On Point blog, page 44 of 141
Time, place, quick turn, hanging out in parking lot = reasonable suspicion of OWI
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?
Challenges to seizure, arrest, refusal finding rejected
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.
SCOW: Defense wins war, loses battle on “hot pursuit” of driver with broken brake lamp
State v. Richard L. Weber, 11/29/16, 2016 WI 96, reversing a per curiam court of appeals decision, 2014AP304-CR; case activity (including briefs)
A deputy activates his emergency lights upon seeing a car with a defective brake lamp weave over a highway fog line. The car slows for 100 feet, turns right into a driveway, and pulls into a garage attached to a house. The deputy apprehends the driver inside the garage. Was there a 4th Amendment violation?
SCOTUS asked to review Gant’s exception to the warrant requirement
SCOTUSblog has named a cert petition filed by the Maryland Public Defender “petition of the day“!! Here are the issues:
1. Under the exception to the warrant requirement announced in Arizona v. Gant, 556 U.S. 332, 343 (2009), permitting a vehicular search incident to a recent occupant’s arrest “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle,” what quantum of particularized suspicion is required by the Fourth Amendment to justify the search?
2. May the unquantified experience of the arresting officer, alone, supply the necessary particularized suspicion to justify the vehicular search?
Wisconsin, which has trimmed the Fourth Amendment down to more like a Three and a Half Amendment, follows a per se rule requiring no particularized suspicion. See State v. Smiter, 2011 WI App 15. Under this rule, a belief is reasonable, and an officer may search a vehicle, when the recent occupant’s offense of arrest is a non-traffic infraction that could generate physical evidence. On Point will keep you posted on this petition.
Here’s hoping our Maryland comrades get their cert petition granted–even (or especially) without an amicus brief! See post below.
Gravel extension of driveway isn’t part of curtilage
State v. Steven J. Schaefer, 2015AP2555-CR, District 3, 11/1/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Schaefer challenged evidence seized after he was arrested outside his home. He argued the arresting officer entered the curtilage of his home without a warrant. The court of appeals holds the area was not curtilage under the four-factor test established by United States v. Dunn, 480 U.S. 294 (1987).
Deviation from designated lane justified traffic stop
State v. Curtis D. Christianson, 2015AP24400-CR, District 3, 11/1/16 (one-judge decision; ineligible for publication); case activity (including briefs)
An officer observed Christianson deviate from his lane of traffic “numerous” times by going over the center line and fog line; some of the deviations occurred while he was driving through a construction zone that had orange barrels blocking access to the left lane. (¶¶3-5). Those observations gave the officer probable cause to stop Christianson for a traffic law violation.
Cops in home with PC to arrest not required to leave on withdrawal of consent
State v. Thomas D. Dowling, 2016AP838-CR, 10/26/16, District II (one-judge; ineligible for publication); case activity (including briefs)
This is an ineffective assistance claim against Dowling’s trial counsel for not moving to suppress evidence obtained after Dowling told police officers–whom his wife had allowed into their apartment–to leave.
Moving a person 3-4 miles to perform field sobriety tests doesn’t convert traffic stop into arrest
County of Fond Du Lac v. Blade N. Ramthun, 2016AP825, District 2, 10/26/16 (1-judge opinion, ineligible for publication); case activity (including briefs)
A deputy stopped Ramthun for speeding and suspected that he had been drinking. Because it was 1:08 a.m. and raining hard on Highway 45, the deputy drove him 3 to 4 miles to a gas station to conduct field sobriety tests. Ramthun argued that his temporary detention and movement violated §968.24, which codifies Terry v. Ohio, 392 U.S. 1, 22 (1986).
Court of appeals: warranted search attenuated from alleged illegal entry
State v. Andrew S. Sato, 2015AP1815-CR, 10/18/2016, District 1 (not recommended for publication); case activity (including briefs)
Police investigating an armed robbery the previous evening learned their suspect was at home in his apartment. One officer initiated a “knock and talk,” banging on the front door of the apartment and yelling for five to ten minutes while another officer positioned himself outside near the apartment’s bedroom window. After that second officer heard loud noises, the first kicked in the door and arrested Sato. The officers then went and got a search warrant for the apartment, which turned up evidence of the crime.
State v. Gary F. Lemberger, 2015AP1452-CR, petition for review granted 10/11/2016
Review of an unpublished court of appeals decision; case activity (including briefs); petition for review
Issues (composed by On Point)
(1) May a prosecutor argue that a defendant’s refusal to submit to a breathalyzer test shows consciousness of guilt?
(2) When a circuit court denies a postconviction motion based on arguably inapplicable case law, must the defendant ask the circuit court to reconsider its ruling in order to preserve for appeal the claim that the case law doesn’t apply?