On Point: 35. Search & Seizure

Review of an unpublished court of appeals decision; case activity

Issues (composed from the State’s Petition for Review)

Did the police have probable cause to arrest Dean Blatterman for operating with a prohibited alcohol concentration, where police were aware Blatterman had three prior OWI convictions, and thus had a .02 PAC threshold?

Did the police have a legitimate community caretaker concern when they transported Blatterman ten miles from the site of the traffic stop to a hospital?

City of Tomah v. Steven Seward, 2014AP735, District 4, 9/25/14 (1-judge; ineligible for publication); case activity

Applying State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, the court of appeals holds there was reasonable suspicion to stop Seward based on a police officer’s observations of his weaving within his lane of travel for about one mile at 11:34 p.m.

State v. Julie A. Bilquist, 2014AP426-CR, District 3, 9/23/14 (1-judge; ineligible for publication); case activity

The totality of the circumstances justified extending Bilquist’s detention to investigate whether she was driving while intoxicated despite the lack of indicia—e.g., odor of an intoxicant; glossy, bloodshot eyes; slurred speech—suggesting she had consumed an intoxicant.

State v. Walter J. Kugler, 2014AP220, District 2, 9/17/14 (one-judge opinion, ineligible for publication); case activity

Kugler challenged his first OWI conviction by arguing that the state trooper who stopped him did not have the requisite probable cause and improperly requested, as a community caretaker, that he submit to a PBT (which he refused). The court of appeals reframed the issue as whether the trooper had reasonable suspicion of an OWI when he detained Kugler for field sobriety tests. You can guess the result. The court of appeals also rushed ahead to decide a McNeely issue that the Wisconsin Supreme Court is literally poised to decide.

State v. Andrew J. Kuster, 2014AP109-CR, District 2, 9/17/14 (one-judge opinion, ineligible for publication); case activity

This seemingly run-of-the-mill OWI appeal has an interesting little wrinkle.  The police conducted a warrantless blood draw on Kuster before SCOTUS decided Missouri v. McNeely, 569 U.S.__, 133 S.Ct. 1552 (2013), but they didn’t have the blood tested until after the  decision came out.  This sequence of events did not trouble the court of appeals because it views the seizure and subsequent analysis of a person’s blood as a single event.

State v. Thomas J. Anker, 2014 WI App 107; case activity

If a conservation warden shouted “you’re under arrest,” ordered you to stop walking, forcibly handcuffed you, and restrained you in his car until he could turn you over to investigating authorities, would you think you were under arrest or simply “temporarily detained”? The State, with a straight face, claimed these facts showed a Terry stop. The court of appeals, with a stern tone, rebuked the State and sharply criticized its brief.

State v. Elisa Estrada, 2013AP2803-CR, District 2, (not recommended for publication); case activity

Estrada did not challenge the legality of the law enforcement’s decision to stop her vehicle for a traffic violation.  Her appeal focused on the decision to extend the stop longer than necessary to address a suspended registration in order to investigate a robbery that had occurred about 50 minutes earlier.  She highlighted weaknesses in the facts cited to show reasonable suspicion, but the court of appeals found them plenty strong enough.

State v. Travis Daniel Thom, 2014AP613-CR, District 3, 9/9/14 (1-judge; ineligible for publication); case activity

A police officer reasonably assumed a car was being driven by the owner where there was no additional information suggesting someone else was driving.

State v. Alpesh D. Shah, 13AP2755, District 1, 9/9/14 (1-judge; ineligible for publication); case activity

Police officers’ observations of Shah and his driving supplied probable cause to arrest Shah for operating with a detectable amount of a restricted controlled substance in his or her blood.

State v. Chase A.T., 2014AP260, District 4, 9/4/14 (1-judge; ineligible for publication); case activity

A student’s tip to an assistant principal that a bathroom “smelled like marijuana smoke” and that a student named Chase walked out of the bathroom immediately before the tipster smelled the smoke provided reasonable grounds for the assistant principal to search Chase. In addition, the search of Chase was not excessive in scope. Thus, his motion to suppress was properly denied.