On Point blog, page 124 of 141
Search & Seizure – Applicability of Exclusionary Rule — Violation of Nonconstitutional Right – SCR (Attorney Ethical Rules)
State v. John R. Maloney, 2004 WI App 141, affirmed on other grounds, 2005 WI 74
For Maloney: Lew A. Wasserman
Issue/Holding:
¶11. The trial court held that there had been no violation of SCR 20:4.2 and that even if there had been, suppression would not be the remedy. We agree with the trial court that suppression is not available for an ethics violation.
Administrative Searches – DNA – Collection from Prisoners, § 165.76
Green v. Berge, 354 F. 3d 675 (7th Cir. 01-4080, 1/9/04)
Issue/Holding:
The Wisconsin law, § 165.76 et seq., was passed in 1993. In its original form, only prisoners convicted of certain offenses were required to give DNA samples for analysis. In 1999, the law was amended to require that all persons convicted of felonies in Wisconsin (and those who were in prison at the time) provide DNA samples for analysis and storage in the state’s data bank….
Search & Seizure – Applicability of Exclusionary Rule — Violation of Nonconstitutional Right –Violation of Statute, § 175.40(6)
State v. Peter R. Cash, 2004 WI App 63
For Cash: Lynn M. Bureta
Issue/Holding: Any violation of § 175.40(6), which regulates the arrest power of an officer operating outside territorial jurisdiction would not support suppression as a remedy:
¶30. Assuming arguendo that the Waukesha County Sheriff’s Department had not adopted the written policies required by Wis. Stat. § 175.40(6)(d), we agree with the State that suppression is not a remedy for such a statutory transgression.
OWI – PBT – Probable Cause to Administer
State v. Guy W. Colstad, 2003 WI App 25
For Colstad: T. Christopher Kelly
Issue/Holding: Authority to administer a preliminary breath test requires probable cause to believe a drunk driving law has been violated. ¶23. Probable cause existed here, given the driver’s (mild) odor of intoxicants; the “suspicious circumstance” of the collision (i.e., with a child on an unobstructed street, and the driver allegedly watching for children);
Suppression Hearing – PBT Result – Expert Not Necessary
State v. Guy W. Colstad, 2003 WI App 25
For Colstad: T. Christopher Kelly
Issue/Holding: Expert testimony is not a prerequisite for admission of a PBT result at a suppression hearing. ¶29.
Warrants — Probable Cause — Child Pornography
State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate
Issue: Whether the search warrant was supported by probable cause to believe that the defendant currently possessed child pornography.
Holding:
¶17. “[E]very probable cause determination must be made on a case-by-case basis, looking at the totality of the circumstances.” State v.
Warrants – Scope – Particularity Requirement – Photographs
State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: The search warrant satisfied the particularity requirement by authorizing seizure of the following: “[p]hotographs, movies, slides, videotape, negatives, and/or undeveloped film which would tend to identify … any other juvenile”; and “[m]agazines, books, movies, and photographs depicting nudity and/or sexual activities of juveniles or adults,
Expectation of Privacy — Public Rest Room Stall
State v. Juan M. Orta, 2003 WI App 93
For Orta: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding:
¶2 … (A)n individual who occupies a public restroom stall does not have a reasonable expectation of privacy when he or she occupies it with another individual, leaves the door slightly ajar and unlatched, and evinces no indication that the stall is being used for its intended purpose.
Expectation of Privacy — Threshold of Residence
State v. James L. Larson, 2003 WI App 150
For Larson: Rex Anderegg
Issue/Holding: A police officer’s stepping into the threshold of an apartment, preventing the occupant from closing the door, amounted to an “entry,” thereby triggering the fourth amendment warrant requirement. ¶¶10-11, following State v. Johnson, 177 Wis. 2d 224, 227, 501 N.W.2d 876 (Ct. App. 1993); and noting that “(t)he police practice of putting a foot in the doorway appears to be a common and widespread practice,
Forfeiture — “Adjudication” of Underlying Crime, § 973.076(2)
State v. One 1997 Ford and David Beck, 2003 WI App 128, PFR filed 6/6/03
For Beck: Adam B. Stephens, Alex Flynn
Issue/Holding: Right to seek adjournment of a forfeiture action until after “adjudication” of the underlying criminal proceeding, § 973.076(2), terminates upon trial-level disposition:
¶18. While the term “adjudication” is not itself specifically defined in the statutes, its meaning can be ascertained from an examination of the definitions of other related terms.