On Point blog, page 179 of 214

Reasonable Suspicion – Frisk – Placing Person in Police Squad

State v. Robert F. Hart, 2001 WI App 283
For Hart: John Deitrich

Issue: Whether the need to transport in a police vehicle a person, who is not in custody, is itself an exigency justifying a pat-down search for weapons.

Holding:

¶17. … With five members of the court declining to adopt a per ser rule, the law in Wisconsin is that the need to transport a person in a police vehicle is not,

Read full article >

Suppression Hearing – Riverside Hearing – Factual Misrepresentation

State v. Eddie McAttee, 2001 WI App 262
For McAttee: Russell D. Bohach

Issue: Whether the Riverside probable cause finding was tainted by a factual misrepresentation (specifically, that McAttee had been implicated by a “coconspirator”) in the police report submitted in support of continued detention.

Holding: Though describing the informant as a coconspirator “may have been legally inexact, it also may have accurately conveyed the police’s understanding,

Read full article >

Challenge Incarceration Program (“Boot Camp”) – §§ 973.01(3m), 302.045

State v. Ashley B. Steele, 2001 WI App 160, PFR filed 6/25/01
For Steele: Christopher William Rose

Issue: Whether sentencing eligibility for “boot camp” is determined by bright-line statutory guidelines, or by exercise of trial court discretion.

Holding:

¶12. While an offender must meet the eligibility requirements of Wis. Stat. § 302.045(2) to participate in the challenge incarceration program, pursuant to Wis.

Read full article >

Warrants – Good-Faith Exception – Remand for Determination

State v. Bill Paul Marquardt, 2001 WI App 219, PFR filed 9/20/01
For Marquardt: James B. Connell

Issue: Whether evidence seized under a warrant defective because unsupported by probable cause may be admissible under the good-faith doctrine.

Holding: Given that, subsequent to trial-level litigation, the supreme court recognized the good-faith exception to the exclusionary rule, in State v. Eason, 2001 WI 98,

Read full article >

Warrants – Probable Cause

State v. Bill Paul Marquardt, 2001 WI App 219, PFR filed 9/20/01
For Marquardt: James B. Connell

Issue: Whether the search warrant was supported by probable cause.

Holding:

¶18. …. The State points to several facts in the affidavits: (1) Mary’s telephone was off the hook the day she was killed, suggesting “that the perpetrator had been inside the residence”; (2) Mary was shot and stabbed,

Read full article >

Warrants – Failure to Make Contemporaneous Record of Telephonic Application – Reconstruction of Application

State v. Cherise A. Raflick, 2001 WI 129
For Raflik: Michael J. Fitzgerald, Dean A. Strang

Issue/Holding:

¶1. This case requires us to decide whether suppression is the proper remedy when a telephonic application for a search warrant is not recorded in accordance with Wis. Stat. § 968.12(3)(d)1, and when the factual basis for the warrant is reconstructed in an ex parte hearing after the warrant has been executed.

Read full article >

Right to be Present – Trial Court Communication with Jury

State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate

Issue: Whether the trial court’s response to a jury request to see a written report and a transcript of a witness’s testimony — that these items were “not available” — without first seeking defense input was error.

Holding: The defendant’s presence is required at any critical stage,

Read full article >

Right to Be Present – Voir Dire

State v. George S. Tulley, 2001 WI App 236
For Tulley: Patrick M. Donnelly

Issue: Whether excluding defendant and his attorney from in camera voir dire of several jurors was reversible error.

Holding: A defendant has both constitutional and statutory rights to be present, with assistance of counsel, at voir dire, and the trial court therefore erred in excluding them from the in camera proceedings.

Read full article >

Expectation of Privacy — Property or Possessory Interest Necessary

State v. Derrick Benton, 2001 WI App 81
For Benton: James Kachelski.

Issue: Whether the defendant can challenge seizure of property from an auto where he claimed no ownership or possessory interest in either the auto or the seized property.

Holding:

¶11            Although the trial court upheld the search of the car in which Benton was riding as one incident to either an arrest or as an inventory search,

Read full article >

Double Jeopardy – Multiplicity: Judicial Estoppel Bar to Arguing

State v. Michael Johnson, 2001 WI App 105
For Johnson: David R. Karpe

Issue: Whether defendant’s partially successful trial strategy of defending against two counts of possession of intent to deliver of claiming personal use on one count and denial of any knowledge of the substance in the second count judicially estopped him from arguing on appeal that the two counts are multiplicitous.

Holding:

¶10.

Read full article >