On Point: 35. Search & Seizure

Review of an unpublished court of appeals decision; affirmed 2017 WI 76, case activity (including briefs)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State v. Damion L. Brown, 2015AP2029-CR, 1/4/2017, District 1 (not recommended for publication); case activity (including briefs)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.

Review of a published court of appeals opinion; case activity (including briefs); petition for review

Issues (from the petition):

I. Whether the circuit court properly suppressed Mr. Blackman’s warrantless blood test because he was unconstitutionally coerced into taking the test when he was read the informing the accused form which incorrectly told him that he faced a revocation and other penalties if he refused chemical testing, when he was actually only facing a possible arrest?

II. Whether the circuit court below properly suppressed Mr. Blackman’s blood test where Mr. Blackman was unconstitutionally coerced into taking the blood test, under the totality of the circumstances, when he acquiesced to the unlawful assertion by the officer that they take blood samples in cases like his—in addition to being told that he faced a revocation and other penalties if he refused?

III. Whether section 343.305(3)(ar)2 is unconstitutional on its face and as applied because it coerces consent to otherwise unconstitutional searches without due process of law?

Review of an unpublished court of appeals opinion; case activity (including briefs); petition for review

Issues (composed by On Point):

1.  Whether a driver, who is a non-native speaker of English, consents to a blood draw where, in response to the officer’s question “will you consent” gives an unintelligible answer, then clearly asks “what kind of test?” and “don’t you need a warrant?” and where the driver does not otherwise “resist” or “fight” the blood draw?

2.  Whether a driver’s acquiescence to a blood draw is voluntary when it occurs after he asks the officer “don’t you need a warrant?” and the officer shakes his head “no.”

State v. Marie A. Martin, 2016AP913-CR, District 1, 12/20/16 (one-judge decision; ineligible for publication); case activity (including briefs)

A police officer’s contact with the driver of a car idling in a parking lot at 2:00 a.m. was lawful because the objective facts justified a reasonable suspicion of criminal activity.

State v. Gregory J. McMillan, 2016AP127-CR, 12/16/2016, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

12:30 a.m., Saturday, Dodge Charger, driving away from tavern-rich area of McFarland. No bad driving, but a “relatively sudden” right turn with a squad two car lengths behind. The turn is onto a dead-end street with only “large industrial-type buildings.” Officer drives around a back way and sees McMillan standing at the back of his car talking on his phone. From where he’s standing, McMillan could have snuck into the shadows had he seen the squad following him, instead of coming around a back way. Officer stops McMillan. Reasonable suspicion?

Washington County v. Daniel L. Schmidt, 2016AP908, District 2, 11/30/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Schmidt makes a three-pronged attack on the revocation of his driving privileges for refusing a chemical test, arguing he was seized without reasonable suspicion, arrested without probable cause, and did not improperly refuse a test. The court of appeals rejects each claim.