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Keeping Drug Vehicle, § 961.42(1) – Element of “Keeping” – More than Mere Transport Required

State v. Wayne Charles Slagle, 2007 WI App 117
For Slagle: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding:

¶7   The interpretation of the statutory term “keeping” as “warehousing or storage for ultimate manufacture or delivery” comes from State v. Brooks, 124 Wis. 2d 349, 354-55, 369 N.W.2d 183 (Ct. App. 1985). Neither party challenges this interpretation of the statute. [5] Furthermore, Slagle does not dispute that the evidence shows the cocaine in his truck was “for ultimate manufacture or delivery.” The only dispute here is whether the trial evidence shows the cocaine was being “warehoused” or “stored” in Slagle’s truck. Boiled down, the question is whether evidence showing that a person is using a vehicle to transport cocaine on a single occasion for an unknown distance satisfies the requirement that the vehicle is being used for “warehousing or storage.”…

¶10      We agree with Slagle that the common meaning of these terms does not encompass merely possessing an item while transporting it. We conclude that Slagle was not warehousing or storing his cocaine when he carried it in his truck while moving from one location to another. Accordingly, we further conclude that the evidence is insufficient to support a jury finding that Slagle used his truck for the purpose of “keeping” cocaine.

See also State v. Thompson, 730 NW 2d 708 (MI 2007):

In states with statutes substantially similar to MCL 333.7405(1)(d) there is remarkable uniformity in giving meaning to “keep or maintain.”10 One of the most encyclopedic discussions of the cases is found in Dawson v State, 894 P2d 672, 674 (Alas App, 1995), where the Alaska Court of Appeals, after canvassing the other states, concluded that in virtually all other states the requirement to “keep or maintain” requires “‘some degree of continuity’” id. at 676 (citation omitted), and, fleshing that out, concluded that “courts have uniformly adopted the position that the prosecution is required to prove, and the jury to find, ‘something more than a single, isolated instance of the proscribed activity.’” Id., quoting Barnes v State, 255 Ga 396, 402; 339 SE2d 229 (1986). …

Couple of caveats re: the result in Slagle. There was no claim Slagle was in the process of drug delivery, which is an elemental alternative, ¶6 n. 4, otherwise the result almost certainly would have been different. This probably suggests that under the statute, “ultimate” delivery is treated differently from immediate delivery. But that shouldn’t obscure a key point of the holding, which is ratification of the JI that “keeping” means more than mere possession, see ¶¶2 and 7. The court also holds open “significant questions” related to just when “keeping” liability is triggered, ¶11. Finally, the relief ordered is as requested by Slagle: dismissal of the “keeping” charge, leaving intact the concurrent sentence on the related conviction for possession with intent, ¶12. This remedy makes sense from Slagle’s self-interested perspective, in that he surely has already been released from initial confinement on the possession sentence. But it doesn’t mean that this is the only possible remedy, and it ought to be kept in mind that resentencing may be on the table when partial relief is obtained—a complex area, but take a look at State v. William J. Church (II), 2003 WI 74, ¶25 (resentencing not always required), compare with U.S. v. Rivera, 327 F3d 612 (7th Cir.2003) (“no legitimate expectation of finality in any discrete portion of the sentencing package after a partially successful appeal”).

 

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