On Point blog, page 49 of 141
Reasonable suspicion supported investigative stop for violation of boating law
State v. Chad T. Kippley, 2015AP1671-CR, 5/19/16, District 4 (unpublished opinion); case activity (including briefs)
A warden observed Kippley’s boat travelling at a slow speed in bow-up position. Based on his training and experience, the warden suspected that the boat was equipped with a motor in excess of its maximum horsepower rating, so he stopped Kippley and obtained evidence that led to Kippley’s conviction for operating a boat while intoxicated.
“Im finna have to go on da run smh” is obviously incriminating
State v. Mario Martinez Redmond, 2015AP657-2015AP658-CR, 5/17/16, District 1 (not recommended for publication); case activity (including briefs)
Redmond was charged and convicted of battery, disorderly conduct, and multiple counts of witness intimidation. His appeal raised various ineffective assistance of counsel and other claims. But the most interesting issue concerns Redmond’s failed motion to suppress a cryptic text message sent from his phone.
Defendant not in Miranda custody during search of home
State v. Bradley L. Kilgore, 2016 WI App 47; case activity (including briefs)
The execution of the search warrant at Kilgore’s home started with a heavily armed officers, including a SWAT team, entering and putting Kilgore down on the floor at gunpoint; but once the home was “cleared” and weapons were secured and the SWAT team left, Kilgore was not in custody for Miranda purposes. Thus, the statements he made to police while they searched his home were admissible despite the lack of a Miranda warning.
Being in alley at 3 a.m., walking into bushes suspicious
State v. Arturo Luiz-Lorenzo, 2015AP1540-CR, 5/18/2016, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
Police discovered cocaine on Luiz-Lorenzo as a result of his arrest; he challenges the grounds for the initial Terry stop.
Parking violation justifying investigatory detention? Or “parking while black”?
United States v. Randy Johnson, 7th Circuit Court of Appeals No. 15-1366, 5/17/16
Taking Whren v. United States, 517 U.S. 806 (1996), to its logical extreme, the Seventh Circuit holds that detaining the passengers in a car parked too close to a crosswalk was reasonable under the Fourth Amendment.
Search of apartment building basement okay under Fourth Amendment
United States v. Eugene A. Sweeney, 7th Circuit Court of Appeals No. 14-3785, 5/9/16
The police officers’ search of the basement of the apartment building where an armed robbery suspect lived was neither a trespass nor an invasion of the apartment dwellers’ curtilage. Thus, the gun found during the search was lawfully seized and not subject to suppression.
Traffic stop unreasonable; officer had no reason to conclude driver violated parking statute
State v. Justin Carl Herman Hembel, 2015AP1220-CR, 5/10/16, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
Police lacked probable cause to believe Hembel violated § 346.54, governing “How to park and stop on streets,” so the stop of Hembel was unlawful.
On reconsideration, court of appeals finds PC for PBT
State v. Zachary W. Swan, 2015AP1718-CR, 5/5/16, District 4 (one-judge opinion; ineligible for publication); case activity, including briefs
Swan was convicted of OWI 2nd with a prohibited alcohol content. On appeal he argued that the circuit court should have suppressed the results of a preliminary breath test and other evidence due to the absence of probable cause. The court of appeals initially rejected Swan’s argument on the ground of issue preclusion, but on reconsideration agreed with Swan that issue preclusion “could not apply as a matter of law.” (¶2, ¶13). It now rejects Swan’s argument on the merits and affirms.
Ensuring automatic admissibility justified warrantless blood draw
State v. Melvin P. Vongvay, 2015AP1827-CR, District 2, 5/4/2016 (one-judge decision; ineligible for publication); case activity (including briefs)
Wisconsin Stat. § 885.235(1g) makes a blood alcohol test automatically admissible in a drunk driving prosecution if the blood is drawn within three hours of the alleged driving. The court here holds that an officer who was running up against the end of that three-hour window was justified in drawing blood without seeking a warrant.
Court of appeals ducks Fourth Amendment question
State v. Gary F. Lemberger, 2015AP1452-CR, 4/14/2016, District 4 (one-judge decision; ineligible for publication), petition for review granted 10/11/2016, affirmed, 2017 WI 39; case activity (including briefs)
A breathalyzer test is a Fourth Amendment search, and state case law holds that the state may not invite a jury to view a defendant’s refusal to consent to a search as evidence of guilt. So, can a prosecutor argue that a defendant’s refusal to take a breathalyzer shows his guilt? Don’t look to this case for an answer.