On Point blog, page 27 of 216
Defense win: Defendant entitled to a day of credit for portion of a day spent in custody
State v. Antonio Johnson, 2018 WI App 2; case activity (including briefs)
Under § 973.155(1)(a) a convicted offender is entitled to credit for “all days spent in custody” in connection with the course of conduct for which sentence is imposed. So what’s a “day” for credit purposes? Any part of a calendar day, as Johnson claims? Or a continuous twenty-four-hour period, as the state asserts? Based on supreme court cases dealing with credit, the court of appeals agrees with Johnson that it is any part of a calendar day.
Traffic stop to investigate erratic driving wasn’t improperly extended
State v. Travis J. Rose, 2018 WI App 5; case activity (including briefs)
A police officer investigating reports of Rose’s erratic driving concluded Rose was not intoxicated by alcohol, but continued to detain him and, after securing consent, searched Rose’s car, where he found narcotics. The court of appeals holds the officer’s continued detention of Rose, and thus the consent to search the car, were lawful because the officer had reasonable suspicion to continue his investigation.
Court may order reexamination of juvenile found not likely to become competent to proceed
State v. A.L., 2017 WI App 72, petition for review granted 6/11/18, affirmed, 2019 WI 20; case activity; review granted 6/11/18
The court of appeals holds that § 938.30(5) permits a juvenile court to order the re-evaluation of competency of a juvenile previously found not competent to proceed even though the juvenile was also found not likely to regain competence within the relevant statutory time frame (12 months, or the maximum criminal sentence for the offense, whichever is less).
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.