On Point

State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro

Issue: Whether repeated “dope dating” (giving a minor cocaine on multiple occasions in exchange for sex) amounts to causing the child to practice prostitution within the meaning of § 948.08.

Holding1: “Practice” prostitution:

¶15      Payette is charged with violating Wis. Stat. § 948.08,

State v. Jason K. Van Buren, 2008 WI App 26, PFR filed 1/23/08
For Van Buren: Waring R. Fincke

Issue/Holding: Possession of child pornography, § 948.12(1m), requires depiction of real, as opposed to “virtual,” children:

¶6        … Wisconsin Stat. § 948.12(1m) (2005-06) [1] criminalizes the knowing possession of any “photograph … of a child engaging in sexually explicit conduct.” To be convicted under this statute,

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 because Van Buren has not demonstrated the prejudice necessary to show ineffective assistance of counsel.

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 Marten-Hoye walking away from Ben-Ami and using profane language in a loud voice.

Waukesha County v. Eric D. Smith, 2008 WI 23, affirming unpublished decision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 the influence of an intoxicant.

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 of the defendant’s bedroom was justified as a search incident to arrest under the Chimel standard because the bedroom was “within [the defendant’s] immediate presence or control when he barricaded himself in the bedroom and was out of the police officers’

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,” there was no arrest in fact and therefore the fruits of an ensuing search incident to (a non-existent) arrest were suppressible:

¶27      In sum,

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, “a quick and limited search of premises,

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 threat posed by Denk as well.

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 evidence that would otherwise be lost if the call weren’t answered.