On Point blog, page 9 of 14
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.
§ 948.21(1), Neglect, Causing Death – Element of “Person Responsible for Child’s Welfare,” § 948.01(3)
State v. Marketta A. Hughes, 2005 WI App 155, PFR filed
For Hughes: John T. Wasielewski
Issue/Holding:
¶16 We conclude that the plain language of the statute makes clear that a seventeen-year-old employed by a parent to care for the parent’s child can be a person responsible for the welfare of the child. The record reflects that Marketta freely chose to assume responsibility for the welfare of Bryan at her mother’s request.
Community Caretaker Exception to Warrant Requirement – Entry of Residence to Check on Occupant
State v. George Toland Ziedonis, 2005 WI App 249
For Ziedonis: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: Police, responding to a “loose animal” complaint became sufficiently alarmed by the possibility the dogs’ owner was in need of assistance that their warrantless entry was justified under the community caretaker doctrine:
¶27 Like in Ferguson, the police “utilized alternative methods of confirming whether anyone was in the [residence] before entering.” 244 Wis.
Community Caretaker Exception to Warrant Requirement – Generally
State v. George Toland Ziedonis, 2005 WI App 249
For Ziedonis: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶14 One such exception is the community caretaker function, which arises when the actions of the police are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” State v. Anderson, 142 Wis. 2d 162, 166, 417 N.W.2d 411 (Ct.
Attenuation of Taint – Arrest in Home, Payton Violation
State v. David J. Roberson, 2005 WI App 195, affirmed on other grounds, 2006 WI 80
For Roberson: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding: “(E)vidence acquired outside of the home after an in-home arrest in violation of Payton is not a product of the illegal governmental activity, if officers had probable cause to arrest developed apart from the illegal entry,” ¶23;
Consent – Coercion — Scope
State v. Shaun E. Kelley, 2005 WI App 199
For Kelley: Gregory Bates
Issue/Holding:
¶13 Kelley also argues that the search violated the scope of consent. He contends that an accelerant and phone handset could not have been found under his bed and therefore that place should not have been searched. We disagree. …
¶14 Here, the police were searching for a telephone handset and an accelerant.