On Point

State v. Katherine J. Downer Jossi, 2016AP618-CR, 8/24/16, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

This court of appeals decision acknowledges what On Point predicted here when SCOTUS issued Rodriguez v. United States, 135 S. Ct. 1609 (2015). That is, Rodriguez, which held that prolonging a traffic stop to conduct a dog sniff requires reasonable suspicion of criminal activity  beyond the traffic infraction, effectively overruled State v. Arias, 2008 WI 84, ¶32, 311 Wis. 2d 358, 752 N.W.2d 748, which allowed for a reasonable delay based on the totality of the circumstances (a.k.a. the “incremental intrusion” test).

State v. S.G./Waukesha County v. S.G., 2015AP2138 & 2015AP2139, District 2, 8/24/16 (one-judge decision; ineligible for publication); case activity (including briefs)

S.G. challenges the revocation of her driver’s license for refusal, arguing the arresting officer didn’t sufficiently convey the implied consent warnings to her. She also challenges the sufficiency of the evidence for her OWI conviction. Neither challenge succeeds.

Raymond E. King v. Randy Pfister, 7th Circuit Court of Appeals No. 14-3389, 2016 WL 4446105, 8/24/16

The presiding judge at King’s 2004 murder trial was a former public defender who represented King in a criminal case in 1986. KIng’s pretrial pro se efforts to get the judge recused were rebuffed. After exhausting his state court remedies, King filed a habeas petition arguing his state trial and appellate lawyers were ineffective for failing to litigate a claim that the trial judge should have been substituted from King’s case. The Seventh Circuit rejects the argument.

Oconto County v. Jonathan E. Van Ark, 2015AP1415, 8/23/16; District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)

Van Ark was sitting in his parked pickup truck when a deputy approached him, smelled alcohol, saw his glossy, blood-shot eyes, and observed his slow, slurred speech.  A subsequent hospital blood draw indicated that Van Ark had a .237 BAC. The State charged him with OWI and operating with a Prohibited Alcohol Concentration and moved for directed verdicts on both counts. The circuit court denied a directed verdict on the OWI charge, but granted it on the PAC charge. The court of appeals reversed based on WIS JI–CRIMINAL 2660A.

Should people be able to retract uncounseled Miranda waivers elicited by law enforcement officers while they were juveniles? This UCLA law review article  by Loyola Law School Professor Kevin Lapp explores the problems with interrogating juveniles and the pros and cons of retractable Fifth Amendment waivers.

State v. D.L., 2016AP735 & 2016AP736, District 1, 8/18/16 (one-judge decision; ineligible for publication); case activity

The trial court didn’t err in admitting multiple hearsay statements made by D.L.’s children about her treatment of them or in admitting expert testimony about whether D.L. had a “strong bond” or “positive and healthy relationships” with her children.

State v. Micha S. Pruitt, 2016AP251-CR, District 4, 8/18/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The statute permitting telephone proceedings in criminal cases, § 967.08, does not permit the presentation of testimony by telephone during a criminal jury trial.

United States v. Frank Caira, 7th Circuit Court of Appeals No. 14-1003, 2016 WL 4376472, 8/17/16

During a drug investigation the government issued subpoenas to two internet service providers—Microsoft, the owner of Hotmail, and Comcast the owner of an Internet Protocol address associated with the Hotmail address being investigated. The subpoenas provided information that led investigators to Caira. (Slip op. at 2-4). His claim that the subpoenas amounted to unreasonable warrantless searches is rejected because voluntarily sharing the information with the internet providers meant Caira had no reasonable expectation of privacy in the information.

State v. Armstrong, 2016AP97-CR, District 2, 8/17/16 (one-judge decision; ineligible for publication); case activity (including defendant’s brief; the state did not file a response brief)

While § 973.015 and State v. Matasek, 2014 WI 27, ¶45, 353 Wis. 2d 601, 846 N.W.2d 811, require that expungement be decided at the time of sentencing, not put off till after the defendant completes the sentence, a circuit court has the power to decide expungement after sentencing when it erred in deferring, on its own accord, a defendant’s expungement request at the time of sentencing.

State v. Sandra D. Noren, 2015AP1969-CR, District 2, 8/17/16 (not recommended for publication); case activity (including briefs)

A police officer responding to a 911 call conducted a warrantless search of Noren’s bedroom and found drugs and paraphernalia. The court of appeals holds the search was justified under the emergency exception to the warrant requirement.