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.
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 arrest occurred. In this case,
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 must be supported by probable cause to believe it contains evidence of crime and by exigent circumstances,
Attenutation of Taint – Search Warrant
State v. Eric Dwayne Rogers, 2008 WI App 176, PFR filed 12/12/08
For Rogers: Mark D. Richards
Issue/Holding: Although warrantless entry of and remaining in a home while a warrant was prepared was illegal, the warrant wasn’t based on any information turned up by this illegality and evidence seized during its execution was therefore admissible:
¶21 Still, “evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint.’” Segura v.
Consent – Authority: Driver, for Passenger
State v. Jordan A. Denk, 2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding: ¶20 n. 4:
… While Pickering could consent to a search of the vehicle, he could not consent to a search of his passenger. See State v. Matejka, 2001 WI 5, 241 Wis. 2d 52,
Warrantless Entry of Residence – No Exigent Circumstances
State v. Eric Dwayne Rogers, 2008 WI App 176, PFR filed 12/12/08
For Rogers: Mark D. Richards
Issue/Holding: Warrantless entry of Rogers’ home, following seizure of contraband from his car, was unlawful:
¶19 In this case, the police entered Rogers’ residence after seizing contraband from his car and person and then seeing Rogers’ brother and others at the scene talking on their phones.
Administrative Searches – Probation/Parole: Presence of Police not Determinative
State v. Jacob B. Jones, 2008 WI App 154, PFR filed 10/24/08
For Jones: David R. Karpe
Issue/Holding: Warrantless search of bedroom upheld as probation/parole search under “special needs” doctrine, notwithstanding presence of police who were conducting a concurrent investigation:
¶15 We conclude, based on the court’s factual findings, that the search of Jones’s room was a probationary search and not a police search.
Administrative Searches – Probation/Parole: Reasonableness
State v. Jacob B. Jones, 2008 WI App 154, PFR filed 10/24/08
For Jones: David R. Karpe
Issue/Holding: Entry of a probationer’s residence to effectuate a probation/parole search was reasonable:
¶22 We reject Jones’s argument. As the circuit court found, Trimble was told by Detective Pertzborn that Jones was sexually involved with a fourteen-year-old girl and that Pertzborn had knowledge of nude photographs of Jones and love notes from Jones to the girl.
Administrative Searches – Probation/Parole: “Forcible” Manner of Entry
State v. Jacob B. Jones, 2008 WI App 154, PFR filed 10/24/08
For Jones: David R. Karpe
Issue/Holding:
¶24 Wisconsin Admin. Code § DOC 328.21(3)(f) (Dec. 2006) provides that probation or parole agents “may not forcibly enter a locked premises to search it if the client whose living quarters or property it is is not present.” Jones argues that the search of his bedroom was not reasonable because use of a locksmith constituted a forced entry in violation of § DOC 328.21(3)(f),
Search & Seizure – Applicability of Exclusionary Rule – Dog Sniff, Wisconsin Constitution
State v. Ramon Lopez Arias, 2008 WI 84, on Certification
For Arias: Lora B. Cerone, SPD, Madison
Issue/Holding: A dog sniff is no more a “search” under the Wisconsin than the U.S. Constitution, at least with respect to vehicles:
¶22 We are unwilling to undertake such a departure here. First, we note that there is no constitutionally protected interest in possessing contraband under the United States Constitution,
Search & Seizure – Applicability of Exclusionary Rule: Private Government Search, Generally – Burden of Proof
State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz
Issue/Holding: The exclusionary rule applies only to government action, not private searches, ¶12. If the State asserts that the action was private in nature the burden shifts to the defendant to prove by governmental involvement, preponderance of evidence, id.
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.