On Point: 35. Search & Seizure

State v. Katherine J. Downer Jossi, 2016AP618-CR, 8/24/16, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

This court of appeals decision acknowledges what On Point predicted here when SCOTUS issued Rodriguez v. United States, 135 S. Ct. 1609 (2015). That is, Rodriguez, which held that prolonging a traffic stop to conduct a dog sniff requires reasonable suspicion of criminal activity  beyond the traffic infraction, effectively overruled State v. Arias, 2008 WI 84, ¶32, 311 Wis. 2d 358, 752 N.W.2d 748, which allowed for a reasonable delay based on the totality of the circumstances (a.k.a. the “incremental intrusion” test).

United States v. Frank Caira, 7th Circuit Court of Appeals No. 14-1003, 2016 WL 4376472, 8/17/16

During a drug investigation the government issued subpoenas to two internet service providers—Microsoft, the owner of Hotmail, and Comcast the owner of an Internet Protocol address associated with the Hotmail address being investigated. The subpoenas provided information that led investigators to Caira. (Slip op. at 2-4). His claim that the subpoenas amounted to unreasonable warrantless searches is rejected because voluntarily sharing the information with the internet providers meant Caira had no reasonable expectation of privacy in the information.

State v. Sandra D. Noren, 2015AP1969-CR, District 2, 8/17/16 (not recommended for publication); case activity (including briefs)

A police officer responding to a 911 call conducted a warrantless search of Noren’s bedroom and found drugs and paraphernalia. The court of appeals holds the search was justified under the emergency exception to the warrant requirement. 

County of Milwaukee v. Alpesh Shah, 2015AP1581, District 1, 8/16/16 (1-judge opinion; ineligible for publication); case activity (including briefs)

Shaw was convicted of operating a motor vehicle with a restricted controlled substance in his blood pre-McNeely. He challenged the warrantless draw of his blood because there were no exigent circumstances–THC doesn’t dissipate like alcohol, and the deputy had plenty of time to get a warrant. Moreover, the State did not charge him with operating while under the influence, so dissipation wasn’t even relevant. The State only need to show that THC was present in his blood, not that a particular amount of THC was in his blood.

In May, On Point reported on U.S. v. Randy Johnson, a split decision by the 7th Circuit in which the dissent accused the majority of authorizing Milwaukee police to seize someone for “parking while black.” See our post here. Guess what? The 7th Circuit just granted rehearing en banc, so stay tuned for further developments this case.

So held the 10th Circuit in U.S. v. Ackerman last week.  The case “considers how the Fourth Amendment applies to a child pornography detection system set up by Internet service providers and the National Center for Missing and Exploited Children (NCMEC).” In a post “for serious 4th Amendment nerds” Orin Kerr pokes holes in the court’s analysis and discusses the deepening circuit split over this issue.

Village of Bayside v. Amber E. Schoeller, 2016AP256 & 2016AP257, District 1, 8/9/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court’s factual findings—which Schoeller doesn’t argue are clearly erroneous—doom her claims that the officer didn’t have probable cause to arrest her and that the evidence isn’t sufficient to prove she’s guilty of OWI.

State v. Jeffrey Jacob Udelhofen, 2016AP385-CR, 8/4/16, District 4 91-judge opinion; ineligible for publication); case activity (including briefs)

The defendant was convicted of driving with a PAC (3rd offense). He appealed the denial of his suppression motion and argued that the State: (a) waited too long–until closing arguments at the suppression hearing–to specify which traffic law he allegedly violated; and (b) lacked reasonable suspicion to stop his car. The court of appeals held:

State v. Adam M. Blackman, 2016 WI App 69; petition for review granted 6/15/16, reversed, 2017 WI 77; case activity (including briefs)

A recent amendment to Wisconsin’s implied consent law authorizes law enforcement to request a blood, breath, or urine sample from a driver involved in an accident that causes death or great bodily harm even if there is no evidence that the driver was impaired by alcohol or a controlled substance. §343.305(3)(ar)2. If the driver refuses, his license is revoked, but he may request a refusal hearing within 10 days. §343.305(9)(a). But as §343.305(9)(a)5, the refusal hearing statute, is currently written the State could not prevail.

State v. Paul L. Linde, 2014AP2445-CR, 8/2/16, District 3 (not recommended for publication); case activity (including briefs)

A court commissioner issued a warrant to search Linde’s cabin for evidence of drug manufacturing and for drug paraphernalia. It was based in part on a tip by an anonymous informant, a fact that proved decisive in the court of appeals decision to reverse the circuit court’s denial of Linde’s suppression motion.