On Point

“de minimis non curat lex”

On Point will be out of commission until 6/28. Mr. Badger has kindly consented to waive copyright protection in the interim, after which he returns to well-earned obscurity.

State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding: Answering call on lawfully seized cell phone proper, given existence of “probable cause to believe that the cell phone was a tool used in drug trafficking,” plus exigent circumstances (danger of evidence destruction), ¶¶35-42.

Probable cause, of course, is typically fact-specific and in that sense the court’s discussion (¶¶25-29) is mundane.

State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding: Exigent circumstances did not support browsing through image gallery of lawfully seized cell phone:  “That data was not in immediate danger of disappearing before Belsha could obtain a warrant,” ¶33.

The court of appeals had merely assumed that such browsing was improper on the facts,

7th circuit court of appeals decision

Warrantless Entry – Emergency Doctrine – 911 Call

According to David, the police violated the fourth amendment by entering without probable cause and refusing to leave as soon as Karen asked them to go. Like the district judge, we think that a 911 call provides probable cause for entry, if a call back goes unanswered. The 911 line is supposed to be used for emergencies only.

seventh circuit court of appeals decision

Ineffective Assistance – NGI Defense – Habeas Review

Counsel performed deficiently by failing to: adequately prep his NGI expert witness, who had performed only a competency evaluation of Wilson and wasn’t given the opportunity for a reinterview with the distinct purpose of an NGI evaluation; present testimony of family members familiar with Wilson’s mental deterioration; and retain another expert.

Given the gravity of the charge against Wilson and the ample evidence that he was driven to kill Fischer by an insane delusion,

City of Ontario v. Quon, USSC No. 08-1392, 6/17/10

Assuming without deciding that police officer Quon had a reasonable expectation of privacy in the text messages of his department-issued pager, the Court concludes that the warrantless review of Quon’s pager transcript was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope.

The 4th amendment came into play because Quon’s employer was a government agency,

City of Ripon v. Jonathan Lebese, No. 2009AP2996-FT, District II, 6/16/10

court of appeals decision (1-judge; not for publication); for Lebese: Wendy A. Patrickus; BiC; Resp.

¶13     The circuit court’s “preliminary ruling” was based on the well-established standards of reasonable suspicion. Lebese’s counsel had proffered that the additional defense witness would corroborate Lebese’s account that he swerved in an evasive maneuver to avoid colliding with the car to his right.

court of appeals decision; BiC; Resp.; Reply

Confidentiality – § 51.30(4) – Emergency Detention Statement

Release by a police department of a statement of emergency detention, occasioned by a deputy sheriff’s threat to kill superior officers, violated the § 51.30(4) prohibition on release of “treatment records”; and was not justified by the public policy exception that imposes on psychiatrists the duty to warn potential targets of threats made by patients.

Shawano Co. v. William P. Pari, No. 2009AP2338-FT, District III, 6/15/10

court of appeals decision (1-judge; not for publication); for Pari: John S. Bartholomew; BiC; Resp.; Reply

¶10    We agree that Pari’s minimal deviations within the traffic lane do not alone give rise to reasonable suspicion that he was operating while intoxicated. See id., ¶¶18-21. Nor do we place great emphasis on that fact here when considering the totality of the circumstances.

State v. Armando J. Castanada, No. 2009AP1438-CR, District I, 6/15/10

court of appeals decision (3-judge, not recommended for publication); for Castanada: Jeremy C. Perri; BiC; Resp.; Reply

Appellate Review – Implicit Findings

¶30     The postconviction circuit court did not make any express findings as to the credibility of any of the witnesses’ testimony. However, as the State observes, when the circuit court does not make express findings,