On Point

State v. Jeremy D. Schladweiler, 2009 WI App 177
Pro se

Issue/Holding:

¶9        Commonly referred to as “boot camp,” the CIP is governed by Wis. Stat. § 302.045, which provides that “the [DOC] shall provide a challenge incarceration program for inmates selected to participate” after meeting the eligibility requirements for the program. Sec. 302.045(1). …

¶10      Once the trial court has made an eligibility determination, the final placement determination is made by the DOC —the statute provides that, if an inmate meets all of the program eligibility criteria, the DOC “may” place that inmate in the program. Wis. Stat. § 302.045(2). Contrary to Schladweiler’s contention, it is not the sentencing court’s function to classify an inmate to a particular institution or program; this authority lies solely with the DOC. See State v. Lynch, 105 Wis. 2d 164, 168, 312 N.W.2d 871 (Ct. App. 1981) (Once a prison term is selected, the trial court may not order specific treatment; control over the care of prisoners is vested by statute in the overseeing department.). Thus, even when a sentencing court decides that a defendant is eligible for the CIP, the final placement decision is vested with the DOC.

State v. Michael A. Sveum, 2009 WI App 81, affirmed on other grounds, 2010 WI 92
For Sveum: Robert J. Kaiser, Jr.

Issue/Holding: A search warrant for seizure of the sorts of items Sveum used or kept in connection with a 1996 stalking conviction established probable cause he was keeping such items in 2003:

¶35      The warrant affidavit stated that the affiant was a detective with twenty-two years of experience who had specialized training in stalking crimes. See State v. Multaler, 2002 WI 35, ¶43, 252 Wis. 2d 54, 643 N.W.2d 437 (experience and special knowledge of police officers who are applying for search warrant are facts that warrant-issuing judge may consider). The detective explained in the affidavit that, based on her training and experience, individuals who engage in stalking behavior often display an obsessive personality and exhibit a pattern of conduct, including maintaining visual proximity to the victim, contacting the victim, and keeping records, journals, or other documents memorializing their stalking behavior. Also, such individuals often keep evidence of their obsession with the victim, including records, journals, diaries, calendars of the victim’s activities or the activities of other family members, personal information, or computer records.

¶36      The affidavit also indicated that the affiant had investigated Sveum’s prior stalking crime, and it detailed the many ways that Sveum’s conduct surrounding the 1996 conviction was consistent with behaviors characteristically exhibited by individuals who stalk. In particular, Sveum at that time kept calendars marking down anniversary dates of his time with Johnson, tracked the mileage on Johnson’s car, documented Johnson’s whereabouts, and retained “keepsakes,” including earrings, underwear, and a duplicate driver’s license of Johnson’s. The affidavit also outlined the evidence establishing that Sveum was again stalking Johnson in 2003.

State v. Jaime Romero, 2009 WI 32, reversing unpublished opinion
For Romero: Thomas E. Hayes

Issue/Holding: Search warrant affidavit, based in part on incriminatory statements of “unwitting” informant (“Mr. X”), established probable cause:

¶29      In the instant case a confidential informant told a law enforcement officer what someone else had told him.  In such a case, the veracity of each person in the chain is relevant.  The defendant, in challenging the warrant-issuing commissioner’s probable cause determination, does not contest the veracity of the confidential informant or the basis of his knowledge.  Rather, the defendant challenges the veracity of Mr. X. ^[33]…

¶33      We also acknowledge that information concerning Mr. X is sparse indeed.  Officer Correa’s affidavit does not furnish Mr. X’s name and does not describe Mr. X’s relationship with either the confidential informant or the defendant.

¶34      Nevertheless we conclude that Officer Correa’s affidavit passes muster as support for the warrant issued to search the defendant’s residence.  Reliance on information provided to a confidential informant by a participant in a crime has been approved by several courts even in the absence of constant visual contact with the participant conducting the transaction.^[34]  Facts set forth in the affidavit demonstrate Mr. X’s veracity to a degree sufficient to show, considering the totality of the circumstances presented to the warrant-issuing commissioner, that the commissioner had a substantial basis for concluding that there was a fair probability that a search would uncover evidence of wrongdoing at the defendant’s residence.

¶35      First, the affidavit tends to establish the reliability of the information that Mr. X imparted (and thus Mr. X’s veracity) by showing that law enforcement officers were able to corroborate some of Mr. X’s assertions prior to seeking the warrant. …

¶36      Second, the affidavit tends to establish Mr. X’s credibility (and thus his veracity) by describing numerous statements that Mr. X made against his penal interest. …

The court rejects the State’s proposed bright-line rule based on State v. McAttee, 2001 WI App 262, ¶12, “namely that for purposes of an affidavit for a search warrant law enforcement officers “are not required to validate [the] reliability of a reliable informant’s source” in attempting to demonstrate probable cause for the issuance of a search warrant. … As the court of appeals explained, the McAttee court of appeals held only that the law enforcement officers under the circumstances of that case were entitled to rely on information from a known and reliable informant without independently determining the reliability of the informant’s source or the source’s information,” ¶24, 26.T

he 3-vote concurrence spills some ink warning that “the majority opinion could be read, mistakenly,” as resurrecting the long-rejected Aguillar-Spinelli test instead of the Illinois v. Gates “totality of the circumstances” test, ¶46. The concern seems a bit overblown: the majority invokes “totality of the circumstances” no fewer than 9 times, and favorably cites Gates a like number.

State v. Michael A. Sveum, 2009 WI App 81, affirmed on other grounds, 2010 WI 92
For Sveum: Robert J. Kaiser, Jr.

Issue/Holding: 

¶40      Sveum’s particularity argument is that the many items authorized for seizure were so “non-specific” that the warrant was an invalid general warrant. Police were authorized to seize phone bills, journals, calendars, logs, computers and devices related to computers, cameras and film, binoculars, flashlights, ski masks, audio and/or video recording equipment in any format, and evidence that might identify the residents of the searched dwelling. Sveum also argues that the warrant lacked probable cause to seize some of the types of items identified in the warrant because he and his mother occupied the residence and the warrant lacked objective standards by which the executing officers could differentiate items his mother owned. We reject Sveum’s arguments. We perceive no reason, at least in this case, why guidelines would have been helpful or necessary. Tellingly, Sveum does not suggest what sorts of ownership guidelines would have been required to satisfy his view of the particularity requirement. We conclude that the warrant described the items to be seized with as much particularity and specificity as the circumstances and the nature of Sveum’s alleged stalking activity permitted.

State v. Michael A. Sveum, 2009 WI App 81, affirmed on other grounds, 2010 WI 92
For Sveum: Robert J. Kaiser, Jr.

Issue/Holding: The Wisconsin Electronic Surveillance Control Law excludes from coverage “(a)ny communication from a tracking device,” § 968.27(4)(d); a GPS device is such a “tracking device” and, therefore excluded from WESCL coverage.

State v. John David Ohlinger, 2009 WI App 44, PFR filed 4/1/09
For Ohlinger: Suzanne L. Hagopian, SPD, Madison Appellate

Issue/Holding:

¶8        The one-party consent exception reads as follows:

(2) It is not unlawful …:….

(b) For a person acting under color of law to intercept a wire, electronic or oral communication, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception.

Wis. Stat. § 968.31(2)(b). This exception contains two requirements, one applicable to the person who intercepts a communication and a second applicable to one of the persons who is a party to the communication.

¶9        We will refer to the first requirement as the intercepting-person requirement. The intercepting person must be “a person acting under color of law,” and the dispute in this case centers on whether a law enforcement officer may ever be a person fitting this “color of law” requirement.

¶10      We will refer to the second requirement as the consenting-person requirement. Under this requirement, one of the persons who is a party to the communication must either be the person who intercepts the communication or be a person who gives prior consent to the interception. Although there is no technical “consent” requirement if the second requirement is met because the intercepting person is also a party to the communication, this situation involves implicit consent, hence the shorthand reference to this statute as the one-party consent exception.

State v. John David Ohlinger, 2009 WI App 44, PFR filed 4/1/09
For Ohlinger: Suzanne L. Hagopian, SPD, Madison Appellate

Issue: Whether, for purposes of authorizing one-party consent under WESCL, “a person acting under color of law” may be a law enforcement officer.

Holding:

¶2        [H]e contends that Wis. Stat. § 968.31(2)(b), commonly referred to as the one-party consent exception, does not apply when the intercepting person is a law enforcement officer and the party to the communication who consents to the intercept is also a law enforcement officer. We disagree and, therefore, affirm the circuit court.

…

¶14      The phrase “a person acting under color of law” in Wis. Stat. § 968.31(2)(b) is patterned, along with much of the Electronic Surveillance Control Law, after the federal wiretapping law. See State v. Gilmore, 201 Wis. 2d 820, 825, 549 N.W.2d 401 (1996). When interpreting the Electronic Surveillance Control Law, we benefit from federal decisions considering counterpart provisions. Id.; see also State v. House, 2007 WI 79, ¶14, 302 Wis. 2d 1, 734 N.W.2d 140. As the State points out, federal cases discussing federal law recognize that law enforcement officers may be “person[s] acting under color of law” for purposes of the federal wiretapping statute. See, e.g., United States v. Passarella, 788 F.2d 377, 379 (6th Cir. 1986); United States v. Nelligan, 573 F.2d 251, 254 (5th Cir. 1978); United States v. Rich, 518 F.2d 980, 985 (8th Cir. 1975); United States v. Upton, 502 F. Supp. 1193, 1196 (D.N.H. 1980).

¶15      Moreover, we agree with the State that the legislative history of Wisconsin’s one-party consent exception supports the inclusion of law enforcement officers. …

The court flatly rejects the invitation to look to § 1983 cases to explicate “under color of law” for wiretapping purposes, ¶¶20-22.