On Point: 35. Search & Seizure

State v. Charles V. Matalonis, 2016 WI 7, 2/10/16, reversing an unpublished court of appeals decision; case activity (including briefs)

This is a painful loss for the defense. Matalonis won suppression at the court of appeals. The State filed a petition for review, which, of course, was granted. SCOW held oral argument and took a tentative vote before Justice Crooks died. After his death, the vote changed to 3-3. So you’d expect this case to end in a tie, which would affirm the court of appeals’ decision. But that did not happen.  Instead, though she has not participated in any other case argued and decided before she joined SCOW,  Justice R. Bradley emerged to cast the decisive vote against the defendant here. Even worse, Justice Prosser says the majority opinion extends the community caretaker exception just enough to swallow the 4th Amendment. Ouch.

SCOTUS will hear argument in Utah v. Strieff on February 22nd. Orin Kerr just published, on SCOTUSblog, this analysis of the future of the exclusionary rule, which has come under attack in recent decisions like Davis v. U.S. and Herring v. U.S. If you’ve got a Fourth Amendment issue, his post is worth a read.

Review of a per curiam court of appeals decision; case activity (including briefs).

Issue (composed by On Point):

Is hot pursuit of a suspect based upon probable cause for a jailable offense a stand-alone justification for a warrantless home entry and arrest or must law enforcement reasonably believe that a delay in obtaining a warrant would endanger life, risk destruction of evidence, or greatly enhance the likelihood of the person’s escape?

State v. Richard J. Slayton, 2015AP1255-CR, 2/3/16, District 2 (1-judge opinion; ineligible for publication); case activity, briefs

Slayton, who was arrested for OWI, challenged a search warrant authorizing his blood draw. The supporting affidavit stated that an officer had reviewed his driving record and noted previous OWI conviction that were “prior countable offenses” under Ch. 346. But it provided no other information about the alleged convictions and thus no way to verify their existence.

Michael J. Belleau v. Edward F. Wall, 7th Circuit Court of Appeals No. 15-3225, 1/29/16

The Seventh Circuit holds that Wis. Stat. § 301.48, which requires certain sex offenders to wear a GPS monitoring device, does not violate either the Fourth Amendment or the constitutional prohibition against ex post facto laws. This decision reverses a Wisconsin federal district judge’s decision striking down the statute.

State v. David W. Howes, 2014AP1870-CR, 1/28/16, District 4; certification granted 4/7/16, reversed, 2017 WI 18; case activity (including briefs)

Issue:

This appeal presents a single recurring issue: whether provisions in Wisconsin’s implied consent law authorizing a warrantless blood draw from an unconscious suspect violate the Fourth Amendment to the United States Constitution. More specifically, the issue is whether the “implied consent,” deemed to have occurred before a defendant is a suspect, is voluntary consent for purposes of the consent exception to the Fourth Amendment’s warrant requirement.

City of West Allis v. Teresa A. Michals, 2015AP1688 & 2015AP1689, District 1, 1/26/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Police did not have reasonable suspicion to believe Michals was operating while intoxicated or in a “disorderly manner” in violation of a city ordinance.

State v. Brett W. Dumstrey, 2016 WI 3, 1/15/16, affirming a published court of appeals decision; case activity (including briefs)

Residents of multi-family dwellings, beware! According to the dissent, this decision “creates a great inequity” between those who live in houses and those who don’t (e.g. SPD clients). The majority holds that a locked, parking garage beneath an apartment building is not curtilage protected by the 4th Amendment, and an apartment dweller has no reasonable expectation of privacy in the private parking space for which he pays rent. Attorney Anthony Cotton, counsel for Dumstrey, offers his thoughts on the decision.

Columbia County v. Brittany N. Krumbeck, 2015AP1010, 1/14/16, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

In State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, our supreme court rejected the notion that “repeated weaving” within a lane, without more, amounts to reasonable suspicion for a traffic stop. Krumbeck invokes Post to attack her OWI conviction but the court of appeals concludes there were enough other facts to justify the stop.

Village of Bayside v. Ryan Robert Olszewski, 2015AP1033-34; 1/12/15; District 1 (not recommended for publication); case activity, including briefs

After Heien v. North Carolina and State v. Houghton, everyone predicted lots of litigation about law enforcement’s “reasonable mistakes of law” during traffic stops. This case marks the beginning of it.