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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.
Warrantless Entry of Residence – Generally
State v. Dwight M. Sanders, 2007 WI App 174, affirmed on different ground, 2008 WI 85
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding: To overcome its presumptive prohibition, warrantless entry of a residence must be supported by both probable cause and exigent circumstances (the latter including hot pursuit, threat to safety, risk of destroyed evidence, and likelihood of flight), ¶¶10-13.
Consent – Acquiescence – Generally
State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15
For Johnson: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding:
¶16 When the purported legality of a warrantless search is based on the consent of the defendant, that consent must be freely and voluntarily given. State v. Phillips, 218 Wis. 2d 180, 197, 577 N.W.2d 794 (1998) (citations omitted).
§ 948.31, Interference with Child Custody – Sufficiency of Evidence – Presence of Parent
State v. Isaiah Bowden, 2007 WI App 234
For Bowden: Jason R. Farris
Issue/Holding: Conviction for interference with custody, § 948.31(2), doesn’t require that the child be within the parent’s immediate presence or control:
¶18 The State posits that the withholding method of interference focuses on permission, not being in the parent’s presence. We agree. The withholding method addresses a situation where the person who takes the child has some initial permission to do so.
Search & Seizure – Applicability of Exclusionary Rule: Private / Government Search — UPS
State v. Christopher D. Sloan, 2007 WI App 146
For Sloan: Thomas E. Hayes
Issue/Holding: Inspection of package by UPS personnel and subsequent disclosure of its contents to police didn’t require a warrant, because of lack of governmental involvement in the initial search.
¶10 A private party’s discovery, and subsequent disclosure to law enforcement, of contraband is not prohibited by the Fourth Amendment where there is not a reasonable expectation of privacy in dealings with the private party.
Federal Habeas – Procedure – Appellate – Recall Mandate
Michael Allen Lambert v. Buss, 489 F.3d 779 (Nos. 03-1015 & 05-2610, 6/12/07)
Issue/Holding: A motion to recall the mandate is subject to successive-petition restrictions.
(State) Habeas Corpus – Venue
State ex rel. Steven M. Rupinski v. Smith, 2007 WI App 4
For Rupinski: Daniel R. Drigot
Issue/Holding: ¶12 n. 3:
The State challenges the venue of Milwaukee County as improper because Rupinski is confined at the Oshkosh Correctional Institution located in Winnebago County. The State argues that, as a result, the writ was improperly filed under Wis. Stat. § 801.50(4). The proper venue for writ of habeas corpus shall be in the county “[w]here the plaintiff was convicted or sentenced if the action seeks relief from a judgment of conviction or sentence under which the plaintiff’s liberty is restrained” or “[w]here the liberty of the plaintiff is restrained if the action seeks relief concerning any other matter relating to a restraint on the liberty of the plaintiff.” Wis.
Federal Habeas – Procedure — Appellate — Certificate of Appealability: Necessity
Rufus West v. Schneiter, 485 F. 3d 393 (7th Cir. 5/4/07)
Issue/Holding: “we now join the other circuits that have considered this issue and hold that §2253(c)(1) requires a certificate of appealability for any appeal in a proceeding under §2255 or where ‘the detention complained of arises out of process issued by a State court.’”
The court acknowledges that “(a) notice of appeal acts as a request for a certificate whether or not the prisoner files a separate application,”
Federal Habeas – Procedure – Appellate – Jurisdiction – Timeliness of NOA – Prison Mailbox Rule
Edmund Ingram v. Jones, 507 F. 3d 640 (Nos. 06-2766 & 06-2879, 11/14/07)
Issue/Holding: If a prison has a “legal mailing system,” and the inmate isn’t obligated to pay postage for legal mail, then the notice of appeal may be deemed filed when deposited in the system even without prepaid postage. However, “if a prison does not have a legal mailing system, the prisoner is required to show,
Conspiracy to Manufacture Controlled Substance — § 961.41(1x), Elements — Generally
State v. Henry E. Routon, 2007 WI App 178, PFR filed
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶18 Wisconsin Stat. § 939.31 sets forth the elements of the crime of conspiracy applicable under Wis. Stat. § 961.41(1x).[8] Section 939.31 provides:
…. whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may,
Conspiracy to Manufacture Controlled Substance — Undercover Agent as Party to Agreement, Generally
State v. Henry E. Routon, 2007 WI App 178, PFR filed
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶19 The crime that is the subject of the conspiracy need not be committed in order for a violation of Wis. Stat. § 939.31 to occur; rather, the focus is on the intent of the individual defendant. State v. Sample,
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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.