On Point: 35. Search & Seizure

State v. Patrick Kozel, 2017 WI 3, reversing an unpublished court of appeals decision,  2016AP656-CR, 1/12/16; case activity (including briefs)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-2^nd 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).

State v. Jimmie C. Johnson, 2015AP1233-CR, 2015AP2260-CR, 1/11/17, District 1 (not recommended for publication); case activity (including briefs)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.

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?

State v. Joshua D. Winberg, 2016AP108-CR, District 3, 1/10/17 (one-judge decision; ineligible for publication); case activity (including briefs)

The police had reasonable suspicion to extend a traffic stop to investigate whether the driver was operating under the influence.

Review of a published court of appeals decision, 2016 WI App 64; case activity (including briefs)

Issues (from petition for review):

Whether an officer’s justification to search is objectively reasonable where the suspect is not observed doing or saying anything suspicious, but cooperating in circumstances that the officer believes are suspicious?

Whether counsel provided ineffective assistance by failing to present additional evidence to show Floyd did not provide valid consent to the search?

Review of an unpublished court of appeals decision; affirmed 2017 WI 76, case activity (including briefs)

Issues (from petition for review):

Law enforcement officers arrested Kenneth Asboth at a private storage facility. The car he had been driving was parked in the lane between rows of storage units, in front Mr. Asboth’s leased unit. The officers seized the car, towed it to a police station, and searched it.

1.  Must a community-caretaker impoundment of a vehicle be governed by “standard criteria” limiting the discretion of law enforcement officers and, if so, was the impoundment here made in accord with such criteria?
2. Was the impoundment here a valid community caretaker action where the vehicle was parked at a private storage facility? Relatedly, does the Constitution require the state to show that a community caretaker impoundment and search is not a pretext concealing criminal investigatory motives?

State v. Damion L. Brown, 2015AP2029-CR, 1/4/2017, District 1 (not recommended for publication); case activity (including briefs)

Damion Brown’s roommate consented to a search of their apartment after being arrested on suspicion of dealing heroin. Brown raises three challenges to the voluntariness and validity of that consent.

State v. Brittanie Jo Palaia, 2016AP467-CR, 12/30/17, District 3 (1-judge decision; ineligible for publication); case history (including briefs)

Here we have the latest twist on State v. Newer, 2007 WI App 236, 306 Wis. 2d 193, 742 N.W.2d 923, which held that an officer who knows only that a moving vehicle is registered to a person with a revoked license has reasonable suspicion for a stop.

City of Eau Claire v. David Eugene Phelps, 2016AP248, District 3, 12/28/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Contrary to the circuit court’s conclusion, a police officer’s observations about Phelps’s driving provided more than a “hunch” and justified the stop of his car.

State v. John D. Myer, 2016AP490-CR, District 4, 12/22/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Assuming a police officer’s contact with Myer constituted a seizure, it was justified under the community caretaker doctrine.