On Point

State v. Ronald Terry, 2013AP1940-CR, District 2, 1/29/14; court of appeals decision (1-judge; ineligible for publication); case activity

Terry was arrested and detained on a probation hold. (¶¶2, 5). About ten days later he was charged with obstructing and, on the same day, appeared in court for a probable cause and bail hearing. (¶3). He argues the obstructing conviction should be vacated because he wasn’t given a prompt determination of probable cause after being taken into custody as required by County of Riverside v. McLaughlin, 500 U.S. 44 (1991), and State v. Koch, 175 Wis. 2d 684, 499 N.W.2d 152 (1993). The claim is foreclosed by State v. Martinez, 198 Wis. 2d 222, 542 N.W.2d 215 (Ct. App. 1995), which holds that the prompt determination requirement doesn’t apply to detention on a probation hold:

¶9        The case before us differs in no material way from that in Martinez. Terry does not dispute that he was on probation on April 28, 2012, or that he was taken into custody and detained on a probation hold on that date.[3] One and one-half weeks later, a criminal complaint was filed charging Terry with two counts of obstruction of justice related to his interaction with officers when they made contact with him on April 28. From the record and Terry’s brief, it appears a probable cause hearing was held the same day he was criminally charged. Thus, as in Martinez, “the requirements of a probable cause hearing are not applicable” for the time Terry was detained on the probation hold, and once the criminal complaint was filed, he timely received such a hearing. Id. at 233.

Waukesha County v. Michael J.S., 2013AP1983-FT, District 2, 1/29/14; court of appeals decision (1-judge; ineligible for publication); case activity

Michael has been on a court-ordered commitment for thirty-five years, except for a two-year period that ended in 1996, when Michael was committed under § 51.20 after an incident in which he rode his bicycle erratically on a highway and had a confrontation with police. Since 1996, Michael’s commitment order has been extended numerous times, he has been under continuous medication, but he has exhibited no more dangerous behavior. (¶2). Michael argued the evidence at the latest recommitment hearing was insufficient to prove under § 51.20(1)(am) that it is substantially probable he will be dangerous to himself or others if treatment is withdrawn because he has not engaged in any dangerous behavior in recent years, even though he has on occasion been four or five days late for his scheduled medication injections. (¶7). The court of appeals rejects the argument:

¶8        As the trial court stated, dangerousness can be determined by reference to past history. The issue of dangerousness is often a historical one. Michael implies that since he has not exhibited any dangerous behavior during the recent short lapses in his treatment regime, there is insufficient evidence of dangerousness. However, Michael provides the court with no evidence, expert or otherwise, that a five or six-day delay in taking medication is proof that he can function without medication. Instead, Michael’s pre-1996 relapse when he was off his medication for several months and Dr. Centena’s testimony are both probative of a finding that he will revert to a dangerous demeanor if off of his medication for an extended period of time. …

¶9        Michael also claims that Dr. Centena’s testimony must be discounted because the doctor has not met with him for years. But it is Michael who has refused to meet with Dr. Centena for years. If a recent examination were a necessary precedent to a doctor giving his or her opinion in a forcible medication case, then a refusal to meet with the doctor would automatically entitle petitioners to freedom from having to take medication. This cannot be the law. Michael cannot turn his refusal to meet with Dr. Centena into evidence of his lack of dangerousness.

Eau Claire County v. Mary S., 2013AP2098, District 3, 1/28/14 (1-judge opinion ineligible for publication); case activity

Mary S. was placed under a Chapter 51 mental health commitment and involuntary medication order in 2011, and those orders were extended once. But when the County sought to extend the orders again, Mary objected and argued that the County, which bore the burden of proof, failed to establish that Mary was incompetent to refuse medication, per Wis. Stat. § 51.61(1)(g)4.

The presumption is that an individual is competent to make that decision. Virgil D. v. Rock Cnty, 189 Wis. 2d 1, 14, 544 N.W.2d 894 (1994). To beat the presumption, the County must prove that the individual is either (a) incapable of expressing an understanding of the advantages and disadvantages of, and alternatives to, accepting medication, or (b) substantially incapable of applying an understanding of this information to her mental illness in order to make an informed decision.  Either way, somebody first has to explain the advantages, disadvantages and alternatives to the individual, and that’s where the County slipped up in this case.

In Outagamie Cnty v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607, SCOW described what precisely a “reasonable explanation of a proposed medication” includes:

The explanation should include why a particular drug is being prescribed, what the advantages of the drug are expected to be, what side effects may be anticipated or are possible, and whether there are reasonable alternatives to the prescribed medication. The explanation should be timely, and, ideally, it should be periodically repeated and reinforced. Medical professionals and other professionals should document the timing and frequency of their explanations so that, if necessary, they have documentary evidence to help establish this element in court. Id., ¶67.

The County failed this test because its sole medical witness admitted that he discussed the proposed medication with Mary, but there was no proof that he explained why a particular drug was being prescribed, the advantages of the drug,  the side effects of the drug, and the alternatives to the drug.  His testimony was too conclusory.  Slip op. ¶¶14-16.  See our prior, detailed post re the Melanie L. standard right here.

As “Plan B” the County argued that once the circuit court found that Mary was not competent to refuse medication, then she , not the County, bore the burden of proving that she regained competency to make the decision.  But the court held that no statute or case supports that assertion.  Moreover, even if the burden had shifted, the County still needed, but failed, to prove that Mary had received a reasonable explanation of the medication first. Slip op. ¶20.

State v. Gary Monroe Scull, 2014 WI App 17, petition for review granted, 5/22/14, affirmed, 2015 WI 22; case activity

Police violated Scull’s Fourth Amendment rights under Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409, 1417-18 (2013), when they brought a drug-sniffing dog to the front door of his residence without a warrant or probable cause. But because the police then obtained a search warrant to search Scull’s home, the good-faith exception to the exclusionary rule applies–even though the warrant was based, in part, on the prior illegal search with the drug dog.

The court first concludes that the basic requirements of State v. Eason, 2001 WI 98, ¶74, 245 Wis. 2d 206, 629 N.W.2d 625, were met. There was no claim the magistrate who issued the warrant was not “detached and neutral,” nor was there an argument that the prosecutor who reviewed the affidavit was not “a knowledgeable government attorney.” (¶¶15-16). Further, the warrant was obtained through a “significant investigation” as the affidavit in support of the search warrant cited both the drug dog’s “alerting” outside Scull’s home and the tip from a reliable confidential informant that detailed Scull’s drug activities and which was the basis for taking the dog to Scull’s home in the first place. (¶¶3-5, 17-18). Finally, at the time of the search the law did not clearly establish that taking a drug dog to sniff the outside of a residence was a “search”:

¶21      Relevant caselaw at the time the search warrant was signed also convinces us that the police acted reasonably in objectively relying on the search warrant in this case. As the State points out, prior to Jardines, dog-sniff searches of the type presented in this case had been held lawful in many jurisdictions.[4] Furthermore, the law was and still is that a dog sniff of the exterior of a car is not a “search” under either the Fourth Amendment or the Wisconsin Constitution. State v. Arias, 2008 WI 84, ¶14, 311 Wis. 2d 358, 752 N.W.2d 748; see also Illinois v. Caballes, 543 U.S. 405, 408-09 (2005) (holding that a dog sniff of a vehicle during a traffic stop, conducted absent reasonable suspicion of illegal drug activity, did not violate the Fourth Amendment because it did not implicate any legitimate privacy interest).[5]

¶22      In light of the reliability  of the process used to obtain the search warrant for Scull’s home and the state of the law at the time the search warrant was issued, we conclude that the police “‘acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment’” when they executed the search warrant and searched Scull’s home. See [State v.] Dearborn, [2010 WI 84,] 327 Wis. 2d 252, ¶33[, 786 N.W.2d 97] (citation omitted). As such, application of the exclusionary rule in this case would not act to “deter police misconduct” nor would the deterrent benefits of the rule “outweigh the substantial costs to the truth-seeking and law enforcement objectives of the criminal justice system.” See id., ¶38. Therefore, we conclude that the good-faith exception to the exclusionary rule applies in this case, and we must affirm the circuit court.

Judge Kessler dissents, concluding the good-faith exception should not apply because there was no significant investigation, for “[w]ithout the illegal dog-sniff, the warrant had no basis in fact or law.” (¶25).

Dearborn, you will remember, extended the good-faith exception to police officers acting “in objectively reasonable reliance on clear and settled Wisconsin precedent.” 327 Wis. 2d 252, ¶51. The holding in this case demonstrates the prescience of the dissent in Dearborn, which said: “The majority opens the door to a ‘good faith’ exception in cases where police act on their own evaluation of the case law rather than in reliance on the evaluation of a neutral and detached magistrate.” Id., ¶ 102 (emphasis added). That is exactly the rationale the court uses to excuse the officer’s unlawful use of the drug dog on Scull’s property: Other jurisdictions allowed the conduct, Wisconsin allowed it with respect to cars (never mind that cars and homes have a very different status under the Fourth Amendment), and there was no precedent clearly prohibiting such a search, so an officer could reasonably conclude it was perfectly legitimate. (¶¶21-22).

The holding here likewise validates the fears of the dissent in Davis v. United States, 564 U.S. ___, 131 S.Ct. 2419 (2011), the U.S. Supreme Court’s counterpart to Dearborn. The Davis majority held that the “sole purpose” of the exclusionary rule is deterrence and claimed the rule has never been applied “to suppress evidence obtained as a result of nonculpable, innocent police conduct.” 131 S.Ct. at 2426, 2429. Thus, when an officer acts with an objectively reasonable good-faith belief that his or her conduct is lawful, exclusion is not justified because “suppression would do nothing to deter police misconduct in these circumstances.” Id. at 2423. When the police act with an objectively “reasonable good-faith belief” that their conduct is lawful, or when their conduct involves only simple, “isolated” negligence, the deterrence rationale loses much of its force and exclusion cannot “pay its way.” Id. at 2427-28 (quoted sources omitted). See also Illinois v. Krull, 480 U.S. 340, 348-49 (1987) (“evidence should be suppressed ‘only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment'”); Herring v. United States, 555 U.S. 135, 145 (2009) (the relevant question is “‘whether a reasonably well trained officer would have known that the search was illegal’ in light of ‘all of the circumstances’”). As the Davis dissent points out, however:

…[A]n officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable than an officer who follows erroneous “binding precedent.” Nor is an officer more culpable where circuit precedent is simply suggestive rather than “binding,” where it only describes how to treat roughly analogous instances, or where it just does not exist. Thus, if the Court means what it now says, if it would place determinative weight upon the culpability of an individual officer’s conduct, and if it would apply the exclusionary rule only where a Fourth Amendment violation was “deliberate, reckless, or grossly negligent,” then the “good faith” exception will swallow the exclusionary rule. Indeed, our broad dicta in Herring—dicta the Court repeats and expands upon today—may already be leading lower courts in this direction.

Davis, 131 S. Ct. at 2439 (Breyer, J., dissenting).

Though the court of appeals doesn’t cite Davis or Herring, it is clearly going down the path blazed in those cases. And our court is not alone. It appears many (though not all) lower courts grappling with police action in areas where the law is unsettled have applied a good-faith exception to police officers’ own extrapolation of, or analogizing to, existing case law–at least as illustrated by the cases dealing with attaching GPS tracking devices to cars without a warrant before United States v. Jones, 132 S.Ct. 945 (2012). David J. Twombly, The Good-Faith Exception and Unsettled Law: A Study of GPS Tracking Cases after United States v. Jones, 74 Ohio St. L. Jr. 807, 825-29 (2013). (For a case rejecting application of the good-faith exception on GPS tracking, see United States v. Katzin, 732 F.3d 187 (3rd Cir. 2013), decision vacated, rehearing en banc ordered (Dec. 12, 2013)).

There is also a split in authority addressing the precise factual scenario in this case–a warrant that relies in part on information seized as the result of a previous illegal search–and the split predates Herring and Davis. Thus, United States v. Vasey, 834 F.2d 782, 789-90 (9th Cir. 1987), held that a search warrant issued in part on the basis of evidence seized in an illegal search could not be rescued by the good-faith exception because the constitutional error was made by the officer, not the magistrate, and the good-faith exceptions makes it clear that the exclusionary rule should apply if the exclusion of evidence would alter the behavior of law enforcement. On the other hand, United States v. McClain, 444 F.3d 556, 565-66 (6th Cir. 2006), held that even if a warrant is based on an illegal predicate search, the good faith exception may apply in “unique cases” where “the facts surrounding the initial Fourth Amendment violation were ‘close enough to the line of validity to make the officer’s belief in the validity of the warrant objectively reasonable.'” With Herring and Davis supporting the approach that “close enough to the line of validity” is good enough, we may indeed be headed for a good-faith exception that swallows the exclusionary rule. For an equally pessimistic view, see Tracey Maclin & Jennifer Rader, No More Chipping Away: The Roberts Court Uses an Axe to Take Out the Fourth Amendment Exclusionary Rule, 81 Miss. L. Jr. 1183, 1190 (2012) (the rationale of Davis confirms that “the Court intends to limit application of the rule to deliberate, bad-faith, or recurring Fourth Amendment violations”).

State v. Danny Robert Alexander, 2013AP843-CR, District 1, 1/28/14; court of appeals decision (not recommended for publication), petition for review granted 6/12/14, reversed, 2015 WI 6; case activity

Alexander was on probation when he was charged with forgery. He pled to the forgery and a PSI was prepared. (¶2). Attached to the PSI were statements the defendant made to his probation agent about two other forgeries. The statements were on DOC Form 1305/1305A, which includes a warning that the defendant must account for his activities “in a truthful and accurate manner”; that failure to do so might result in revocation; and that the information given on the Form can’t be used against the probationer in a criminal proceeding. (¶3). The circuit court relied on the PSI at sentencing. (¶¶4-6).

Trial counsel was ineffective for failing to object to the inclusion of Alexander’s statements to his probation agent. The statements are compelled and subject to use immunity because refusal to make them may result in revocation, see State v. Peebles, 2010 WI App 156, ¶¶10-19, 330 Wis. 2d 243, 792 N.W.2d 212, and there is no strategic reason for counsel to have allowed the statements to be used against Alexander at sentencing. (¶¶9-10, 14). Counsel’s failure to object was also prejudicial:

¶15      … Alexander’s statements to his probation agent referred not only to the checks involved in the charges before the sentencing court, but also to additional potentially criminal activity carrying the possibility of future criminal charges. The sentencing court made multiple references to the PSI, even stating that it was “going to follow the recommendation of the pre-sentence to some extent” instead of relying on the sentencing recommendations of the parties. The sentencing transcript indicates that the sentencing court relied heavily on the PSI when the court referenced Alexander’s prior revocations, his previous opportunities for treatment, as well as his skills and education. In its decision denying Alexander’s postconviction motion, the sentencing court wrote that the inclusion of Alexander’s compelled statements was “harmless at best” because “[Alexander’s] statement to his agent did not reveal anything not already known to the court.” The record does not support this conclusion. Alexander’s compelled statement included references to potential criminal activity with which Alexander had not been charged at the time of his sentencing. That activity (cashing large checks from an apparent corporate entity) is very similar to the conduct charged here. The fact that protected statements were included in the PSI, coupled with the substantial reliance that a sentencing court must, out of necessity, place on a PSI to which no objection has been raised, undermines our confidence that the sentence was based only on facts properly before the sentencing court. …

Judge Fine dissents, agreeing with the circuit court that the compelled statement didn’t reveal anything not already known to the court. (¶17).

The majority notes that because busy sentencing judges must rely on the information presented by others when a sentence is imposed, “[b]oth the State and counsel for the defendant share the obligation to ensure that the court considers only accurate, constitutionally admissible information” and that “[t]he DOC and its probation agents, as a part of the state government, share that responsibility.” (¶15).

State v. Quincy Lashawn Baker, 2013AP242-CR, District 1, 1/28/14; court of appeals decision (not recommended for publication); case activity

Baker was given a resentencing hearing based on inaccurate information about the maximum periods of confinement and supervision for the crime of conviction (felony murder). (¶¶4-5). At the resentencing hearing before a different judge, the state argued Baker’s profane outburst at the conclusion of his original sentencing hearing showed a lack of remorse. (¶¶3, 6). Baker submitted a defense PSI providing information about Baker’s youth and immaturity and a childhood illness that affected his brain development, and vaguely argued his outburst was a reflection of his immaturity. (¶7). The judge imposed the maximum sentence, discounting the defense PSI (“nothing more than a pile of excuses”) and concluding Baker’s outburst did show lack of remorse. (¶¶9-10). The court of appeals rejects all of Baker’s claims of sentencing error.

Inaccurate information

The resentencing court did not rely on inaccurate information by concluding that Baker’s outburst at the first hearing demonstrated a lack of remorse rather than–as Baker argued–an expression of frustration by an immature young man:

¶19      We agree with the resentencing court that Baker’s argument is nothing more than his own subjective opinion. The court made a credibility determination when it determined that Baker’s outburst was inappropriate and reflective of his overall character. The court assessed Baker’s demeanor—something we will not second-guess. Moreover .., the resentencing court considered multiple factors when sentencing Baker—not merely his outburst.

Reasons for the sentence

¶22      A review of the transcript in this case demonstrates that the resentencing court did sufficiently explain its reasons for imposing the maximum penalty. The resentencing court discussed Baker’s prior robbery attempts and the seriousness of the offense, noting that Baker’s offense was “one of the most serious sets of felony murders that I have seen.” The court also noted a lack of mitigating circumstances, the need to protect the community, and Baker’s character, stating that Baker appeared apologetic until he received his sentence. We cannot conclude that the resentencing court failed to articulate its reasons for imposing the maximum sentence.

¶23      We also disagree with Baker’s argument that the resentencing court erroneously disregarded the defense PSI. “The court has discretion to order a PSI and to determine the extent to which it will rely upon the information in the PSI.” State v. Suchocki, 208 Wis. 2d 509, 515, 561 N.W.2d 332 (Ct. App. 1997), abrogated on other grounds by [State v.] Tiepelman, [2006 WI 66,] 291 Wis. 2d 179[, 717 N.W.2d 1]. Although the PSI here was prepared by the defense, rather than by a neutral court-ordered party, the resentencing court still had the discretion to determine how much weight, if any, to give it. The court addressed the PSI, noting that it failed to consider the possibility that Baker had some control over his actions, and focused instead on all of the circumstances that may have affected Baker’s brain development. The court addressed what it considered fatal flaws in the PSI, and, as stated, discussed its rationale for imposing the maximum sentence. The court did not erroneously exercise its discretion.

Vindictiveness

¶27     …[W]e conclude that a presumption of vindictiveness did not exist when the resentencing court imposed the maximum sentence. First, both the sentencing court and the resentencing court imposed the maximum penalty—though the bifurcation configurations differed. At Baker’s original sentencing hearing, the sentencing court imposed the maximum 35 years—divided as 27 years of initial confinement and eight years of extended supervision. That same day, the sentencing court revised Baker’s sentence based on an error. It maintained Baker’s confinement term at 27 years, but reduced his term of extended supervision to seven and a half years, for a total sentence of 34.5 years. The sentencing court granted Baker’s motion for resentencing after identifying an error in the criminal complaint. At the resentencing hearing, the court again imposed the maximum 35 years, this time broken down as 26 years and three months’ initial confinement and eight years and nine months’ extended supervision. Two out of the three times Baker was sentenced, the court imposed what it thought was the maximum penalty. Baker’s sentence was reduced once, only because the sentencing court thought its original sentence was in error. In essence, both the sentencing and resentencing courts intended to sentence Baker to the maximum 35 years. In the context of all of Baker’s hearings, Baker’s sentence did not actually increase.

And in any event, the resentencing court was a different judge who had affirmative reasons for imposing more time: Baker’s outburst. (¶¶28-29).

Harsh and excessive sentence

No such thing, presumptively, when the sentence is at or within the maximum, State v. Grindemann, 2002 WI App 106, ¶¶31-32, 255 Wis. 2d 632, 648 N.W.2d 507. (¶¶31-32).

State v. Dartanian Lemont Lewis, 2013AP454-CR, District 1, 1/28/14; court of appeals decision (not recommended for publication); case activity

Lewis was a passenger in a car stopped for safety belt violations. During the stop he was frisked, leading to the discovery of cocaine. He argued the frisk was improper because § 347.48(2m)(gm) prohibits police from taking an individual into physical custody solely for failing to wear a safety belt. The court of appeals holds that, assuming Lewis was in “physical custody” when he was asked to step out of the car, it was not based solely on the seat belt violation, but also on Lewis’s behavior that lead the police to suspect he might have a weapon. (¶20).  Further, the frisk was lawful under, e.g., State v. Johnson, 2007 WI 32, ¶23, 299 Wis. 2d 675, 729 N.W.2d 182, because Lewis’s behavior also formed a sufficient basis for police to reasonably believe he may have had a weapon:

¶16      …  Officer Robinson testified that when he approached and tapped on the passenger’s side window, rather than roll down the window and acknowledge the presence of a police officer, Lewis immediately placed his hands in his pockets. Lewis then put one of his hands back in his pocket after Officer Robinson asked him to remove it. After Officer Robinson asked Lewis to step out of the car, Lewis again “reached for his jacket pocket” and “manipulated it slightly on his … left breast.” Lewis’s behavior reminded Officer Robinson, in his experience as a police officer, of a “security check that a person that’s carrying a firearm … will check to make sure that that firearm is in the place that you put it.” Officer Molina also testified that during the course of the traffic stop he observed Lewis reach or motion for his chest area a few times and that he felt Lewis was doing “some type of possible security index check” or had a “possible weapon.” Officer Robinson also described Lewis’s behavior during the traffic stop as “generally non-responsive verbally,” and noted that Lewis was breathing heavily and appeared nervous.

Nor did the police unreasonably exceed the scope of the stop by asking Lewis if he had contraband in the vehicle because Lewis had already exhibited multiple behaviors that suggested to Officer Robinson that Lewis may be armed and dangerous. (¶19).