On Point blog, page 11 of 19

Probable Cause – Seat Belt Violation

State v. Steven C. Cushman, 2011AP957, District 4, 10/20/11

court of appeals decision (1-judge, not for publication); for Cushman: John Smerlinksi; case activity

Probable cause to believe Cushman wasn’t wearing seat belt supported stop of his vehicle.

¶8        Wisconsin Stat. § 347.48 (2m)(gm) mandates seat belt use when operating a motor vehicle equipped with seat belts.[3]  In 2009, this statute was amended to remove language that had previously prohibited a law enforcement officer from stopping a vehicle based solely on the failure to wear a seat belt.  

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Ineffective Assistance of Counsel: Failure to Challenge Invalid DNA Search Warrant – Lack of Prejudice; Right to Present Defense: DNA Evidence

State v. Omark D. Ward, 2011 WI App 151 (recommended for publication); for Ward: Mary Scholle, SPD, Milwaukee Appellate; case activity

Ineffective Assistance of Counsel – DNA Search Warrant 

Court commissioner’s order that Ward provide DNA sample violated “oath or affirmation” requirement for warrants:

¶10      Unless a person consents to giving a sample of his or her DNA, or there are exigent circumstances, or there are other exceptions that are not material here,

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Probable Cause – Seizure of Personal Property

State v. Wilson J. Behling, 2011AP483-CR, District 3, 10/18/11

court of appeals decision (1-judge, not for publication); for Behling: John M. Carroll; case activity

Probable cause that Behling’s backpack contained contraband supported its seizure so that a warrant could be obtained and the item searched:

¶28      We conclude Hoffman had probable cause to believe Behling’s backpack contained contraband or evidence of a crime.  Here, Hoffman’s seizure was based on the following facts: (1) Behling entered a county park where drug activity has occurred;

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State v. Little A. Stewart, 2011 WI App 152

court of appeals decision (recommended for publication); for Little: Jeffrey W. Jensen; case activity

Probable Cause to Arrest 

¶14      In Stewart’s case, the pertinent facts are:

•           On March 10, 2009, a reliable confidential informant told Agent Gray that one of the people who had been arrested with Alderman McGee was going to be bringing cocaine to Milwaukee.  After Gray obtained the names and photographs of individuals who had been arrested in Alderman McGee’s case and showed them to the informant,

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Search Incident to Arrest – Automobile, Probable Cause to Search

State v. Cindy R. Billips, 2009AP2493-CR, District 2, 10/5/11

court of appeals decision (1-judge, not for publication); for Billips: Timothy R. Muth, Amy Lynn MacArdy; case activity

Following OWI arrest supported by probable cause, the officer was authorized to search the vehicle for evidence relevant to the OWI arrest:

¶9        Here, it was reasonable for Kinservik to believe that further evidence related to Billips’ OWI arrest might be found in the vehicle.  

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Search Warrant – Probable Cause – Anonymous Informant

State v. Anastasia A. Lusty, 2010AP2827-CR, District 2, 9/21/11

court of appeals decision (not recommended for publication); for Lusty: Chandra N. Harvey, SPD, Madison Appellate; case activity

Independent police investigation sufficiently corroborated enough details of tips from anonymous informants to support probable cause for a search warrant.

¶9        We reject Lusty’s argument.  Based on our reading of the record, we are more than satisfied that the facts before the magistrate,

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Traffic Stop – Probable Cause – 911 Call

City of Sheboygan Falls v. John D. Prinsen, 2011AP700, District 2, 9/14/11

court of appeals decision (1-judge, not for publication); for Prinsen: Kirk B. Obear, Casey J. Hoff; case activity

Probable cause supported stop for driving wrong way on highway, based on information provided ion a 911 call; State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516, applied:

¶11      The Rutzinski standard is met in this case.  

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State v. Douglas M. Williams, 2010AP1551-CR, review granted 8/31/11

on review of court of appeals certification request; for Williams:  Jonas B. Bednarek; case activity

Search Warrants – Issuance by Commissioner

Issue (Composed by On Point):

Whether § 757.69(1)(b) confers on court commissioner authority to issue search warrants, or whether Wis. Const. art. VII, § 2 reserves such power to judges.

See prior post, here, for further discussion.

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Search Warrant: Execution Reasonableness – Inevitable Discovery; Evidence: Denny (Third-Party Liability); Juror: Removal, During Deliberations – Substitution of Alternate, After Deliberations Commence

State v. Steven A. Avery, 2011 WI App 124 (recommended for publication); for Avery: Martha K. Askins, Suzanne L. Hagopian, SPD, Madison Appellate; case activity

Search Warrant – Execution – Reasonableness 

Warrant-based search of Avery’s property was a reasonable continuation of the original search 3 days earlier.

General statement:

¶18      Generally, searches are subject to the “one warrant, one search” rule.  

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Reasonable Suspicion / Probable Cause – OWI – Collective Knowledge Doctrine

State v. Bridgette M. Glaze, 2010AP3128-CR, District 2, 8/24/11

court of appeals decision (1-judge, not for publication); for Glaze: John C. Orth; case activity

Although Glaze’s stop by one officer investigating possible domestic violence was likely unsupported (¶9), the stop was adequately supported by an alternative basis: observations of a second, off-duty officer which, under the “collective knowledge” doctrine were imputed to the first officer and supplied reasonable suspicion that Glaze was driving while intoxicated.

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