On Point blog, page 172 of 484
Facts & circumstances supported continued detention for field sobriety testing
State v. Cynthia J. Popp, 2016AP431-CR, District 4, 7/7/16 (one-judge decision; ineligible for publication); case activity (including briefs)
There was reasonable suspicion to continue detaining Popp for field sobriety testing even though the officer didn’t smell alcohol on her and told dispatch and a back-up officer he wasn’t sure what caused the poor driving he’d observed.
Circuit court erred in excluding expert testimony on Daubert grounds
Unity Bayer v. Brian D. Dobbins, M.D., 2016 WI App 65; case activity (including briefs)
We note this decision in a civil case because it involves the application of the Daubert test, a still relatively undeveloped area of law, and may assist practitioners in making arguments for (or against) the admission of expert evidence.
Traffic stop was not unlawfully extended, and defendant consented to search conducted during stop
State v. Lewis O. Floyd, Jr., 2016 WI App 64, petition for review granted 1/9/2017, affirmed, 2017 WI 78; case activity (including briefs)
Police found drugs on Floyd after they searched him during a traffic stop. Floyd claims the traffic stop was extended beyond what was necessary to issue the citations he was given and that he didn’t consent to the search. The court of appeals turns back both challenges.
State’s failure to respond to defense argument results in reversal of conviction
State v. Charles David Sislo, 2015AP73-CR, 7/6/16, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)
Wow! This “defense win” is gift wrapped for appellate lawyers. Sislo appealed the circuit court’s denial of his motion to suppress the fruits of his arrest, arguing that the police had no probable cause to arrest him even considering the collective knowledge doctrine. The State’s response brief apparently “mischaracterized” Sislo’s argument, and this did not sit well with the court of appeals:
Resuming questioning of suspect didn’t violate his invocation of right to remain silent
State v. Johnnie Mertice Wesley, 2015AP590-CR, District 1, 7/6/16 (not recommended for publication); case activity (including briefs)
Wesley asserted his right to remain silent during an initial interrogation, and the detectives stopped questioning him. Detectives approached him two more times to resume questioning, and during the third interrogation Wesley made incriminating statements. The court of appeals holds that the detectives didn’t violate Wesley’s invocation of the right to remain silent by resuming interrogation. The court also rejects Wesley’s claim that he invoked the right to remain silent again during the third interrogation.
Evidence sufficient to support TPR order
State v. J.M., 2016AP817 & 2016AP817, District 1, 7/6/16 (one-judge decision; ineligible for publication); case activity
The evidence introduced at the fact finding hearing was sufficient to establish both continuing CHIPS and failure to assume parental responsibility grounds, and the circuit court properly exercised its discretion in finding that termination was in the best interests of T.M.’s children.
Unusual nervousness alone can justify extension of traffic stop
State v. Joshua J. Hams, 2015AP2656-CR, 6/30/16, District 4; (1-judge opinion; ineligible for publication); case activity (including briefs)
Don’t look down! If you do–and stutter nervously in response to questioning–the police have reasonable suspicion to extend a stop of your car for a traffic violation. So says the court of appeals in a decision that veers across the constitutional line and runs into federal case law heading the opposite direction.
Constitutional challenge to penalty enhancer for using a computer to facilitate a child sex crime fails
State v. James D. Heidke, 2016 WI App 55; case activity (including briefs)
The state charged Heidke with one count of use of a computer to facilitate a child sex crime. Heidke moved to dismiss the penalty enhancer in §939.617(1) because it violates the Equal Protection Clause of the Fourteenth and Eighth Amendments in that it has no rational basis to that crime and it is unconstitutional as applied to him.
House’s front porch is a “public place”
State v. Tory C. Johnson, 2015AP1322-CR, 6/28/2016, District 1 (not recommended for publication); case activity (including briefs)
Tory Johnson raises various challenges to his jury-trial conviction for resisting an officer causing substantial bodily harm.
Court of Appeals rejects constitutional challenges to juvenile’s life sentence
State v. Antonio D. Barbeau, 2016 WI App 51; case activity (including briefs)
Barbeau killed his great-grandmother when he was 14 years old, and eventually pled no contest to first-degree intentional homicide, which carries an automatic life sentence. When imposing such a sentence, the court must make a decision as to extended supervision: it can either deny any possibility of ES, or it can set a date at which the person becomes eligible, though such date must occur after the person has served at least 20 years. Wis. Stat. § 973.014(1g).