On Point: G. Reasonable suspicion

Columbia County v. Jessica N. Johnson, 2015AP332, District 4, 8/27/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The arresting officer had reasonable suspicion to extend Johnson’s detention and ask her to do field sobriety tests based on additional information he gleaned after the initial contact with Johnson. State v. Betow, 226 Wis. 2d 90, 93-95, 593 N.W.2d 499 (Ct. App. 1999), applied.

Village of Fredonia v. Bruce A. Gossett, 2015AP298, District 2, 8/12/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Police need probable cause to believe the driver is operating while intoxicated before they can request a PBT from the driver of a noncommercial vehicle; but for a commercial driver, they can request a PBT if they detect “any presence” of alcohol or have “reason to believe” the driver is operating with an alcohol concentration above zero, § 343.303, and State v. Goss, 2011 WI 104, ¶12, 338 Wis. 2d 72, 806 N.W.2d 918. The “reason to believe” standard was satisfied in this case, so police properly asked Gossett—the driver of a semi tractor-trailer—for a PBT.

State v. Kim M. Lerdahl, 2014AP2119-CR, District 3, 8/4/15 (one-judge decision; ineligible for publication); case activity (including briefs)

In an interesting decision that sheds some light on how to apply the newly-adopted “reasonable mistake of law” doctrine to traffic stops, State v. Houghton, 2015 WI 79, ___ Wis. 2d ___, ___ N.W.2d ___,  the court of appeals holds that it a police officer’s mistaken belief that the truck she stopped was required to have a center high-mount stop (or brake) lamp (CHMSL) was not a reasonable mistake of law and, therefore, the stop was unlawful.

State v. Tammy R. Fullmer, 2015AP640-CR, District 4, 7/30/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Trial counsel was deficient for failing to effectively impeach the officer’s testimony that Fullmer failed to stop in front of a stop line because the intersection in question didn’t have a stop line; however, there were multiple other observations the officer made that justified the traffic stop even in the absence of the stop line violation (e.g., extremely slow driving, driving down the middle of a two lane road, weaving in her lane), so Fullmer wasn’t prejudiced. (¶¶4-7, 11, 14).

State v. Richard E. Houghton, 2015 WI 79, 7/14/14, reversing an unpublished court of appeals opinion, 2013AP1581-CR; majority by Prosser, dissent by Abrahamson (joined by Bradley); case activity (including briefs)

You’ve seen this before. An officer makes a traffic stop based on a “misunderstanding” of the law, then conducts a search and finds incriminating evidence.  Last July, in State v. Antonio Brown, SCOW held that a seizure based on such a mistake violates the 4th Amendment. Six months later, SCOTUS reached the opposite result in Heien v. North Carolina. In this case, SCOW overturns Brown to hold that: (1) “pretextual stops . . . are not per se unreasonable under the 4th Amendment”; (2) probable cause is never required for a traffic stop; (3) the officer here “misunderstood” multiple provisions of Ch. 346, but his mistakes were “objectively reasonable”; and (4) Article I §11 of Wisconsin’s Constitution extends no further than the 4th Amendment. Slip op. ¶¶ 4, 5, 6, 50.

State v. Patrick Hogan, 2015 WI 76, 7/10/2015, affirming a court of appeals per curiam decision, 2013AP430-CR, majority opinion by Prosser; concurrence by Ziegler, dissent by Bradley (joined by Abrahamson); case activity (including briefs)

Sixteen seconds. It takes longer than that just to find your keys, get into your car, buckle up and start your engine. Keep that in mind as you read on. SCOW found that a traffic stop (due to a seatbelt violation) was unconstitutionally extended to perform field sobriety tests, but then upheld the subsequent vehicle search based on consent given 16 seconds after law enforcement told Hogan he was “free to leave.” SCOW saw no need to perform an attenuation analysis.

State v. Robert C. Blankenheim, 2015AP239-CR, District 2, 7/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Blankenheim’s challenges his OAR conviction by arguing that he was unlawfully stopped, that the evidence wasn’t sufficient to prove operation on a highway, and that the police officer wasn’t a credible witness. The court of appeals disagrees “on all points….” (¶1).

State v. Nathan Lewis Teasdale, 2015AP338-CR, District 4, 6/25/15 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer reasonably suspected that Teasdale was violating § 341.61(2), which prohibits displaying on a registration plates that are not issued for that vehicle, even though the officer was mistaken in believing that the make and model of the car was different from the make and model of the car for which the plates were issued.

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.

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 “