On Point blog, page 111 of 143
Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) — “Oral Communications” — Reasonable Expectation of Privacy Embedded in Definition
State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether tape-recorded statements were “oral communication” as defined in Wis. Stat. § 968.27(12).
Holding:
¶16 The legislative history of Title III indicates that Congress intended the definition of “oral communication” in Title III, which reads nearly identically to the definition contained in the Electronic Surveillance Control Law,
Arrest, Search Incident to – Timing
State v. Jordan A. Denk, 2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding:
¶33 We note at the outset that Officer Hahn testified he did not place Pickering under arrest until after he had performed searches of the eyeglass case and Denk’s clothing. This fact does not alter our analysis. In State v.
Arrest — Search Incident to Arrest — “Protective Sweep” Doctrine: Search of Canister
State v. Dwight M. Sanders, 2008 WI 85, affirming as modified, 2007 WI App 174
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding:
¶35 Accepting for the moment the State’s position that articulable facts exist to demonstrate that the officer had reasonable suspicion that other persons may be lurking in the defendant’s bedroom who would pose a danger to the officers and that a protective search of the bedroom was therefore justified,
Search & Seizure – Applicability of Exclusionary Rule – Violation of Statutory Right, Generally: Suppression Need not Be Expressly Provided
State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16
For Popenhagen: James B. Connell
Issue/Holding:
¶62 …[E]vidence obtained in violation of a statute (or not in accordance with the statute) may be suppressed under the statute to achieve the objectives of the statute, even though the statute does not expressly provide for the suppression or exclusion of the evidence.
Reasonable Suspicion – Frisk – High-Crime Area, etc.
State v. Tamara C. Limon, 2008 WI App 77, PFR filed 5/7/08
For Limon: Wm. Tyroler, SPD, Milwaukee Appellate; Lisa A. Packard, Law Student
Issue/Holding:
¶34 Here, the officers were outnumbered and without backup when, following an anonymous tip that drug dealing and drug loitering activities were taking place on the porch of a residence in a high-crime area, they approached Limon and two men.
Frisk – “Plain Touch” – Contraband: Plastic Baggies
State v. Aaron E. Applewhite, 2008 WI App 138, PFR filed 9/19/08
For Applewhite: Pamela Moorshead
Issue/Holding:
¶12 The next question before us is whether Bastil’s discovery of contraband in Applewhite’s pockets is supported by the “plain touch” doctrine. When the pat-down itself is based on reasonable suspicion, the “plain feel” or “plain touch” exception to the warrant requirement may apply, and “when an officer touches or feels an object during a pat[-]down which his or her training and experience lead the officer to believe may be contraband,
Reasonable Suspicion – Frisk – Scope: Purse
State v. Tamara C. Limon, 2008 WI App 77, PFR filed 5/7/08
For Limon: Wm. Tyroler, SPD, Milwaukee Appellate; Lisa A. Packard, Law Student
Issue/Holding:
¶36 In her final argument, Limon argues that when the officer opened her purse, the search exceeded the scope of a valid weapons frisk under Terry. Although Terry provides only for an officer “to conduct a carefully limited search of the outer clothing … in an attempt to discover weapons which might be used to assault him,” id.
Warrants – Anticipatory Warrant: Not Supported for Verification of Address
State v. Michael Anthony King, 2008 WI App 129
For King: Mark S. Rosen
Issue/Holding: Although an “anticipatory” search warrant may be issued to seize property in transit, a warrant may not condition its execution on verification of an address, ¶¶16-24
Search Warrants – Probable Cause – “Nexus” Between “Ancillary Materials” Sought in Arrestee’s Home and Gun-Related Arrest
State v. Juan A. Casarez, 2008 WI App 166
For Casarez: Adam C. Essling
Issue/Holding:
¶12 Although Casarez concedes the affidavit establishes probable cause that he committed a crime, he asserts that it contains no evidence to establish that a crime was committed at his home, that the gun was ever observed at his home, or that he was ever seen with the gun at his home.
Search Warrants – Probable Cause – Multi-Unit Building
State v. Adrian J. Jackson, 2008 WI App 109
For Jackson: Craig S. Powell; Brian Kinstler
Issue: Whether a warrant established probable cause to search either the entirety of a multi-unit residential building.
Holding:
¶19 The magistrate was told only that the informant saw Jackson with two guns “at the residence of 4124 N. 21st Street” and that a booking record shows Jackson used that address eight months earlier.[9] Nothing in the Affidavit states that Jackson had been observed using both of the two-story duplex units,