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Law of the case doctrine — procedure on remand

State v. Gary Wieczorek, 2012AP2217-CR, District 3, 9/10/13; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court had previously held that Wieczorek was unlawfully seized by the police on his front porch, but the court of appeals reversed that holding and remanded the case for further proceedings. (¶¶2-4). On remand, Wieczorek again alleged the seizure was unlawful because there were no exigent circumstances. He also said he would be filing a motion claiming that the police conducted an improper show up. (¶5). Without taking further evidence, the circuit court concluded there were no exigent circumstances, that Wieczorek was unlawfully seized, and that the showup was improper. (¶7).

The court of appeals reverses, concluding the “law of the case” doctrine controls the issue of the lawfulness of the seizure. Though that doctrine is not absolute, and may be disregarded if there are “cogent, substantial, and proper reasons,” State v. Stuart, 2003 WI 73, ¶24, 262 Wis. 2d 620, 664 N.W.2d 82, there was no basis for not following it here:

¶10      …. At the hearing on remand, the circuit court failed to acknowledge that we had determined Wieczorek was lawfully seized. The record does not reflect that the court considered any “cogent, substantial or proper reasons” why that decision should be disregarded. Instead, the court determined Wieczorek was unlawfully seized because there were no exigent circumstances. However, even assuming the front porch is subject to Fourth Amendment protection, we already determined Wieczorek consented to [the officer’s] presence. Therefore, [the officer] did not need any exigent circumstances. ….

The court also rejects Wieczorek’s claim that the doctrine applies only to legal issues, and that the circuit court should be allowed to make additional fact findings regarding whether he consented to the officer’s presence on his front porch and, if he did not consent, whether the front porch is curtilage:

¶13      In this case, [the officer’s] testimony at the hearing on Wieczorek’s unlawful seizure motion was uncontroverted. [The officer] testified unequivocally that Wieczorek invited him into the house. Although it appears Wieczorek wishes to present evidence that he only invited [the officer] into his house because Wieczorek had to use the restroom, we have already independently reviewed the facts from the original suppression hearing and determined, as a matter of law, that Wieczorek was not unlawfully seized. No substantially different evidence, new case law or miscarriage of justice was presented for the circuit court’s consideration during the single, nonevidentiary hearing on remand, and therefore, we perceive no reason to depart from our previous determination.  ….

The court also reverses the circuit court’s showup decision because the state did not have an opportunity to establish the showup was lawful. On remand, Wieczorek must file a motion to challenge the showup and, if he does, the state must be given the opportunity to respond. (¶¶14-16).

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