On Point blog, page 48 of 484
Warrantless arrest on porch unlawful, but probable cause to arrest means no suppression
State v. Kallie M. Gajewski, 2020AP7-CR, District 3, 8/2/22 (not recommended for publication); case activity (including briefs)
Police arrested Gajewski in the curtilage of her home without a warrant and exigent circumstances. While this makes the arrest unlawful, the evidence obtained from the arrest is not subject to suppression because police had probable cause to arrest her.
Defense win: Odor of marijuana didn’t provide probable cause to arrest
State v. Quaheem O. Moore, 2021AP938-CR, District 4, 7/28/22 (not recommended for publication), state’s petition for review granted 12/21/22; reversed 2023 WI 50; case activity (including briefs)
Police stopped Moore for speeding and, after detecting the odor of what the officer believed to be marijuana, searched Moore. (¶¶2-9). Distinguishing State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999), the court of appeals affirms the circuit court’s suppression order, holding that the odor of marijuana, by itself or coupled with other information, did not provide probable cause to arrest Moore and search him incident to arrest.
Challenge to telephonic search warrant procedure fails
State v. Donald A. Whitaker, 2022AP204-CR, District 2, 7/27/22 (one-judge decision; ineligible for publication); case activity (including briefs)
A telephonic warrant may be valid even if the court did not arrange for an electronic or written recording of the officer’s telephone call to be made.
Circuit court’s failure to specify ch. 51 dangerousness standard was harmless error
Barron County v. K.L., 2021AP133, District 3, 8/9/22 (one-judge decision; ineligible for publication); case activity
Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277, held that “going forward circuit courts in recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based.” Deciding an issue addressed in the dissenting opinion in Sheboygan County v. M.W., 2022 WI 40, the court of appeals holds the failure to comply with D.J.W.‘s findings requirement can be a harmless error and was harmless in this case.
Failure to raise defense of lack of personal jurisdiction in TPR case waived the issue
Portage County DHHS v. A.K., 2022AP30, District 4, 8/11/22 (one-judge decision; ineligible for publication); case activity
A parent’s failure to raise the issue of the circuit court’s personal jurisdiction as a defense during the TPR proceeding means the issue was waived.
Court of Appeals rejects equal protection challenge to burden of proving TPR petition
State v. S.S.M., 2022AP524 & 2022AP525, District 1, 8/2/22 (one-judge decision; ineligible for publication); case activity
Under § 48.415(intro.), termination of parental rights to children subject to the Indian Child Welfare Act (ICWA) requires, in addition to proof of one or more grounds for termination under subs. (1) to (10), proof of “active efforts,” as defined in § 48.028(4)(e)2., to prevent the breakup of the family as well as the unsuccess of those efforts. S.S.M., whose children are not subject to the ICWA, argues that the statute’s failure to require proof of active efforts in all TPR cases violates the right to equal protection the statute because it gives Indian parents greater protection from having their parental rights involuntarily terminated than it does non-Indian parents. The court of appeals rejects the claim.
Police had probable cause to arrest for OWI
State v. Andrew Austin Keenan-Becht, 2022AP73-CR, District 2, 8/3/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Under the long-standing test for probable cause, Keenan-Becht’s arrest was lawful.
Defendant’s rights to discovery, confrontation not violated
State v. Kevin Lee Wilke, 2020AP1068-CR, District 3, 8/2/22 (one-judge decision; ineligible for publication); case activity (including briefs)
The court of appeals rejects Wilke’s arguments for a new trial and his challenge to the sufficiency of the evidence.
July 2022 publication list
On July 27, 2022, the court of appeals ordered the publication of the following criminal law related decisions:
COA affirms recommitment, finds sufficient evidence and compliance with D.J.W.
Manitowoc County v. J.M.K., 2022AP122, 7/27/22, District 2, (1-judge opinion; ineligible for publication); case activity
J.M.K. is currently diagnosed with schizoaffective disorder. He has been committed several times since 2015. Right now he is doing well. He lives in a supervised apartment but holds a job, participates in community activities, and works out at the YMCA. The county monitors his medication compliance because in the past when he has stopped taking them he deteriorated rapidly.