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  • WisBar News
    April 28, 2015

    State Supreme Court Adds Five Cases to Its Docket, Including OWI-related Cases

    April 28, 2015 – The Wisconsin Supreme Court has added five cases to its docket, including one OWI-related case to determine whether police can make a traffic stop based on a reasonable suspicion that an auto occupant committed a non-traffic offense.

    In 2013, a state trooper stopped driver Daniel Iverson in La Crosse after a cigarette butt was ejected from the passenger side of the vehicle Iverson was driving.

    Before that, the trooper said he saw the car drift toward the center line of the road and stop at yellow flashing lights twice with no traffic present, but didn’t think he had enough information to make the stop before the cigarette butt littering offense occurred.

    During the stop, the trooper developed probable cause to believe Iverson was operating the vehicle while intoxicated (OWI) and arrested him. In court proceedings, Iverson filed motions to suppress all evidence and dismiss the case based on an illegal traffic stop.

    He said the trooper could not stop him based on a littering offense, because a littering offense is not a violation of traffic regulations. The circuit court granted the motion to suppress, concluding the trooper used the cigarette butt as a pretext to stop the car.

    Ultimately, a state appeals court ruled that throwing a cigarette butt from a car window was not a sufficient violation to justify the traffic stop. In a one-judge opinion, Judge Gary Sherman noted that police can make stops for suspected crimes or traffic violations, but littering is neither a crime (no potential for jail time) nor a traffic violation.

    The state argues that law enforcement officers “may lawfully seize a person without a warrant for a civil non-traffic forfeiture offense” if the violation occurs in the officer’s presence and a statute authorizes the officer to do so. The state says one statute expressly allows troopers to stop persons who litter on highways from vehicles.

    A decision from the supreme court in State v. Iverson, 2014AP515-FT, is expected clarify whether police can make traffic stops for suspected non-traffic violations that are not considered crimes.

    In another OWI-related case, State v. Dumstrey, 2013AP857, the court will examine whether the gated parking lot of a motorist’s apartment building complex was “curtilage” such that a police officer’s entry into the garage without a warrant violated the defendant’s Fourth Amendment rights.

    Police arrested Brett Dumstrey for OWI and he later pleaded guilty after the court denied his motion to suppress evidence based on an illegal search.

    An off-duty officer, driving his personal vehicle, had observed Dumstrey driving erratically and pulled alongside his vehicle, signaling him to pull over and wait.

    Dumstrey initially pulled over, but drove off and pulled into his apartment complex parking lot, accessible only by remote control door. The off-duty officer blocked the door from closing and made contact with Dumstrey. An on-duty officer arrived on scene and, after Dumstrey refused sobriety and breath tests, arrested him for suspected OWI.

    An appeals court ruled that police did not need a warrant because the garage was not “curtilage” – the space adjacent to one’s home that generally requires a warrant for police entry – noting that Dumstrey shared the garage and lacked control over it.

    The supreme court will also take up three criminal cases, summarized briefly below.

    State v. Valdez, 2014AP678-80

    This certification examines the degree of certainty necessary to show that deportation is “likely,” such that a defendant may withdraw a guilty or no contest plea on the basis that he or she was not informed of the immigration consequences of the plea colloquy.

    State v. LeMere, 2013AP2433-CR

    This child sexual assault case examines whether defense counsel has an obligation to advise a defendant prior to entering a plea that the entry of the plea might ultimately lead to their lifetime commitment as a sexually violent person.

    During the plea colloquy, the court asked whether defendant Stephen LeMere, accused of sexually assaulting a child at knife-point, understood that if he pleaded guilty, the state could file a petition for commitment as a sexually violent person after any incarceration, and LeMere said he understood. However, he filed a post-conviction motion to withdraw the plea on the basis that his counsel did not properly advise him.

    State v. Lynch, 2011AP2680-CR

    This sexual assault case examines whether defendants have a constitutional right to disclosure of privately held privileged records about their accuser’s mental health history and whether a witness may under certain circumstances still be allowed to testify, despite refusing to consent to an in camera review of the records.

    A woman came forward and accused Patrick Lynch of sexually assaulting her repeatedly 20 years earlier when she was seven or eight years old. Lynch filed motions to unseal the accuser’s treatment records going back the past 20 years, arguing that the treatment records could contain information that would be helpful to his defense.

    Summaries derived fromfull summaries posted on the Wisconsin Court System website,

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