On Point: 35. Search & Seizure

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?

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.

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.

County of Shawano v. Kory V. Amborziak, 2015AP462, 9/22/15, District 3 (1-judge opinion; ineligible for publication); case activity

Ambroziak didn’t challenge an officer’s decision to stop his car for disorderly conduct. Instead, he contended that the officer lacked reasonable suspicion to extend the stop to conduct field sobriety tests but he lost based on the facts found by the circuit court:

State v. Daniel Tawan Smith, 2015AP291-CR, District 4, 9/17/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Police had probable cause to arrest Smith, who was seen driving away from his home just as police arrived to execute a search warrant to look for evidence that he was selling marijuana.

State v. Ryan H. Tentoni, 2015 WI App 77; case activity (including briefs)

Tentoni does not have an objectively reasonable expectation of privacy in the text messages delivered to another person’s phone and therefore can’t seek to suppress the text messages and other subsequently obtained phone records as fruit of the government’s illegal search of the phone.

State v. Manuel Talavera, 2015AP701-CR, District 2, 9/9/15 (one-judge decision; ineligible for publication); case activity (including briefs)

To  justify a warrantless traffic stop based on a violation of § 346.34(1)(b), the officer doesn’t need evidence that a driver’s failure to signal before turning his vehicle actually affected other traffic because the statute simply requires motorists to signal turns whenever “other traffic may be affected by the movement.” Thus, evidence that Talavera failed to signal when there was a (police) vehicle following two car lengths behind him was sufficient to justify stopping him.

United States v. Rodolpho Hernandez Flores, 7th Circuit Court of Appeals No. 15-1515, 8/19/15 (per curiam)

Hernandez Flores was stopped for driving with an obstructed license plate because his rear plate was affixed to his car by a standard frame that covered the plate’s periphery. The stop violated the Fourth Amendment because it was based on an unreasonable mistake of law regarding the statute governing the display of license plates.