (one-judge decision; ineligible for publication); case activity (including briefs)

The totality of the circumstances provided reasonable suspicion to believe Moran was operating while intoxicated, so police were justified in continuing to detain Moran to conduct field sobriety tests.

District of Columbia v. Wesby, USSC No. 15-1485, 2017 WL 491521 (January 22, 2018), reversing Wesby v. District of Columbia, 765 F.3d 13 (D.C. Cir. 2014); Scotusblog page (including links to briefs and commentary)

The probable-cause determination in this case is quite fact-specific, and the qualified immunity issue is of little interest to criminal practitioners. Perhaps more interesting is Justice Ginsburg’s concurrence, which signals she is open to reconsidering whether the existence of probable cause necessarily validates an arrest.