On Point: 35. Search & Seizure

State v. Lester C. Gilmore, 2013AP2186-CR, District 2, 7/30/14 (not recommended for publication); case activity

Trial counsel wasn’t ineffective for failing to call a witness at a Franks v. Delaware, 438 U.S. 154 (1978), hearing because counsel was concerned the witness was unpredictable and might undermine his argument and because he was instead able to rely on the witness’s written statement to the police, which itself showed the discrepancy between the witness’s statement and the information in the search warrant affidavit.

State v. Jesse N. Schwartz, 2013AP1868-CR, District 2, 7/30/14 (not recommended for publication); case activity

The community caretaker exception to the Fourth Amendment’s warrant requirement didn’t justify the search of Schwartz’s home because police did not have a reasonable basis to believe another individual was in the home at the time of the search.

State v. Bobby L. Tate, 2014 WI 89, 7/24/14, affirming an unpublished court of appeals decision; majority opinion by Justice Roggensack; case activity

State v. Nicolas Subdiaz-Osorio, 2014 WI 87, 7/24/14, affirming an unpublished per curiam court of appeals decision; lead opinion by Justice Prosser; case activity

In two decisions consisting of 8 separate opinions spread out across almost 200 pages, the supreme court is unable to muster a majority on the central issue presented: Whether cell phone location tracking is a search under the Fourth Amendment. Instead, in both cases a majority assumes without deciding that cell phone tracking is a search and then affirms the convictions, although on different grounds. If you’re looking only for the holdings, here they are: In Tate, a majority holds that the circuit court’s “order” that a cell phone service provide information about the cell phone location was reasonable because it met the requirements for a search warrant. In Subdiaz-Osorio, a majority holds that the warrantless acquisition of the cell phone location data was supported by probable cause and exigent circumstances. If you’re looking for more information, read on.

County of Grant v. Daniel A. Vogt, 2014 WI 76, 7/18/14, reversing an unpublished court of appeals decision; majority opinion by Justice Prosser; case activity

“Although we acknowledge that this is a close case, we conclude that a law enforcement officer’s knock on a car window does not by itself constitute a show of authority sufficient to give rise to the belief in a reasonable person that the person is not free to leave.” (¶3).

State v. Antonio D. Brown, 2014 WI 69, 7/16/14, affirming a published court of appeals decision; majority opinion by Justice Bradley; case activity

Another defense victory!  Police stopped  Brown’s car due to an alleged violation of §347.13(1), which prohibits the operation of a vehicle at night unless its tail lamps are in “good working order.”  In a 4-3 decision, the majority holds that the police here misunderstood the statute, so the stop was illegal.  Furthermore, a stop based upon an officer’s mistake of law, is unlawful, and the results of the ensuing search must be suppressed. Justice Prosser, dissenting, predicts the majority’s interpretation will be “a bonanza for litigants seeking to challenge motor vehicle stops.” ¶79.

State v. Penny S. Rosendahl, 2014AP349-CR, District 2 (1-judge opinion, inelgible for publication); case activity

¶8        When the evidence includes disputed testimony from the arresting officer and a video showing events leading up to the arrest, the circuit court’s findings of fact are subject to review under the clearly erroneous standard.  State v. Walli, 2011 WI App 86, ¶14, 334 Wis. 2d 402, 799 N.W.2d 898.  Here, the deputy’s testimony was that Rosendahl’s vehicle weaved within its lane and crossed the center line.  The circuit court found that the video showed that Rosendahl’s vehicle touched the center line on three occasions.  We have reviewed the record and conclude that the circuit court’s finding was not clearly erroneous.

State v. Luis M. Rocha-Mayo, 2014 WI 57, affirming an unpublished court of appeals decision; 7/11/14; majority opinion by Justice Crooks; case activity

Why tackle thorny legal issues surrounding Wis. Stat. §343.303’s prohibition against the use of PBTs at OWI trials when you can decide the case on harmless error grounds?  In this case, the PBT was ordered and administered by ER staff, not law enforcement. SCOW gets to pick and choose its cases. So when it grants review, the parties, their lawyers, the lower courts, and the bar hope the court will decide the legal issues, not re-review the evidence presented to the jury.  This fractured decision deserves a close look in order to understand what has and has not been decided about the use of PBTs in OWI trials.

State v. Derik J. Wantland, 2014 WI 58, 7/11/14, affirming a published court of appeals decision; majority opinion by Justice Ziegler; case activity

A four-justice majority of the supreme court holds that a police officer lawfully searched a briefcase found in a vehicle during a traffic stop because the driver consented to a search of the car and the passenger did not unequivocally withdraw the consent given by the driver. Three dissenting judges take a very different view, concluding that under the totality of the circumstances, a reasonable officer should have realized that Wantland was withdrawing consent to a search of the briefcase.

City of Antigo v. M.K., 2013AP2627, District 3, 7/8/14 (1-judge; ineligible for publication); case activity

The circuit court held there was reasonable suspicion to stop the vehicle M.K. was driving because the court found the officer knew the vehicle’s registration was expired before he made the stop. The court’s finding of fact was not clearly erroneous, even though the officer’s testimony was equivocal as to whether he learned that fact as part of the original dispatch or after he spotted the vehicle and called in the license plate.

State v. Andre Durand Reggs, 2013AP2367-CR, District 4, 7/3/14 (1-judge; ineligible for publication); case activity

Applying State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, the circuit court properly concluded that Reggs failed to make a prima facie showing that he did not knowingly, intelligently, and voluntarily waive the right to counsel for an earlier OWI conviction.