On Point: B. Search warrants

Town of Mukwonago v. John J. Uttke, 2011AP2021, District 2, 1/18/12

court of appeals decision (1-judge, not for publication); for Uttke: Michael C. Witt; case activity

Uttke’s driver’s license was revoked for refusal to submit to a blood test upon OWI arrest, and he requested a “refusal hearing,” unsuccessfully challenging the existence of probable cause to arrest, § 343.305(9). The court of appeals affirms:

¶9        We first address whether Officer Heckman had probable cause to arrest Uttke.  

State v. Jason E. Goss, 2011 WI 104, affirming court of appeals summary order;  for Goss: Daniel J. Chapman; case activity

¶2   We are asked to determine whether the officer’s request for the PBT breath sample was made in violation of Wis. Stat. § 343.303, which states that an officer “may request” a PBT breath sample “[i]f a law enforcement officer has probable cause to believe that the person is violating or has violated s.

State v. William A. Grantham, 2010AP2693-CR, District 3, 12/13/11

court of appeals decision (not recommended for publication); for Grantham: Peter C. Rotter; case activity

Search warrant, for thermal imaging device use against residence, passes muster even if labeled “order.”

¶5        Grantham acknowledges that our supreme court has concluded, “An order meeting the parameters of a search warrant set out in [Wis. Stat. § 968.12(1)][2] is a statutorily authorized warrant,

State v. Damon Keith Sutton, 2012 WI App 7 (recommended for publication); for Sutton: Maayan Silver; case activity

Reasonable Suspicion – “Frisk,” of Vehicle

Reasonable suspicion supported “protective search” of Sutton’s van following routine traffic stop: While the officer ran a document check, Sutton remained in the van. The officer discerned “distinct rocking motions,” which the officer’s training and experience informed her represented “someone who may be trying to retrieve or conceal a weapon.”

State v. Gustavo E. Lopez, 2011AP1037-CR, District 2, 11/23/11

court of appeals decision (1-judge, not for publication); for Lopez: Walter Arthur Piel, Jr.; case activity

¶8        While the record reveals that Lopez is correct in stating that the court took video evidence from the roadside stop into consideration when making the finding of probable cause, we disagree that this was in any way not allowed. When determining the facts available to the officer to formulate probable cause,

State v. Herbert L. Hamilton, 2011AP1325-CR, District 4, 11/23/11

court of appeals decision (1-judge, not for publication); for Hamilton: Dixie Lippit; case activity

Although driver in single-car accident didn’t exhibit signs commonly associated with intoxication, the smell of alcohol on his breath coupled with his loss of control of the car provided probable cause to administer a preliminary breath test under § 343.303:

¶15      First,

State v. Gary F. Wieczorek, 2011AP1184-CR, District 3, 11/8/11

court of appeals decision (1-judge, not for publication); for Wieczorek: James R. Koby; case activity

Warrantless arrest of Wieczorek on his front porch for OWI, after he answered the officer’s knock was constitutional. The record doesn’t show that Wieczorek had a reasonable expectation of privacy in the porch. ¶¶10-11, distinguishing State v. Walker,

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.  

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,

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;