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Under the Fourteenth Amendment to the Constitution of the United States of America, every citizen has a right to reasonable expectation to privacy. Attorney Tracey Wood recently won a criminal appeal in the Wisconsin Court of Appeals for an illegal search and seizure (an illegal drunk driving stop, arrest and subsequent charges for refusal - refusing to submit to a blood alcohol field sobriety test).

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Van Wagner & Wood | Chris Van Wagner |Tracey Wood | Criminal Defense | Searches & Seizures

Arizona -vs- gant

illegal Search & Seizure
In OWI Arrest

By Tracey A. Wood, attorney at law

In Arizona v. Gant, 129 S. Ct. 1710 (2009), the U.S. Supreme Court rejected a police policy of searching the vehicle of every person arrested, without consideration of whether there is any danger to police or whether evidence will likely be found in the vehicle.

In other words, under the Supreme Court ruling, vehicle searches incident to arrest are no longer automatically valid in Wisconsin once the arrestee is handcuffed and placed in the back of the squad car.

How does the Gant decision apply to drunken driving cases?

Under the Arizona vs. Gant ruling, unless police can point to specific reasons that they believe evidence related to the crime of arrest may be found in the vehicle, police may not search the vehicle. If contraband is found in vehicles unrelated to the drunken driving arrest, it will lead to other charges, such as possession of controlled substances.

In cases where this is done, defense counsel should be filing a motion to suppress all evidence found as a result of the search. This applies to arrests prior to Gant, as well as current ones, since the Gant court simply explained that courts and police have been reading the law incorrectly in the past – the Court did not state a new rule.

There is long-standing precedent governing the applicability of a new Supreme Court rule announced while a case is still pending – any case that was not concluded when Gant was announced is subject to the ruling.

Moreover, the Gant court did not permit a “good faith defense” to the unlawful search in that case. Thus, a good faith analysis may not save these searches.

Wisconsin has permitted a good faith exception in some cases involving police relying on warrants that have later been found to be faulty; however, there is no Wisconsin case applying a good faith analysis to a case where there was no warrant.

There is also 7th Circuit caselaw for the proposition that good faith does not matter when dealing with searches that are not based on a warrant. (U.S. v. 15324 County Highway E, 332 F.3d 1070 (7th Cir. 2003).)

In that case, the court stated: “We decline to extend further the applicability of the good-faith exception to evidence seized during law enforcement searches conducted in naked reliance upon subsequently overruled case law.”

Some police agencies, such as the Wisconsin State Patrol, have changed their policies with respect to searches incident to arrests for operating a motor vehicle while under the influence of an intoxicant. But other police agencies are still conducting these searches after all arrests.

The result is that a lot more litigation can be expected in the area of searches and drunk driving arrests.

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Drug Crimes

State Drug Charges: Van Wagner & Wood's criminal defense attorneys routinely handle drug related criminal cases for people residing in Wisconsin, and most frequently residing in the following areas: Adams County, WI (Adams, Wisconsin Dells), Ashland County, WI (Ashland), Barron County, WI (Barron), Bayfield County, WI (Washburn, Bayfield), Buffalo County, WI (Buffalo City, Mondovi), Burnett County, WI (Siren), Chippewa County, WI (Chippewa Falls), Clark County, WI (Abbotsford), Columbia County, WI (Columbus, Wisconsin Dells), Crawford County, WI (Prairie du Chien), Dane County, WI (Belleville, Black Earth, Blue Mounds, Brooklyn, Cambridge, Cottage Grove, Cross Plains, Dane, Deerfield, DeForest, Fitchburg, McFarland, Madison, Maple Bluff, Marshall, Mazomanie, Middleton, Monona, Mount Horeb, Oregon, Rockdale, Shorewood Hills, Stoughton, Sun Prairie, Verona, Waunakee, Windsor), Dunn County, WI (Menomonie), Eau Claire County, WI (Abbotsford, Eau Claire), Grant County, WI (Mount Hope, Lancaster, Fennimore), Green County, WI (Monroe), Iowa County, WI (Mineral Point, Dodgeville), Jackson County, WI (Black River Falls), Jefferson County, WI (Jefferson), Juneau County, WI (Mauston), La Crosse County, WI (LaCrosse, Lafayette, Darlington), Marathon County, WI (Wausau), Monroe County, WI (Sparta), Pepin County, WI (Durand), Pierce County, WI (River Falls), Polk County, WI (St Croix Falls), Portage County, WI (Stevens Point), Price County, WI (Park Falls), Richland County, WI (Richland Center), Rock County, WI (Janesville), Rusk (Ladysmith), St Croix County, WI (Hudson), Sauk County, WI (Sauk City, Wisconsin Dells), Taylor County, WI (Medford), Trempealeau County, WI (Whitehall), Waushara County, WI (Columa, Wautoma), Washburn County, WI (Spooner), and Wood County, WI (Wisconsin Dells).

Drunk Driving (OWI, DUI, DWI)

Van Wagner & Wood's attorneys frequently represent people charged with every type of drunk driving offense in the state of Wisconsin - from OWI - 1st, 2nd, 3rd or 4th misdemeanor offense to 5th and higher felony offenses. The successful criminal & drunk driving defense firm also represents people against vehicular homicide while intoxicated charges, as well as operating after suspension or revocation. Attorney Tracey A. Wood is highly regarded as Wisconsin's foremost authority on drunk driving laws & defense. Attorney Christopher T. Van Wagner has been three-times honored with the Martin Hanson Advocates Prize for numerous homicide acquittals.

Federal Crimes

Felony Murder, Homicide, Intentional Homicide, Negligent Homicide, Reckless Homicide

The criminal defense attorneys at Van Wagner & Wood represent people charged with Felony Murder, Homicide, Negligent Homicide, Reckless Homicide, Vehicular Homicide, Reckless Endangerment, First-degree Intentional Homicide, and Second-degree Intentional Homicide. Those attorneys most frequently represent people accused or charged in the state of Wisconsin. Often times, they are called upon by a client residing outside of the state of Wisconsin, which they represent in very serious crimes such as Felony Murder or Homicide. Van Wagner & Wood 's attorneys have handled cases for clients in Florida, Kansas, Oklahoma, California, New Jersey, Minnesota, and Illinois.

Sexual Assault, Rape & Sex Crimes

Van Wagner & Wood's criminal law defense lawyers frequently appear in Wisconsin Circuit Courts in Madison, Wisconsin for Dane County; Chippewa Falls, Wisconsin for Chippewa County Circuit Court; Menomonie, Wisconsin for Dunn County Circuit Court; Eau Claire, Wisconsin for Eau Claire Circuit Court; Lancaster, Wisconsin for Grant County Circuit Court; Monroe, Wisconsin for Green County Circuit Court; Mauston, Wisconsin for Juneau County Circuit Court; La Crosse, Wisconsin for LaCrosse County Circuit Court; Wausau, Wisconsin for Marathon County Circuit Court; Sparta, Wisconsin for Monroe County Circuit Court; Stevens Point, Wisconsin for Portage County Circuit Court; Janesville, Wisconsin at Rock County Circuit Court; Baraboo, Wisconsin at Sauk County Circuit Court; Wisconsin Dells at Columbia County Circuit Court; Wisconsin Rapids at Wood County Circuit Court; Waukesha, Wisconsin at Waukesha County Circuit Court; Elkhorn, Wisconsin at Walworth County Circuit Court. They also appear at Oneida Circuit Court in Rhinelander, Wisconsin; Langlade Circuit Court at Antigo, Wisconsin.

Arizona -vs- gant

illegal Search & Seizure In OWI Arrest

By Tracey A. Wood, attorney at law

illegal Search & Seizure
In OWI Arrest