On Point blog, page 26 of 214
Checkpoint stop justified by “special needs” of law enforcement
State v. Damien Markeith Divone Scott, 2017 WI App 74; case activity (including briefs)
In this case of first impression in Wisconsin, the court of appeals holds that the stop of a car at a police checkpoint was justified by the “special needs” of law enforcement.
Anonymous, barely corroborated tips = probable cause to search house
State v. Guy S. Hillary, 2017 WI App 67; case activity (including briefs)
In this case, a deputy applied for a warrant, saying he had
received anonymous information on June 13, 2014 that a subject went to Guy S Hillary’s residence to fix a vehicle and Hillary proceeded to show the complainant a very large marijuana grow in a garage on Hillary’s property. Complainant stated that there are several grow rooms within the garage containing several large marijuana plants. Complainant stated that Hillary was bragging about how much money he makes selling marijuana.
Both parties agree that this did not establish probable cause–their dispute is about whether other information in the affidavit was lawfully obtained and, if not, whether it had to be excised. The court of appeals, however, rejects the state’s concession and declares this tip good enough.
Marijuana odor, fleeing teens gave exigent circumstances to search apartment
State v. Robert Torres, 2017 WI App 60; case activity (including briefs)
It’s unclear why this opinion is recommended for publication–it seems to be a pretty straightforward application of the law to a particular fact situation.
The statutes authorize fines for 7th and greater OWI offenses
State v. Michel L. Wortman, 2017 WI App 61; case activity (including briefs)
A glitch in the OWI penalty statute appears to suggest that OWI 7th and greater offenses don’t allow for a fine, but only for the imposition of the forfeiture provided for first-offense OWI. The court of appeals concludes otherwise. The court also rejects Wortman’s claim that he was under arrest when a sheriff’s deputy transported him back to the scene of the accident he was in.
When a change in expression amounts to reasonable suspicion for a frisk
State v. Kavin K. Nesbit, 2017 WI App 58; case activity (including briefs)
Nesbit ran out of gas on I 94. He and his buddy were walking on the shoulder, red can in hand, to get gas when Deputy Fowles pulled up and told them he’d give them a ride to and from the gas station. But first, he asked them if they had any weapons. The friend said “no.” Nesbit who had been behaving normally “‘all of a sudden’ became ‘very deflated’ and shook his head slightly in the negative.”
Juror agreement on one count not a “verdict,” so retrial not double jeopardy
State v. Anthony Alvarado, 2017 WI App 53; case activity (including briefs)
In this recommended-for-publication opinion, the court of appeals tackles an issue of first impression in Wisconsin.
Tumblr qualifies as an “identified citizen informant,” and sec. 939.617(2) is not void for vagueness
State v. Samuel Silverstein, 2017 WI App 64; case activity (including briefs)
Pursuant to a warrant, police searched Silverstein’s computer for child porn. The “informer” was Tumblr, which is required by federal law to report suspected child pornography to the National Center for Missing and Exploited Children. Silverstein challenged the warrant as well as the mandatory minimum sentence the trial court imposed per §939.617, which he contends is unconstitutionally vague.
Defense win: Person revoked from ES entitled to sentence credit until return to prison
State v. Larry Davis, 2017 WI App 55; case activity (including briefs)
Applying § 304.072(4) and State v. Presley, 2006 WI App 82, 292 Wis. 2d 734, 715 N.W.2d 713, the court of appeals holds that a person who is revoked from extended supervision resumes serving his sentence when he is received in the prison system, not when revocation occurs; he is therefore entitled to sentence credit up to the date he returns to prison.
Court of Appeals splits over mishmash approach to instructing jury, affirms homicide conviction
State v. Joseph T. Langlois, 2017 WI App 44, petition for review granted 12/13/17, affirmed, 2018 WI 73; case activity (including briefs)
We all know that an appellate court determines the accuracy of a trial court’s jury instructions by reviewing them as a whole, not in isolation. State v. Pettit, 171 Wis. 2d 627, 637-638, 492 N.W.2d 633 (Ct. App. 1992). But surely this doesn’t mean that a “whole” that includes incomplete, inaccurate instructions for some charges is fine so long as it includes the correct instructions for other charges. Surely we don’t expect 12 people unfamiliar with the complex law of “self defense” and “accident” to determine which versions of these instructions are correct and whether the same version applies to three distinct charges. This split opinion says “sure we do.” Judge Reilly objects to the majority’s “as long as the correct words are in there somewhere” approach to instructing a jury. Hopefully, SCOW will too.
Defense win: COA holds mandatory DNA surcharge violates ex post facto clause as applied in this case
State v. Jamal L. Williams, 2017 WI App 46, cross petitions for review granted 10/10/17, reversed in part and affirmed in part, 2018 WI 59; case activity (including briefs)
It’s looking like “DNA surcharge Day” in the District 2 court of appeals. Williams argued that because he had been ordered to provide a DNA sample and pay the $250 surcharge in a prior case, retroactive application of Wisconsin’s recent mandatory DNA surcharge statute in this case violated the ex post facto clauses of the state and federal constitutions. The court of appeals agreed.