On Point blog, page 108 of 142
WESCL, §§ 968.31(2)(b) and (c) – GPS Device not Covered
State v. Michael A. Sveum, 2009 WI App 81, affirmed on other grounds, 2010 WI 92
For Sveum: Robert J. Kaiser, Jr.
Issue/Holding: The Wisconsin Electronic Surveillance Control Law excludes from coverage “(a)ny communication from a tracking device,” § 968.27(4)(d); a GPS device is such a “tracking device” and, therefore excluded from WESCL coverage.
Wisconsin Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) – One-Party Consent Exception, Generally
State v. John David Ohlinger, 2009 WI App 44, PFR filed 4/1/09
For Ohlinger: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding:
¶8 The one-party consent exception reads as follows:
(2) It is not unlawful …:….
(b) For a person acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.
Wisconsin Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) – One-Party Consent Exception – Law Enforcement Officer as Consenting Party
State v. John David Ohlinger, 2009 WI App 44, PFR filed 4/1/09
For Ohlinger: Suzanne L. Hagopian, SPD, Madison Appellate
Issue: Whether, for purposes of authorizing one-party consent under WESCL, “a person acting under color of law” may be a law enforcement officer.
Holding:
¶2 [H]e contends that Wis. Stat. § 968.31(2)(b), commonly referred to as the one-party consent exception,
Expectation of Privacy – Mail – Fictitous Addressee
State v. Dwan J. Earl, 2009 WI App 99
For Earl: Mark D. Richards, Christy Marie Hall
Issue/Holding: Earl did not satisfy the “initial minimal burden of establishing some reasonable expectation of privacy” in a package addressed to a fictitious recipient at a vacant residence; moreover, when Earl picked up the package from the driver he gave his own name and thus “disassociated” himself from the addressee.
Expectation of Privacy – Mail, Generally
State v. Dwan J. Earl, 2009 WI App 99
For Earl: Mark D. Richards, Christy Marie Hall
Issue/Holding:
¶9 Sealed packages sent through the mail are entitled to full protection under the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 114 (1984). In order to challenge a warrantless search or seizure, one must show a legitimate expectation of privacy in the thing or place searched or seized.
Reasonable Suspicion Issues – Frisk – Routine Traffic Stop
State v. Melvin Bridges, 2009 WI 66, PFR filed 5/18/09
For Bridges: Michael S. Holzman
Issue/Holding: Frisk of Bridges during routine traffic stop (defective brake lights) upheld, where the early-evening stop was in an area “where the police had received numerous complaints of gunshots fired at night,” and Bridges when pulled over had made “a questionable movement”; State v. Gary A. Johnson,
Reasonable Suspicion – Basis – Traffic Stops – Administrative Code Equipment Violation (Excessive Tint) – Stop Effectuated by Local Police
State v. Dennis E. Bailey, 2009 WI App 140
For Bailey: Jeffrey W. Jensen
Issue/Holding1: The police have authority to stop a vehicle for an equipment violation of an administrative code provision incorporated under local ordinance:
¶17 Wisconsin Stat. § 349.02(2)(a) and (b) expressly allow a police officer to stop a vehicle for violation of a statute or ordinance enacted under this chapter.
Frisk of Automobile – Furtive Movement
State v. Dennis E. Bailey, 2009 WI App 140
For Bailey: Jeffrey W. Jensen
Issue/Holding: Court upholds frisk of vehicle, following stop for minor equipment violation (excessive window tint) in high crime area, where driver made furtive gesture (kicking motions under front seat) and officer testified that he saw a bag, which he thought contained a gun, protruding from under seat, ¶¶24-50. State v. Gary A.
Frisk of Automobile – Driver Wearing Empty Gun Holster
State v. Paul Anthony Butler, 2009 WI App 52, PFR filed 4/20/09
For Butler: Trisha R. Stewart Martin
Issue/Holding: “Frisk” of car supported by concern driver had gun, in that he was wearing an empty gun holster, ¶16.
Expectation of Privacy – Public Area (Courthouse Hallway), Property Left in
State v. Elliot B. Russ, Sr., 2009 WI App 68
For Russ: Barry S. Buckspan
Issue/Holding: No expectation of privacy protected papers left in courthouse hallway and subsequently seized and photocopied by court personnel:
¶12 Although Russ’s main brief on this appeal asserts that, as testified-to by Carlson, the affidavits were in a folder when Carlson saw them, the circuit court found that when Commissioner Sweet first saw them they “were spread out on a public bench” … .