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Warrantless Search-Suppression of Evidence

By: WISCONSIN LAW JOURNAL STAFF//February 7, 2024//

Warrantless Search-Suppression of Evidence

By: WISCONSIN LAW JOURNAL STAFF//February 7, 2024//

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jacob Allan Bertelsen

Case No.: 2023AP000047-CR

Officials: Stark, P.J., Hruz and Gill, JJ.

Focus: Warrantless Search-Suppression of Evidence

Jacob Bertelsen appeals from a judgment convicting him of two felonies and from an order denying his postconviction motion. Bertelsen contends that: (1) evidence seized from his vehicle without a warrant should have been suppressed; and (2) his attorney provided constitutionally ineffective assistance by failing to argue that the automobile exception to the warrant requirement did not apply here because Bertelsen’s vehicle was not readily mobile.

The appeals court concludes that Bertelsen forfeited his right to directly challenge whether the automobile exception applies in this case, and further concludes that Bertelsen’s attorney did not perform deficiently by failing to raise the mobility issue because it is an area of unsettled law, especially under the facts of this case. The parties each cite cases from other jurisdictions that have addressed similar questions. Because those cases are persuasive only, and not binding on this court, the appeals court concludes that the law regarding what constitutes a readily mobile vehicle remains unsettled in Wisconsin. Consequently, Bertelsen’s attorney was not obligated to raise the issue in his suppression motion.

Affirmed.

Decided 01/30/24

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