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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
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Odor of marijuana is probable cause for search; text messages admissible as “panorama” or “other acts” evidence
State v. Willie Brownlee, Jr., 2015AP2319-CR, 11/21/17, District 1, (not recommended for publication); case activity (including briefs)
Two officers stopped Brownlee after he drove his rental car through a red light. One officer approached the driver’s side, the other approached the passenger side occupied by Brownlee’s friend. Both smelled the distinct odor of burnt marijuana. They ordered Brownlee and his friend out of the car and searched it. Guess what they found in the glove compartment?
Is Machner unconstitutional?
At least three justices of the Supreme Court of the United states think so.
Felony defendants far less successful in SCOW than in other state supreme courts
Today’s edition of SCOWstats follows up on a forthcoming Vanderbilt Law Review article, State Criminal Appeals Revealed, which used a new dataset from the Bureau of Justice Statistics and the National Center on State Courts to examine state supreme court decisions in felony appeals. The article did not include Wisconsin cases, so SCOWstats supplies the […]
Good faith exception to exclusionary rule applies to pre-Rodriquez dog sniff
State v. James R. Stib, 2017AP3-CR, District 2, 11/15/17 (not recommended for publication); case activity (including briefs)
Stib argues his traffic stop was unlawfully prolonged to conduct a dog sniff under Rodriguez v. United States, 135 S. Ct. 1609 (2015). Assuming Stib is correct, suppression of the evidence seized after the dog alerted is inappropriate under the good-faith exception to the exclusionary rule because the dog sniff was conducted in objectively reasonable reliance on then-existing precedent, namely, State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748.
SCOW to decide whether courts may impose criminal penalty where suspect refuses a warrantless blood draw
State v. Patrick H. Dalton, 2016AP2483-CR, petition for review 0f an unpublished court of appeals opinion granted 11/13/17; case activity (including briefs)
Issues:
1. Under Missouri v. McNeely and Birchfield v. North Dakota, may a circuit court impose a harsher criminal punishment because a defendant exercised his constitutional right to refuse a warrantless blood draw?
2. Whether Dalton was denied the effective assistance of counsel where his attorney failed to move to suppress blood evidence on grounds that police lacked exigent circumstances to forcibly draw his blood without a warrant?
SCOW will decide if excluding OWI homicide defendant’s evidence he wasn’t the driver was harmless
State v. Kyle Lee Monahan, 2014AP2187, petition for review of an unpublished COA decision granted 11/13/17; case activity (including briefs)
The parties and the state agree that the circuit court erred in excluding Kyle Monahan’s proffered GPS evidence from his trial; the only dispute in this appeal is whether that error is harmless beyond a reasonable doubt.
Post-disposition evidence about a change in child’s placement didn’t merit new disposition hearing
State v. R.G., 2017AP1078, District 1, 11/14/17 (one-judge decision; ineligible for publication); case activity
After R.G.’s parental rights were terminated the child was removed from the care of D.L., the foster parent at the time of the TPR dispositional hearing and prospective adoptive parent, because D.L. was abusing the child. (¶¶5-6). A new disposition hearing isn’t merited because this new evidence wasn’t sufficient to “affect[] the advisability of the court’s original adjudication” under § 48.46(1) and Schroud v. Milw. Cty. Dep’t of Pub. Welfare, 53 Wis. 2d 650, 654, 193 N.W.2d 671 (1972). (¶¶10-15).
Defense evidence properly excluded for lack of foundation
State v. Scott F. Ufferman, 2016AP1774-CR, District 3, 11/14/17 (one-judge decision; ineligible for publication); case activity (including briefs)
Ufferman complains the trial court’s evidentiary rulings improperly stymied his defense against the charge of operating with a detectable amount of THC. The court of appeals holds the trial court’s rulings were correct.
It’s a fact—the defendant’s hair looked “marvelous”!
State v. Keith J. Eggum, 2016AP2036-CR, District 2, 11/8/17 (one-judge decision; ineligible for publication); case activity (including briefs)
And that factual finding dooms Eggum’s claim that his “noticeably disheveled” appearance made his trial unfair. Eggum’s complaint about the presence of extra officers for courtroom security fares no better. And topping it all off, Eggum’s First Amendment defense to the disorderly conduct charge makes no headway, either.
State’s summary of expert testimony needn’t specify the subject matter of his testimony
State v. Jamie M. Srb, 2017AP307-CR, 11/9/17, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)
Srb objected to the admissibility of his BAC results at his OWI trial in part because the State submitted a summary of expert testimony that failed to indicate that its expert would testify about retrograde extrapolation. See §971.23(1)(e). The court of appeals agreed that the State’s summary contained no information regarding retrograde extrapolation, but held that this level of specificity was not required.
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