On Point blog, page 122 of 141

WESCL, §§ 968.31(2)(b) and (c) – Intent to Commit Injurious Act

State v. John R. Maloney, 2004 WI App 141, affirmed2005 WI 74

Issue/Holding: The WESCL bars interception of a communication where the intent is to commit an “injurious act,” a showing that Maloney can’t make:

¶16. Generally, intent presents a question of fact that we are not allowed to resolve. See, e.g., State v. Lossman, 118 Wis.

Read full article >

Reasonable Suspicion – Stop – Basis – Test – Failure to Yield to Show of Authority

State v. Jeffrey P. Powers, 2004 WI App 143
For Powers: Walter Arthur Piel, Jr.

Issue/Holding:

¶8. Before addressing Powers’ arguments, we will clarify when a seizure occurs. The trial court held that Powers was seized when Bethia activated his emergency lights. That is not the law in Wisconsin. In State v. Kelsey C.R., 2001 WI 54, ¶33, 243 Wis.

Read full article >

Reasonable Suspicion – Stop – Basis – Citizen Informant, Generally

State v. Jeffrey P. Powers, 2004 WI App 143
For Powers: Walter Arthur Piel, Jr.

Issue/Holding:

¶9. Powers attacks the tip provided by the clerk at Osco; he contends that Bethia could not give it any credence. We begin by restating the obvious: when a caller provides his or her name, the tip is not anonymous; it is a tip from a citizen informant. See Sisk,

Read full article >

Reasonable Suspicion – Stop – Basis – Drunk Driving

State v. Jeffrey P. Powers, 2004 WI App 143
For Powers: Walter Arthur Piel, Jr.

Issue/Holding:

¶10. Powers insists that the clerk’s tip is unreliable because the clerk did not observe Powers drive his truck “in a manner consistent with someone who was under the influence of an intoxicant.” We conclude that the tip was reliable for several reasons.

¶11. First, the tip was based on first-hand observations.

Read full article >

Reasonable Suspicion – Traffic Stop

State v. Ibrahim Begicevic, 2004 WI App 57
For Begicevic: Donna J. Kuchler

Issue/Holding:

¶6. Kennedy had reasonable suspicion to conduct an investigative stop. Viewed in isolation, some of what she observed was lawful behavior. It is lawful for a car to be on the roadway at 1:30 a.m. It is lawful for a car to be stopped at an angle within its lane of travel.

Read full article >

Reasonable Suspicion – Stop – Basis – Anonymous Tip

State v. Tabitha A. Sherry, 2004 WI App 207, PFR filed 11/19/04
For Sherry: Craig R. Day

Issue: Whether an anonymous tip – to “Crime Stoppers,” predicting that a particularly described car with a specified license plate would be transporting a large amount of marijuana between neighboring towns – contained sufficient indicia of reliability to provide reasonable suspicion for a stop of the car.

Holding:

¶6.

Read full article >

Reasonable Suspicion — Stop — Duration — Traffic Offense — Questioning Passenger Following Lawful Stop

State v. Donavan W. Malone, 2004 WI 108, on certification
For Malone: John A. Cabranes

Issue: Whether, during a routine traffic stop, the officer may request passengers to get out of the vehicle and question them on matters reasonably related to the nature of the stop.

Holding: Because lawfulness of the stop of the car in which Malone was riding was undisputed, the applicable framework of analysis is found in State v.

Read full article >

Expectation of Privacy — Garbage

State v. Sylvester Sigarroa, 2004 WI App 16, PFR filed 1/2/04
For Sigarroa: John Pray, UW Law School

Issue/Holding:

¶14. The State and Sigarroa propose different tests for determining the constitutionality of a warrantless garbage search… .

¶16. Both parties are able to cite case law in support of their competing approaches. However, upon close review of the relevant cases,

Read full article >

Expectation of Privacy – Curtilage – (Attached) Garage

State v. Walter Leutenegger, 2004 WI App 127
For Leutenegger: Bill Ginsberg

Issue/Holding: ¶21 n. 5:

The State does not challenge the circuit court’s holding that the garage was part of the curtilage of Leutenegger’s house and subject to the warrant requirement. This implicit concession appears appropriate in this case. Published decisions on this topic consistently hold that an attached garage is part of the curtilage. 

Read full article >

Emergency Exception to Warrant Requirement — Officer’s Subjective Intent

State v. Walter Leutenegger, 2004 WI App 127
For Leutenegger: Bill Ginsberg

Issue/Holding:

¶12. A warrantless home entry is presumptively unreasonable under the Fourth Amendment. Richter, 235 Wis. 2d 524, ¶28. The government bears the burden of establishing that a warrantless entry into a home occurred pursuant to a recognized exception to the warrant requirement. See State v.

Read full article >