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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.
Obstructing, § 946.41 – “Lawful Authority” – Jury Instruction, Generally
State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion For Ferguson: Jefren E. Olsen, SPD, Madison Appellate Issue/Holding: ¶31 Because “lawful authority” is an element of obstruction under Wis. Stat. § 946.41(1), if the jury was not properly instructed on the meaning of “lawful authority,” given the facts presented to the jury, the circuit court erred.See Harvey, […]
Disorderly Conduct, § 947.01 – Conviction as “Crime of Domestic Violence” Disqualifying Gun Possession
Joseph E. Koll, Jr v. Dept of Justice, 2009 WI App 74, PFR filed 4/29/09 For Koll: Alexander L. Ullenberg Issue: Whether Koll’s conviction of so-called “non-domestic” disorderly conduct was for a misdemeanor crime of domestic violence as defined 18 U.S.C. §921(a)(33)(A), so as to preclude him from obtaining a handgun. Holding: The federal Gun Control Act bars […]
Sexual Assault of Child, § 948.02 – Unanimity – Separate Counts, Failure to Tie Particular Act to Particular Count
State v. Christopher F. Becker, 2009 WI App 59, PFR filed 5/8/09 For Becker: Jeremy C. Perri, SPD, Milwaukee Appellate Issue/Holding: Waived objection to jury instruction “which failed to tie a particular act of sexual contact to a particular count” on a 2-count information of sexual assault of a child, not prejudicial (State v. Marcum, 166 Wis. […]
Possession of Child Pornography, § 948.12(1m) – Sufficiency of Evidence – Full Nudity not Required
State v. James F. Lala, 2009 WI App 137, PFR filed 9/1/09 For Lala: Ellen Henak, SPD, Milwaukee Appellate Issue/Holding: ¶11 Sexually explicit conduct as defined in Wis. Stat. § 948.01(7)(e) includes actual or simulated “lewd exhibition of intimate parts.” The term “lewd,” however, is not statutorily defined, nor has a single definition been established […]
Community Caretaker – Test – Officer’s Subjective Intent
State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62 For Kramer: Stephen J. Eisenberg, Marsha M. Lysen Issue/Holding: ¶25 Kramer argues that the “totally divorced” language from Cady means that the officer must have ruled out any possibility of criminal activity before the community caretaker function is bona fide. The State, on the other hand, […]
Community Caretaker – Test – Generally
State v. Todd Lee Kramer, 2009 WI 14, affirming 2008 WI App 62 For Kramer: Stephen J. Eisenberg, Marsha M. Lysen Issue/Holding: The 3-factor test for determining validity of community caretaker intervention, as articulated by State v. Anderson, 142 Wis. 2d 162, 167, 417 N.W.2d 411 (Ct. App. 1987), and the lead opinion of State v. Kelsey C.R., 2001 WI […]
Community Caretaker – Investigation of Stopped Car Late at Night
State v. Lance F. Truax, 2009 WI App 60, PFR filed 5/4/09 For Truax: Kiley Zellner Issue/Holding: Largely on community caretaker rationale of State v. Todd Lee Kramer, 2009 WI 14, the court upholds seizure of car observed pulling over on the shoulder late at night. The cop didn’t suspect any traffic violation, but simply thought that a […]
Attenuation of Taint – Arrest in Home, Payton Violation
State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion For Ferguson: Jefren E. Olsen, SPD, Madison Appellate Issue/Holding: Where the police had undisputed probable cause to arrest Ferguson for disorderly conduct outside her apartment, but entered her apartment without a warrant to arrest her, they acted with “lawful authority” for purposes of obstructing, § 946.41, when […]
Warrantless Entry – Exigent Circumstances, Generally
State v. Antonio K. Phillips, 2009 WI App 179, PFR filed 11/25/09 For Phillips: Michael J. Backes Issue/Holding: ¶8 There are four exigent circumstances that may justify a warrantless search: “(1) an arrest made in ‘hot pursuit,’ (2) a threat to safety of a suspect or others, (3) a risk that evidence will be destroyed, and […]
Warrantless Entry of Residence – Exigent Circumstances, Generally
State v. Kevin Raphael Lee, 2009 WI App 96, PFR filed 7/1/09 For Lee: Robert E. Haney Issue/Holding: Warrantless entry of residence is supported when the State demonstrates both probable cause and exigent circumstances, ¶7. Exigent circumstances include: (1) hot pursuit of suspect; (2) threat to someone’s safety; (3) risk of evidence destruction; and (4) likelihood suspect […]
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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.