On Point blog, page 51 of 104
§ 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Waukesha County v. Eric D. Smith, 2008 WI 23, affirming unpublished decision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,
Arrest, Search Incident to – Automobile Passenger’s Property Incident to Arrest of Driver
State v. Jordan A. Denk, 2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate
Issue: Whether the police may search, incident to the arrest of the driver, a passenger’s personal belongings (in this instance: an eyeglass case) found outside the vehicle.
Holding:
¶56 The record indicates that Officer Hahn was concerned about the possible threat posed by Denk as well.
Exigency – Detention of Personal Property of non-Custodial Suspect: Cell Phone Displays Evidence of Drug Trafficking
State v. Jermichael James Carroll, 2008 WI App 161, affirmed on other grounds, 2010 WI 8
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding: Continued possession of Carroll’s cell phone justified, though Carroll not in custody. Expectation of privacy in cell phone analogous to that attending “closed container” such as luggage, as to which detention of container must be supported by probable cause to believe it contains evidence of crime and by exigent circumstances,
Consent – Authority: Driver, for Passenger
State v. Jordan A. Denk, 2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding: ¶20 n. 4:
… While Pickering could consent to a search of the vehicle, he could not consent to a search of his passenger. See State v. Matejka, 2001 WI 5, 241 Wis. 2d 52,
Search & Seizure – Applicability of Exclusionary Rule – Dog Sniff, Wisconsin Constitution
State v. Ramon Lopez Arias, 2008 WI 84, on Certification
For Arias: Lora B. Cerone, SPD, Madison
Issue/Holding: A dog sniff is no more a “search” under the Wisconsin than the U.S. Constitution, at least with respect to vehicles:
¶22 We are unwilling to undertake such a departure here. First, we note that there is no constitutionally protected interest in possessing contraband under the United States Constitution,
Search & Seizure – Applicability of Exclusionary Rule – Violation of § 968.135, Standing to Assert
State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16
For Popenhagen: James B. Connell
Issue: Whether the person whose documents were produced by a bank pursuant to subpoena has standing to seek suppression of the documents.
Holding:
¶24 A person has standing to seek judicial intervention when that person has “a personal stake in the outcome”
Search & Seizure – Applicability of Exclusionary Rule – Violation of Statutory Right: § 968.135, Subpoena Procedure for Production of Documents – Suppressibility of Documents Themselves
State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16
For Popenhagen: James B. Connell
Issue: Whether documents produced in violation of § 968.135 subpoena procedure are suppressible.
Holding:
¶30 The State concedes, and properly so, that contrary to the requirements of Wis. Stat. § 968.135 no showing of probable cause was made to the circuit court before the circuit court issued the subpoenas.