On Point

A new Hofstra Law Review article argues that there is no such things as a low-stakes misdemeanor. The sentences can be long and the collateral consequences can be worse. This article could help you help your judge engaged in informed misdemeanor sentencing. Your clients will thank you.

Kerr’s latest post considers 2 recent federal district court decisions on this subject. One raises the question of whether, under the 5th Amendment, the government may compel a suspect to enter a passcode to unlock his device.  The other considers whether the government may use a passcode obtained from a suspect in violation of Miranda […]

State v. Collin M. Gallagher, 2017AP1403, 4/5/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Police took Gallagher’s blood by a warrant that the parties agree was supported by probable cause of operating while intoxicated. He argues, though, that the warrant did not, by its terms, authorize the subsequent testing of his blood–or, that if it did authorize testing, its failure to specify what sorts of testing were permitted rendered it an unconstitutional “general warrant.”

State v. Marque D. Cummings, 2017AP1587-CR, District 1, 4/3/18 (1-judge opinion, ineligible for publication); case activity (including briefs)

This is another one of those cases where the police seized and searched a person for being normal in a high crime area. “But OMG he was wearing a backpack–it might have contained drugs or burglary tools!!!” We are pleased to report that calmer minds prevailed both in the circuit court and the court of appeals.

State v. Lindsey Dawayne Neal, 2017AP1397-CR, 4/3/18, District 1, (not recommended for publication); case activity (including briefs)

According to the court of appeals, yes. The State’s allegations in its complaint and a dashcam video were sufficient to prove reasonable suspicion that Neal parked his car in a manner to obstruct traffic on a highway in violation of Milwaukee Traffic Code 101-24.1. Neal himself asked to call the arresting officers to testify, but the circuit court refused. Who needs witnesses? Hearings are much more efficient without them.

State v. D.M.S.W., Sr., 2018AP124-125, 4/3/18, District 1, (1-judge opinion, ineligible for publication); case activity

¶9 We conclude that D.M.W., Sr. waived his right to appellate review of the circuit court’s decision to sua sponte sever the parents’ hearings. Prior to the fact finding hearings, the circuit court informed D.M.W., Sr. that it would sever the fact finding hearings because the parents had a history of domestic abuse and the court did not find it appropriate to conduct fact finding simultaneously. D.M.W., Sr., pro se at the time, did not object. The court also explained its decision to standby counsel and asked counsel to explain the severance issue to D.M.W., Sr. The court informed the parties that they would have an opportunity to address any concerns pertaining to severance. D.M.W., Sr. did not raise any concerns as to this issue. Nor did counsel raise any objections to the severance of the parents’ disposition hearings after the court explained the basis for its decision. . . .It is well established law that an issue not raised in the circuit court is deemed waived for appellate review. See State v. Nelson, 146 Wis. 2d 442, 457, 432 N.W.2d 115 (Ct. App. 1988) . . .

On March 28, 2018, the court of appeals ordered the publication of the following criminal law related decision:

When last we wrote about we Brendan Dassey, the 7th Circuit, sitting en banc, had vacated the writ of habeas corpus issued the Eastern District of Wisconsin. Dassey has since filed a cert petition in SCOTUS, and numerous organizations have filed amicus briefs in support of it. If you have a case involving a possibly […]

State v. Ricardo L. Conception, 2016AP1282-CR, 3/28, District 2 (not recommended for publication); case activity (including briefs)

Concepcion pled to 10 counts of possession of child pornography. The court of appeals affirmed the denial of his suppression motion because the search of his home was a private-party search, not a government search. It also held that Concepcion’s sentence (9 in, 6 out) was not unduly harsh, and his trial counsel did not perform deficiently by failing to tell the sentencing court that he is a “hero” of “exemplary character and stature.”

State v. Dorian M. Torres, 2018 WI App 23; case activity (including briefs)

Dorian Torres’s mother Shelly allowed police into the apartment Dorian was living in with his father, Emilio. The police found Emilio’s body during a search of the apartment, leading to Dorian being charged with homicide. The court of appeals holds the police reasonably relied on Shelly having authority to consent to their entry and search of the apartment.