On Point: H. Exclusionary rule

State v. Thor S. Lancial, 2022AP146-CR, 1/5/22, District 3 (not recommended for publication); case activity (including briefs)

A jury convicted Lancial of 10 counts of possession of child pornography. On appeal, he argued that (1) the State’s evidence was insufficient to support the conviction and (2) the circuit court erred in denying his motion to suppress evidence that the police seized during their search of his cell phone. The court of appeals reversed on the second point and held that the pornography had to be excluded on remand.

State v. James Timothy Genous, 2019AP435-CR, 11/1/22, District 1 (not recommended for publication); case activity (including briefs)

In 2020 the court of appeals held that police didn’t have reasonable suspicion to stop Genous to investigate whether he was selling drugs. The supreme court reversed and sent the case back to the court of appeals to address the lawfulness of the searches of Genous’s shoes and socks and his car. Over a dissent, the court of appeals holds  they were.

State v. Kallie M. Gajewski, 2020AP7-CR, District 3, 8/2/22 (not recommended for publication); case activity (including briefs)

Police arrested Gajewski in the curtilage of her home without a warrant and exigent circumstances. While this makes the arrest unlawful, the evidence obtained from the arrest is not subject to suppression because police had probable cause to arrest her.

State v. Daniel J. Van Linn, 2022 WI 16, 3/24/22, affirming an unpublished court of appeals decision; case activity (including briefs)

After Van Linn refused to consent to a blood draw, police ordered one to be taken even though they didn’t have a warrant or exigent circumstances. After the circuit court suppressed the results of the test of this illegal blood draw, the state obtained the same evidence using a subpoena for Van Linn’s medical records. The supreme court holds that, under the “indepedent source” doctrine, the evidence obtained with the subpoena should not be suppressed even though the state sought the subpoena after the suppression of the same evidence obtained with the illegal blood draw.

State v. Jennifer A. Jenkins, 2020AP1243-CR, 3/1/22, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)

Jenkins, convicted of OWI 2nd, raised some interesting and unusual challenges to the trial court’s order denying her motion to suppress.  (1) The arresting officer’s testimony was incredible as a matter of law. (2) He unlawfully stopped her car outside of his jurisdiction. And (3) her blood draw was painful, inordinately long, and therefore unreasonable. The court of appeals rejected all of them.

State v. Todd DiMiceli, 2020AP1302-CR, District 4, 9/16/21 (not recommended for publication); case activity (including briefs)

Under § 968.375(6), a court-ordered subpoena for electronic communication records must be served within 5 days of issuance. The subpoena used to obtain internet records regarding DiMiceli from Charter Communications wasn’t served till 9 days after issuance. The records obtained led to further investigation and charges that DiMiceli was in possession of child pornography. (¶¶2-7). The delay in service of the subpoena doesn’t entitle DiMiceli to suppression of the evidence obtained with the subpoena because the violation of the 5-day service rule was a technical irregularity or error that did not affect DiMiceli’s substantial rights.

State v. George Steven Burch, 2021 WI 68, on certification from the court of appeals, affirming the judgment of conviction; case activity (including briefs)

We said in our post on the court of appeals’ certification that this case presented novel and important issues about searches of cell phones and their data. So we anticipated a decision addressing the parameters of police searches of digital devices. But the majority doesn’t address those issues or decide whether Burch’s Fourth Amendment rights were violated. Instead, the majority holds that, regardless of the lawfulness of the search of Burch’s cell phone data, “there was no police misconduct to trigger application of the exclusionary rule.” (¶26). The majority’s approach bodes ill for the future of Fourth Amendment litigation and the freedom the Fourth Amendment is intended to protect—as illustrated by this case, given that a majority of the justices (one concurring, three dissenting) concludes the search of Burch’s phone data violated the Fourth Amendment.

State v. Billy Joe Cannon, 2019AP2296-CR, District 1, 5/25/21 (not recommended for publication; case activity (including briefs)

In 2009, the State charged Cannon with conspiracy to deliver cocaine on Nov. 10, 2005. In 2011, a jury acquitted him. Six weeks later, the State filed new charges alleging that Cannon conspired to deliver cocaine on March 4, 2008 through March 24, 2008. This time, a jury found him guilty. On appeal, Cannon argued that the 2009 and 2011 conspiracy charges concerned a single, continuous conspiracy so the second prosecution violated his to be free from double jeopardy. He also argued that the circuit court erred in denying his motion to suppress wiretap recordings. The court of appeals rejected both claims.

State v. Daniel J. Van Linn, 2019AP1317, review granted 4/27/21; case activity (including briefs)

Issue presented:

After Daniel Van Linn was arrested on suspicion of drunk driving, a sheriff’s deputy ordered his blood drawn for testing. This draw was illegal, and the circuit court excluded its fruit. After the suppression decision, the prosecutor applied for a subpoena to the hospital where Mr. Van Linn had been treated; the application included the results of the first, suppressed blood test. The court issued the subpoena and the hospital turned over evidence including the results of the blood alcohol test it had conducted. Was the state’s decision to seek this subpoena the fruit of its earlier, unlawful search, such that its results should have been suppressed?

State v. Kevin M. Jereczek, 2021 WI App 30; case activity (including briefs)

Police suspected Jereczek’s son in a sexual assault and thought there might be evidence on the family desktop computer. They asked Jereczek if they could search the machine; he agreed but limited his permission to the son’s account. The examiner, Behling, didn’t adhere to this restriction: he instead began his search in the recycle bin, which contains files deleted from any of the computer’s accounts. There he found child pornography apparently associated with Jereczek’s account, which led him to seek a warrant to search the entire computer. Execution of this warrant turned up more images, leading to the charges against Jereczek. Jereczek moved to suppress the images, saying the initial search had exceeded the scope of his consent. The circuit court denied suppression; Jereczek pleaded no contest to one count and appealed.