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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.
Warrants – Probable Cause
State v. Bill Paul Marquardt, 2001 WI App 219, PFR filed 9/20/01
For Marquardt: James B. Connell
Issue: Whether the search warrant was supported by probable cause.
Holding:
¶18. …. The State points to several facts in the affidavits: (1) Mary’s telephone was off the hook the day she was killed, suggesting “that the perpetrator had been inside the residence”; (2) Mary was shot and stabbed,
Warrants – Failure to Make Contemporaneous Record of Telephonic Application – Reconstruction of Application
State v. Cherise A. Raflick, 2001 WI 129
For Raflik: Michael J. Fitzgerald, Dean A. Strang
Issue/Holding:
¶1. This case requires us to decide whether suppression is the proper remedy when a telephonic application for a search warrant is not recorded in accordance with Wis. Stat. § 968.12(3)(d)1, and when the factual basis for the warrant is reconstructed in an ex parte hearing after the warrant has been executed.
Right to be Present – Trial Court Communication with Jury
State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate
Issue: Whether the trial court’s response to a jury request to see a written report and a transcript of a witness’s testimony — that these items were “not available” — without first seeking defense input was error.
Holding: The defendant’s presence is required at any critical stage,
First Amendment – Speech – Criminalized Threat
State v. Murle E. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, reversing 2000 WI App 137, 237 Wis. 2d 313, 614 N.W.2d 25
For Perkins: William E. Schmaal, SPD, Madison Appellate
Issue: Whether and to what extent threats are protected from prosecution under the first amendment.
Holding:
¶17 This court agrees with the State and the defendant that some threatening words are protected speech under the First Amendment.
Right to Be Present – Voir Dire
State v. George S. Tulley, 2001 WI App 236
For Tulley: Patrick M. Donnelly
Issue: Whether excluding defendant and his attorney from in camera voir dire of several jurors was reversible error.
Holding: A defendant has both constitutional and statutory rights to be present, with assistance of counsel, at voir dire, and the trial court therefore erred in excluding them from the in camera proceedings.
Expectation of Privacy — Property or Possessory Interest Necessary
State v. Derrick Benton, 2001 WI App 81
For Benton: James Kachelski.
Issue: Whether the defendant can challenge seizure of property from an auto where he claimed no ownership or possessory interest in either the auto or the seized property.
Holding:
¶11 Although the trial court upheld the search of the car in which Benton was riding as one incident to either an arrest or as an inventory search,
Double Jeopardy – Multiplicity: Judicial Estoppel Bar to Arguing
State v. Michael Johnson, 2001 WI App 105
For Johnson: David R. Karpe
Issue: Whether defendant’s partially successful trial strategy of defending against two counts of possession of intent to deliver of claiming personal use on one count and denial of any knowledge of the substance in the second count judicially estopped him from arguing on appeal that the two counts are multiplicitous.
Holding:
¶10.
Reasonable Suspicion – Stop – Basis – Unidentified Cell Phone Caller
Paul Rutzinski, 2001 WI 22, affirming unpublished opinion of court of appeals
For Rutzinski: Craig A. Mastantuono, Maureen Fitzgerald
Issue: Whether an unidentified motorist’s cell phone report of suspicious driving justified a stop.
Holding:
¶38 In sum, we hold that the tip in this case provided sufficient justification for an investigative stop of Rutzinski. First, the tip contained sufficient indicia of the informant’s reliability: the information in the tip exposed the informant to possible identification and,
Reasonable Suspicion – Stop – Basis – anonymous tip
State v. Roosevelt Williams, 2001 WI 21, on remand, 529 U.S. 1050 (2000), previous history: State v. Roosevelt Williams, 225 Wis. 2d 159, 591 N.W.2d 823 (1999); State v. Williams, 214 Wis. 2d 412, 570 N.W.2d 892 (Ct. App. 1997)
For Williams: Melinda Swartz, SPD, Milwaukee Appellate.
Issue: “(W)hether an anonymous tip containing a contemporaneous report of drug trafficking,
Reasonable Suspicion – Stop – Basis: “Drug Crime” Area, Lateness of Hour, Nervousness
State v. Christopher Gammons, 2001 WI App 36
For Gammons: Keith A. Findley, LAIP
Issue/Holding: Police did not have reasonable suspicion to continued detention for a routine traffic problem after the purpose of the stop was fulfilled:
¶21 In evaluating reasonable suspicion, we must examine whether all the facts, when taken together, could constitute a reasonable suspicion. State v. Allen,
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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.