On Point: 35. Search & Seizure

State v. Michael D. Sykes, 2005 WI 48, affirming unpublished decision of court of appeals
For Sykes: Jeffrey J. De La Rosa

Issue/Holding: Where the police had probable cause to arrest for criminal trespass, they did not have to subjectively intend to arrest the person for that offense in order to perform a search incident to arrest. And, though the search must be “contemporaneous” with the arrest (relatedly: probable cause must exist independent of the fruits of the search),

State v. Martin D. Triplett, 2005 WI App 255
For Triplett: Syovata Edari, SPD, Milwaukee Appellate / Milwaukee Trial

Issue: Whether the officer’s inability to perform an “effective” patdown permitted a further intrusion that led to the discovery of contraband.

Holding:

¶12      Our supreme court has not, however, addressed the scope of a permissibleTerry search where an effective patdown is impossible.

State v. Bill P. Marquardt, 2005 WI 157, on certification; prior history: 2001 WI App 219
For Marquardt: John Brinckman; Patricia A. Fitzgerald

Issue/Holding: The “significant investigation” requirement of State v. Eason, 2001 WI 98 is satisfied:

¶52      Investigator Price estimated that over the course of March 13 and 14, a total of 20 law enforcement officers had become involved in the investigation of the homicide.

State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey

Issue: Whether Stank was entitled to an evidentiary hearing, relative to the credibility of the informant, in support of his attack on probable cause for the search warrant.

Holding:

¶30      We hold that Stank was not entitled to such a hearing. In Morales v. State, 44 Wis.

State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey

Issue: Whether a time lag of two months between the informant’s observations and the application for the search warrant rendered the warrant stale.

Holding: Passage of time dose not alone render probable cause stale; the warrant-issuing court may consider various factors, ¶33 (citing State v. Multaler,

State v. Troy Curtis Christensen, 2005 WI App 203
For Christensen: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Given proper notice that calls are subject to recording or monitoring, WESCL allows intercepts of outgoing jail calls notwithstanding the potential for capturing attorney-client calls. (State v. Deonte D. Riley, 2005 WI App 203, ¶13 n. 5, which left this issue open, thereby extended.)

There was no indication that an attorney-client call had in fact been intercepted,

State v. Deonte D. Riley, 2005 WI App 203
For Riley: William E. Schmaal

Issue/Holding: A recorded message heard by any jail inmate placing an outgoing call, to the effect the call may be recorded, was sufficient to trigger WESCL’s one-party consent exception:

¶10      The WESCL is patterned after Title III of the federal Omnibus Control and Safe Streets Act of 1968. …

¶11      Courts interpreting the federal law have concluded that “[C]onsent may be express or may be implied in fact from ‘surrounding circumstances indicating that the [defendant] knowingly agreed to the surveillance.’” United States v.

State v. Shaun E. Kelley, 2005 WI App 199
For Kelley: Gregory Bates

Issue/Holding:

¶15      An officer has the right to access objects in plain view while searching within the scope of the consent.  See State v. Johnson, 187 Wis. 2d 237, 242, 522 N.W.2d 588 (Ct. App. 1994). In order for the plain view doctrine to apply, three requirements must be met:

First,

State v. Reginald Jones / Maurice E. O’Neal, 2005 WI App 26, (AG’s) PFR filed 2/23/05
For Jones: John P. Tedesco, SPD, Madison Appellate
For O’Neal: Jess Martinez

Issue/Holding: Though the facts are almost indistinguishable from those in State v. Lawrence A. Williams, 2002 WI 94, 255 Wis. 2d 1, 646 N.W.2d 834, consent to search a car immediately after conclusion of a routine traffic stop was (unlike Williams) the product of an illegal detention.

State v. Earnest Alexander, 2005 WI App 235
For Alexander: Steven D. Phillips, SPD, Madison Appellate

Issue: Whether description of a shooting suspect as a black male wearing black skull cap, black jacket and dark pants, more than a day after the shooting permitted the stop of Alexander ten blocks east of the crime scene, wearing a black skull cap, black waist-length jacket, and black pants, along with his “perceived hesitation [and] aversion to eye contact.”

Holding: The court considers the six factors listed in State v.