On Point blog, page 42 of 141
Third time no charm for argument that cops need probable cause to perform FSTs
Village of Ashwaubenon v. Mark J. Bowe, 2016AP594, 2/14/17, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)
Bowe argues that standard field sobriety tests constitute a 4th Amendment search. Thus, law enforcement needs probable cause, not reasonable suspicion, before asking a suspect to perform them. The court of appeals notes that it has twice rejected this argument based on County of Jefferson v. Renz. It meets the same fate in this appeal.
Consent to blood draw was voluntary
State v. Eric M. Doule, 2016AP1146-CR, District 3, 2/14/17 (one-judge decision; ineligible for publication); case activity (including briefs)
The record supports the conclusion that Doule voluntarily consented to a blood draw after he was arrested for OWI.
DOJ agent’s search of computer at probation officer’s request upheld
State v. Richard L. Keller, 2017 WI App 19; case activity (including briefs)
Richard Keller’s probation rules required, among other things, that he neither possess a computer nor commit any crime. When his agent found computers at his house, she took them to Madison and had a Department of Criminal Investigations analyst examine them. Child porn was found and Keller moved for suppression, which the trial court granted. The court of appeals now reverses.
Circuit court’s findings about driving not clearly erroneous
State v. Nicholas W. Stern, 2016AP1534, District 3, 2/7/17 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court implicitly credited the testimony of a police officer that Stern was in the wrong lane of travel as he drove toward the officer, and therefore held the officer had reasonable suspicion to stop Stern for violating § 346.05(1). The circuit court’s finding is not clearly erroneous, despite Stern’s claim the officer’s testimony is contradicted by the squad car video, which he says shows Stern maintaining his lane as he approached and passed the officer.
Terry stop okay based on reasonable suspicion that person has information about a crime
State v. Brianna L. Flahavan, 2016AP1133-CR, 1/26/17, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs).
Assumptions are dangerous things to make, and like all dangerous things to make–bombs, for instance, or strawberry shortcake–if you make even the tiniest mistake you can find yourself in terrible trouble.”
—Lemony Snicket, The Austere Academy
Defense win! You don’t have to be a local to be “local traffic”
State v. Brandon M. Swiecichowski, 2016AP1808-CR, 1/25/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
Mr. Swiecichowski was pulled over after an officer saw his vehicle driving in a construction area signed as being closed to through traffic. Before pulling him over the officer ran his plates and found the vehicle to be registered to an owner who lived seven or eight miles away from the construction zone.
Retrograde extrapolation survives Daubert challenge—again
State v. Michael Chough, 2016AP406-CR, District 2, 1/25/17 (one-judge decision; ineligible for publication); case activity (including briefs)
Chough’s challenge to the reliability of expert testimony regarding his blood alcohol content at the time he was driving fails under State v. Giese, 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687.
SCOW: EMT’s blood draw in jail was “under direction of a physician” and constitutionally reasonable
State v. Patrick Kozel, 2017 WI 3, reversing an unpublished court of appeals decision, 2016AP656-CR, 1/12/16; case activity (including briefs)
Kozel, arrested for OWI-2nd and subjected to a blood draw by an Emergency Medical Technician (EMT) at a county jail, challenged the draw as violating §343.305(5)(b) (2011-12) and as unconstitutional, because it was not performed “by a physician in a hospital environment according to accepted medical practices.” ¶43, citing to Schmerber v. California, 384 U.S. 757, 771 (1966).
Citizen informant’s tip supports probable cause to arrest for possesion of heroin
State v. Jimmie C. Johnson, 2015AP1233-CR, 2015AP2260-CR, 1/11/17, District 1 (not recommended for publication); case activity (including briefs)
When J.T. stepped out of her car in the parking lot of the West Allis Chuck E. Cheese she spotted a purple “Crown Royal” bag outside the driver’s door of the Chevy Tahoe next to her. It contained 69 aluminum foil folds. She took a photo of the license plate, went into the Chuck E. Cheese where she watched man get into the Tahoe, drive off, turn around, return to the parking spot and search for something. He then when into the Pet World next door where a video camera captured him searching for something.
State v. Frederick S. Smith, 2015AP756-CR, petition granted 1/9/2017
Review of a per curiam court of appeals decision; case activity (including briefs)
Issues (from the petition for review):
1. When a police officer performs a lawful traffic stop, is it reasonable for the officer to make contact with the driver to ask for the driver’s name and identification and to explain the basis for the stop, even if the reasonable suspicion supporting the stop has dispelled by the time the officer does so?
2. When an officer is unable to request a driver’s name and identification and explain the basis for a traffic stop because, as in this case, the driver indicates that the driver’s side window and door are both broken, is the officer then permitted to open the passenger’s side door to achieve that goal?