On Point: 35. Search & Seizure

State v. Robert C. Blankenheim, 2015AP239-CR, District 2, 7/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Blankenheim’s challenges his OAR conviction by arguing that he was unlawfully stopped, that the evidence wasn’t sufficient to prove operation on a highway, and that the police officer wasn’t a credible witness. The court of appeals disagrees “on all points….” (¶1).

State v. Tommy Lee Branch, 2015 WI App 65; case activity (including briefs)

The circuit court had no authority to order cash seized from Branch on his arrest to be used to pay court obligations because there was no basis for concluding the money was not subject to return under § 968.20. As the court of appeals puts it, the cash Branch had at the time of his arrest was no different from any other personal property he had when arrested. “Had [Branch] been wearing a $200 Stetson hat, a $300 Gucci belt, or a pair of $500 Allen Edmonds shoes, the State would not be allowed to seize those items of personal property and sell them on eBay to pay Branch’s debts.” (¶10).

State v. Nathan Lewis Teasdale, 2015AP338-CR, District 4, 6/25/15 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer reasonably suspected that Teasdale was violating § 341.61(2), which prohibits displaying on a registration plates that are not issued for that vehicle, even though the officer was mistaken in believing that the make and model of the car was different from the make and model of the car for which the plates were issued.

Town of Bloomfield v. Petko Zvetkov Barashki, 2015AP226, District 2, 6/24/15 (one-judge decision; ineligible for publication); case activity

In a case the court of appeals aptly describes as “unusual,” the court exercises its discretionary power of reversal under § 752.35 to throw out Barashki’s OWI 1st conviction and refusal finding on the grounds that the evidence doesn’t show the officer had reasonable suspicion to stop Barashki.

City of Los Angeles v. Patel, USSC No. 13-1175, 2015 WL 2473445 (June 22, 2015), affirming 738 F.3d 1058 (9th Cir. 2013) (en banc); Scotusblog page (including links to briefs and commentary)

A majority of the Supreme Court holds that a Los Angeles ordinance compelling hotel operators to make their guest registries available to police for inspection on demand is facially unconstitutional because it penalizes the hoteliers for declining to turn over their records without affording them any opportunity to obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply. Along the way, the Court clarifies that “facial challenges under the Fourth Amendment are not categorically barred or especially disfavored” (slip op. at 4), clarifying language from Sibron v. New York, 392 U.S. 40 (1968), that some courts have read as barring facial challenges to statutes under the Fourth Amendment.

The 4th Amendment has been described by Conservative HQ as “one of the most important arrows in the quiver against bullying big government.” Because the government doesn’t just search and seize paper–it also goes after your cell phones, your Facebook account, your email (even when stored on Google’s server), your tweets, your DNA (by definition, your family’s DNA) etc.–we want a sturdy Fourth Amendment, right? Justice Scalia thinks so. He’s been called the 4th Amendment’s “

State v. Timothy J. Relyea, 2014AP2860-CR, District 4, 6/18/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Put down that Sprecher® Root Beer if you’re behind the wheel! It could get you pulled over by a sharp-eyed cop who is knowledgable about the bottling practices of the beverage industry.

State v. Kirk L. Griese, 2015AP180, District 4, 6/18/15 (one-judge decision; ineligible for publication); case activity (including briefs)

There was probable cause to believe Griese was operating under the influence, even though the officer arrested Griese while he was having a Bacardi and Coke in the bar to which he had driven.

Steven Michael Leonard v. State of Wisconsin, 2015 WI App 57; case activity (including briefs) NOTE: This case’s analysis of whether DC is a misdemeanor crime of domestic violence is effectively overruled by Doubek v. Kaul, 2022 WI 31.

The court of appeals concludes that there’s no basis in the record for determining whether Leonard’s disorderly conduct conviction qualifies as a “misdemeanor crime of domestic violence” under the federal firearm prohibition, 18 U.S.C. § 922(g)(9), and therefore he is not barred from possessing a firearm under that statute. The court also holds that Leonard’s disorderly conduct “involv[ed] the use of” one of Leonard’s guns and therefore § 968.20(1m)(b) bars the return of that gun.

Review of an unpublished per curiam court of appeals decision; affirmed 2016 WI 10; case activity (including briefs)

Issue (composed by On Point)

Was a warrantless blood draw of a person suspected of having ingested heroin justified because, at the time of the search, State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), held that the dissipation of alcohol constituted a per se exigency that allowed a warrantless search, and police could reasonably extend Bohling‘s holding to a search for any drug?