On Point blog, page 35 of 141
Speeding, “couple beers,” glassy eyes, odor of alcohol, 2:30 a.m., reasonable suspicion
State v. Neil R. Hebert, 2016AP2168, 12/19/17, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
That’s the long and short of it. The circuit court held the officer, who had pulled Hebert over for speeding, unlawfully extended the stop to investigate an OWI, but the court of appeals reverses.
Court of appeals asks SCOW: Is a search warrant for putting a GPS on a car void if not executed within 5 days?
State v. Johnny K. Pinder, 2017AP208-CR, District 2, certification filed 12/13/17, certification granted 3/14/18, affirmed, 2018 WI 106; 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?
Traffic stop to investigate erratic driving wasn’t improperly extended
State v. Travis J. Rose, 2018 WI App 5; case activity (including briefs)
A police officer investigating reports of Rose’s erratic driving concluded Rose was not intoxicated by alcohol, but continued to detain him and, after securing consent, searched Rose’s car, where he found narcotics. The court of appeals holds the officer’s continued detention of Rose, and thus the consent to search the car, were lawful because the officer had reasonable suspicion to continue his investigation.
Extension of stop, FSTs okay, no reversal for error of law regarding probable cause for PBT
State v. Bradley E. Ammann, 2017AP866-CR, 12/7/17, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)
A state trooper stopped Ammann for speeding as he and his wife were driving home from a wedding reception. The trooper asked Amman to exit the car and then smelled intoxicants on him. This led to field sobriety tests and then a preliminary breath test showing that Ammann had an .068 alcohol concentration. He almost escaped with a mere citation for speeding except the trooper had to go and check his driving record.
Quasi-anonymous tip, prolonged stop at at intersection gave reasonable suspicion for stop
State v. Xavier Grullon, 2016AP2404-CR, District 3, 11/28/17 (one-judge decision; ineligible for publication); case activity (including briefs)
A tip from a 911 caller together with an officer’s observations provided reasonable suspicion for a traffic stop, holds the court of appeals.
Odor of marijuana is probable cause for search; text messages admissible as “panorama” or “other acts” evidence
State v. Willie Brownlee, Jr., 2015AP2319-CR, 11/21/17, District 1, (not recommended for publication); case activity (including briefs)
Two officers stopped Brownlee after he drove his rental car through a red light. One officer approached the driver’s side, the other approached the passenger side occupied by Brownlee’s friend. Both smelled the distinct odor of burnt marijuana. They ordered Brownlee and his friend out of the car and searched it. Guess what they found in the glove compartment?
Good faith exception to exclusionary rule applies to pre-Rodriquez dog sniff
State v. James R. Stib, 2017AP3-CR, District 2, 11/15/17 (not recommended for publication); case activity (including briefs)
Stib argues his traffic stop was unlawfully prolonged to conduct a dog sniff under Rodriguez v. United States, 135 S. Ct. 1609 (2015). Assuming Stib is correct, suppression of the evidence seized after the dog alerted is inappropriate under the good-faith exception to the exclusionary rule because the dog sniff was conducted in objectively reasonable reliance on then-existing precedent, namely, State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748.
SCOW to decide whether courts may impose criminal penalty where suspect refuses a warrantless blood draw
State v. Patrick H. Dalton, 2016AP2483-CR, petition for review 0f an unpublished court of appeals opinion granted 11/13/17; case activity (including briefs)
Issues:
1. Under Missouri v. McNeely and Birchfield v. North Dakota, may a circuit court impose a harsher criminal punishment because a defendant exercised his constitutional right to refuse a warrantless blood draw?
2. Whether Dalton was denied the effective assistance of counsel where his attorney failed to move to suppress blood evidence on grounds that police lacked exigent circumstances to forcibly draw his blood without a warrant?
De novo review of squad video supported finding of reasonable suspicion for traffic stop
State v. David L. Miller, 2017AP685-CR, 11/9/17, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)
Miller moved to suppress evidence of OWI on the grounds that the deputy who stopped him lacked reasonable suspicion. The suppression hearing involved two types of evidence: (1) the deputy’s testimony, and (2) the squad video. Miller asked the court of appeals to review the squad video de novo and to publish a decision saying that it is appropriate for appellate courts to do so. The court of appeals saw no need for publication. It found that the trial court denied suppression based on the deputy’s testimony and only used the video to assess his credibility.
COA: parking-lot encounter with police was consensual
State v. Matthew P. Elliott, 2016AP2363, 11/8/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
A police officer in his squad followed a vehicle from a bar for a short time before the vehicle turned into the parking lot of a closed restaurant. A couple minutes later, the officer returned and parked behind the still-running car, the driver of which appeared to be unconscious. The officer did not have his emergency lights or his spotlight on. The driver got out of the car and approached the squad and the officer too got out. The officer asked for identification, and shortly thereafter noted sings of intoxication ultimately leading to arrest.