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The 4th Amendment in the digital age

Last June in Carpenter v. United States, SCOTUS held that phone users have a 4th Amendment right to historical cell site location records. Prof. Orin Kerr has a new paper out about how to implement Carpenter. Click here.  But why stop reading there? You can also read Prof.  Alan Rozenshtein’s new paper on 4th Amendment reasonableness after Carpenter here.

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Shaken baby/abusive head trauma prosecutions

Guess whose paper is one of the top 10 downloads on the Social Science Research Network’s Criminal Procedure e-journal? Professor Keith Findley’s Feigned Consensus: Usurping the Law in Shaken Baby Syndrome/Abusive Head Trauma Cases.  To be fair, Keith has many co-authors, but he is listed first!

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State v. Pierre Deshawn Johnson, 2018AP595-CR, 2/12/19, District 1 (not recommended for publication); case activity (including briefs)

Johnson pled to operating a vehicle with a suspended license and injury by operating under the influence of a controlled substance. His lead issue–whether the victim’s failure to wear a seatbelt was a significant intervening factor that diminished his culpability and warranted a new sentence–failed based on State v. Turk, 154 Wis. 2d 294, 453 N.W.2d 163. Read more

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State v. Melodie Cheree Taylor, 2018AP1953-CR, 2/14/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

In a misdemeanor prosecution under §946.49(1)(a) is the State required to prove that, before jumping bail, the defendant had been charged with a misdemeanor? Or may the State simply prove that the defendant had been released from custody under 969 after an arrest for a misdemeanor? Read more

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City of Cedarburg v. Ries B. Hansen, 2018AP1129, petition for bypass granted 2/12/19; case activity (including briefs)

Issue (from petition for bypass):

City of Eau Claire v. Booth, 2016 WI 65, ¶1, 370 Wis. 2d 595, 882 N.W.2d 738 held that when a circuit court handles a 1st offense OWI that is mischarged due to an unknown prior offense, it is a defect in the circuit court’s competency but not the circuit court’s subject matter jurisdiction. Accordingly, a defendant must timely object to the circuit court’s lack of competency or the objection is forfeited. Is the same true when the mischarged OWI is in municipal court?

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State v. Stephan I. Roberson, 2017AP1894-CR, petition for review of per curiam opinion granted 2/12/19; case activity (including briefs)

Issue (from the petition for review):

Whether a pretrial out-of-court identification using a single photo is a showup and thus inadmissible at trial unless the State proves necessity under the totality of the circumstances?

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Not in Wisconsin. In California. But when we say sanctioned we mean SANCTIONED–to the tune of $50,000. No typos. The lawyer asked questions about the confidential report during a deposition. Click here for more on that. Loose lips sink ships . . . and bank accounts.

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State v. James R. Mueller, 2018AP44-CR, 2/12/19, District 3 (1-judge opinion, eligible for publication); case activity (including briefs).

Mueller conceded that an officer had reasonable suspicion to stop him. He argued that the officer extended the stop based on a “hunch” and that his FSTs results did not provide probable cause for arrest or sufficient evidence to convict him because they test for impairment by alcohol, not prescription meds.

The court of appeals found reasonable suspicion to support the extension in order to conduct FSTs based on the totality of the circumstances per State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634.

¶14 The State correctly explains that the investigatory stop’s purpose changed throughout Austin’s interaction with Mueller. It started with a concern over a motorist having a disabled vehicle in traffic. By the time Austin asked Mueller to exit his vehicle, Austin had specific, articulable facts to believe that Mueller was driving impaired. We conclude Mueller’s twice allowing his vehicle to remain stopped in a lane of traffic when it was not disabled, his inability to recognize that he had the green light right-of-way multiple times, his decision to take his eyes off the road to write something down while other vehicles had to drive around him, his otherwise appearing distracted, his driving away from an officer during questioning—while the traffic light was then red—together with his history of prior operating while under the influence offenses, are facts that, when taken together, provided Austin with reasonable suspicion that Mueller might be under the influence of some sort of intoxicant or other drug, contrary to WIS. STAT. § 346.36(1)(a), thereby warranting the further “incremental intrusion” into Mueller’s liberty to conduct field sobriety tests. See State v. Arias, 2008 WI 84, ¶¶33, 38, 311 Wis. 2d 358, 752 N.W.2d 748. Moreover, Austin was not required to accept Mueller’s denial of having used alcohol or illegal drugs. See State v. Hogan, 2015 WI 76, ¶36, 364 Wis. 2d 167, 868 N.W.2d 124.

The totality of the circumstances also gave the officer probable cause to arrest Muller. See  ¶19

Lastly, at trial Mueller presented evidence that FSTs have limited evidentiary value when used to assess impairment due to prescription medication. He thus argued that the jury could not find him guilty based on his FSTs results. The court of appeals note that the jury heard evidence on both sides of this issue, and there was sufficient evidence for the it to draw the inferences necessary to find Mueller guilty.

¶25 Mueller first argues that Austin’s observations of Mueller’s performance on the field sobriety tests “would not lead a jury to find him guilty beyond a reasonable doubt” because Austin did not observe impairment clues specifically designed to detect drug use. Mueller makes a number of arguments attacking the evidentiary value of field sobriety tests when they are used to assess impairment due to prescription drug use. For example, Mueller again asserts that, based on Wilkens, field sobriety test impairment clues are observational tools to assess alcohol impairment, and thus Austin’s observations of Mueller “are of less evidentiary value without additional observed drug-specific clues to support a conclusion of impairment.” Mueller also cites to Austin’s testimony that a different officer at the scene, who, unlike Austin, was a “drug recognition expert,” could have conducted additional tests that are specifically designed to detect drug impairment. However, all of Mueller’s arguments relating to the field sobriety tests lack merit because they largely ignore our standard of review.
¶26 Mueller’s arguments—while perhaps bases for a closing argument at
trial—would require us, on this appeal, to reject reasonable inferences the jury made, which we cannot do. See Poellinger, 153 Wis. 2d at 507. Mueller suggests the jury heard reasonable explanations for why it should discredit the impairment clues Austin observed, but this argument ignores the standards articulated in Poellinger. Even if there were reasonable inferences of innocence from the evidence, we are required to follow the inferences that support the jury’s verdict. See id. at 506-07. The jury heard Austin testify that field sobriety tests can provide clues of impairment by drug use, not just alcohol. On the other hand, it also heard Austin testify that he was not a trained drug recognition expert and that some field sobriety tests—although not the ones used on Mueller—are designed specifically to detect impairment by drug use. That testimony does not eliminate the probative value of the tests used in this instance. Rather, that testimony plays a role in how the jury weighs the significance of the field sobriety tests actually used on Mueller in coming to its verdict. Moreover, Mueller makes no argument that the circuit court improperly instructed the jury. Accordingly, the evidence regarding the field sobriety tests, combined with other evidence, far surpasses the “bare modicum of evidence” threshold, such that a reasonable jury could have found Mueller guilty. See Sholar, 381 Wis. 2d 560, ¶45.

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