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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.
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State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision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State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision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.
Allocution, Victim’s – Prohibiting Defendant from Looking at Victim
State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro
Issue/Holding:
¶51 The trial court, having just heard a lengthy description of Payette’s violent and abusive conduct toward RS, directed that Payette not look at his victim during her statement to the court, because, the trial court said, “I just don’t want him intimidating her.
First Amendment – Overbreadth – “True Threat” – False Bomb Scare
State v. Robert T., 2008 WI App 22For Robert T.: Bradley J. Bloch
Issue: Whether § 947.015 (2003-04) (“Bomb Scares”) is overbroad and therefore cannot support prosecution for a phoned-in but false bomb threat.
Holding:
¶12 Robert T. argues that the statute suffers from overbreadth because it prohibits speech that could be protected. We disagree. Prior Wisconsin opinions have held that only “true threats” are punishable,
Expectation of Privacy — Public Rest Room
State v. Timothy L. Neitzel, 2008 WI App 143
For Neitzel: David A. Nelson
Issue/Holding: Under the particular circumstances, the sole occupant of a locked, public restroom had no reasonable expectation of privacy given that he occupied the room for at least 25 minutes and then failed to respond to pounding on the door.
The court follows the 6-factor test adopted by State v.
Plain View – Cell Phone, Image on Display Screen
State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding: Displayed image on cell phone satisfied plain view doctrine (lawful position of officer, inadvertent discovery, probable cause to be images displayed contraband), ¶¶23-25.
Frisk – Generally – Type of Crime; Admitted Possession of Weapons; Reaching into Pockets
State v. Aaron E. Applewhite, 2008 WI App 138, PFR filed 9/19/08
For Applewhite: Pamela Moorshead
Issue/Holding: Reasonable suspicion supported the frisk, given: the type of crime being investigated (residential burglary); the suspect’s admitted possession of, but initial reluctance to produce, two knives; and, his repeated reaching into his pants pockets, ¶¶3-11.
Frisk – Generally
State v. Nathaniel L. Sumner, 2008 WI 94, reversing unpublished opinion
For Sumner: Craig Albee, Carol S. Josten
Issue/Holding:
¶23 Our protective search or “frisk” jurisprudence has consistently emphasized that the totality of all circumstances present and known to the officer must be taken into account to assess the legality of the procedure. Naturally, some factors will be of greater import than others in the reasonable suspicion calculus in a particular case.
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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.