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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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Possession of Child Pornography, § 948.12(1m) – Jury Instructions – Unanimity: Agreement as to Which Picture Was Shown and Was Harmful
State v. Jason K. Van Buren, 2008 WI App 26, PFR filed 1/23/08 For Van Buren: Waring R. Fincke Issue/Holding: Counsel’s failure to request a specific unanimity instruction with respect to juror agreement on which of the identified pictures was both harmful and shown to the victim was not prejudicial: ¶22 We reject this claim […]
Arrest – Probable Cause – Specific Examples: Disorderly Conduct
State v. Tanya L. Marten-Hoye, 2008 WI App 19, (AG’s) PFR filed 2/20/08; prior history: Certification, rejected 9/10/07 For Marten-Hoye: Lora B. Cerone, SPD, Madison Appellate Issue/Holding: ¶31 Wisconsin Stat. § 947.01 prohibits “violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance.” Ben-Ami observed […]
Arrest – Probable Cause – OWI
Waukesha County v. Eric D. Smith, 2008 WI 23, affirming unpublished decision For Smith: Kirk B. Obear Issue/Holding: ¶36 We conclude that under the circumstances of the present case, the Deputy’s knowledge at the time of the arrest would lead a reasonable law enforcement officer to believe that the defendant was operating a motor vehicle while under […]
Arrest — Search Incident to Arrest — Chimel “Immediate Control” Rule – Inapplicable Where Defendant Removed from Scene
State v. Dwight M. Sanders, 2008 WI 85, affirming as modified, 2007 WI App 174 For Sanders: Patrick M. Donnelly, SPD, Madison Appellate Issue/Holding: Where the defendant had already been removed from the premises following his arrest, a search of his bedroom couldn’t be justified under a search-incident rationale: ¶51 The State contends that Officer Garcia’s second search […]
Arrest – Test for Custody, Generally
State v. Tanya L. Marten-Hoye, 2008 WI App 19, (AG’s) PFR filed 2/20/08; prior history: Certification, rejected 9/10/07 For Marten-Hoye: Lora B. Cerone, SPD, Madison Appellate Issue/Holding: Where the officer handcuffed the defendant and told her she was under arrest for an ordinance violation, but also told her that she would “be released if she continued to be cooperative,” […]
Arrest — Search Incident to Arrest — “Protective Sweep” Doctrine: Generally
State v. Dwight M. Sanders, 2008 WI 85, affirming as modified, 2007 WI App 174 For Sanders: Patrick M. Donnelly, SPD, Madison Appellate Issue/Holding: ¶32 The protective sweep doctrine applies once law enforcement officers are inside an area, including a home. Once inside an area a law enforcement officer may perform a warrantless “protective sweep,” that is, […]
Arrest, Search Incident to – Automobile Passenger’s Property Incident to Arrest of Driver
State v. Jordan A. Denk, 2008 WI 130, on certification For Denk: Lora B. Cerone, SPD, Madison Appellate Issue: Whether the police may search, incident to the arrest of the driver, a passenger’s personal belongings (in this instance: an eyeglass case) found outside the vehicle. Holding: ¶56 The record indicates that Officer Hahn was concerned about the possible […]
Arrest – Search Incident to Arrest – Cell Phone
State v. Jermichael James Carroll, 2008 WI App 161, affirmed, other grounds, 2010 WI 8 For Carroll: Michael K. Gould, SPD, Milwaukee Appellate Issue/Holding: The police may, incident to lawful arrest for drug use, answer an incoming call on the arrestee’s cell phone, ¶¶27-29. Note that supreme court affirmed on different grounds, namely the exigent-circumstances need to preserve […]
Arrest – Search Incident to Arrest – Test for Custody
State v. Jermichael James Carroll, 2008 WI App 161, affirmed on other grounds, 2010 WI 8 For Carroll: Michael K. Gould, SPD, Milwaukee Appellate Issue/Holding: ¶26 While a person is not necessarily under arrest just because the officers display their weapons and place the individual in a squad car, those facts can support a determination that an […]
Exigency – Detention of Personal Property of non-Custodial Suspect: Cell Phone Displays Evidence of Drug Trafficking
State v. Jermichael James Carroll, 2008 WI App 161, affirmed on other grounds, 2010 WI 8 For Carroll: Michael K. Gould, SPD, Milwaukee Appellate Issue/Holding: Continued possession of Carroll’s cell phone justified, though Carroll not in custody. Expectation of privacy in cell phone analogous to that attending “closed container” such as luggage, as to which detention of container […]
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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.