On Point blog, page 53 of 141
“Reasonable” mistakes of law
In Heien v. North Carolina, SCOTUS held that an officer’s “reasonable” mistake of law can give rise to the reasonable suspicion needed to justify a traffic. And SCOW followed suit in State v. Houghton. If you are researching this issue, you might want to take a look at this new case note in Harvard Law Review. The last few paragraphs, in particular, highlight areas for future litigation.
Forfeiture of co-owner’s interest in car violated Eighth Amendment’s excessive fine prohibition
State v. One 2013 Toyota Corolla, 2015 WI App 84; case activity (including briefs)
While a co-owner’s interest in a car didn’t make her the owner for purposes of the “innocent owner” exception to property forfeiture under § 961.55(1)(d)2., forfeiture of her full financial interest violated the Eight Amendment’s prohibition against the levying of excessive fines.
When car has multiple owners, the fact that one owner has invalid license doesn’t by itself justify traffic stop
State v. Joshua Allan Vitek, 2015AP421-CR, District 3, 10/27/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Under State v. Newer, 2007 WI App 236, 306 Wis. 2d 193, 742 N.W.2d 923, police may reasonably assume the driver of a car is likely to be the owner, and may stop the car if they know the owner’s operating privileges are invalid. But what if more than one person owns the car, but only one of the owners has an invalid license? The state claims that a traffic stop is still justified by the fact that one of the owners has an invalid license. The court of appeals disagrees, at least when—as in this case—the state presents no evidence as to the number of registered owners and the validity of their operating privileges.
Weaving in lane twice during early morning hours justified traffic stop
City of Mequon v. Luke J. Chiarelli, 2015AP359, District 2, 10/14/15 (one-judge decision; ineligible for publication); case activity (including briefs)
There was reasonable suspicion to stop of Chiarell’s car based on two lane deviations during early morning hours and, based on observations the officer made after the stop, there was probable cause to arrest Chiarelli for OWI.
Independent source, attenuation doctrines defeat claim for suppression of evidence found on computer in police custody
State v. David Jerome Gant, 2015 WI App 83; case activity (including briefs)
Ten months after seizing Gant’s computer as part of their investigation of the death of Gant’s wife, police searched the computer pursuant to a warrant and found child pornography. Assuming it was unlawful for the police to keep Gant’s computer for that long, the child pornography found on the computer should not be suppressed under the independent source and attenuation doctrines.
State v. Mastella L. Jackson, 2014AP2238-CR, petition for review granted 10/8/15
Review of a published court of appeals decision; case activity (including briefs)
Issues (composed by On Point from the PFR)
- Does the inevitable discovery doctrine require the State to show that information gained through police misconduct did not prompt or influence the purportedly lawful investigation?
- Does the inevitable discovery doctrine require the State to show that it was actively pursuing an alternative line of investigation prior to the illegal conduct?
- Does the Wisconsin Constitution bar use of the inevitable discovery doctrine to allow admission of evidence obtained through an intentional violation of constitutional rights?
Circuit court’s findings that driver made unexplained swerve into wrong lane were not clearly erroneous
State v. Mark Alan Tralmer, 2015AP715-CR, District 4, 10/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court’s implicit rejection of Tralmer’s suppression hearing testimony and acceptance of the police officer’s contrary testimony were not clearly erroneous and therefore must be upheld on appeal, State v. Arias, 2008 WI 84, ¶12, 311 Wis. 2d 358, 752 N.W.2d 748. Accordingly, the circuit court properly concluded that the officer had reasonable suspicion to stop Tralmer for violating § 346.05(1) by swerving into the wrong lane of traffic when there is no obstruction requiring the driver to do so, as allowed under § 346.05(1)(d).
Utah v. Strieff, USSC No. 14-1373, cert. granted 10/1/15
Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful?
Police had reasonable suspicion to detain person to investigate possible pot possession
State v. John C. Martin, 2015AP597-CR, District 2, 9/30/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Police searched a tavern bathroom for a person named in an arrest warrant; they found no one, but they did notice a strong odor of raw marijuana. Martin was the last person seen leaving the bathroom. Ergo, the police had reasonable suspicion to detain Martin and investigate whether he had drugs on him.
Applying GPS monitoring statute to certain sex offenders violates Ex Post Facto Clause, Fourth Amendment
Michael Belleau v. Edward Wall, Case No. 12-CV-1198 (E.D. Wis. Sept. 21, 2015); reversed (1/29/16).
“The question presented in this case is whether … a person who has already served his sentence for his crimes and is no longer under any form of court ordered supervision can be forced by the State to wear such a device and to pay the State for the cost of monitoring him for the rest of his life.” (Slip op. at 11). A federal district judge answers “no” to that question, and holds that requiring Belleau to comply with § 301.48 by wearing a GPS tracking device for the rest of his life after he had finished his criminal sentence and was discharged from his ch. 980 commitment violates the constitutional prohibition on ex post facto laws and the Fourth Amendment.