On Point blog, page 79 of 133
Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) — “Oral Communications” — No Reasonable Expectation of Privacy by School Bus Driver in Statements Recorded While Transporting Student
State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether a school bus driver’s statements surreptitiously recorded by a voice-activated tape recorder in the student’s backpack were suppressible under WESCL.
Holding:
¶2 The dispositive issue in this appeal is whether Duchow’s tape-recorded statements were “oral communication” as defined in Wis.
Plain View – Cell Phone, Image on Display Screen
State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding: Displayed image on cell phone satisfied plain view doctrine (lawful position of officer, inadvertent discovery, probable cause to be images displayed contraband), ¶¶23-25.
Frisk – Generally
State v. Nathaniel L. Sumner, 2008 WI 94, reversing unpublished opinion
For Sumner: Craig Albee, Carol S. Josten
Issue/Holding:
¶23 Our protective search or “frisk” jurisprudence has consistently emphasized that the totality of all circumstances present and known to the officer must be taken into account to assess the legality of the procedure. Naturally, some factors will be of greater import than others in the reasonable suspicion calculus in a particular case.
Routine Traffic Stop — Routine Traffic Stop – Duration – Extension by 78 Seconds to Perform Dog Sniff
State v. Ramon Lopez Arias, 2008 WI 84, on Certification
For Arias: Lora B. Cerone, SPD, Madison
Issue: whether extending a routine traffic stop by 78 seconds so that a dog could perform (without reasonable suspicion) a “drug sniff” amounted to an unlawful seizure.
Holding:
¶34 … . There remains no hard-and-fast time limit for when a detention has become too long and therefore becomes unreasonable.
§ 940.225(7), Sexual Intercourse with Corpse – Defendant Didn’t Cause Death
State v. Alexander Caleb Grunke / State v. Dustin Blake Radke, 2008 WI 82, reversing 2007 WI App 198
For Grunke: Suzanne Edwards
For Radke: Jefren E. Olsen, SPD, Madison Appellate
Issue: Whether § 940.225 criminalizes sexual contact or sexual intercourse with a victim already dead at the time of the sexual activity when the accused did not cause the death of the victim.
Expectation of Privacy, Generally
State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue/Holding
¶21 This second component reflects that protections from unreasonable searches and seizures, as described in the Fourth Amendment of the federal constitution [15] as well as Article I, § 11 of the state constitution, [16] must be determined by reference to the “‘scope of privacy that a free people legitimately may expect.’”
§ 943.20(1)(b) and (3)(c) – Theft as Trustee/Bailee in Business Setting – Elements – Sufficiency of Evidence
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak
Issue/Holding:
¶57 Next, we address Doss’s argument that there was insufficient evidence to support her conviction under Wisconsin Statute § 943.20(1)(b). Doss correctly recites the elements the State was required to establish to obtain a conviction: that (1) she had possession of money as a result of her position as a personal representative of her father’s estate;
Arrest – Probable Cause – OWI
Waukesha County v. Eric D. Smith, 2008 WI 23, affirming unpublished decision
For Smith: Kirk B. Obear
Issue/Holding:
¶36 We conclude that under the circumstances of the present case, the Deputy’s knowledge at the time of the arrest would lead a reasonable law enforcement officer to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant.
Arrest — Search Incident to Arrest — Chimel “Immediate Control” Rule – Inapplicable Where Defendant Removed from Scene
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: Where the defendant had already been removed from the premises following his arrest, a search of his bedroom couldn’t be justified under a search-incident rationale:
¶51 The State contends that Officer Garcia’s second search of the defendant’s bedroom was justified as a search incident to arrest under the Chimel standard because the bedroom was “within [the defendant’s] immediate presence or control when he barricaded himself in the bedroom and was out of the police officers’
Arrest — Search Incident to Arrest — “Protective Sweep” Doctrine: Generally
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:
¶32 The protective sweep doctrine applies once law enforcement officers are inside an area, including a home. Once inside an area a law enforcement officer may perform a warrantless “protective sweep,” that is, “a quick and limited search of premises,