On Point: 2. Probable cause

State v. Nicholas Anthony Stilwell, 2022AP1839, 7/20/23, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

This case has facts remarkably like those of State v. Cundy, a recommended-for-publication case the court of appeals decided the week before. Police received a report of a hit-and-run of a parked vehicle, and learned the truck that did the hitting and running was registered to Stilwell. They went to Stilwell’s apartment and found the truck parked nearby. They buzzed Stilwell and he answered the door. They eventually entered the apartment and determined, including by the use of a PBT, that Stilwell was intoxicated, though he denied having driven his truck. They cuffed him, told him he was being “detained,” and took him to the crash scene, where after about 30 minutes they secured other evidence that Stilwell had driven his truck; they thus arrested him.

State v. Brooke K. Eder, 2021AP485, 2/28/23, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Officers got a warrant to arrest one Estes. The warrant permitted them to search Eder’s apartment for Estes; the affidavit gave various reasons to believe that Estes would be there. Estes was there, and they arrested him. After they arrested him, though, they searched the basement of the three-unit building. You can’t do that! “A search may not be continued after the objects identified in the search warrant have been located and seized.” State v. Starke, 81 Wis. 2d 399, 414, 260 N.W.2d 739 (1978). This unlawful search turned up contraband that led police to get a new warrant to search Eder’s apartment; Eder seeks to suppress the evidence found in this second search on the ground that it was the fruit of the basement search.

State v. Randaro V. Jones, 2020AP1046, District 1 (one-judge decision; ineligible for publication) 9/7/22, case activity (including briefs)

This is not an OWI case; rather, it’s an appeal from a conviction of recklessly endangering safety by using a firearm while intoxicated. But the blood test that led to this charge came as a result of an arrest for OWI-first, so the issue is whether there was probable cause for that arrest.

State v. Valiant M. Green, 2022 WI 41, affirming a court of appeals summary disposition, 2019AP2150-CR, case activity (including briefs)

Does an affidavit supporting a warrant for a blood draw state probable cause where it alleges that the defendant “drove or operated a motor vehicle at driveway of [residential address]” and that the defendant “admitted to drinking alcohol at the house?” Writing for the majority, Justice Hagedorn answers “yes.”  Justice A. W. Bradley, the sole dissenter, says “no.”

City of Waukesha v. Brian John Zimmer, 2012AP530-531, 3/23/22, District 2; case activity (including briefs)

The circuit court suppressed the results of Zimmer’s preliminary breath test because Officer Moss demanded, rather than asked, Zimmer to submit to a PBT, contrary to §343.303. It also dismissed Zimmer’s OWI citations. The court of appeals reversed because Moss had probable cause arrest even before he administered the PBT and because the circuit allowed its dislike of the PBT to cloud its judgment.

Orin Kerr at Volokh Conspiracy has posted an essay on a recent federal district court decision regarding the legality of so-called “geofence” warrants, which involve law enforcement getting access to Google’s cell phone location data and using the data to advance a criminal investigation. Google apparently imposes its own sort of “warrant” requirement, and the basic questions in the case, United States v. Chatrie, involve whether the request for the data is a Fourth Amendment search at all,

State v. Valiant M. Green, 2019AP2150, petition for review of a summary order of the court of appeals granted 9/14/21; case activity (including briefs)

Issue presented (from the petition):

Did the affidavit in support of that search warrant fail to state probable cause to believe that Mr. Green had committed a crime and thus require suppression of the blood test result?

State v. Brian A. Plencner, 2019AP517-CR, District 2, 10/28/20 (not recommended for publication); case activity (including briefs)

The court of appeals holds trial attorney was not ineffective for failing to seek suppression of evidence found on Plencner’s computer equipment based on the delay in analyzing the equipment.

State v. Synika Antonio Kirk, 2019AP175, 9/22/20, District 3 (not recommended for publication); case activity (including briefs)

You know, those semis that carry like 6 or 10 cars. Kirk owned a 1989 Jaguar that was riding on such a vehicle along with several other cars. A Kansas trooper pulled the truck over and asked to inspect the driver’s paperwork. The trooper would testify that the driver’s logbook had an entry he found strange: a two-day stay in Reno, Nevada after the truck was loaded–a stop the trooper called “not normal.” He also didn’t buy the driver’s explanation that he had spent those two days trying to find tires for his truck.

State v. Samuel L. Nichols, Jr., 2019AP802-CR, District 4, 7/16/20 (not recommended for publication); case activity (including briefs)

Nichols was charged with capturing images of nudity without consent and sexual assault. He argues the police didn’t have probable cause to seize his cell phone and therefore the images they found on it must be suppressed. He also asserts other-acts evidence was erroneously admitted at his trial. The court of appeals rejects both claims.