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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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First Amendment – Overbreadth – Juvenile Curfew
Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004) Issue/Holding: In order not to offend the First Amendment, a statute that regulates the time, place, and manner of expression must be (1) content neutral, (2) narrowly tailored to serve a significant governmental interest, and (3) allow for ample alternative channels for the expression. Ward, 491 U.S. […]
Earned Release Program (“ERP”), § 973.01(3) — Trial Court’s Authority to Determine When as Well as Whether Defendant Is Eligible — Identity of “CIP” Purpose
State v. Miyosha White, 2004 WI App 237, PFR filed 12/1/04 For White: Leonard Kachinsky Issue/Holding: A sentencing court exercising discretion on eligibility for the earned release program, § 973.01(3g), has authority to determine not only whether but also when the defendant is eligible for the program. The language and purpose of the earned release statute is “almost […]
Reasonable Suspicion Issues – Frisk – Refusing to Keep Hands out of Pockets – No Per Se Rule
State v. Joshua O. Kyles, 2004 WI 15, affirming court of appeals’ unpublished decision For Kyles: Eileen A. Hirsch, SPD, Madison Appellate Issue: Whether a per se rule should be adopted allowing a frisk whenever individuals fail to comply with police directives to keep their hands out of their pockets. Holding: ¶48. We do not adopt, as the State […]
Challenge Incarceration Program (“Boot Camp”) – §§ 973.01(3m), 302.045 – Authority to Impose Waiting Period for Entry
State v. David A. Lehman, 2004 WI App 59, PFR filed 3/4/04 For Lehman: Leonard D. Kachinsky Issue/Holding: Sentencing court may impose 4-year waiting period for entry into Challenge Incarceration Program (“boot camp”), §§ 302.045, 973.01(3m): ¶17. The intent of the legislature is therefore advanced by an interpretation of Wis. Stat. § 973.01(3m) that allows a sentencing court […]
Search Warrants – ProbableCause – Child Molestation – Computer
State v. Jack P. Lindgren, 2004 WI App 159, PFR filed 8/20/04 For Lindgren: Stephen M. Compton Issue/Holding: Search warrant application was supported by probable cause to search the defendant’s home and his computer, based on allegation of 15-year-old victim, that defendant had taken photographs of her posing nude, and had touched her vaginal area and admission […]
WESCL, §§ 968.31(2)(b) and (c) – Intent to Commit Injurious Act
State v. John R. Maloney, 2004 WI App 141, affirmed, 2005 WI 74 Issue/Holding: The WESCL bars interception of a communication where the intent is to commit an “injurious act,” a showing that Maloney can’t make: ¶16. Generally, intent presents a question of fact that we are not allowed to resolve. See, e.g., State v. Lossman, 118 Wis. 2d 526, […]
Reasonable Suspicion – Stop – Basis – Test – Failure to Yield to Show of Authority
State v. Jeffrey P. Powers, 2004 WI App 143 For Powers: Walter Arthur Piel, Jr. Issue/Holding: ¶8. Before addressing Powers’ arguments, we will clarify when a seizure occurs. The trial court held that Powers was seized when Bethia activated his emergency lights. That is not the law in Wisconsin. In State v. Kelsey C.R., 2001 WI […]
Reasonable Suspicion – Stop – Basis – Citizen Informant, Generally
State v. Jeffrey P. Powers, 2004 WI App 143 For Powers: Walter Arthur Piel, Jr. Issue/Holding: ¶9. Powers attacks the tip provided by the clerk at Osco; he contends that Bethia could not give it any credence. We begin by restating the obvious: when a caller provides his or her name, the tip is not […]
Reasonable Suspicion – Stop – Basis – Drunk Driving
State v. Jeffrey P. Powers, 2004 WI App 143 For Powers: Walter Arthur Piel, Jr. Issue/Holding: ¶10. Powers insists that the clerk’s tip is unreliable because the clerk did not observe Powers drive his truck “in a manner consistent with someone who was under the influence of an intoxicant.” We conclude that the tip was […]
Reasonable Suspicion – Traffic Stop
State v. Ibrahim Begicevic, 2004 WI App 57 For Begicevic: Donna J. Kuchler Issue/Holding: ¶6. Kennedy had reasonable suspicion to conduct an investigative stop. Viewed in isolation, some of what she observed was lawful behavior. It is lawful for a car to be on the roadway at 1:30 a.m. It is lawful for a car […]
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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.