On Point blog, page 92 of 214
Reasonable Suspicion – Basis – Traffic Stop – Vehicle’s Owner Known to Have Revoked License
State v. Frank C. Newer, 2007 WI App 236, PFR filed 11/8/07; prior history: Certification, 8/8/07, denied, 9/10/07
For Newer: Francis R. Lettenberger
Issue/Holding: The police have reasonable suspicion to stop a vehicle whose owner’s DL is known to have been revoked, given no reason to think someone other than the owner is behind the wheel:
¶2 We now reverse the circuit court’s suppression of the evidence and remand for further proceedings.
Reasonable Suspicion – Basis – Traffic Stop – Pretext
State v. Frank C. Newer, 2007 WI App 236, PFR filed 11/8/07; prior history: Certification, 8/8/07, denied, 9/10/07
For Newer: Francis R. Lettenberger
Issue/Holding: ¶4, n. 2.
The circuit court also refused to consider the alternative grounds of the observed speeding violation because the officer “wasn’t using that as a basis for the stop.” We note that the officer’s subjective motivation for making a stop is not the issue;
Commencing Appeal – Effect of Notice of Appeal to Non-Final Order – Construing as Petition for Leave to Appeal
State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi
Issue/Holding: Dismissal of an appeal as having been directed to a non-final order doesn’t in and of itself bar the court of appeals from deciding to grant leave to appeal, ¶7 n. 2:
In its jurisdictional memoranda, the State asks us to construe its notice of appeal as a petition for leave to appeal in the event that we decline jurisdiction over the appeal.
OWI – State’s Appeal: Collateral Attack on Prior OWI Conviction – Non-Final Order, Permission to Appeal Required
State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi
Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3rd to -2nd; instead, the State’s remedy is to seek leave to appeal a non-final order:
¶2 A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel.
OWI – Appellate Procedure: Finality of Order, State’s Appeal: Collateral Attack on Prior OWI Conviction
State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi
Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3rd to -2nd; instead, the State’s remedy is to seek leave to appeal a non-final order:
¶2 A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel.
Warrantless Entry of Residence – Exigency — Destruction of Evidence (Drugs)
State v. Dwight M. Sanders, 2007 WI App 174, affirmed on different ground, 2008 WI 85
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding:
¶32 In both Hughes and Garrett, the police officers actually detected the presence of drugs within the residence before they entered without a warrant. In Hughes, the officers smelled the “unmistakable odor of marijuana coming from [the defendant’s] apartment.” Hughes,
§ 943.20(1)(d), Theft by Fraud – Civil Tort Law, as Aid to Construction
State v. Dale C. Ploeckelman, 2007 WI App 31
For Ploeckelman: Rand Krueger
Issue/Holding:
¶17 Wisconsin Stat. § 943.20(1)(d) prohibits a type of fraud, which is addressed by both criminal and civil tort law. See State v. Timblin, 2002 WI App 304, ¶31, 259 Wis. 2d 299, 657 N.W.2d 89. While there are no common law crimes, this court has consulted civil tort law as an aid to interpreting the criminal fraud statutes.
Theft by Fraud, § 943.20(1)(d) – Element of Misrepresentation – Satisfied by Failure to Discharge Duty to Disclose
State v. Dale C. Ploeckelman, 2007 WI App 31
For Ploeckelman: Rand Krueger
Issue/Holding:
¶18 A representation can be acts or conduct. See Stecher v. State, 168 Wis. 183, 186, 169 N.W. 287 (1918). In Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, 283 Wis. 2d 555, 699 N.W.2d 205, our supreme court laid out the circumstances where a failure to disclose can constitute a representation.
Prostitution, § 944.30(1) – Sufficiency of Evidence – On Charge of Soliciting Intercourse: Offer to Watch Subject Masturbate
State v. David Richard Turnpaugh, 2007 WI App 222
For Turnpaugh: David P. Geraghty, Michael Sosnay
Issue: Given that, as charged, the offense required soliciting “sexual intercourse” (which in turn is defined as “vulvar penetration”), whether the statement “that he was looking for sex and he wanted me to masturbate and that he wanted to watch” is sufficient to support conviction.
Holding:
¶7 Although Turnpaugh said he was “looking for sex,” he limited the scope of that phrase by describing >what he was willing to pay for—watching Ferguson masturbate.
Bail-Jumping, § 946.49(1)(a) – Reversal of Conviction on Which Offense Premised
State v. David Richard Turnpaugh, 2007 WI App 222
For Turnpaugh: David P. Geraghty, Michael Sosnay
Issue/Holding: Reversal of the conviction for the crime on which the bail-jumping “was premised” also requires reversal of the bail-jumping conviction, ¶8.
This isn’t to say that bail-jumping requires >conviction on the underlying offense, see, e.g., State v. Kelley L. Hauk, 2002 WI App 226,