On Point blog, page 44 of 141
State v. Adam M. Blackman, 2015AP450-CR, petition for review granted, 12/19/16
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?
State v. Navdeep S. Brar, 2015AP1261-CR, petition for review granted, 12/19/16
Review of an unpublished court of appeals opinion; case activity (including briefs); petition for review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.”
Objective facts justified officer’s contact with driver
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.
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.