On Point: 3. "New Federalism"

court of appeals decision, review granted 3/16/10; for Forbush: Craig A. Mastantuono, Rebecca M. Coffee

Post-Charge Assertion of Right to Counsel during Interrogation
The mere fact that an attorney represents a defendant formally charged with a crime doesn’t bar the police from questioning the defendant; State v. Todd Dagnall, 2000 WI 82 (“Dagnall was not required to invoke the right to counsel in this case because he had been formally charged with a crime and counsel had been retained to represent him on that charge,” ¶4),

State v. Ramon Lopez Arias, 2008 WI 84, on Certification
For Arias: Lora B. Cerone, SPD, Madison

Issue/Holding: A dog sniff is no more a “search” under the Wisconsin than the U.S. Constitution, at least with respect to vehicles:

¶22      We are unwilling to undertake such a departure here. First, we note that there is no constitutionally protected interest in possessing contraband under the United States Constitution, 

State v. Ramon Lopez Arias, 2008 WI 84, on Certification
For Arias: Lora B. Cerone, SPD, Madison

Issue/Holding:

¶20      Historically, we have interpreted Article I, Section 11 of the Wisconsin Constitution in accord with the Supreme Court’s interpretation of the Fourth Amendment. See, e.g., State v. Malone, 2004 WI 108, ¶15, 274 Wis. 2d 540,

State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62
For Kramer: Stephen J. Eisenberg, Marsha M. Lysen

Issue/Holding:

¶18      Historically, we generally have interpreted Article I, Section 11 to provide the same constitutional guarantees as the Supreme Court has accorded through its interpretation of the Fourth Amendment. Arias, 311 Wis.  

State v. Thomas William Brady, 2007 WI App 33, PFR filed 2/13/07
For Brady: Suzanne L. Hagopian, SPD, Madison Appellate

Issue/Holding: Where the target of a search was not at home when the police forcibly entered pursuant to a search warrant, their unannounced entry did not, although not authorized by the warrant, violate the fourth amendment.

¶13   The first consideration is the safety of the police and others.

State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶19      … (T)his court ordinarily adopts and follows the Fourth Amendment jurisprudence of the United States Supreme Court.…

¶27      Young, however, argues that we should reject Hodari D. and interpret Article I,

In a series of recent cases, the supreme court has joined what it terms “the ‘new federalism’ movement,” State v. Knapp (II), 2005 WI 127, ¶84 and id., n. 20 (Crooks, J., conc. w/ majority support of 4 votes), which refers to a tendency to look first to the state constitution and assign greater rights than the Supreme Court to parallel provisions in the federal constitution. Those cases are listed here:

• State v.

State v. David J. Roberson, 2005 WI App 195, affirmed on other grounds, 2006 WI 80
For Roberson: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding: ¶15 n. 3:

Recently, the Wisconsin Supreme Court construed article I, § 8 of the Wisconsin Constitution as providing greater protection against self-incrimination than the Fifth Amendment to the U.S. Constitution, State v.

State v. Barbara E. Harp, 2005 WI App 250
For Harp: Aaron N. Halstead, Kathleen Meter Lounsbury, Danielle L. Carne

Issue/Holding: ¶13 n. 4:

The Fifth Amendment to the United States Constitution provides that no person “shall … be subject for the same offence to be twice put in jeopardy of life or limb ….” Article I, section 8 of the Wisconsin Constitution provides that “no person for the same offense may be put twice in jeopardy of punishment ….” Two recent decisions of the Wisconsin Supreme Court have concluded that certain provisions of the state constitution provide greater protections than analogous provisions of the federal constitution.