On Point blog, page 27 of 61
SCOW, reversing itself, holds that officer’s traffic stop can be based on mistake of law
State v. Richard E. Houghton, 2015 WI 79, 7/14/14, reversing an unpublished court of appeals opinion, 2013AP1581-CR; majority by Prosser, dissent by Abrahamson (joined by Bradley); case activity (including briefs)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.
SCOW: Extension of stop illegal, but seizure upheld based on consent given 16 seconds later
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.
Multiple challenges to OAR conviction rejected
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).
Officer’s mistake of fact about car’s make and model didn’t invalidate stop
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.
Transcript of municipal court hearing doesn’t provide evidence supporting stop or refusal
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: Persona Non Grata in SCOW?
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 “
Traffic stop justified because officer saw driver drinking out of a brown bottle
State v. Timothy J. Relyea, 2014AP2860-CR, District 4, 6/18/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Put down that Sprecher® Root Beer if you’re behind the wheel! It could get you pulled over by a sharp-eyed cop who is knowledgable about the bottling practices of the beverage industry.
Officer’s “request” that person come over and talk wasn’t a seizure
State v. Juan Francisco Rosas Vivar, 2014AP2199-CR, District 4, 5/14/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Vivar wasn’t seized for Fourth Amendment purposes when an officer “called out” to Vivar in as he walked across a parking lot, saying “Juan, can you come talk to me?”
SCOW: Moving suspect 10 miles to hospital exceeded permissible scope of investigative stop; but detention lawful because there was probable cause to arrest and community caretaker doctrine applied
State v. Dean M. Blatterman, 2015 WI 46, 5/5/15, reversing an unpublished court of appeals decision; opinion by Chief Justice Roggensack; case activity (including briefs)
Though police moved Blatterman beyond the “vicinity” of the traffic stop and therefore exceeded the permissible scope of the stop, the detention of Blatterman was nonetheless reasonable because police had probable cause to arrest him for OWI and, in the alternative, the detention was justified under the community caretaker doctrine.
Discrepancy between officer’s testimony and written report doesn’t mean factual findings were clearly erroneous
State v. Andrew J. Joda, 2014AP1949 & 2014AP1950, District 2, 5/6/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Given the trial court’s conclusion that Deputy Becker’s testimony was more credible than Joda’s testimony, the court factual findings are not clearly erroneous just because there was a discrepancy between Becker’s testimony and his written report and Becker was unable to remember exactly where he was when he saw Joda make an illegal u-turn.