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  • WisBar News
    December 03, 2013

    Supreme Court Accepts Five New Cases, Will Hear Fourth Amendment Issues 

    Dec. 3, 2013 – The Wisconsin Supreme Court recently added five cases to its docket, including two cases involving Fourth Amendment issues. The other three deal with disclosing criminal informants, property damage, and trucker’s insurance issues.

    In the first Fourth Amendment case, State v. Brown, the Wisconsin Supreme Court will examine the legality of a traffic stop that started as a possible defective tail light and led to charges of a felon in possession of a firearm against defendant Antonio Brown.

    Specifically, the court will determine whether a tail light that is 66 percent operational is in “proper working order,” making the police’s initial traffic stop unwarranted.

    Police stopped Brown’s car for faulty taillights in July 2010 and found a gun under the front seat. Ultimately, Brown was convicted of the charge after the circuit court denied his motion to suppress evidence obtained as a result of an illegal search.

    But a state appeals court reversed the conviction. The appeals court ruled that Wis. Stat section 347.13(1), which requires tails lights must be “in good working order,” does not require all of a vehicle’s tail lights to be lit. Most of Brown’s lights were working.

    A decision by the supreme court could clarify whether an officer’s observation of partially operating tail lamps on a vehicle provides probable cause to make a stop. The court may also consider whether the search itself was unconstitutional.

    The other Fourth Amendment case, County of Grant v. Vogt, whether an officer unreasonably seizes a driver by approaching the driver’s vehicle without probable cause or reasonable suspicion and knocks on the window and asks the driver to roll it down.

    A police officer approached Daniel Vogt’s vehicle after Vogt pulled into parking lot of a boat landing in the early morning hours on Christmas Day in 2011. The officer believed the vehicle looked suspicious, given the location and time day.

    The officer asked Vogt to roll down the window and after smelling an odor of intoxicants, commenced the process to arrest Vogt with OWI. He was later convicted.

    But the appeals court reversed. It found that an officer who compels a driver to roll down his window without probable cause to stop the vehicle unlawfully seizes the driver. Vogt argued that officers must have a reason to ask drivers to roll down their windows.

    The county argues that officers “need to and should be able to a motor vehicle and talk to the occupants no differently than an officer would be able to approach a person sitting on a park bench” and doing so does not amount to an unreasonable seizure.

    Other Cases

    In State v. Nellessen, the court will examine whether a criminal defendant who wants to know the identity of an informant must make a preliminary showing that the informer could give specific testimony creating reasonable doubt about the defendant’s guilt.

    Jessica Nellessen was charged with possession with intent to deliver THC after police found 14 ounces of marijuana in the vehicle she was driving.

    Police had obtained a tip from a confidential informant that a car fitting Nellessen’s description would be driving through town containing a large amount of marijuana.

    Nellessen moved to compel disclosure of the informant’s identity, arguing that if the informant knew about the pot planted in the car Nellessen was driving, the informant might also know that Nellessen had no knowledge the marijuana was there.

    The circuit court denied the motion to compel the informant’s identity, but the appeals court reversed. A three-judge appeals panel concluded that the circuit court erred by failing to review whether the informant should testify.

    A decision from the supreme court could clarify the threshold to justify an in camera review or disclosure of information related to confidential informants.

    In Casey v. Smith, the supreme court will decide an insurance coverage issue stemming from an accident that occurred while a semi-truck was being driven to the shop to have the front grille and an oil filler tube replaced.

    In general, trucking lines insure the vehicle when it is used for business purposes, and truckers insure it for off-duty accidents. A resolution of the case could depend on whether the truck was being driven for businesses purposes at the time of the accident.

    In State Farm v. Hague Quality Water, the supreme court will examine the economic loss doctrine and whether tort claims are precluded to bar recovery for property damage caused by a failed water softener that was installed by a landlord, Larry Krueger.

    Hague Quality Water Inc. manufactured the water softener. It later caused $45,000 worth of damages when it failed. Krueger’s homeowner’s insurance policy covered the loss, but now his insurer, State Farm, wants Hague Quality Water to indemnify the loss.

    A circuit court ruled that the economic loss doctrine barred recovery. The doctrine bars the recovery of purely economic losses in consumer transactions through tort remedies where the only damage is to the product purchased by the consumer.

    But an appeals court reversed, finding that the damaged property – drywall, flooring and woodwork – was not part of an integrated system with the water softener and the water softener was not expected to interact with the damaged property.

    Summaries derived from full summaries posted on the Wisconsin Court System website,  

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