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    Wisconsin Lawyer
    July 26, 2019

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Procedure

    Vehicle Search Incident to Arrest – OWI Investigations

    State v. Coffee, 2019 WI App 25 (filed 24 April 2019) (ordered published 29 May 2019)

    HOLDING: When an officer lawfully arrests a driver for operating while intoxicated (OWI), a search of the interior of the vehicle, including any containers therein, is lawful.

    SUMMARY: Police officers arrested Coffee (the defendant) for OWI. After the defendant was secured in the back seat of the squad car, officers searched the interior of the defendant’s car and recovered a tote-like bag on the floor directly behind the driver’s seat; in the bag they located two mason jars containing what looked like marijuana flakes, multiple cell phones, and a package with a large number of small, clear plastic bags. The officers then searched the vehicle’s trunk and found more marijuana and drug paraphernalia, which led to drug-related charges against the defendant, in addition to the OWI charge.

    The defendant moved to suppress all of the drug evidence described above. The circuit court denied the motion, and the defendant then pleaded guilty to second-offense OWI and to possession of THC with intent to deliver. In a decision authored by Judge Gundrum, the court of appeals affirmed.

    Law enforcement officers may warrantlessly search a vehicle incident to arrest “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” Arizona v. Gant, 556 U.S. 332, 335 (2009). “The Gant court stated that ‘the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein’” (¶ 10) (citation omitted).

    In this case, the court of appeals held, as a matter of law, that “when an officer lawfully arrests a driver for OWI, even if alcohol is the only substance detected in relation to the driver, a search of the interior of the vehicle, including any containers therein, is lawful because it is reasonable to believe evidence relevant to the offense of OWI might be found” (¶ 13).

    The court noted that, although alcohol was the only impairing substance the officer detected at the time of the defendant’s arrest, the “offense of arrest” was “operating under influence of intoxicant or other drug,” contrary to Wis. Stat. section 346.63. “A driver can, of course, violate this statute by being impaired solely by alcohol. However, the offense can also be committed by a driver being impaired by a single legal or illegal drug, a combination of drugs, or a combination of one or more drugs with alcohol” (¶ 11).

    “[W]here the offense of arrest is OWI – and thus the arresting officer has probable cause to believe the driver is under the influence of alcohol, one or more drugs, or a combination of substances – the officer has a reasonable belief that evidence of the use of alcohol or one or more drugs, i.e., evidence of OWI, might be found in the vehicle including in any containers therein” (¶ 12).

    In this case the circuit court found that the tote-like bag located behind the driver’s seat was large enough to hold common alcohol containers (see ¶ 9). The defendant did not dispute this finding. In a footnote, the court noted that the defendant conceded that, if the search of the bag were lawful, the search of the trunk also was lawful (see ¶ 13 n.7).

    Civil Forfeiture Proceedings – Applicability of the Fourth Amendment Exclusionary Rule

    State v. Scott, 2019 WI App 22 (filed 4 April 2019) (ordered published 29 May 2019)

    HOLDING: The Fourth Amendment exclusionary rule applies to civil forfeiture actions of the type involved in this case because they are “quasi-criminal” actions intended to penalize criminal conduct.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    SUMMARY: In this civil forfeiture action, the state sought a judgment awarding it certain nondrug property (including a car, a pickup truck, an all-terrain vehicle, and two personal watercraft) that was seized in and around the Scotts’ residence during the execution of a search warrant as part of a criminal investigation. This action was brought under statutes creating a process for civil forfeiture of property allegedly used in violation of, or derived from violations of, Wis. Stat. chapter 961 (Wisconsin’s Controlled Substances Act).

    In the criminal cases against the Scotts, the circuit court excluded all evidence seized by the state. The exclusion was based on a determination that the state violated the Fourth Amendment in obtaining the search warrant because the affidavit in support of the warrant lacked probable cause for its issuance. The state did not appeal the court’s suppression ruling and voluntarily moved for dismissal of the criminal charges, which the circuit court granted.

    In the forfeiture action that followed, the Scotts moved for summary judgment based on the Fourth Amendment violation in the criminal cases. The circuit court granted the motion; it determined that all the seized evidence must be excluded from the civil forfeiture proceedings pursuant to One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965) (holding that the Fourth Amendment exclusionary rule applies to state civil forfeiture proceedings that are of a “quasi-criminal” nature) (see ¶ 2).

    In an opinion authored by Judge Blanchard, the court of appeals affirmed the decision of the circuit court. The court of appeals agreed that the exclusionary rule applies to civil forfeiture actions like the one in this case because, under Plymouth Sedan, they are quasi-criminal actions intended to penalize criminal conduct (see ¶ 3).

    The court noted the state’s concession that most federal and state courts that have addressed the issue have followed Plymouth Sedan to conclude that the exclusionary rule applies in civil forfeiture proceedings of the type involved here (see ¶ 32). (In a footnote, the court pointed out a recent statutory change, see 2017 Wis. Act 211, that now makes a criminal conviction a prerequisite to a drug-violation-based forfeiture action (see ¶ 5 n. 2).)

    The state made an alternative argument on appeal contending that, if the exclusionary rule applies in this forfeiture proceeding, it is entitled to raise a new argument that would defeat suppression, namely, that the good-faith exception to the exclusionary rule applies. The Scotts failed to address this argument, which the state did not make in the criminal cases against them.

    In the absence of adversarial briefing, the court of appeals declined to resolve this issue. “Rather, we treat the lack of a response by the Scotts as a concession and, on that basis, remand to the circuit court for further proceedings in which the State may attempt to pursue an argument based on the good-faith exception” (¶ 4).

    Real Property

    Water Rights – Landowners – Injunctions – County Zoning Ordinance

    Carlin Lake Ass’n Inc. v. Carlin Club Props. LLC, 2019 WI App 24 (filed 23 April 2019) (ordered published 29 May 2019)

    HOLDING: The circuit court properly granted the landowners’ request for an injunction blocking the pumping of water from a well for commercial use.

    SUMMARY: Seven riparian property owners and their association sued the Carlin Club, which planned to pump water from a well and transport it off site for bottling and commercial sale (see ¶ 1). The circuit court granted a permanent injunction in favor of the landowners individually and the association.

    The court of appeals affirmed in part and reversed in part in an opinion authored by Judge Seidl. First, the landowners had authority under Wis. Stat. section 59.69(11) to enforce a county zoning ordinance. The statute was not ambiguous, Carlin Club’s argument to the contrary would produce an absurd and unreasonable result, and the case law supported the landowners. Each landowner owned real estate within the affected district (see ¶ 30). The landowners’ association, however, lacked such standing, but the circuit court’s error did not affect the outcome (see ¶ 33).

    Second, the request for declaratory and injunctive relief was ripe for adjudication because the record demonstrated that Carlin Club was going to violate the ordinance (see ¶ 42). Third, equitable considerations supported the injunction. Addressing the burden of proof, the court held that “shifting the traditional burden of convincing the circuit court as to whether an injunction should issue from the plaintiff to the defendant is not appropriate when a party pursues an enforcement action under Wis. Stat. § 59.69(11) based upon an anticipated, as opposed to a proven, violation of a county zoning ordinance” (¶ 46).

    The court also discussed the pertinent equitable factors; “on this record the only reasonable conclusion would be to grant the injunction” (¶ 55). Finally, the court rejected Carlin Club’s argument that “preemption” based on the general authority of the Wisconsin Department of Natural Resources should block the injunction.


    Negligence – Landlords – “Good Repair” – Jury Instruction

    Smith v. Goshaw, 2019 WI App 23 (filed 9 April 2019) (ordered published 29 May 2019)

    HOLDING: Reversible error occurred in the modification of the standard jury instruction on a landlord’s duty of ordinary care.

    SUMMARY: The plaintiff was injured when a fire escape outside his apartment unit collapsed. He sued the landlord for failing to inspect the bolts that attached the fire escape to the building and for failing to repair the conditions that caused the “dry rot” in the affected areas. The jury’s verdict favored the plaintiff.

    The court of appeals reversed in an opinion authored by Judge Hruz. The circuit court erred by modifying Wis. J.I.-Civil 8020 (2013), which states that “an owner of real property must use ordinary care to maintain his or her premises so as to avoid exposing persons lawfully on the property to an unreasonable risk of harm under the circumstances” (¶ 6). The erroneous modification imposed an unqualified duty on landlords to keep their property in “good repair.” “Thus, the jury could have reasonably understood the instruction to allow a negligence finding merely because the fire escape experienced a structural failure” (¶ 12).

    The instruction ran counter to case law and administrative code regulations. The court also found that the mistake was sufficiently prejudicial to warrant a new trial and that the landlord had not forfeited the challenge at trial.

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