On Point blog, page 6 of 11
Warrants – Anticipatory Warrant: Not Supported for Verification of Address
State v. Michael Anthony King, 2008 WI App 129
For King: Mark S. Rosen
Issue/Holding: Although an “anticipatory” search warrant may be issued to seize property in transit, a warrant may not condition its execution on verification of an address, ¶¶16-24
Search Warrants – Probable Cause – “Nexus” Between “Ancillary Materials” Sought in Arrestee’s Home and Gun-Related Arrest
State v. Juan A. Casarez, 2008 WI App 166
For Casarez: Adam C. Essling
Issue/Holding:
¶12 Although Casarez concedes the affidavit establishes probable cause that he committed a crime, he asserts that it contains no evidence to establish that a crime was committed at his home, that the gun was ever observed at his home, or that he was ever seen with the gun at his home.
Search Warrants – Probable Cause – Multi-Unit Building
State v. Adrian J. Jackson, 2008 WI App 109
For Jackson: Craig S. Powell; Brian Kinstler
Issue: Whether a warrant established probable cause to search either the entirety of a multi-unit residential building.
Holding:
¶19 The magistrate was told only that the informant saw Jackson with two guns “at the residence of 4124 N. 21st Street” and that a booking record shows Jackson used that address eight months earlier.[9] Nothing in the Affidavit states that Jackson had been observed using both of the two-story duplex units,
Search Warrants – Scope – Particularity Requirement: Violated Where Target’s Address Must Be Verified
State v. Michael Anthony King, 2008 WI App 129
For King: Mark S. Rosen
Issue/Holding: A search warrant that conditions its execution on verification of the target’s address violates the 4th amendment’s particularity requirement:
¶25 … The Fourth Amendment clearly sets forth the particularity requirement that must be satisfied prior to issuance of a warrant. … The particularity requirement is necessary “to direct the officer to the exact place to be searched and to guard against abuses that prevailed under the old writs of assistance which left the place to be searched to the discretion of the searching officer.” Rainey v.
Search Warrants – Particularity Requirement – Multi-Unit Building (Duplex)
State v. Adrian J. Jackson, 2008 WI App 109
For Jackson: Craig S. Powell; Brian Kinstler
Issue/Holding: A warrant describing the building to be searched only as “a two-story duplex residence” did not satisfy the particularity requirement:
¶9 If the location to be searched is not described with sufficient particularity to inform officers which unit in a multi-unit building they are to search, the particularity required by the Fourth Amendment has not been satisfied.
Search Warrants – Staleness – Drug Transaction, 30 Days Old
State v. Michael Anthony King, 2008 WI App 129
For King: Mark S. Rosen
Issue/Holding: Search warrant based on drug transaction occurring 30 days earlier lacked probable cause, ¶32 n. 7:
… From our review of the record, it would appear that probable cause as to the search of his residence was stale. The most recent information directly tied to King was thirty days old.
Search Warrants – “Technical Irregularity,” § 968.22 – Accurate Identification of Target in Warrant Application but Inaccurate Description in Warrant Itself
State v. Eric Dwayne Rogers, 2008 WI App 176, PFR filed 12/12/08
For Rogers: Mark D. Richards
Issue/Holding: Incorrect identification of automobile on face of warrant was mere technical irregularity based on “scrivener’s error”:
¶15 In this case, the executing officer had personal knowledge and the officer attached and incorporated a correct affidavit. The affidavit correctly identified Rogers’ car three times, describing the correct color,
Allocution, Victim’s – Prohibiting Defendant from Looking at Victim
State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro
Issue/Holding:
¶51 The trial court, having just heard a lengthy description of Payette’s violent and abusive conduct toward RS, directed that Payette not look at his victim during her statement to the court, because, the trial court said, “I just don’t want him intimidating her.
First Amendment – Overbreadth – “True Threat” – False Bomb Scare
State v. Robert T., 2008 WI App 22For Robert T.: Bradley J. Bloch
Issue: Whether § 947.015 (2003-04) (“Bomb Scares”) is overbroad and therefore cannot support prosecution for a phoned-in but false bomb threat.
Holding:
¶12 Robert T. argues that the statute suffers from overbreadth because it prohibits speech that could be protected. We disagree. Prior Wisconsin opinions have held that only “true threats” are punishable,
Expectation of Privacy — Public Rest Room
State v. Timothy L. Neitzel, 2008 WI App 143
For Neitzel: David A. Nelson
Issue/Holding: Under the particular circumstances, the sole occupant of a locked, public restroom had no reasonable expectation of privacy given that he occupied the room for at least 25 minutes and then failed to respond to pounding on the door.
The court follows the 6-factor test adopted by State v.