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Search and Seizure — warrantless searches — probable cause — exigent circumstances — protective sweeps — consent

Wisconsin Court of Appeals

Criminal

Search and Seizure — warrantless searches — probable cause — exigent circumstances — protective sweeps — consent

Daniel Cervantes appeals the judgment convicting him of possession of marijuana, second or subsequent offense, contrary to Wis. Stat. § 961.41(3g)e. (2009-10).[1] Cervantes argues that the marijuana should have been suppressed because: (1) the police entered his apartment, seized and arrested him without probable cause or exigent circumstances; (2) the police entered his home and conducted a protective sweep without lawful authority; and (3) the later consent given by Cervantes to search for guns was not sufficiently attenuated from the taint of the illegal entries, seizure and arrest. We agree that the police lacked probable cause or exigent circumstances to arrest him when he opened the door of his apartment; the protective sweep following Cervantes’ arrest was unlawful; and his consent to search the apartment was not sufficiently attenuated from the illegal entries, seizure and arrest. Consequently, we grant the motion to suppress the evidence and reverse the conviction. Not recommended for publication in the official reports.

2011AP1858-CR State v. Cervantes

Dist I, Milwaukee County, Van Grunsven, J., Curley, P.J.

Attorneys: For Appellant: Schieber, Hannah Blair, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Pray, Eileen W., Madison

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