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State concedes lack of consent to search; COA affirms anyway

State v. Katelyn Marie Leach, 2019AP1830-CR, 4/16/20, District 4, (1-judge opinion, ineligible for publication; case activity (including briefs)

Leach pled “no contest” to 2nd offense operating a motor vehicle with a restricted substance. She  moved to suppress evidence that she gave an officer after he told her that (a) if she only had paraphernalia or a small amount of marijuana she would just receive a municipal citation, and (b) he was going to search her regardless.

On appeal, the State conceded that Leach’s alleged consent to the search was invalid and that the circuit court should have suppressed a marijuana pipe that Leach gave the officer after his coercive statement. The court of appeals accepted the concession without deciding the issue. Opinion, ¶21.

Leach also sought suppression of evidence discovered after the pipe: statements she made to the officer, the small amount of marijuana found in the car, and the results of the FSTs the officer conducted. Citing Wong Sun v. United States, 371 U.S. 471 (1963), she explained that this was derivative evidence discovered by exploitation of the Fourth Amendment violation. The court of appeals deemed the point undeveloped and refused to address it. Opinion, ¶24.

Leach also argued that the officer did not have probable cause to arrest her under State v. Secrist, 224 Wis. 2d 201, 218, 589 N.W.2d 387 (1999). The odor of marijuana was light. There was more than one person in the car. The passenger’s joint explained the odor in the car. The State filed a woefully inadequate Response Brief. No worries. The court of appeals did the State’s job for it. It ignored Secrist, and found that under the totality of the circumstances the officer had probable cause to arrest Leach, so evidence the officer obtained thereafter was admissible. Opinion, ¶29.

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