On Point blog, page 25 of 35
State v. Chad W. Ebert, 2010AP1431-CR, District 2, 1/12/11
court of appeals decision (1-judge, not for publication); for Ebert: Chad A. Lanning; case activity; Ebert BiC; State Resp.; Reply
Consent-Based Entry
¶7 The Fourth Amendment’s warrant requirement does not apply when police have consent to enter a dwelling. State v. Douglas, 123 Wis. 2d 13, 18, 365 N.W.2d 580 (1985). The issue in this appeal is whether Ebert’s uncle consented to the search of Ebert’s residence,
Confrontation – Generally – Forfeiture by Wrongdoing – Harmless Error; Other Acts Evidence: Pornography (& Intent to Kill); Consent to Search; Judicial Bias
State v. Mark D. Jensen, 2011 WI App 3; prior history: 2007 WI 26; for Jensen: Terry W. Rose, Christopher William Rose, Michael D. Cicchini; case activity; (Jensen BiC not posted); State Resp.; Jensen Reply
Confrontation – Generally
The Confrontation Clause regulates testimonial statements only, such that nontestimonial statements are excludable only under hearsay and other evidence-rule ¶¶22-26,
Warrantless Entry: Community Caretaker Exception
State v. Kathleen A. Ultsch, 2011 WI App 17(recommended for publication); for Ultsch: Shelley Fite, SPD, Madison Appellate; case activity; Ultsch BiC; State Resp.; Reply
Warrantless entry into a home, supposedly to check on the well-being of a suspected drunk driver just involved in an accident, wasn’t justified under the community caretaker doctrine; State v.
Search & Seizure: Consent to Enter – Expectation of Privacy (Overnight Guest) – Exigent Circumstances
State v. Miguel A. Ayala, 2011 WI App 6; for Ayala: Martin E. Kohler, Craig S. Powell; case activity; Ayala BiC; State Resp.; Reply
Search & Seizure – Consent to Enter
Based on trial court findings on disputed facts, the resident of an apartment gave the police consent to enter a bedroom and look for Ayala (as to whom,
Consensual Entry of Residence
State v. Mark A. Miller, 2010AP352-CR, District 4, 12/9/10
court of appeals decision (1-judge, not for publication); for Miller: Bill Ginsberg; Miller BiC; State Resp.
The court concludes that Miller voluntarily consented to police entreaties over an 11-minute period to enter his home so that they could perform field sobriety testing, notwithstanding his refusals during that time to allow entry:
¶7 The circuit court found that the officer spoke with Miller for approximately eleven minutes and,
Warrantless Blood Draw – Driving under Influence of Drugs
State v. Travis J. Malinowski, 2010AP1084-CR, District 3, 11/30/10
court of appeals decision (1-judge, not for publication); for Malinowski: Chad A. Lanning; Malinowski BiC; State Resp.; Reply
Exigent-circumstances doctrine supports warrantless blood draw of person arrested for driving under the influence of drugs, no less than under the influence of alcohol, State v. Bohling, 173 Wis.
USA v. Donald W. Simms, II, 7th Cir No. 10-1055, 11/23/10
Milwaukee’s ordinance-created “winter rules” with respect to snow removal effectively establish an “easement” such that police could enter a yard and rifle through a homeowner’s garbage cart. Although the cart is within what is normally considered “curtilage,” and thus protected by privacy concerns, the intrusion of the curtilage here is “lawful,” given this local law allowing garbage collectors to intrude on such areas.
But the fact that the defendant’s garbage carts were (we may assume) within the curtilage of his home does not conclude the constitutional analysis.
“In-Home Seizure” – “Constructive Entry”
City of Sheboygan v. Brian J. Cesar, 2010 WI App 170 (recommended for publication); for Cesar: Andrew Mishlove, Lauren Stuckert; Cesar BiC; City Resp.; Reply; AG Amicus
Police, investigating a recent traffic accident, knocked on Cesar’s door and rang his doorbell “numerous” times for up to 10 minutes, and threatened to remain until he came out or they got a warrant;
Appellate Procedure – Affirmance on Different Theory; Search & Seizure – Plain View
State v. Jason W. Kucik, 2009AP933-CR, District 1, 11/16/10
court of appeals decision (3-judge, not recommended for publication); for Kucik: Thomas J. Nitschke; Resp. Br.; Reply; Kucik Supp. Br.; State’s Supp. Br.
Appellate Procedure – Affirmance on Different Theory than Posited Below
¶31 We agree with the State that it is appropriate for us to consider the alternate basis to affirm the trial court that the State raised for the first time at oral argument.
State v. Brian T. St. Martin, No. 2009AP1209-CR, review granted 10/27/10
decision below: certification; for St. Martin: Michael K. Gould, SPD, Milwaukee Appellate; court of appeals briefs: Resp.; Reply
Issue (from Table of Cases):
Whether the rule regarding consent to search a shared dwelling in Georgia v. Randolph, 547 U.S. 103 (2006), which states that a warrantless search cannot be justified when a physically present resident expressly refuses consent,