On Point: 3. "New Federalism"

State v. Cesar O. Fernandez-Reyes, 2024AP1668-CR, 3/4/25, District III (not recommended for publication); case activity

COA affirms circuit court’s order declaring a mistrial and denying the defendant’s motion to bar a retrial on double jeopardy grounds where prosecutor learned she had COVID after the first day of trial.

State v. Brian L. Halverson, 2021 WI 7, affirming a published court of appeals opinion, 2018AP858CR; case activity (including briefs)

Halverson was interrogated over the phone by a police officer while he was in jail on an unrelated matter. Wisconsin courts once treated incarceration as per se Miranda custody, believing that was the law SCOTUS had established. But Howes v. Fields, 565 U.S. 499 (2012), held that it’s not. Halverson argued the Wisconsin Supreme Court should adopt the per se rule under our state’s Constitution, but SCOW now declines. It also holds that the particular circumstances here didn’t amount to custody in the absence of such a rule.

State v. Stephan I. Roberson, 2019 WI 102, 12/3/19, affirming a per curiam court of appeals opinion, 2017AP1894, case activity (including briefs)

The result here is simple, and expected, given the current makeup of the court: a five-two majority to overturn State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. Dubose held that “show up” identifications–those where the police present a witness with only one suspect–were inherently suggestive, and identifications so obtained would be inadmissible unless circumstances rendered the procedure “necessary.” So, now, Wisconsin courts will review claims that a show-up identification should be excluded under the test of State v. Wolverton, 193 Wis. 2d 234, 264, 533 N.W.2d 167 (1995): a defendant must carry the initial burden to show the procedure was impermissibly suggestive, and if he or she does, the state must then prove that the identification is nevertheless reliable under the totality of the circumstances.

State v. Christopher John Kerr, 2018 WI 87, 7/6/18, reversing a circuit court order on bypass of the court of appeals; case activity (including briefs)

Wisconsin has recognized 2 grounds for applying the exclusionary rule to suppress evidence–to deter police misconduct and to ensure judicial integrity.  State v. Hess, 2010 WI 82, ¶¶20, 33, 327 Wis. 2d 524, 785 N.W.2d 568; State v. Eason, 2001 WI 98, ¶¶3, 31 n.10, 245 Wis. 2d 206, 629 N.W.2d 625. The majority opinion in this case clarifies that a judge’s failure to follow the law when issuing a warrant cannot serve as an independent basis for the exclusionary rule. 

State v. Mastella L. Jackson, 2016 WI 56, 7/1/16, affirming a published decision of the court of appeals, 2015 WI App 49, 363 Wis. 2d 553, 866 N.W.2d 768; case activity (including briefs)

Despite the “flagrant” and “reprehensible” violations of Jackson’s Fifth Amendment rights by police, the supreme court holds that physical evidence seized based in part on information obtained from those violations should not be suppressed because the evidence would have been inevitably discovered. In the course of this ruling, the court alters Wisconsin’s long-established inevitable discovery standard and refuses to rule out using the doctrine in cases where the police intentionally violate a suspect’s rights.

State v. Mastella L. Jackson, 2015 WI App 49, petition for review granted, 10/8/15, affirmed, 2016 WI 56; click here for briefs

This decision is SCOW bait. Police in Outagamie County engaged in what the court of appeals called “reprehensible” actions while interrogating the defendant. “Outraged” the circuit court suppressed the defendant’s statements to police and the physical evidence obtained during the search of her home. The court of appeals reversed the suppression of physical evidence on the theory that the untainted evidence described in the officers’ search warrant established probable cause and that the physical evidence was admissible via the inevitable discovery doctrine.

On review of certification request; case activity

Invocation of the right to counsel

Issues (Composed by On Point)

1. Does the Wisconsin Constitution provide more protection than Maryland v. Shatzer, ___U.S. ___, 130 S. Ct. 1213 (2010) (holding that, even if a defendant has invoked his or her right to counsel, law enforcement may give the Miranda warnings again so long as the defendant has been released from custody for at least fourteen days)?

court of appeals certification review granted 1/15/13; case activity

Issues Certified:

1. In Maryland v. Shatzer, ___U.S. ___, 130 S. Ct. 1213 (2010), the United States Supreme Court held that, even if a defendant has invoked his or her right to counsel, law enforcement may give the Miranda[2] warnings again so long as the defendant has been released from custody for at least fourteen days.  

State v. Devin W. Felix, 2012 WI 36, reversing unpublished decision; for Felix: Leonard D. Kachinsky; case activity

Under Payton v. New York, 445 U.S. 573 (1980), warrantless arrest following nonconsensual entry of a home is illegal unless supported by probable cause and exigent circumstances. However, New York v. Harris,

decision below: 2010 WI App 11; for Forbush: Craig Mastantuono; Rebecca M. Coffee

Issues:

Whether the right to counsel under the Wisconsin Constitution prohibits the state from interrogating a represented individual once the state is aware of the representation

Whether a suspect made an equivocal request for counsel during police questioning, thereby invoking his right to counsel under the Wisconsin Constitution and requiring suppression of his confession at trial

Whether the circuit court’s suppression order should be affirmed without reaching the viability of State v.