On Point: 35. Search & Seizure

State v. Sandra D. Noren, 2015AP1969-CR, District 2, 8/17/16 (not recommended for publication); case activity (including briefs)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

State v. Thomas M. Ort, 2015AP1571-72-CR, 8/2/16; District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)

Ort did not challenge the circuit court’s findings that Officer Vosters observed a silver truck speeding and that speeding would be a reasonable basis to stop the truck. Ort’s objection was that after observing the speeding, Vosters lost sight of the truck briefly and then later simply stopped “the first silver truck he saw.”  The court of appeals disagreed:

You don’t need to click here to learn that the standards police apply when deciding to stop and search black and Hispanic drivers is considerably lower than the standards they apply to white and Asian driver. But you should click there if you want to read more about a new statistical method that several Stanford professors designed to prove that this form racial discrimination is real.