On Point blog, page 83 of 133
Reasonable Suspicion – Basis – Traffic Stop – Deviations within Lane – No Bright-Line Rule, Stop Permissible under Totality of Particular Circumstances
State v. Robert E. Post, 2007 WI 60, reversing unpublished decision
For Post: T. Christopher Kelly
Issue/Holding1: Weaving within lane of travel doesn’t support bright-line rule justifying stop for suspicion of drunk driving:
¶14 The State contends that Sergeant Sherman had reasonable suspicion to stop Post. It advocates the view that repeated weaving of a motor vehicle within a single lane (absent an obvious innocent explanation) provides the reasonable suspicion to make an investigatory stop.
Reasonable Suspicion – Basis – Traffic Stop – Deviations within Lane, et al – Stop Permissible, Totality of Particular Circumstances
State v. Robert E. Post, 2007 WI 60, reversing unpublished decision
For Post: T. Christopher Kelly
Issue/Holding:
¶28 As in Waldner, the police officer in the present case did not observe any actions that constituted traffic violations or which, considered in isolation, provided reasonable suspicion that criminal activity was afoot. However, when considered in conjunction with all of the facts and circumstances of the case,
Frisk of Automobile – Generally
State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15
For Johnson: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding:
¶23 In Pennsylvania v. Mimms, 434 U.S. 106 (1977), and Michigan v. Long, 463 U.S. 1032 (1983), the United States Supreme Court applied the principles of Terry to the validity of protective searches executed during a roadside stop.
Expectation of Privacy – Automobile: (Non-Owner) Driver – “Standing” to Challenge Search of Car
State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding: Bruski did not establish an expectation of privacy in the automobile from which evidence was seized, where his only connection to the automobile was that he had passed out in it; further, he did not know how he’d gotten to his current location and didn’t know where the car key was.
Expectation of Privacy – Generally: In Relation to Area Searched
State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶23 Whether an individual had a reasonable expectation of privacy in an area subjected to a search depends on two prongs. Smith v. Maryland, 442 U.S. 735, 740 (1979); Dixon, 177 Wis.
Expectation of Privacy – Generally: Proof of (and: “Standing” Contrasted)
State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶20 …Bruski, as the proponent of a motion to suppress, has the burden of establishing that his Fourth Amendment rights were violated by the search. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Rakas v.
Consent — Acquiescence – Response to Stated Intent to Search
State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15
For Johnson: Eileen A. Hirsch, SPD, Madison Appellate
Issue: Whether Johnson’s statement, “I don’t have a problem with that,” made in response to an officer’s assertion that they were “going to search the vehicle” was voluntary consent or mere acquiescence.
Holding:
¶19 As the record indicates,
Plea-Withdrawal – Pre-Sentence – “Fair and Just Reason” Standard – Generally
State v. Barry M. Jenkins, 2007 WI 96, reversing 2006 WI App 28
For Jenkins: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue/Holding:
¶31 A “fair and just reason” has never been precisely defined. State v. Shimek, 230 Wis. 2d 730, 739, 601 N.W.2d 865 (Ct. App. 1999). Indeed, the fair and just reason standard “lack[s] any pretense of scientific exactness.”
Interstate Agreement on Detainers – Inapplicable to SVP Commitment Following Return under IAD to Serve Criminal Sentence
State ex rel Frederick Lee Pharm v. Bartow, 2007 WI 13, affirming 2005 WI App 215
For Pharm: Jon G. Furlow, Nia Enemuch-Trammell,Roisin H. Bell (Pro Bono)
Issue: Whether, following Pharm’s release in another state prison on life-time parole and his return here under the IAD to serve a Wisconsin sentence, he was subject to ch. 980 commitment proceedings on his release from that sentence.
Guilty Pleas – Required Knowledge — Understanding Nature of Charge – Intersection with Factual Basis
State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182
For Howell: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: Failure to establish a factual basis for the guilty plea triggers Bangert procedure, ¶¶56-59, citing State v. Monika Lackershire, 2007 WI 74. In this instance (because of a last-minute inclusion of a ptac theory the complaint didn’t assert any accomplice- or vicarious-liability facts;