On Point

State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser

Issue/Holding¹: Closure of the courtroom to numerous members of defendant’s family during witness testimony implicated the right to public trial:

¶51      Although the United States Supreme Court has stated that pursuant to the Sixth Amendment right to a public trial, “an accused is at the very least entitled to have his friends, relatives and counsel present,” ^[27] federal appellate courts have recognized that “the exclusion of a family member or friend may, in rare circumstances . . . , not implicate the Sixth Amendment public trial guarantee.” ^[28]

¶52      Such “rare circumstances” are not present in the instant case. The circuit court’s exclusion of every family member except the defendant’s mother (who did not understand English) plainly implicates the values served by the Sixth Amendment right to a public trial. A criminal defendant’s family may play a critical role in verifying that the defendant “is fairly dealt with and not unjustly condemned”; in keeping the defendant’s “triers keenly alive to a sense of their responsibility and to the importance of their functions”; and in “encourag[ing] witnesses to come forward and discourag[ing] perjury,” particularly in a case in which many of the witnesses for either side are themselves members of the defendant’s family. ^[29]

¶53      The facts of the instant case contrast sharply with the facts of cases in which courts have concluded that a closure was so trivial as not to implicate the Sixth Amendment right to a public trial. Cases holding that a closure is trivial are typically characterized by the exclusion of an extremely small number of persons from the courtroom ^[30] or, alternatively, by a more general exclusion in effect for an extremely short period of time. ^[31]

¶54      In the instant case, the circuit court excluded the defendant’s entire family, with the sole exception of the defendant’s mother, for three full days of witness testimony. The closure encompassed several people, and it was not brief or inadvertent. The closure implicated the values of the right to a public trial. The closure implicated the values of (1) ensuring a fair trial; (2) reminding the prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) encouraging witnesses to come forward; and (4) discouraging perjury.

Issue/Holding²: The closure was, however, justified under the circumstances:

¶56      Closure of a criminal trial is justified when four conditions are met: “(1) the party who wishes to close the proceedings must show an overriding interest which is likely to be prejudiced by a public trial, (2) the closure must be narrowly tailored to protect that interest, (3) alternatives to closure must be considered by the trial court, and (4) the court must make findings sufficient to support the closure.” ^[32] The case law typically refers to this four-part test as the “Waller test,” referring to the United States Supreme Court’s decision in Waller v. Georgia, 467 U.S. 39 (1984). ^[33]…

¶61      The circuit court reasonably concluded that the overriding interest of promoting truthfulness served by its sequestration order was imperiled by the conduct of the defendant’s family members. The circuit court’s determination that family members were contributing to violations of the sequestration order is supported by the following information that appears in the record: (1) the circuit court witnessed family members entering and leaving the courtroom; (2) members of the victim’s family went to the prosecutor with concerns that the persons entering and leaving the courtroom had been conveying information to potential witnesses; and (3) the circuit court witnessed family members in the courtroom gallery talking loudly as witnesses were testifying and even “nodding in approval or disapproval of witnesses’ testimony, in full view of the jury.”

The court adds that generally the trial judge should hold an evidentiary hearing before ordering closure, but that this record is sufficient to support closure even without a hearing, ¶¶63-64. Nor was the exclusion order (17 members of Ndina’s family) overbroad: “it would have been difficult if not impossible for the circuit court to determine which family members were likely to convey the contents of witness testimony to any of the numerous family members slated to testify,” ¶66. And, given that the defendant failed to present any reasonable alternatives to exclusion to family members, the trial court did not “err[] in failing to consider alternatives that no party asked it to consider,” ¶82. (Moreover, the trial court in the supreme court’s view implicitly concluded that “no less restrictive alternative” sufficed, ¶83.)

State v. Garrett L. Huff, 2009 WI App 92, PFR filed 6/3/09
For Huff: Jeffrey W. Jensen

Issue/Holding: Impossibility of fulfilling goal of conspiracy (here: election bribery, where other “conspirators” were undercover officers ineligible to vote) doesn’t preclude conviction, given Wisconsin’s recognition of “unilateral” conspiracies, State v. Sample, 215 Wis. 2d 487, 573 N.W.2d 187 (1998):

¶11   … Thus, under a unilateral conspiracy a person who intends to accomplish the objects of the conspiracy is guilty even though “the other members of the conspiracy never intended that a crime be committed.” Seeid., 215 Wis. 2d at 492, 573 N.W.2d at 189. For example, a person would be guilty of unlawfully conspiring to kill a business associate by hiring an undercover law-enforcement officer to commit the murder even though the officer had no intention to fulfill the contract. This same logic applies to the next step: that is, where the fulfillment of the conspiracy is not only highly unlikely, as in Sample, a reverse delivery-of-narcotics sting involving a jail inmate and an undercover officer, id., 215 Wis. 2d at 491–492, 573 N.W.2d at 189, or our murder-for-hire hypothetical, but is legally impossible, as is the case here. Indeed, although there is no published Wisconsin authority dealing with the legally-impossible situation, the law elsewhere is consistent with our next-logical-step conclusion, as revealed by a recent analysis and survey by United States v. Fiander, 547 F.3d 1036, 1042–1043 (9th Cir. 2008) …. As Sample recognizes, “under the inchoate crime of conspiracy, by definition no substantive crime is ever needed. Wisconsin Stat. § 939.31 focuses on the subjective behavior of the individual defendant.” Sample, 215 Wis. 2d at 505, 573 N.W.2d at 195 (emphasis added).

State v. Dwan J. Earl, 2009 WI App 99
For Earl: Mark D. Richards, Christy Marie Hall

Issue/Holding: Earl did not satisfy the “initial minimal burden of establishing some reasonable expectation of privacy” in a package addressed to a fictitious recipient at a vacant residence; moreover, when Earl picked up the package from the driver he gave his own name and thus “disassociated” himself from the addressee.

¶16      We know of no case addressing whether a recipient has a legitimate expectation of privacy in a package where the sender’s identity is unknown and the recipient’s name is fictitious and the address vacant. The court’s decision inUnited States v. DiMaggio, 744 F. Supp. 43 (N.D.N.Y 1990), provides some guidance. In DiMaggio, the defendants sent drug money to the known residences of the intended recipients but using fictitious personal or business names and also received packages of cocaine addressed to fictitious names and addressed not to their places of residence but to that of a business associate. Id. at 43-44. The DiMaggio court acknowledged that the defendants “did in fact subjectively expect that the contents of the Federal Express packages would remain private”; however, the court concluded that the defendants’ expectations were not ones that society would accept as reasonable. Id. at 45. The court reasoned, “[t]he packages allegedly used in this case contained nothing on the surface to indicate that defendants had any connection with the packages.” Id. at 46; see alsoUnited States v. Koenig, 856 F.2d 843, 846 (7th Cir. 1988) (defendant who denies ownership interest does not have standing when he is not the addressee and does not reside at the delivery address).

¶17      The package in this case involves more (or less) than just a false name. Here, Earl provided no information about the sender. The package was addressed to both a fictitious name and a vacant apartment, leaving nothing at all to link the package to Earl. After flagging down the FedEx driver, Earl identified himself, and stated that he was picking up the package for Mark Harris. The objective manifestations of Earl’s intent all lead to a conclusion that he sought to disassociate himself from the package—not that it was intended for him. Stated differently, there was nothing on the surface to indicate that Earl had any connection with the package, much less any dominion or control over it. Earl has failed to meet his burden to establish that he had a reasonable expectation of privacy in the package at the time of the search.

The court stresses that its conclusion is informed by “the coupling of a false name and a false address, along with an unknown sender and a statement that the package belongs to someone else,” ¶18. This suggests a narrow, fact-bound holding. Nonetheless, bear in mind that the court string-cites with apparent (but not explicit) approval various holdings to the effect “that even an intended recipient of an item that has been addressed and sent to another actual person has no reasonable expectation of privacy where it was the actual addressee who could control the use of and access to the item,” ¶15 n. 7.

State v. Dwan J. Earl, 2009 WI App 99
For Earl: Mark D. Richards, Christy Marie Hall

Issue/Holding:

¶9        Sealed packages sent through the mail are entitled to full protection under the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 114 (1984). In order to challenge a warrantless search or seizure, one must show a legitimate expectation of privacy in the thing or place searched or seized. State v. Ramirez, 228 Wis. 2d 561, 566, 598 N.W.2d 247 (Ct. App. 1999). This showing entails both a manifestation of a subjective expectation of privacy as well as an indication that the privacy interest is one that society is willing to recognize as reasonable. Id. This standing requirement reflects the fact that Fourth Amendment rights are personal, and thus may not be asserted vicariously.Id. The burden of establishing that the search or seizure violated the challenger’s rights, and not those of some third party, is on the challenger.   Id.; Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978). Whether sufficient facts have been brought forth to demonstrate a reasonable expectation of privacy must be determined on a case-by-case basis. Ramirez, 228 Wis. 2d at 567-68. Whether a party has standing to challenge the constitutionality of a search is a question of law we review de novo. Id. at 566. ^[6]

State v. Melvin Bridges, 2009 WI 66, PFR filed 5/18/09
For Bridges: Michael S. Holzman

Issue/Holding: Frisk of Bridges during routine traffic stop (defective brake lights) upheld, where the early-evening stop was in an area “where the police had received numerous complaints of gunshots fired at night,” and Bridges when pulled over had made “a questionable movement”; State v. Gary A. Johnson, 2007 WI 32, distinguished:

¶16   Without more, observation of such a movement—consistent with everyday behaviors—is insufficient to justify a protective search. Id. The Johnson court twice noted that the officer “did not ask Johnson to explain the surreptitious movement that he had observed before conducting the protective search of the vehicle,” and the court observed that “[a] suspect’s answer to such a question and demeanor while answering could provide information that is relevant to whether a protective search is reasonable.”Id., 40 n.15; see also ¶4.

¶17   The protective search of Bridges during the investigatory stop was based on an objectively reasonable suspicion that Bridges had access to a weapon and presented a threat to the officers’ safety in light of the totality of circumstances. As in Johnson, the traffic stop took place at night. However, here the stop occurred in an area that was “not … good,” was poorly lit and deserted at night, and was known for frequent gunfire. The requested backup had not arrived, and the initial reason that Bridges was stopped had not been resolved before the protective search took place. Both officers witnessed Bridges make a movement consistent with obtaining or concealing a weapon. These officers, each with over five years’ experience in law enforcement, believed that Bridges may have been armed: Bridges was reaching toward his left front side, where a license or wallet is not usually kept, and Dummer had experience with “a lot of people” who concealed weapons under their left leg close to the car door. Spaulding recognized the shoving motion as consistent with an attempt to conceal a weapon or contraband.

¶18   Moreover, the present case is unlike Johnson because, before performing the protective search, Dummer questioned Bridges regarding the suspicious movement, and Bridges did not respond. Bridges’ failure to provide an explanation effectively transformed what Bridges now maintains was an innocent movement into a specific, articulable fact supporting a reasonable suspicion that Bridges posed a threat to the officers’ safety.

…

¶21   The traffic stop of Bridges took place in a poorly lit, deserted area where gunfire was frequently heard at night, and the backup had not yet arrived. Both officers believed that Bridges may be armed based on their observations of his movements and their experience in law enforcement. Dummer took the minimally intrusive step of questioning Bridges to obtain information to confirm or dispel their suspicions. Bridges’ failure to answer, combined with the totality of circumstances, gave rise to “a reasonably prudent [officer’s] … belief that his [or her] safety … was in danger.” See Johnson, 299 Wis. 2d 265, ¶21 (citation omitted). ^[2]

Also distinguished, fn. 2, State v. Joshua O. Kyles, 2004 WI 15 (“While Kyles guides us in our decision, it does not control it.”). Kyles might be closer on its facts than the court suggests, but nonetheless the officer in that case critically acknowledged he felt no threat, which is likely the real point of distinction. Contrast, though, U.S. v. McKoy, 428 F.3d 38 (1st Cir 2005) (following stop of driver for parking violation: dangerousness of area and defendant’s nervousness and movements inside car not enough to support reasonable suspicion to frisk).

State v. Dennis E. Bailey, 2009 WI App 140
For Bailey: Jeffrey W. Jensen

Issue/Holding¹: The police have authority to stop a vehicle for an equipment violation of an administrative code provision incorporated under local ordinance:

¶17      Wisconsin Stat. § 349.02(2)(a) and (b) expressly allow a police officer to stop a vehicle for violation of a statute or ordinance enacted under this chapter. …

¶18      The plain language of subsections (a) and (b) above authorizes a police officer to stop a vehicle for an ordinance violation if there is reasonable cause to believe that a violation of an ordinance properly enacted under ch. 349 has been committed. There is no dispute that Milwaukee, Wis., Ordinance § 101-4.5 was lawfully enacted under Wis. Stat. ch. 349. Moreover, Wis. Stat. § 800.02(6) authorizes a municipal police officer to arrest a person without a warrant based on reasonable grounds to believe that the person is violating a municipal ordinance. Therefore, under Wis. Stat. § 349.02(2)(a) and (b)1., Honzelka had authority to stop Bailey for the window tint ordinance violation.

Issue/Holding²:

¶19      Bailey next argues that only state patrol and DOT officers have authority to stop vehicles for equipment violations under the administrative code, based on two sections of Wis. Stat. ch. 110.

…

¶21      While it is clear that Wis. Stat. §§ 110.07 and 110.075 authorize the “traffic officers” of the state patrol and DOT to make stops and inspections and perhaps arrests for equipment violations, nothing in these statutes limits local law enforcements officers’ powers to do so. A City of Milwaukee police officer is a “traffic officer” under Wis. Stat. § 340.01(70), ^[3] and because § 110.075 provides that “any traffic officer” can stop and inspect vehicles for violations of ch. 110 or rules issued pursuant to ch. 110, and because Wis. Stat. § 349.02(2) permits a police officer to enforce a city ordinance violation upon reasonable basis to believe a violation has occurred, Honzelka had authority for the stop of Bailey for an ordinance violation.

State v. Dennis E. Bailey, 2009 WI App 140
For Bailey: Jeffrey W. Jensen

Issue/Holding: Court upholds frisk of vehicle, following stop for minor equipment violation (excessive window tint) in high crime area, where driver made furtive gesture (kicking motions under front seat) and officer testified that he saw a bag, which he thought contained a gun, protruding from under seat, ¶¶24-50. State v. Gary A. Johnson, 2007 WI 32, distinguished:

¶37      We conclude that there are four key distinctions between the search inJohnson and the search of Bailey’s vehicle: (1) Bailey’s furtive-type movements were repeated; (2) Bailey was given a chance to explain and gave an apparently disingenuous response; (3) Bailey’s stop was in a high crime area; and (4) Novack had experience recovering guns under similar circumstances and was genuinely concerned for his safety.

…

¶40      In Johnson the police offered no testimony as to experience with recovering guns in the same type of situation or describing the area as one of high crime. The police in Johnson testified they were looking for guns or contraband. Their uncertainty as to the focus of their search undercut their claim to a specific basis for believing a search was necessary for their protection. Novack’s testimony was specific. The repeated kicks, unlikely “candy” explanation, the visible opaque plastic bag, and Novack’s experience with guns in similar situations all established a reasonable basis to believe a protective search was necessary for the officers’ safety.

High crime? Maybe, but all we have for it is the officer’s say-so, along with the court’s reflexive agreement. The stop occurred at 45^th & North at 7:25 p.m., for those familiar with the area.