On Point blog, page 9 of 11
Administrative Searches – Probation/Parole: Reasonableness
State v. Jacob B. Jones, 2008 WI App 154, PFR filed 10/24/08
For Jones: David R. Karpe
Issue/Holding: Entry of a probationer’s residence to effectuate a probation/parole search was reasonable:
¶22 We reject Jones’s argument. As the circuit court found, Trimble was told by Detective Pertzborn that Jones was sexually involved with a fourteen-year-old girl and that Pertzborn had knowledge of nude photographs of Jones and love notes from Jones to the girl.
Administrative Searches – Probation/Parole: “Forcible” Manner of Entry
State v. Jacob B. Jones, 2008 WI App 154, PFR filed 10/24/08
For Jones: David R. Karpe
Issue/Holding:
¶24 Wisconsin Admin. Code § DOC 328.21(3)(f) (Dec. 2006) provides that probation or parole agents “may not forcibly enter a locked premises to search it if the client whose living quarters or property it is is not present.” Jones argues that the search of his bedroom was not reasonable because use of a locksmith constituted a forced entry in violation of § DOC 328.21(3)(f),
Search & Seizure – Applicability of Exclusionary Rule: Private Government Search, Generally – Burden of Proof
State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz
Issue/Holding: The exclusionary rule applies only to government action, not private searches, ¶12. If the State asserts that the action was private in nature the burden shifts to the defendant to prove by governmental involvement, preponderance of evidence, id.
Search & Seizure – Applicability of Exclusionary Rule: Private Government Search – Off-Duty Police Officer Acting in Private Capacity – Opening Misaddressed Letter
State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz
Issue: Whether the action of a police officer in opening a letter misaddressed to the officer’s residence from a House of Correction inmate was private and therefore outside fourth amendment scrutiny.
Holding:
¶13 There appears to be no Wisconsin case addressing the issue when an off-duty law enforcement officer acts in a private capacity rather than as a government agent for purposes of the Fourth Amendment.
Search & Seizure – Applicability of Exclusionary Rule – Violation of Non-Constitutional Right: Patient Records (HIPAA, § 146.82)
State v. Ellen T. Straehler, 2008 WI App 14
For Straehler: Daniel P. Fay
Issue: Whether suppression is a remedy for violation of health care privacy laws (HIPAA; § 146.82).
Holding1:
¶10 Straehler’s argument does not carry for a number of reasons. First, Straehler ignores the fact that HIPAA is limited in its scope and applicability. Investigating authorities, i.e., police officers, are not among the “covered entities” expressly subject to HIPPA.
Plea-Withdrawal, Pre-Sentencing – “Fair and Just” Reason: Coercion by Counsel
State v. Eugene D. Rhodes, 2008 WI App 32, PFR filed 1/15/08
For Rhodes: Joseph E. Redding
Issue/Holding: Counsel’s “forceful” advice that defendant enter a guilty plea wasn’t in and of itself a “fair and just” reason sufficient to require pre-sentencing grant of a motion to withdraw the plea:
¶11 Rhodes proffers his attorney’s “forceful advice” as the coercion present here. We reject such a contention.
Plea-Withdrawal, Post-sentence: Prima Facie Showing, Plea Questionnaire
State v. Christopher S. Hoppe, 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate
Issue: Whether a plea colloquy that merely established that the defendant was “satisfied” he understood “everything in the questionnaire and waiver of rights and the elements of the charges” sufficed under State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), given that the questionnaire covered these matters.
Obstructing or Resisting Warden, § 29.951 – Single Crime with Multiple Modes of Commission – Unanimity not Required
State v. David A. Dearborn, 2008 WI App 131, affirmed, 2010 WI 84, ¶2 n. 3
For Dearborn: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Unanimity is not required on whether the defendant “resisted” or “obstructed” a warden on a charge of violating § 29.951, ¶¶21-42.
All the rest is commentary. (Translated: the court undertakes a lengthy analysis that won’t be summarized.) Of particular note,
Plea Bargains — Judicial Participation – Discretion to Inform Will Not Follow Sentencing Recommendation
State v. Miguel E. Marinez, Jr., 2008 WI App 105, (AG’s) PFR filed 7/15/08; prior history: certification, denied 4/3/08
For Marinez: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding:
¶1 At issue here is whether a trial judge is prohibited from informing a defendant that the judge intends to exceed a sentencing recommendation in a plea agreement and offering the opportunity of plea withdrawal.
Extraneous Misconduct Admissibility, § 904.04 – Pornographic Images — “Greater Latitude” Rule, Applicable to Sexual Assault of Vulnerable Adult
State v. Timothy J. Normington, 2008 WI App 8, PFR filed 12/21/07
For Normington: Stephen J. Eisenberg
Issue: Whether images downloaded from the defendant’s computer, depicting objects inserted into women’s vaginas and into men’s and women’s anuses, were admissible on a charge of sexual assault of a mentally deficient victim involving an object inserted in his anus.
Holding:
¶19 We conclude the circuit court correctly decided that the greater latitude rule was available in cases where the other acts evidence is pornography,