On Point blog, page 42 of 141
Lack of recent calibration of radar unit didn’t render stop for speeding unreasonable
State v. Thomas M. Gibson, 2016AP1933-CR, 2/22/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
An officer trained in visually estimating speed observed a car driven by Gibson going what he estimated to be 25 m.p.h. in a 15 m.p.h. speed zone. He trained a radar unit on the car, and that said the car was going 26 m.p.h. The officer stopped the car, and Gibson was ultimately arrested for OWI. It turns out the radar unit hadn’t been calibrated since the early years of the internet—1994. (¶¶3-5). No matter, says the court of appeals. The officer still had reasonable suspicion for the stop.
Officer had reasonable basis to believe defendant committed traffic violations
Oneida County v. Joseph A. Ravens, 2015AP2612, 2/22/17, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)
Raven was driving a pickup and towing a trailer when he entered an intersection as the light was changing. Unfortunately for him, Officer Young was watching and claimed the light turned red before Raven entered the intersection. He stopped Raven, smelled intoxicants, and observed slurred speech. After being charged with OWI, Raven moved for suppression and testified that the traffic light was yellow and turned red only after he was actually in the intersection. You can guess whom the trial court believed.
Moving driver 8 miles to conduct field sobriety tests didn’t transform stop into arrest
State v. Dane C. McKeel, 2016AP884-CR, District 4, 2/16/17 (one-judge decision; ineligible for publication); case activity (including briefs)
“Due to the extremely cold, windy, icy, and snowy conditions” police moved McKeel approximately 8 miles from where he was stopped to a local police department so that McKeel had the “best opportunity” to complete field sobriety tests. (¶¶4-5). Moving McKeel this far did not transform the stop into an arrest.
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.