WI: Gant retroactive, and state doesn’t even discuss it

Defendant’s car’s search incident was invalid under Gant, although it occurred a year before Gant was decided. The court has previously applied Gant retroactively, and the state does not even cite it in its brief on appeal. Order denying suppression reversed. State v. Bauer, 2010 WI App 93, 327 Wis. 2d 765, 787 N.W.2d 412 (2010)*:

P11 In light of the Gant decision, the broad rule adopted in Fry, 131 Wis. 2d at 174-75, is no longer good law, much less “black-letter law.” “Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.” Gant, 129 S. Ct. at 1714. While citizens may be afforded greater protections under the Wisconsin Constitution, they may not be afforded less; they are always entitled to the minimum protections afforded by the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court. See State v. Knapp, 2005 WI 127, P59, 285 Wis. 2d 86, 700 N.W.2d 899; … We are perplexed that the State still relies on Fry despite Bauer’s reliance on Gant. We deem the State’s failure to respond to Bauer’s Gant argument as a concession. …