On Point blog, page 121 of 214
Search Warrants – Staleness
State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey
Issue: Whether a time lag of two months between the informant’s observations and the application for the search warrant rendered the warrant stale.
Holding: Passage of time dose not alone render probable cause stale; the warrant-issuing court may consider various factors, ¶33 (citing State v. Multaler,
Wisconsin Electronic Surveillance Control Law (WESCL), §§ 968.27-.37 – Jailhouse Call Intercept – Possibility of Attorney-Client Conversation Doesn’t Overcome Notice to Inmate of Potential for Intercept
State v. Troy Curtis Christensen, 2005 WI App 203
For Christensen: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Given proper notice that calls are subject to recording or monitoring, WESCL allows intercepts of outgoing jail calls notwithstanding the potential for capturing attorney-client calls. (State v. Deonte D. Riley, 2005 WI App 203, ¶13 n. 5, which left this issue open, thereby extended.)
There was no indication that an attorney-client call had in fact been intercepted,
Wisconsin Electronic Surveillance Control Law (WESCL), §§ 968.27-.37 – Jailhouse Calls – One-Party Consent: Notice to Inmate of Potential for Intercept
State v. Deonte D. Riley, 2005 WI App 203
For Riley: William E. Schmaal
Issue/Holding: A recorded message heard by any jail inmate placing an outgoing call, to the effect the call may be recorded, was sufficient to trigger WESCL’s one-party consent exception:
¶10 The WESCL is patterned after Title III of the federal Omnibus Control and Safe Streets Act of 1968. …
¶11 Courts interpreting the federal law have concluded that “[C]onsent may be express or may be implied in fact from ‘surrounding circumstances indicating that the [defendant] knowingly agreed to the surveillance.’” United States v.
§ 939.32, Attempt, Committed as PTAC Conspiracy
State v. Neil P. Jackson, 2005 WI App 104
For Jackson: Timothy A. Provis
Issue/Holding:
¶7 Jackson alleges that the jury instruction on conspiracy violated his right to due process because, he contends, “conspiracy to attempt” is a nonexistent crime. Jackson relies on United States v. Meacham, 626 F.2d 503 (5th Cir. 1980), and People v. Iniguez,
Plain View – Generally
State v. Shaun E. Kelley, 2005 WI App 199
For Kelley: Gregory Bates
Issue/Holding:
¶15 An officer has the right to access objects in plain view while searching within the scope of the consent. See State v. Johnson, 187 Wis. 2d 237, 242, 522 N.W.2d 588 (Ct. App. 1994). In order for the plain view doctrine to apply, three requirements must be met:
First,
Reasonable Suspicion – Stop – Duration – Routine Traffic Offense
State v. Reginald Jones / Maurice E. O’Neal, 2005 WI App 26, (AG’s) PFR filed 2/23/05
For Jones: John P. Tedesco, SPD, Madison Appellate
For O’Neal: Jess Martinez
Issue/Holding: Though the facts are almost indistinguishable from those in State v. Lawrence A. Williams, 2002 WI 94, 255 Wis. 2d 1, 646 N.W.2d 834, consent to search a car immediately after conclusion of a routine traffic stop was (unlike Williams) the product of an illegal detention.
Reasonable Suspicion – Stop – Basis – General
State v. Earnest Alexander, 2005 WI App 235
For Alexander: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether description of a shooting suspect as a black male wearing black skull cap, black jacket and dark pants, more than a day after the shooting permitted the stop of Alexander ten blocks east of the crime scene, wearing a black skull cap, black waist-length jacket, and black pants, along with his “perceived hesitation [and] aversion to eye contact.”
Holding: The court considers the six factors listed in State v.
Reasonable Suspicion – Stop – Basis – Loitering
State v. Damian Darnell Washington, 2005 WI App 123
For Washington: Diana M. Felsmann, SPD, Milwaukee Appellate
Issue/Holding:
¶17 … While the officer testified that he was going to cite Washington for loitering, he did not demonstrate a reasonable, articulable basis for doing so. Investigating a vague complaint of loitering and observing Washington in the area near a house that the officer believed to be vacant,
§ 940.19(5), Aggravated Battery — Instructions: Defining “Great Bodily Harm,” § 939.22(14)
State v. Mahlik D. Ellington, 2005 WI App 243
For Ellington: Andrea Taylor Cornwall
Issue/Holding: The following instruction is sufficient: “Great bodily harm means serious bodily injury. You, the jury, are to alone to determine whether the bodily injury in your judgment is serious.” (La Barge v. State, 74 Wis. 2d 327, 333, 246 N.W.2d 794, 797 (1976) and Cheatham v. State,
§ 948.03(2)(b) (2001-02), Harm to Child – Elements, Proof
State v. Kimberly B., 2005 WI App 115
For Kimberly B.: Anthony G. Milisauskas
Issue/Holding: “¶22 … The crime of physical abuse of a child, as applied to the matter at hand, requires proof beyond a reasonable doubt of the following three elements: (1) Kimberly caused bodily harm to Jasmine, (2) Kimberly intentionally caused such harm, and (3) Jasmine had not attained the age of eighteen years at the time of the alleged offense.