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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.
Wisconsin Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) – One-Party Consent Exception – Law Enforcement Officer as Consenting Party
State v. John David Ohlinger, 2009 WI App 44, PFR filed 4/1/09
For Ohlinger: Suzanne L. Hagopian, SPD, Madison Appellate
Issue: Whether, for purposes of authorizing one-party consent under WESCL, “a person acting under color of law” may be a law enforcement officer.
Holding:
¶2 [H]e contends that Wis. Stat. § 968.31(2)(b), commonly referred to as the one-party consent exception,
“Forfeiture” (Compared to “Waiver”) of Right to Public Trial
State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser
Issue/Holding: (Generally:)
¶29 Although cases sometimes use the words “forfeiture” and “waiver” interchangeably, the two words embody very different legal concepts. “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.”
Public Trial – Test for Closure, Generally and with Respect to Defendant’s Family
State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser
Issue/Holding1: Closure of the courtroom to numerous members of defendant’s family during witness testimony implicated the right to public trial:
¶51 Although the United States Supreme Court has stated that pursuant to the Sixth Amendment right to a public trial, “an accused is at the very least entitled to have his friends,
Conspiracy, § 939.31 – Impossibility of Fulfilling Objective
State v. Garrett L. Huff, 2009 WI App 92, PFR filed 6/3/09
For Huff: Jeffrey W. Jensen
Issue/Holding: Impossibility of fulfilling goal of conspiracy (here: election bribery, where other “conspirators” were undercover officers ineligible to vote) doesn’t preclude conviction, given Wisconsin’s recognition of “unilateral” conspiracies, State v. Sample, 215 Wis. 2d 487, 573 N.W.2d 187 (1998):
¶11 … Thus,
Expectation of Privacy – Mail – Fictitous Addressee
State v. Dwan J. Earl, 2009 WI App 99
For Earl: Mark D. Richards, Christy Marie Hall
Issue/Holding: Earl did not satisfy the “initial minimal burden of establishing some reasonable expectation of privacy” in a package addressed to a fictitious recipient at a vacant residence; moreover, when Earl picked up the package from the driver he gave his own name and thus “disassociated” himself from the addressee.
Expectation of Privacy – Mail, Generally
State v. Dwan J. Earl, 2009 WI App 99
For Earl: Mark D. Richards, Christy Marie Hall
Issue/Holding:
¶9 Sealed packages sent through the mail are entitled to full protection under the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 114 (1984). In order to challenge a warrantless search or seizure, one must show a legitimate expectation of privacy in the thing or place searched or seized.
Reasonable Suspicion Issues – Frisk – Routine Traffic Stop
State v. Melvin Bridges, 2009 WI 66, PFR filed 5/18/09
For Bridges: Michael S. Holzman
Issue/Holding: Frisk of Bridges during routine traffic stop (defective brake lights) upheld, where the early-evening stop was in an area “where the police had received numerous complaints of gunshots fired at night,” and Bridges when pulled over had made “a questionable movement”; State v. Gary A. Johnson,
Reasonable Suspicion – Basis – Traffic Stops – Administrative Code Equipment Violation (Excessive Tint) – Stop Effectuated by Local Police
State v. Dennis E. Bailey, 2009 WI App 140
For Bailey: Jeffrey W. Jensen
Issue/Holding1: The police have authority to stop a vehicle for an equipment violation of an administrative code provision incorporated under local ordinance:
¶17 Wisconsin Stat. § 349.02(2)(a) and (b) expressly allow a police officer to stop a vehicle for violation of a statute or ordinance enacted under this chapter.
Frisk of Automobile – Furtive Movement
State v. Dennis E. Bailey, 2009 WI App 140
For Bailey: Jeffrey W. Jensen
Issue/Holding: Court upholds frisk of vehicle, following stop for minor equipment violation (excessive window tint) in high crime area, where driver made furtive gesture (kicking motions under front seat) and officer testified that he saw a bag, which he thought contained a gun, protruding from under seat, ¶¶24-50. State v. Gary A.
Frisk of Automobile – Driver Wearing Empty Gun Holster
State v. Paul Anthony Butler, 2009 WI App 52, PFR filed 4/20/09
For Butler: Trisha R. Stewart Martin
Issue/Holding: “Frisk” of car supported by concern driver had gun, in that he was wearing an empty gun holster, ¶16.
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.