On Point: 35. Search & Seizure

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State v. Luis M. Rocha-Mayo, 2014 WI 57, affirming an unpublished court of appeals decision; 7/11/14; majority opinion by Justice Crooks; case activity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

Riley v. California, USSC No. 13-132 (together with United States v. Wurie, USSC No. 13-212), 2014 WL 2864483 (June 25, 2014), reversing People v. Riley, No. D059840 (Cal. App. 4th Dist. 2013) (unpublished) (and affirming United States v. Wurie, 728 F.3d 1 (1st Cir. 2013)); Scotusblog case page (which includes links to briefs and commentary) and symposium page (additional opinion commentary)

Aaron v. Ols v. City of Milwaukee, 2013AP1882, District 1, 6/24/14 (not recommended for publication); case activity

Ols is entitled to the return of his firearm under § 968.20 because there is insufficient evidence that Ols used the firearm in the commission of a crime.

State v. Dale F. Wendt, 2014AP174, District 2, 6/18/14 (1-judge; ineligible for publication); case activity

The information known to the deputy at the time he requested Wendt to take a blood test provided probable cause to believe Wendt had driven his vehicle while intoxicated earlier that evening, despite the deputy’s lack of information as to whether Wendt drank during the time that lapsed between his driving and his contact with the deputy.

State v. Cordarol M. Kirby, 2014 WI App 74; case activity

The court of appeals holds that “while exigent circumstances may justify entry, the fact that entry has already been made does not necessarily invalidate reliance on the exigent circumstances doctrine.” (¶22). Thus, because in this case there were exigent circumstances justifying police entry into an apartment to locate a backpack the police believed contained firearms, it “does not matter” that an officer had earlier stepped over the threshold of the apartment door to converse with people inside.