State v. Gary F. Lemberger, 2015AP1452-CR, 4/14/2016, District 4 (one-judge decision; ineligible for publication), petition for review granted 10/11/2016, affirmed, 2017 WI 39; case activity (including briefs) A breathalyzer test is a Fourth Amendment search, and state case law holds that the state may not invite a jury to view a defendant’s refusal to consent to a search… Read more
D. Search incident to arrest
United States v. Gregorio Paniagua-Garcia, 7th Circuit Court of Appeals No. 15-2540, 2/18/16 The stop of Paniagua-Garcia for texting while driving was unlawful because the officer had no basis for concluding Paniagua-Garcia was using his cellphone to send a text or email as opposed to using it in some way that isn’t prohibited. An Indiana… Read more
The Court granted certiorari and consolidated three cases presenting identical questions in different factual permutations: Question presented (Birchfield v. North Dakota); (Beylund v. Levi); (Bernard v. Minnesota): Whether, in the absence of a warrant, a State may make it a crime for a person to refuse to take a chemical test to detect the presence of… Read more
In Heien v. North Carolina, SCOTUS held that an officer’s “reasonable” mistake of law can give rise to the reasonable suspicion needed to justify a traffic. And SCOW followed suit in State v. Houghton. If you are researching this issue, you might want to take a look at this new case note in Harvard Law… Read more
City of Mequon v. Luke J. Chiarelli, 2015AP359, District 2, 10/14/15 (one-judge decision; ineligible for publication); case activity (including briefs) There was reasonable suspicion to stop of Chiarell’s car based on two lane deviations during early morning hours and, based on observations the officer made after the stop, there was probable cause to arrest Chiarelli for OWI. At 2:51… Read more
State v. Daniel Tawan Smith, 2015AP291-CR, District 4, 9/17/15 (one-judge decision; ineligible for publication); case activity (including briefs) Police had probable cause to arrest Smith, who was seen driving away from his home just as police arrived to execute a search warrant to look for evidence that he was selling marijuana. ¶7 “There is… Read more
Winnebago County v. Kelli M. Kosmosky, 2015AP585, District 2, 8/5/15 (one-judge decision; ineligible for publication); case activity (including briefs) A reasonable officer would be led to believe there was more than a possibility Kosmosky had been operating a motor vehicle while intoxicated under the facts presented, even though he didn’t know exactly when she operated… Read more
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… Read more
