On Point: 35. Search & Seizure

decision below: certification; for St. Martin: Michael K. Gould, SPD, Milwaukee Appellate; court of appeals briefs: Resp.; Reply

Issue (from Table of Cases):

Whether the rule regarding consent to search a shared dwelling in Georgia v. Randolph, 547 U.S. 103 (2006), which states that a warrantless search cannot be justified when a physically present resident expressly refuses consent,

State v. Michael A. Barahona, 2010AP1324, District 4, 10/21/10

court of appeals decision (1-judge, not for publication); for Barahona: Walter A. Piel, Jr.; BiC; Resp.; Reply

¶14      The undisputed facts as disclosed from the record reveal the following:  (1) Marks observed Barahona’s vehicle driving in the wrong direction in the eastbound lane of Campus Drive; (2) Marks observed Barahona’s vehicle cross the dotted line dividing two lanes of traffic by approximately one foot and drive over that line for approximately one block when he was pulled over by Marks;

State v. Joseph F. Brown, 2010AP832-CR, District 4, 10/14/10

court of appeals decision (1-judge, not for publication); for Brown: Adam Walsh; BiC; Resp.

It violates § 347.12(1)(a) to flash high-beam headlights within 500 feet of an oncoming vehicle if the latter’s high-beams are not themselves lit. Because Brown flashed his high-beams within 500 feet of an officer’s oncoming vehicle and, according to the trial court’s findings,

State v. Dennis Butler, 2010AP864-CR, District 2, 10/13/10 

court of appeals decision (1-judge, not for publication); for Butler: Kathleen A. Lindgren; BiC; Resp.

Frisk upheld, where initial contact came within community caretaker function, and Butler then gave cause to believe he was armed and dangerous.

¶13      We hold that Pergande properly exercised his community caretaker function during his entire encounter with Butler.  

Consolidated cases:

Camreta

Docket

Decision Below (9th Cir)

Question Presented (from SCOTUSblog):

Whether the Fourth Amendment requires a warrant, a court order, parental consent, or exigent circumstances before law enforcement and child welfare officials may conduct a temporary seizure and interview at a public school of a child whom they reasonably suspect was being sexually abused.

court of appeals decision (recommended for publication); for Batt: Chad A. Lanning; BiC; Resp.; Reply

OWI – Implied Consent Law – § 343.305(5)(a) Testing

Construing State v. Stary, 187 Wis. 2d 266, 522 N.W.2d 32 (Ct. App. 1994), the court concludes that the Implied Consent law affords the driver the right to choose testing administered by the law enforcement agency at no expense to the driver,

City of Kenosha v. Elizabeth R. Tower, 2009AP1957, District 2, 10/6/10  

court of appeals decision (1-judge, not for publication); for Tower: Michael F. Torphy; BiC; Resp.; Reply

Because the police knew Tower was merely stopped temporarily for the purpose of dropping of a passenger – an explicit statutory exception to illegal parking – they didn’t have reasonable suspicion to temporarily seize her for illegal parking:

¶10 The City argues that like the officers in Renz,

State v. Javier Galvin, 2010AP863-CR, District 2, 10/6/10

court of appeals decision (1-judge, not for publication); for Galvin: John S. Schiro, Keith Llanas; BiC; Resp.

Galvan, who had minimal ability to understand English, didn’t understand the implied consent warnings given to him in English. Because the arresting officer knew of Galvan’s limitation, and had indeed obtained the translation services of another officer at the time of arrest,

State v. Jason L. Sedahl, 2010AP1097-CR, District 3, 10/5/10

court of appeals decision (1-judge, not for publication); for Sedahl: William A. Schembera; BiC; Resp.

The trial court erred in dismissing a pending charge on the theory that the charge (OWI) resulted from police failure to perform their community caretaker function (preventing him from driving):

¶12      …  No Wisconsin case holds that the doctrine places an affirmative duty on police to intercede and take a person into preventative detention prior to the commission of a crime. 

Docket

Decision below (KY supreme court)

Question Presented (from USSC docket post):

Police officers entered an apartment building in hot pursuit of a person who sold crack cocaine to an undercover informant. They heard a door slam, but were not certain which of two apartments the trafficker fled into. A strong odor of marijuana emanated from one of the doors, which prompted the officers to believe the trafficker had fled into that apartment.