On Point: 46. WI Court of Appeals

State v. Michael A. Sveum,  2002 WI App 105, PFR filed 5/10/02
For Sveum: Ian A.J. Pitz

Issue/Holding: A repeater enhancement applies only to a crime, which is an offense prohibited by state law and punishable by fine and/or imprisonment. Violation of harassment injunction fits this definition and therefore supports repeater enhancement. State v. Carpenter, 179 Wis. 2d 838, 508 N.W.2d 69 (Ct.

State v. Charles J. Burroughs, 2002 WI App 18
For Burroughs: William F. Mross

Issue: Whether the record sufficiently supports Burroughs’ guilty plea on a prior offense supporting his persistent offender status.

Holding: Because Burroughs doesn’t contest the fact that he was represented by counsel when he entered the plea to the prior offense, his right to challenge the plea is barred under State v.

State v. Paul Delao Quiroz, 2002 WI App 52
For Quiroz: Chad G. Kerkman

Issue: Whether the maximum penalty for first-degree reckless endangerment of safety, enhanced by while armed and gang-related provisions, was 13 or 14 years.

Holding:

¶13 … [State v. Pernell, 165 Wis. 2d 651, 656, 478 N.W.2d 297 (Ct. App. 1991)] establishes that when two penalty enhancers are applicable to the same crime,

State v. Jeffrey Stout, 2002 WI App 41, PFR filed 2/21/02
For Stout: James L. Fullin, Jr., SPD, Madison Appellate

Issue: Whether the police had reasonable suspicion to frisk inside a residence, based on an anonymous tip of drug activity coupled with corroboration of certain details and a furtive gesture.

Holding: Although investigative stops must be made in public (and not in a residence), the police may frisk occupants after gaining lawful entry to a residence,

State v. Gary L. Gordon, 2002 WI App 53, reversed on other grounds, 2003 WI 69
For Gordon: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: The trial court erroneously exercised discretion in imposing costs for the travel expense of an officer, in that this expense was necessitated by a change in trial date attributable primarily to the prosecution, not the defendant. ¶¶49-51.

State v. Justin Kolp, 2002 WI App 17
For Kolp: Jennifer L. Abbott

Issue: Whether the police had a reasonable suspicion to frisk Kolp, when he showed up at a residence during execution of a search warrant for evidence of possession of marijuana and which authorized the search of all persons present on the premises.

Holding: Given case law recognition that execution of a search warrant for drugs may give rise to sudden violence (citing State v.

State v. Jeffrey Stout, 2002 WI App 41, PFR filed 2/21/02
For Stout: James L. Fullin, Jr., SPD, Madison Appellate

Issue/Holding:

¶14. … (T)he United States Supreme Court has never held that a warrantless entry into a private residence may be justified by a Terry investigatory stop based on reasonable suspicion provided by an informant’s tip. To the contrary, the Supreme Court extended the Terry doctrine’s reasonable suspicion standard within the confines of a dwelling only when lawful entry had already been obtained.

State v. Harold C. Mikkelson, 2002 WI App 152
For Mikkelson: Michael Yovovich, SPD, Madison Appellate

Issue: Whether the state waived an appellate argument in opposition to suppression by not raising it at the suppression hearing.

Holding:

¶14 “The waiver rule serves several important objectives. Raising issues at the [circuit] court level allows the …. court to correct or avoid the alleged error in the first place,

State v. Jeffrey L. Loranger, 2002 WI App 5, PFR filed 1/22/02
For Loranger: Richard B. Jacobson, James C. Murray

Issue: Whether the search warrant was based on intentionally or recklessly false averments, Franks v. Delaware, 438 U.S. 154 (1978).

Holding:

¶23. Viewing the totality of the circumstances, we conclude that the issuing court commissioner had a substantial basis for concluding that probable cause existed.

State v. Jeffrey L. Loranger, 2002 WI App 5, PFR filed 1/22/02For Loranger: Richard B. Jacobson, James C. Murray

Issue: Whether evidence illegally obtained through warrantless use of a thermal imaging device, in reliance on then-valid Wisconsin appellate court decision subsequently invalidated by a Supreme Court decision, must be suppressed.

Holding: Warrantless use of a thermal imaging device against Loranger must now clearly be regarded as a fourth amendment violation.