On Point blog, page 7 of 10
Community Caretaker – Investigation of Stopped Car Late at Night
State v. Lance F. Truax, 2009 WI App 60, PFR filed 5/4/09
For Truax: Kiley Zellner
Issue/Holding: Largely on community caretaker rationale of State v. Todd Lee Kramer, 2009 WI 14, the court upholds seizure of car observed pulling over on the shoulder late at night. The cop didn’t suspect any traffic violation, but simply thought that a driver who’d pulled off the roadway and remained parked for about 15 seconds merited concern for his well-being.
Warrantless Entry – Exigent Circumstances, Generally
State v. Antonio K. Phillips, 2009 WI App 179, PFR filed 11/25/09
For Phillips: Michael J. Backes
Issue/Holding:
¶8 There are four exigent circumstances that may justify a warrantless search: “(1) an arrest made in ‘hot pursuit,’ (2) a threat to safety of a suspect or others, (3) a risk that evidence will be destroyed, and (4) a likelihood that the suspect will flee.” State v.
Warrantless Entry of Residence – Exigent Circumstances, Generally
State v. Kevin Raphael Lee, 2009 WI App 96, PFR filed 7/1/09
For Lee: Robert E. Haney
Issue/Holding: Warrantless entry of residence is supported when the State demonstrates both probable cause and exigent circumstances, ¶7. Exigent circumstances include: (1) hot pursuit of suspect; (2) threat to someone’s safety; (3) risk of evidence destruction; and (4) likelihood suspect will flee, ¶9.
The court goes on to collapse the 2nd and 3rd categories of exigencies,
Recusal – Judicial Bias: Objective Bias, Generally
State v. Brian K. Goodson, 2009 WI App 107
For Goodson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶9 Objective bias can exist in two situations. The first is where there is the appearance of bias, Gudgeon, 295 Wis. 2d 189, ¶¶23-24. “[T]he appearance of bias offends constitutional due process principles whenever a reasonable person—taking into consideration human psychological tendencies and weaknesses—concludes that the average judge could not be trusted to ‘hold the balance nice,
Recusal – Judicial Bias – Prejudgment of Issue: Effectuated Threat to Impose Maximum upon Revocation
State v. Brian K. Goodson, 2009 WI App 107
For Goodson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: The reconfinement judge should have recused himself, given that at original disposition he threatened to impose the maximum if the defendant was returned to court on revocation; State v. Gudgeon, 2006 WI App 143, deemed controlling:
¶12 The same analysis applies here.
Search & Seizure – Applicability of Exclusionary Rule: Private Government Search – Off-Duty Police Officer Acting in Private Capacity – Viewing Memory Stick Containing Child Pornography
State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell
Issue/Holding1: Viewing of memory stick, concededly obtained in “private” search not covered by 4th amendment, ¶13 n. 6, by off-duty police lieutenant who was defendant’s brother-in-law, was not a “government search”:
¶14 “Private searches are not subject to the Fourth Amendment’s protections because the Fourth Amendment applies only to government action.” State v.
Search & Seizure – Applicability of Exclusionary Rule: Seizure and Detention by Private Security Guard
State v. Paul Anthony Butler, 2009 WI App 52, PFR filed 4/20/09
For Butler: Trisha R. Stewart Martin
Issue/Holding: Seizure and detention by security guard, until police arrived to conduct search, didn’t amount to government action so as to trigger 4th amendment analysis, under 3-factor test of State v. Tomas Payano-Roman, 2006 WI 47:
¶14 As we see from Butler’s submissions that are in the Record,
Judicial Substitution, § 971.20(5) – Request Must Be Made before Determination of Guilt
State v. William Allen Wisth, 2009 WI App 53, PFR filed 4/29/09
For Wisth: Jeremy Perri, SPD, MilwaukeeAppellate
Issue/Holding: Defendant not entitled to request substitution of judge assigned to sentencing following revocation; § 971.20(5) is limited to pre-guilt phases:
¶14 We conclude that the plain meaning of Wis. Stat. § 971.20(5) is that substitution is permitted only prior to trial. When the issue of guilt or lack of guilt is resolved,
Administrative Searches – School Search – School Grounds Extended to Parking Lot
State v. Colin G. Schloegel, 2009 WI App 85
For Schloegel: Sarvan Singh
Issue/Holding1: School grounds are extended to the school parking lot, so that the test for searches of students, New Jersey v. T.L.O., 469 U.S. 325 (1985), applies to search of a student’s car parked in the lot, ¶¶15-19.
Issue/Holding2: Search of student’s car in school parking lot was reasonable:
¶21 In this case,
Contributing to Delinquency of Child, § 948.40(4)(a) – Element of “Child”: Includes 17-Year-Olds
State v. Patrick R. Patterson, 2009 WI App 161
For Patterson: David R. Karpe
Issue/Holding:
¶29 We will assume, for purposes of Patterson’s argument, that the definition of “juvenile” in Wis. Stat. § 938.02 applies for purposes of defining “delinquency” in Wis. Stat. § 948.40. Nonetheless, Patterson’s statutory analysis ignores the fact that a seventeen-year-old is only excepted from the definition of “juvenile” for a single purpose,