On Point blog, page 34 of 141
COA affirms finding of probable cause to arrest for OWI and improper refusal to submit to a blood test
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.
There was reasonable suspicion to administer field sobriety tests after “fender bender”
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.
SCOTUS: Cops had probable cause to arrest partiers in vacant house
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.
Officer had reasonable suspicion to extend traffic stop
Dane County v. Brenna N. Weber, 2017AP1024, District 4, 1/11/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Weber was legitimately stopped for speeding, but argues there was insufficient basis for the officer to extend the traffic stop to conduct field sobriety tests. The court of appeals holds the totality of the circumstances justified the continued detention.
SCOW pounds new nail in 4th Amendment coffin, exposes rift between Justices R.G. Bradley and Kelly
State v. Frederick S. Smith, 2018 WI 2, 1/9/18, reversing an unpublished court of appeals opinion; case activity (including briefs)
This 60-page, 4-3 decision authorizing an officer to continue a traffic stop even after he realizes that he does not have reasonable suspicion is worth reading. Justice Kelly says the result sends “a tremor through the Foundation of the Fourth Amendment” and should “shock” you. Opinion, ¶67, ¶79. It certainly appears to contradict Rodriguez v. United States, 135 S. Ct. 1609 (2015) and should make for a great cert petition.
“Mixed bag” of facts still enough for probable cause to arrest
State v. Terry Sanders, 2017AP636-CR, District 3, 1/9/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Sanders challenges his arrest for OWI, saying the officer lacked probable cause based on a “mixed bag” of facts that included inconclusive field sobriety tests and things an officer “would likely see [being done] by day by sober folks.” (¶9). The court of appeals does not agree.
COA: Once defendant consented to blood test, she could not revoke it
State v. Kaitlin C. Sumnicht, 2017AP280-CR, 12/20/17, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
Sumnicht was convicted of OWI second. She sought suppression of her blood test results on two grounds. First, she argued that that State did not develop an adequate factual record of her interaction with the deputy who allegedly obtained her consent to a blood test. Second, assuming that she did consent, she argued that she revoked it when her lawyer sent a letter to the State Laboratory of Hygiene before any testing was done and asserted her right to privacy in her blood. The circuit court denied suppression, and the court of appeals affirmed but its reasoning is unsatisfying.
COA: Consent to search apartment voluntary and attenuated from dog sniff
State v. Anthony S. Taylor, 2017AP587-CR, 12/21/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Police responded to a 911 call from S.M., Taylor’s girlfriend. She had been in a fight with another woman in the apartment building they all lived in. The other woman told the cops that she had gone with Taylor to pick up marijuana that day, that he was storing it in the apartment he shared with S.M., and that he may also have had a firearm. An officer testified he also knew Taylor had recently been the victim of a robbery and was a felon.
Court of appeals affirms search warrant authorizing blood draw
State v. Ryan L. Schultz, 2017AP603-CR, 12/20/17, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs).
Schultz was convicted of operating a motor vehicle with a prohibited alcohol content 2nd offense. He sought suppression of his blood test results on the grounds that the warrant-issuing judge lacked probable cause, or alternatively, that Officer Halfmann’s application omitted facts that would have undermined a finding of probable cause. On appeal, Schultz lost both arguments.
SCOTUSblog features State Public Defender case as “Petition of the Day!”
Last term, ASPD Andy Hinkel argued an important community caretaker issue that has divided state and federal courts to the Wisconsin Supreme Court. See State v. Asboth, 2015AP2051-CR. The State prevailed but perhaps only temporarily. Today the defense gained traction when SCOTUSblog featured Asboth’s petition for writ of certiorari as its Petition of the Day. Note that Asboth now has four sets of lawyers, including the SPD. Good luck, Team Asboth!!! Here is the question presented: