Explore in-depth analysis
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.
Warrants – Anticipatory Warrant: Not Supported for Verification of Address
State v. Michael Anthony King, 2008 WI App 129
For King: Mark S. Rosen
Issue/Holding: Although an “anticipatory” search warrant may be issued to seize property in transit, a warrant may not condition its execution on verification of an address, ¶¶16-24
Search Warrants – Probable Cause – “Nexus” Between “Ancillary Materials” Sought in Arrestee’s Home and Gun-Related Arrest
State v. Juan A. Casarez, 2008 WI App 166
For Casarez: Adam C. Essling
Issue/Holding:
¶12 Although Casarez concedes the affidavit establishes probable cause that he committed a crime, he asserts that it contains no evidence to establish that a crime was committed at his home, that the gun was ever observed at his home, or that he was ever seen with the gun at his home.
Search Warrants – Probable Cause – Multi-Unit Building
State v. Adrian J. Jackson, 2008 WI App 109
For Jackson: Craig S. Powell; Brian Kinstler
Issue: Whether a warrant established probable cause to search either the entirety of a multi-unit residential building.
Holding:
¶19 The magistrate was told only that the informant saw Jackson with two guns “at the residence of 4124 N. 21st Street” and that a booking record shows Jackson used that address eight months earlier.[9] Nothing in the Affidavit states that Jackson had been observed using both of the two-story duplex units,
Search Warrants – Scope – Particularity Requirement: Violated Where Target’s Address Must Be Verified
State v. Michael Anthony King, 2008 WI App 129
For King: Mark S. Rosen
Issue/Holding: A search warrant that conditions its execution on verification of the target’s address violates the 4th amendment’s particularity requirement:
¶25 … The Fourth Amendment clearly sets forth the particularity requirement that must be satisfied prior to issuance of a warrant. … The particularity requirement is necessary “to direct the officer to the exact place to be searched and to guard against abuses that prevailed under the old writs of assistance which left the place to be searched to the discretion of the searching officer.” Rainey v.
Search Warrants – Particularity Requirement – Multi-Unit Building (Duplex)
State v. Adrian J. Jackson, 2008 WI App 109
For Jackson: Craig S. Powell; Brian Kinstler
Issue/Holding: A warrant describing the building to be searched only as “a two-story duplex residence” did not satisfy the particularity requirement:
¶9 If the location to be searched is not described with sufficient particularity to inform officers which unit in a multi-unit building they are to search, the particularity required by the Fourth Amendment has not been satisfied.
Warrants – Scope – Business Records
State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly
Issue: Whether execution of a search warrant for business records exceeded the warrant’s scope in that the warrant: authorized only the search for and seizure of records that related to a specific business with specifically named clients; and also authorized only a search of that business’s office space and not the defendant’s personal office within that space.
Search Warrants – Staleness – Drug Transaction, 30 Days Old
State v. Michael Anthony King, 2008 WI App 129
For King: Mark S. Rosen
Issue/Holding: Search warrant based on drug transaction occurring 30 days earlier lacked probable cause, ¶32 n. 7:
… From our review of the record, it would appear that probable cause as to the search of his residence was stale. The most recent information directly tied to King was thirty days old.
Search Warrants – “Technical Irregularity,” § 968.22 – Accurate Identification of Target in Warrant Application but Inaccurate Description in Warrant Itself
State v. Eric Dwayne Rogers, 2008 WI App 176, PFR filed 12/12/08
For Rogers: Mark D. Richards
Issue/Holding: Incorrect identification of automobile on face of warrant was mere technical irregularity based on “scrivener’s error”:
¶15 In this case, the executing officer had personal knowledge and the officer attached and incorporated a correct affidavit. The affidavit correctly identified Rogers’ car three times, describing the correct color,
Wisconsin Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) – Construction, Generally – Relevance of Federal Decisions
State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue/Holding:
¶15 Extrinsic sources include legislative history. Id. The drafting records of the Electronic Surveillance Control Law state that the law “represents Wisconsin implementation of the electronic surveillance portion of [Title III],” the Omnibus Crime Control and Safe Streets Act of 1968.
Electronic Surveillance Control Law, §§ 968.31(2)(b)-(c) — “Oral Communications” — No Reasonable Expectation of Privacy by School Bus Driver in Statements Recorded While Transporting Student
State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether a school bus driver’s statements surreptitiously recorded by a voice-activated tape recorder in the student’s backpack were suppressible under WESCL.
Holding:
¶2 The dispositive issue in this appeal is whether Duchow’s tape-recorded statements were “oral communication” as defined in Wis.
Important Posts
Ahead in SCOW
Sign up
On Point is sponsored by Wisconsin State Public Defenders. All content is subject to public disclosure. Comments are moderated. If you have questions about this blog, please email [email protected].
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.