On Point: 35. Search & Seizure

State v. Glenn T. Zamzow, 2016 WI App 7, petition for review granted, 3/7/16, affirmed, 2017 WI 29; case activity (including briefs)

Relying on precedent predating Crawford v. Washington, 541 U.S. 36 (2004), two judges of the court of appeals hold that the Confrontation Clause does not apply to suppression hearings and that the circuit court could rely on hearsay evidence in denying Zamzow’s motion to suppress. The third judge on the panel dissents, arguing the majority’s conclusion “rests upon a shaky foundation” (¶20) and “continues [the] unfortunate legacy” of pre-Crawford Confrontation Clause jurisprudence (¶23).

State v. Daniel S. Iverson, 2015 WI 101, 11/25/2015, reversing a 1-judge court of appeals decision; case activity (including briefs)

Do cigarette butts decompose? Do they “result[]…from community activities”? Those are just two of the burning questions left unanswered (smoldering?) after this blaze of statutory construction.

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.

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.

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.

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.

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.

Review of a published court of appeals decision; case activity (including briefs)

Issues (composed by On Point from the PFR)

1. 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?
2. 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?
3. Does the Wisconsin Constitution bar use of the inevitable discovery doctrine to allow admission of evidence obtained through an intentional violation of constitutional rights?

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).

Question Presented:

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?