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  • August 04, 2021

    Search and Seizure: Fourth Amendment at the Wisconsin Supreme Court

    The state supreme court issued three 4-3 decisions in Fourth Amendment cases, providing insights on how the new court will approach these issues moving forward.

    Joe Forward

    police car lights

    This article was updated on Aug. 4, 2021

    Aug. 4, 2021 – The Wisconsin Supreme Court decided four Fourth Amendment cases in the 2020-21 term, three of them yielding eight opinions that highlight dividing lines on a supreme court that now includes four first-term justices and a new chief justice.

    Former Chief Justice Patience Roggensack passed the baton to Justice Annette Ziegler, elected by her peers in April as the next chief justice.

    Justice Jill Karofsky just completed her first year on the court, and Justices Rebecca Bradley (appointed in 2015, elected in 2016) Brian Hagedorn (appointed in 2015, elected in 2017), and Rebecca Dallet (elected in 2018) are all first-term justices.

    Justice Roggensack, in her second 10-year term, would be the next justice to face reelection in 2023, followed by third-term Justice Ann Walsh Bradley (2025).

    In short, the court has experienced considerable turnover since 2016, with the retirement of David Prosser (2016), the death of N. Patrick Crooks (2016), retirement of the late Shirley Abrahamson (2019), and Daniel Kelly’s election defeat (2020).

    This latest term provides insights on how the new court may approach Fourth Amendment issues moving forward, highlighting divisions on rationale. Below are brief summaries on how the court came down in the term’s four Fourth Amendment cases.

    State v. VanBeek, 2021 WI 51 (4-3) (June 4, 2021)

    On certification from the Wisconsin Court of Appeals, the question presented was “whether a consensual encounter becomes an unconstitutional seizure under the Fourth Amendment when an officer requests and takes an individual’s driver’s license to the officer’s squad car without reasonable suspicion.”

    Joe Forward Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    The defendant, Heather VanBeek, was convicted on drug-related charges after the circuit court denied her motion to suppress evidence. A majority ruled that, based on the totality of the circumstances, the police violated VanBeek’s Fourth Amendment rights.

    During a traffic stop, the officer took VanBeek’s driver’s license to run a records check. The majority ruled that doing so was a lawful seizure.

    But it was an unlawful seizure for the officer to withhold her license when he returned to her vehicle and continued asking her questions – while a K9 unit responded -- without reasonable suspicion that VanBeek was engaged in criminal activity.

    The majority reversed the conviction and remanded the case, directing the circuit court to grant the motion to suppress. Justice Roggensack wrote the majority opinion.

    Justice Dallet concurred, joined by Justices Ann Walsh Bradley and Jill Karofsky. They agreed with Justice Roggensack’s conclusion but said the unlawful seizure occurred earlier, when the officer took VanBeek’s driver’s license back to his squad car.

    Chief Justice Annette Ziegler dissented, joined by Justices Brian Hagedorn and Rebecca Bradley, concluding VanBeek was not unlawfully seized when the officer initially took her driver’s license and not unlawfully seized when he returned because she “was free to ask for her driver’s license back and end the interaction.”

    State v. Burch, 2021 WI 68 (4-3) (June 29, 2021)

    In this murder case, discussed at WisBar Court Review, the supreme court (4-3) upheld the trial court’s decision to allow incriminating cell phone data and (6-1) data from a Fitbit device that the murder victim’s boyfriend was wearing the night of the murder.

    The supreme court reviewed whether the trial court properly denied the defendant’s motion to suppress the data extracted from his cell phone. Burch, the defendant,​ argued that police exceeded the scope of his consent and unlawfully shared the cell phone data with another police agency – which helped detectives connect the dots -- without a warrant.

    The majority opinion said no case from this court or the federal courts has ever decided that a warrant is required for a "second search," but did not directly address whether a warrant is required for a "second search." Instead, the majority concluded that a "good faith" exception applied because there is no precedent on whether a warrant is required for a second search.

    Justice Hagedorn wrote the majority opinion, joined by Chief Justice Annette Ziegler and Justices Roggensack and R. Bradley.

    In a concurrence, Justice R. Bradley concluded that "a warrant should have been procured" for a second search, but agreed with the majority that a good faith exception applied because "neither this court nor the United States Supreme Court has decided this novel issue."

    Justice Dallet concurred in part and dissented in part, joined by Justice Karofsky and A.W. Bradley (in part). They agreed with the majority that Fitbit evidence was properly admitted (A.W. Bradley disagreed on this point).

    But they concluded that a “second search” of the defendant’s cell phone data by homicide investigators, without a warrant, violated his Fourth Amendment rights and the evidence should have been suppressed.​

    State v. Genous, 2021 WI 50 (4-3) (June 4, 2021)

    The question presented in this case was “whether a vehicle stop was supported by reasonable suspicion of drug activity.” The defendant, James Genous, was sitting in a parked but running vehicle on a residential street with the lights on.

    He then turned the lights off and a woman – a known drug user – exited the residence adjacent to where Genous was parked. She got in his car for 10-15 seconds, then went back in the house. Police officers, in an unmarked vehicle, watched these events unfold.

    Believing this was a drug transaction, police executed a traffic stop and discovered a handgun in the vehicle. Genous was charged with felon in possession of a firearm.

    The circuit court denied Genous’s motion to suppress, rejecting the argument that police lacked reasonable suspicion to stop him. The court of appeals reversed.

    But a supreme court majority (4-3) reversed the appeals court, concluding the under the totality of the circumstances, “a reasonable law enforcement officer knowing what Officer Stikl knew and seeing what he saw would reasonably suspect that the short-term contact he witnessed in Genous' car was a drug transaction.”

    Justice Hagedorn wrote the majority opinion, joined by Chief Justice Ziegler and Justices Roggensack and R. Bradley.

    Justice Dallet dissented, joined by Justices A.W. Bradley and Karofsky. They said the defendant’s presence in an allegedly high drug-trafficking area “played a disproportionate role in the court’s reasonable-suspicion analysis.”

    State v. Prado, 2021 WI 64 (June 18, 2021) (7-0)

    In this case, discussed in-depth in the July 7 issue of InsideTrack, all the justices agreed that the results of a blood test were admissible to prove a drunk driving charge, even though the defendant was unconscious when his blood was drawn.

    Importantly for OWI law in Wisconsin, five justices ruled that the incapacitated driver provision in Wisconsin’s implied consent law is unconstitutional. The incapacitated driver provision establishes that “a person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent” to a blood test.

    The supreme court has grappled with this issue for years and justices have been divided on whether the implied consent law, on its own, is sufficient to allow warrantless blood draws when drivers become unconscious and are suspected of drunk driving.

    Now, a majority has ruled that it is not sufficient on its own.

    However, five justices – Justices A.W. Bradley, R. Bradley, Hagedorn, Dallet, and Karofsky – ruled that a “good faith exception” applied since the law was unclear at the time of the incident. That is, the blood draw did not violate the Fourth Amendment.

    Justice Roggensack and Chief Justice Ziegler agreed with the majority’s outcome but not the rationale, concluding the majority did not follow the legal standard set out in the U.S. Supreme Court’s decision in Mitchell v. Wisconsin, an unconscious driver case.




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