On Point blog, page 37 of 141
SCOTUS to consider driver’s expectation of privacy in a rental car when he isn’t on the rental agreement
Byrd v. United States, USSC No. 2016-1371, cert granted 9/28/17; 3rd Circuit’s opinion; docket; SCOTUSblog page
Question presented:
A police officer may not conduct a suspicionless and warrantless search of a car if the driver has a reasonable expectation of privacy in the car–i.e., an expectation of privacy that society accepts as reasonable. Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement.
Officer had reasonable suspicion to detain driver for field sobriety tests
State v. Sarah Ann Wallk, 2017AP61, Distirct 1, 9/26/17 (one-judge decision; ineligible for publication); case activity (including briefs)
The court of appeals rejects Wallk’s claim that there was insufficient reasonable suspicion to detain her for field sobriety tests after she was stopped for speeding.
Anonymous, barely corroborated tips = probable cause to search house
State v. Guy S. Hillary, 2017 WI App 67; case activity (including briefs)
In this case, a deputy applied for a warrant, saying he had
received anonymous information on June 13, 2014 that a subject went to Guy S Hillary’s residence to fix a vehicle and Hillary proceeded to show the complainant a very large marijuana grow in a garage on Hillary’s property. Complainant stated that there are several grow rooms within the garage containing several large marijuana plants. Complainant stated that Hillary was bragging about how much money he makes selling marijuana.
Both parties agree that this did not establish probable cause–their dispute is about whether other information in the affidavit was lawfully obtained and, if not, whether it had to be excised. The court of appeals, however, rejects the state’s concession and declares this tip good enough.
SCOW to address whether warrantless blood draw of unconscious motorist violates 4th Amendment
State v. Gerald Mitchell, 2015AP304-CR; certification granted 9/11/17; case activity (including briefs)
Issue:
Whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law, where no exigent circumstances exist or have been argued, violates the Fourth Amendment.
Marijuana odor, fleeing teens gave exigent circumstances to search apartment
State v. Robert Torres, 2017 WI App 60; case activity (including briefs)
It’s unclear why this opinion is recommended for publication–it seems to be a pretty straightforward application of the law to a particular fact situation.
The statutes authorize fines for 7th and greater OWI offenses
State v. Michel L. Wortman, 2017 WI App 61; case activity (including briefs)
A glitch in the OWI penalty statute appears to suggest that OWI 7th and greater offenses don’t allow for a fine, but only for the imposition of the forfeiture provided for first-offense OWI. The court of appeals concludes otherwise. The court also rejects Wortman’s claim that he was under arrest when a sheriff’s deputy transported him back to the scene of the accident he was in.
Court of appeals affirms “Badger stop;” defendant was free to leave despite questions and armed back-up officer
State v. Michael A. Johnson, 2017AP331-CR, District 2, 8/23/17 (1-judge opinion, ineligible for publication); case activity (including briefs)
Officer Baldwin stopped Johnson for failing to dim his headlights, then cited him for that and failing to provide proof of insurance for the car he was driving (his mom’s). Baldwin told Johnson that he was free to go, so Johnson started to walk away. Baldwin asked “do you have drugs, weapons or alcohol in the car?” Johnson replied “no.” Baldwin asked if he could search the car. Johnson replied that the car did not belong to him.
“Dazed and confused” and smelling of alcohol = reasonable suspicion of OWI
State v. Denton Ricardo Ewers, 2016AP1671-CR, 8/22/2017, District 3 (not recommended for publication); case activity (including briefs)
An employee at Family Dollar called the police to report that man who appeared “dazed and confused” and whose breath smelled of intoxicants had come into the store before leaving in a gold Ford Focus and heading west. An officer looked for the Focus but could not find it. Two hours later, the employee called back to say the same man, still “dazed and confused,” had once again been in the store, and once again had departed to the west in his gold Ford Focus. This time, the officer located the car and stopped it. The driver, Ewers, seemed intoxicated, which he eventually proved to be.
When a change in expression amounts to reasonable suspicion for a frisk
State v. Kavin K. Nesbit, 2017 WI App 58; case activity (including briefs)
Nesbit ran out of gas on I 94. He and his buddy were walking on the shoulder, red can in hand, to get gas when Deputy Fowles pulled up and told them he’d give them a ride to and from the gas station. But first, he asked them if they had any weapons. The friend said “no.” Nesbit who had been behaving normally “‘all of a sudden’ became ‘very deflated’ and shook his head slightly in the negative.”
Courts may reopen suppression hearings to give State 2nd kick at meeting burden of proof
State v. Jesse U. Felbab, 2017AP12-CR, 8/2/17, District 2 (1-judge opinion; ineligible for publication); case activity (including briefs)
If at first you don’t succeed, try, try, try again. That’s surely the State’s take away from this decision. Deputy Schoonover stopped Felbab for erratic driving and determined that field sobriety tests and a drug-detecting dog were in order, so he called for a back up. This led to the State charging Felbab with possession of THC. He moved to suppress. Before giving its decision, the court told the parties that it would be willing to grant a motion to reopen if the losing party wanted to enter more evidence into the record. Hint. Hint.