On Point: E. Administrative searches

State v. Omark D. Ward, 2011 WI App 151 (recommended for publication); for Ward: Mary Scholle, SPD, Milwaukee Appellate; case activity

Ineffective Assistance of Counsel – DNA Search Warrant 

Court commissioner’s order that Ward provide DNA sample violated “oath or affirmation” requirement for warrants:

¶10      Unless a person consents to giving a sample of his or her DNA, or there are exigent circumstances, or there are other exceptions that are not material here,

certification; for Rowan: Paul G. LaZotte, SPD, Madison Appellate; case activity; review granted, 10/25/11

Extended Supervision Conditions – Limits on Fourth Amendment Rights

The issue presented by this appeal is whether a sentencing court violated the Fourth Amendment or Wis. Const. art. I, § 11, by setting a condition of extended supervision that allows any law enforcement officer to search the defendant’s person,

State v. Seneca Joseph Boykin, 2009AP2499-CR, District 2, 9/22/10

court of appeals decision (3-judge, not recommended for publication); for Boykin: Mark A. Schoenfeldt; BiC; Resp.

A probation agent may not evade the warrant requirement by acting as a “stalking horse” for the police in conducting a warrantless search of a probationer’s residence, ¶10. In this instance, probation officer Navis, acting on reliable information that Boykin was using and selling cocaine,

State v. Tarence A. Banks, 2010 WI App 107; for Banks: Scott D. Obernberger; BiC; Resp.; Reply

Evidence – Comment on Refusal to Provide DNA – Ineffective Assistance

Prosecutorial use of Banks’ refusal, after arrest, to provide a warrantless DNA sample penalized him for exercising a constitutional right. Because no contemporaneous objection was made, the issue is raised as ineffective assistance of counsel,

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,

State v. Jacob B. Jones, 2008 WI App 154, PFR filed 10/24/08
For Jones: David R. Karpe

Issue/Holding:  Warrantless search of bedroom upheld as probation/parole search under “special needs” doctrine, notwithstanding presence of police who were conducting a concurrent investigation:

¶15      We conclude, based on the court’s factual findings, that the search of Jones’s room was a probationary search and not a police search.

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.

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),

Green v. Berge, 354 F. 3d 675 (7th Cir. 01-4080, 1/9/04)

Issue/Holding:

The Wisconsin law, § 165.76 et seq., was passed in 1993. In its original form, only prisoners convicted of certain offenses were required to give DNA samples for analysis. In 1999, the law was amended to require that all persons convicted of felonies in Wisconsin (and those who were in prison at the time) provide DNA samples for analysis and storage in the state’s data bank….

John Doe and Jane Doe v. Heck, 327 F. 3d 492 (7th Cir. 01-3648, 4/16/03)

Issue/Holding: “(T)o the extent § 48.981(3)(c)1 authorizes government officials to conduct an investigation of child abuse on private property without a warrant or probable cause, consent, or exigent circumstances, the statute is unconstitutional.”

Also see Michael C. v. Gresbach, 7th Cir No. 07-1756, 5/19/08: “Today we reiterate Heck’s definitive holding,