On Point blog, page 106 of 214

Guilty Plea Waiver Rule – Plea Bargain Agreement to Relinquish Attack on Guilty Plea

State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Woehrer, Mary L.

Issue: Whether Bembenek’s postconviction motion for DNA testing at State’s expense, as part of an effort to establish her innocence, was barred by her plea agreement whose terms included waiver of her right to direct appeal and collateral attack and “any challenges that might be brought to the underlying factual basis for this plea.”

Holding:

¶15      The record demonstrates that an exchange of promises in return for specific benefits occurred: (1) Bembenek would no longer be convicted of first-degree murder;

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Forfeiture of Weapon, § 968.20(1m)(b) – Actual Physical Possession Not Necessary

State v. John L. Kueny, 2006 WI App 197, PFR filed 10/19/06
For Kueny: James R. Lucius

Issue: Whether “actual physical possession” of weapons is necessary to support forfeiture under § 968.20(1m)(b).

Holding:

¶9        Kueny argues that he effectively did not have possession of the firearms. He reminds us that he had had no contact with the weapons since putting them in storage years before,

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Forfeiture of Weapon, § 968.20(1m)(b) – Read-In Crime Suffices

State v. John L. Kueny, 2006 WI App 197, PFR filed 10/19/06
For Kueny: James R. Lucius

Issue: Whether the weapon must have been used in the crime of conviction in order to be subject to forfeiture.

Holding:

¶11      Kueny misreads the plain language and misses a nuance of the statute. Wisconsin Stat. § 968.20(1m)(b) forbids returning weapons to one who “committed” a crime involving their use;

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Reasonable Suspicion — Stop – Duration – Routine Traffic Offense – Prolonged to Seek Consent to Search Automobile

State v. Joseph R. Luebeck, 2006 WI App 87, (State’s) PFR filed 5/17/06
For Luebeck: Alex Flynn; Adam B. Stephens; Rebecca Robin Lawnicki

Issue: Whether the traffic stop, valid at inception, was impermissibly extended so as to invalidate consent to search the car.

Holding: 

¶14      … (I)n its decision reaffirming the order granting Luebeck’s motion to suppress the evidence, the circuit court stated:

I don’t think any reasonable person would have felt this encounter had concluded and that he was free to leave.

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Terry Stop — Basis – Informant: “Citizen” vs. “Confidential,” Generally

State v. Calvin R. Kolk, 2006 WI App 261
For Kolk: Michael Zell

Issue/Holding:

¶12      … Though there is some confusion in the case law, we believe that the distinction is that a confidential informant is a person, often with a criminal past him- or herself, who assists the police in identifying and catching criminals, while a citizen informant is someone who happens upon a crime or suspicious activity and reports it to police. 

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Terry Stop — Basis – Informant: Corroboration Lacking

State v. Calvin R. Kolk, 2006 WI App 261
For Kolk: Michael Zell

Issue/Holding: Information provided by a named, citizen informant (that Kolk had picked up drugs in Milwaukee and would be driving to Madison) was insufficiently reliable to support reasonable suspicion of criminal activity:

¶17      To recapitulate, the police were able to corroborate: (1) Kolk’s identity; (2) what kind of vehicle he drove; and (3) the fact that he would drive it,

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Terry Stop – Basis – Anonymous Tip, And Suspicious Behavior

State v. Eugene Patton, 2006 WI App 235
For Patton: Daniel R. Clausz

Issue/Holding

¶10   Under appropriate circumstances, an informant’s tip can provide a law enforcement officer with reasonable suspicion to effectuate a Terry stop. Rutzinski, 241 Wis.  2d 729, ¶17;  J.L., 529 U.S. at 270. However, before acting on an informant’s tip,

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Reasonable Suspicion – Stop – Basis – Test: Failure to Yield to Authority

State v. Damian Darnell Washington, 2005 WI App 123
For Washington: Diana M. Felsmann, SPD, Milwaukee Appellate

Issue/Holding:

¶13      In United States v. Mendenhall, 446 U.S. 544 (1980), the Supreme Court stated that “[w]e adhere to the view that a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained[,]” id.

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Terry Stop – Basis – Anonymous Tip, Generally

State v. Eugene Patton, 2006 WI App 235
For Patton: Daniel R. Clausz

Issue: Whether the police had reasonable suspicion to detain on the basis of an anonymous tip, where the suspects not only matched the description of the anonymously-reported armed robbery, but also engaged in potentially suspicious behavior in response to police presence.

Holding:

¶21   Thus, the instant case has more than J.L.

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Stop – Duration – Traffic Offense – Prolonged by Seeking Consent to Search

State v. Calvin R. Kolk, 2006 WI App 261
For Kolk: Michael Zell

Issue/Holding: The (lawful) traffic stop’s purpose concluded when the officer returned Kolk’s license and registration and issued his warning; however, the officer had not released Kolk from the temporary detention caused by the traffic stop when he next asked for consent to search the car and as a result Kolk’s ensuing consent was tainted,

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