On Point: 35. Search & Seizure

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?

On June 9th, Professor Jeff Fisher from Stanford’s Supreme Court Litigation Clinic led a day-long workshop for the State Public Defender’s Appellate Division at the law firm of Reinhart Boerner Van Deuren s.c. The workshop focused on strategies for obtaining and opposing review by the United States Supreme Court.  Fisher clerked for Justice Stevens and has argued 27 cases to SCOTUS, including Crawford v. Washington,  Melendez-Diaz v.

Question presented:

Whether the pretrial restraint of a criminal defendant’s legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.

State v. Jeffrey F. Smart, 2014AP2604, District 2, 5/27/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The warrantless entry into Smart’s hotel room was supported by probable cause and justified by exigent circumstances because there was an objective basis to believe there was a risk to the safety of Smart’s children.