On Point: 35. Search & Seizure

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Village of Bayside v. Ryan Robert Olszewski, 2015AP1033-34; 1/12/15; District 1 (not recommended for publication); case activity, including briefs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

State v. Brian I. Harris, 2016 WI App 2, petition for review granted 4/6/16, affirmed 2017 WI 31; case activity (including briefs)

Incriminating statements Harris made while he was in custody were admissible despite the lack of Miranda warnings because the statements were either sufficiently attenuated from the taint of police questioning or were not made in response to police interrogation.

State v. Bradley A. Anderson, 2015AP1573-CR, 12/23/15, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Anderson’s consent to a blood draw after his OWI arrest was not vitiated by being told that, if he refused the blood draw, his driving privileges would be revoked and the officer would get a warrant for a blood draw. In addition, the circuit court properly found that Anderson didn’t later withdraw his consent to the blood draw.

State v. Tommy K. Miller, 2015AP1211-CR, District 4, 12/23/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The seizure of Miller’s car was justified under the community caretaker doctrine because the officer’s observations led him to believe Miller’s passenger was in distress. Having lawfully seized the car, the officer’s subsequent discoveries gave him reason to ask Miller to perform field sobriety tests (FSTs) and submit to a preliminary breath test (PBT).

State v. Charles Ray Stewart, 2014AP276-CR, District 1, 12/22/15 (not recommended for publication); case activity (including briefs)

The warrantless search for and seizure of evidence from Stewart’s apartment was lawful because, after Stewart allowed police to enter the apartment and was arrested, the community caretaker doctrine allowed police to remain in the apartment to assure Stewart’s dog was cared for, and the office could seize evidence discovered in plain view.

The Court granted certiorari and consolidated three cases presenting identical questions in different factual permutations:

Question presented (Birchfield v. North Dakota); (Beylund v. Levi); (Bernard v. Minnesota):

Whether, in the absence of a warrant, a State may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.