On Point blog, page 70 of 133
Reasonable Suspicion Issues – Frisk – Minor Traffic Stop – Passenger (Various Factors, Including Nervousness, High-Crime Area)
State v. Joshua O. Kyles, 2004 WI 15, affirming court of appeals’ unpublished decision
For Kyles: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: The following factors did not add up to reasonable suspicion supporting the frisk of a passenger during a routine traffic stop (¶17):
(1) The officer testified that he “didn’t feel any particular threat before searching” the defendant.
(2) The defendant,
Exigency – Answering Incoming Call, Lawfully Seized Cell Phone Image Supported
State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding: Answering call on lawfully seized cell phone proper, given existence of “probable cause to believe that the cell phone was a tool used in drug trafficking,” plus exigent circumstances (danger of evidence destruction), ¶¶35-42.
Probable cause, of course, is typically fact-specific and in that sense the court’s discussion (¶¶25-29) is mundane.
Exigency – Browsing through Image Gallery of Lawfully Cell Phone Unsupported
State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding: Exigent circumstances did not support browsing through image gallery of lawfully seized cell phone: “That data was not in immediate danger of disappearing before Belsha could obtain a warrant,” ¶33.
The court of appeals had merely assumed that such browsing was improper on the facts,
SVP, Ch. 980 – Discharge Procedure
State v. Daniel Arends, 2010 WI 46, affirming as modified, 2008 WI App 184; for Arends: Leonard D. Kachinsky
Procedure clarified for handling discharge petitions under recently amended § 908.09 :
¶3 We conclude that § 980.09 requires the circuit court to follow a two-step process in determining whether to hold a discharge hearing.
¶4 Under § 980.09(1),
Order on Judicial Disqualification in: State v. Dimitri Henley, 2008AP697, 5/24/10
The underlying question is whether Justice Roggensack “previously handled” Henley’s earlier appeal when she was a court of appeals judge; if so, then by statute she must be disqualified from participating in his now-pending appeal. She declined to disqualify herself in a memorandum decision, 2010 WI 12. Further background, here. And here, especially with respect to State v.
Counsel – Ethically Deficient Performance
OLR v. Joan M. Boyd, 2010 WI 41
Various derelictions warrant 12-month license suspension, consecutive to already-imposed suspensions. The Counts include various failures to act competently and to keep her client reasonably informed in a number of postconviction actions. In one instance, lack of diligence led to loss of the federal habeas statute of limitations, ¶8; and in another, to a lost state appellate deadline, ¶11. Another count, of potential interest,
State of Wisconsin v. Alan Keith Burns, Wis SCt review grant, 5/13/10
decision below: unpublished (2009AP118); for Burns: David R. Karpe
Issue:
Is the Appellant entitled to a new trial in the interests of justice where (a) the circuit court banned the Appellant from presenting evidence that the victim’s post-assaultive behavior and loss of virginity was due to her having been sexually assaulted by her grandfather rather than the Appellant, and (b) the state argued that there was no other explanation for the victim’s behavior than that the Appellant was guilty?
Misconduct in Public Office, § 946.12(3) – Venue, § 971.19(12)
State v. Scott R. Jensen, 2010 WI 38, reversing 2009 WI App 26, prior history omitted; for Jensen: Robert H. Friebert; BiC; Resp.; Reply
¶1 … The issue presented is whether Waukesha County Circuit Court is the proper venue for Jensen’s trial because it is the “circuit court for the county where the defendant resides”
Foley-Ciccantelli v. Bishop’s Grove, 2009AP688, rev. granted 4/19/10
Issue:
Can a circuit court disqualify retained counsel-of-record in a civil suit, thereby denying the client the right to representation by chosen counsel and restricting the attorney’s right to practice law in a civil action, where the attorney previously represented a nonparty witness for the opposing side?
The Ciccantellis sued a condo association for a personal injury. Turns out plaintiffs’ counsel had also represented the association’s property manager;
State v. Janet A. Conner, 2008AP1296-CR, Wis SCt review grant, 3/16/10
decision below: 2009 WI App 143; for Conner: Steven J. House
Issues:
What degree of specificity is required in charging dates of allege conduct in a criminal information to satisfy the accused’s constitutional due process rights of notice of the charged offenses?
Does Wis. Stat. § 940.32(2m)(b) require that the state prove that a “course of conduct,” constituting two or more acts, occur after the operative prior conviction in order to establish a violation of the aggravated stalking offense?