On Point blog, page 2 of 6
SCOTUS says shooting can be Fourth Amendment seizure
Torres v. Madrid, USSC No. 19-292, 2021 WL 1132514, 3/25/21, reversing 769 Fed. Appx. 654 (10th Cir. 2019); Scotusblog page (including links to briefs and commentary)
Fans of dueling citations to ancient cases will want to savor the entirety of the majority and the somewhat heated dissent in this case; the serjeants-at-mace shew their mace at one point. Everybody else just needs to know this: a police officer who applies physical force to the body of a person seizes that person if the objective circumstances show an intent to restrain. This seizure occurs during the application of that force even if the intended restraint doesn’t succeed; that is, if the person gets away. And that force can be communicated by means of a projectile, like a bullet.
Defense win: Police seized driver by restricting movement of his parked car, employing take down lights
State v. Shondrell R. Evans, 2020AP286-CR, District 4, 1/28/21 (not recommended for publication); case activity (including briefs)
Evans was seized under the Fourth Amendment when two police officers parked their marked squad cars in a way that restricted—though didn’t totally obstruct—his ability to drive away, shined their headlights and spotlights on his car, and exited their squad cars and approached Evans’s car. Because the police lacked reasonable suspicion to detain Evans, the resulting search of his car was unlawful.
Citizens’ tip and officer’s observations provided reasonable suspicion for OWI stop
State v. Kelly C. Richardson, 2019AP1650-CR, District 2, 3/11/20, (1-judge opinion, ineligible for publication); case activity (including briefs)
Police received a tip that Richardson appeared to be drunk while at a bank at 11:30 a.m. She left and drove to a Wal-Mart to shop. As she returned to her car, a sergeant approached and questioned her. He observed that she smelled of alcohol, slurred her speech, and had glassy eyes. He arrested her and she was charged with OWI 3rd and pleaded no contest.
Police encounter with defendant in store vestibule wasn’t a seizure
State v. William J. Smith, 2018AP320-CR, District 1, 12/11/18 (not recommended for publication); case activity (including briefs)
The encounter between police and Smith wasn’t a seizure, so the search of Smith wasn’t the fruit of an illegal seizure.
Defense win! Police lacked reasonable suspicion to stop male wearing dark clothing in a crime area
State v. Marquis Lakeith Pendelton, 2017AP2081-CR, 6/19/18, District 1, (1-judge opinion; ineligible for publication); case activity (including briefs)
A caller reported to police that 2 suspicious males had been looking into cars parked in a church lot at 1:30 a.m, at 68th and Silver Spring in Milwaukee and had just run away. An officer thought that the dispatcher said that one of the males was Black and wearing a dark hoodie.
Defense win on “reasonable suspicion” sticks on appeal!
State v. Marque D. Cummings, 2017AP1587-CR, District 1, 4/3/18 (1-judge opinion, ineligible for publication); case activity (including briefs)
This is another one of those cases where the police seized and searched a person for being normal in a high crime area. “But OMG he was wearing a backpack–it might have contained drugs or burglary tools!!!” We are pleased to report that calmer minds prevailed both in the circuit court and the court of appeals.
The statutes authorize fines for 7th and greater OWI offenses
State v. Michel L. Wortman, 2017 WI App 61; case activity (including briefs)
A glitch in the OWI penalty statute appears to suggest that OWI 7th and greater offenses don’t allow for a fine, but only for the imposition of the forfeiture provided for first-offense OWI. The court of appeals concludes otherwise. The court also rejects Wortman’s claim that he was under arrest when a sheriff’s deputy transported him back to the scene of the accident he was in.
Court of appeals affirms “Badger stop;” defendant was free to leave despite questions and armed back-up officer
State v. Michael A. Johnson, 2017AP331-CR, District 2, 8/23/17 (1-judge opinion, ineligible for publication); case activity (including briefs)
Officer Baldwin stopped Johnson for failing to dim his headlights, then cited him for that and failing to provide proof of insurance for the car he was driving (his mom’s). Baldwin told Johnson that he was free to go, so Johnson started to walk away. Baldwin asked “do you have drugs, weapons or alcohol in the car?” Johnson replied “no.” Baldwin asked if he could search the car. Johnson replied that the car did not belong to him.
Challenges to seizure, arrest, refusal finding rejected
Washington County v. Daniel L. Schmidt, 2016AP908, District 2, 11/30/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Schmidt makes a three-pronged attack on the revocation of his driving privileges for refusing a chemical test, arguing he was seized without reasonable suspicion, arrested without probable cause, and did not improperly refuse a test. The court of appeals rejects each claim.
Defense win! Innocuous behavior in high-crime area does not amount to reasonable suspicion
State v. Samuel K. Dixon, 2015AP2307-CR. 10/6/16; District 1 (per curiam; uncitable); case activity (including briefs)
You may not cite this per curiam opinion as precedent in any Wisconsin court, but happily you can bask in Dixon’s victory. The court of appeals wisely held that his 5-minute, friendly conversation with a “thicker black female” at 6:00 a.m. on 29th and Lisbon in Milwaukee did not constitute reasonable suspicion of prostitution-related activity.