On Point

State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. Lazotte, SPD, Madison Appellate

Issue/Holding: Prior conviction for a violent crime is element, not penalty enhancer, of stalking, §§ 940.32(2) & (2m)(a):

¶30      First, sub. (2m)(a) designates a list of specific crimes that elevate a simple stalking offense to a Class H felony. These enumerated prior convictions are for a specific set of violent crimes, prior stalking offenses, and harassment offenses. The legislature’s focus on the nature of the prior crime, rather than the simple fact of a prior conviction, demonstrates that the legislature’s intent was not simply to provide an enhanced punishment for habitual criminality. The selection of these specific crimes indicates that the legislature defined stalking as an aggravated crime when the perpetrator has a history of violent or obsessive behavior.¶

31      Second, although the habitual criminality statute provides a number of years that a judge may add to a sentence if there are prior convictions, the stalking statute specifies that defendants are guilty of a higher class of felony if they have specific prior convictions. …

¶32      Third, the stalking statute is not structured like the habitual criminality statute, which defines penalty enhancers rather than substantive elements. Instead, the stalking statute sets up three classes of stalking, with increasing punishments——Class I felonies under § 940.32(2), Class H felonies under § 940.32(2m), and Class F felonies under § 940.32(3).

State v. Elliot B. Russ, Sr., 2009 WI App 68
For Russ: Barry S. Buckspan

Issue/Holding:

¶11   The first issue turns on whether Russ had a reasonable expectation of privacy in the affidavits that he left on the bench. See Roberts, 196 Wis.  2d at 453, 538 N.W.2d at 828 (“[B]efore a defendant can invoke the protections of the Fourth Amendment, he or she must establish a legitimate expectation of privacy in the object searched.”).

The determination of whether the defendant had a reasonable expectation of privacy depends on two separate questions. The first question is whether the individual by his conduct exhibited an actual, subjective expectation of privacy. The second question is whether such an expectation is legitimate or justifiable in that it is one that society is willing to recognize as reasonable.

State v. Rewolinski, 159 Wis. 2d 1, 13, 464 N.W.2d 401, 405 (1990). We focus on the second aspect of the test, that is, whether Russ had an objectively reasonable expectation of privacy in the affidavits. See Roberts, 196 Wis. 2d at 454, 538 N.W.2d at 829 (“An actual, subjective expectation of privacy is not sufficient to create fourth amendment protection; in addition, the expectation must be one society is prepared to accept as objectively reasonable.”). We conclude that he did not.

State v. Antonio K. Phillips, 2009 WI App 179, PFR filed 11/25/09
For Phillips: Michael J. Backes

Issue/Holding: Warrantless entry of residence, following controlled buy within it, was justified by the threat of destruction of evidence, given that, “after seeing the police outside the residence, Phillips retreated into the residence and shut the door after the police ordered him to stop,” ¶11. State v. Vanessa D. Hughes, 2000 WI 24; and State v. Edward Garrett, 2001 WI App 240, followed, as to idea that knowledge of police presence incentivizes imminent destruction of contraband.

Elephant in the room: “knock and talk.” After the controlled buy inside the house, the police determined to follow through with a knock and talk rather than a warrant. To their good fortune, Phillips happened to be in view, in the doorway, and when he saw them he retreated inside. He argues on appeal that the police thus created their own exigency, but the court holds that Phillips himself created the exigency by retreating inside; therefore, the court “need not delve into the” propriety of the knock and talk strategy, ¶11.

Interesting dissent, ¶¶20-30, which essentially makes the point that the knock and talk strategy was unreasonable in the first place, that its purpose of circumvent the warrant requirement. Nonetheless, the majority usefully catalogs a severe split among federal circuits on “whether the police impermissibly create exigent circumstances by knocking on the door,” ¶11 n. 5. Indeed, this is a recurrent issue—and, for those keeping score at home, whenever mention is made of a deep split among the circuits, think: “cert-worthy.” For a recent example of just how enthusiastically the police sometimes employ the practice, see Hardin v. State, 2009 Fla. App. LEXIS 15198 (Fla. 2d DCA October 9, 2009) (consent following knock and talk deemed coercive on somewhat extreme facts).

Incidentally, the fact that Phillips was standing in his doorway, not outside the house, when he spotted the police is irrelevant to the analysis, ¶19 n. 9. It’s a destruction-of-evidence, not hot pursuit, case, ¶19. Hard to see, though, how Phillips’ placement in the threshold of the doorway makes any difference anyway, so long as he was exposed to public view, United States v. Santana, 427 U.S. 38 (1976).

State v. Kevin Raphael Lee, 2009 WI App 96, PFR filed 7/1/09
For Lee: Robert E. Haney

Issue/Holding: Police investigating complaint of drug dealing were entitled to enter apartment and conduct “protective sweep” when they saw, through the open front door, clear evidence of drugs:

¶13      The officers who presented themselves at Lee’s front door were investigating a complaint of drug activity at Lee’s address. After gaining entry to the common area of the building by virtue of the consent given by the occupant of the downstairs unit, ^[7] they came upon the open front door of Lee’s apartment, with drugs in plain view inside. Officer Scott Iverson testified that the door to the apartment was “wide open” at a ninety degree angle. He stated further that “[w]e yelled Milwaukee police and there was no answer and we did it again….” Iverson also testified that “[w]e did a protective sweep to make sure there wasn’t anybody in there.” Officer Phillip Simmert, who responded with Iverson to Lee’s residence, testified that after the officers received no response when they announced their presence, they “cleared the unit to make sure nobody was hiding, [sic] jump out on us.”

¶14      We conclude that these facts would allow a reasonable police officer to believe that entry into Lee’s apartment in order to perform a protective sweep was necessary due to a potential threat to the officers’ safety. In light of the wide open door, the officers could reasonably believe that someone was likely inside. People do not customarily leave the front door to their residences open when they leave, especially when illegal narcotics are easily seen through the open door. The officers announced their presence and received no response. From this, the officers could reasonably believe that persons inside the apartment were aware that police officers were outside the open door, that controlled substances and other evidence of criminal activity were visible to the officers, that the occupants were the subject of police suspicion, and that a raid may be imminent. The officers could also reasonably believe that the occupants were, under these circumstances, nervous and agitated, and would take the steps necessary to evade apprehension.

¶15      Further, the officers could reasonably believe that the occupants were connected with drug activity and may be dangerous. Felony drug investigations may frequently involve a threat of physical violence and the likelihood that evidence will be destroyed. …

Protective sweep doctrine, in other words, extended beyond incident-to-arrest to destruction-of-evidence context. State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997), distinguished, ¶¶17-19: Kiekhefer possessed a large quantity of drugs, minimizing the potential for evidence destruction; and, there was no indication he was aware of the police presence, minimizing the potential threat to their safety.

State ex rel. David C. Myers v. Smith, 2009 WI App 49

Pro se

Issue/Holding: Writ of certiorari “misdirected” to wrong respondent (in this instance, review of inmate complaint, improperly naming as respondent institution warden rather than DOC Secretary or designee) must be dismissed:

¶10      We begin by observing that certiorari “is available only for the purpose of reviewing a final determination.” Id., ¶12. The writ must be directed “to the board or body whose acts are sought to be reviewed, otherwise the court cannot obtain jurisdiction either of the subject-matter or of the persons composing such board or body.” State ex rel. Kulike v. Town Clerk of Town of Lebanon, Dodge County, 132 Wis. 103, 105, 111 N.W. 1129 (1907). The final decision-making authority for an inmate complaint is identified by reference to the administrative code provisions.¶11      … [T]he DOC secretary is the final decision maker on an inmate complaint initiated under the ICRS.

¶12      We understand that, particularly for a pro se appellant, some sections of the administrative code may be difficult to navigate. Myers, however, appears to have followed the procedures and obtained a final determination by the secretary’s designee as envisioned by the code. He initiated a complaint using the ICRS, he was dissatisfied with the ICE’s determination, he sought review, a CCE reviewed the determination and recommended that the secretary approve the decision, and the secretary ^[3] adopted the CCE’s recommendation. Myers has not made, nor could he reasonably support, an argument that he did not know the final decision maker was the secretary. Accordingly, we affirm the order of the circuit court, which dismissed the petition for lack of jurisdiction because the writ was misdirected. See Kulicki, 132 Wis. at 105; Grzelak, 263 Wis. 2d 678, ¶12.

State ex rel. David C. Myers v. Smith, 2009 WI App 49

Pro se

Issue/Holding: Inmate may not utilize discovery to bypass security-based restrictions on access to banned material such as pornography:

¶16      Inmates must not be allowed to evade security restrictions by simply filing suit or petitioning for writ of certiorari and obtaining prohibited materials through discovery. Due process does not mean that a prisoner has an absolute right to everything relevant to his or her case. See Bell v. Wolfish, 441 U.S. 520, 545-46 (1979) (lawful incarceration necessitates the withdrawal or limitation of many rights). “There must be a ‘mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.’” Id. at 546 (citation omitted). Materials banned to further legitimate penological interests are properly withheld. See Aiello v. Litscher, 104 F. Supp. 2d 1068, 1075 (W.D. Wis. 2000). Myers’ right to due process was satisfied when an independent entity, here the circuit court, reviewed whether the DOC decision to deny him access to the book was arbitrary and capricious. Cf. George v. Smith, 467 F. Supp. 2d 906, 921 (W.D. Wis. 2006) (where in camera inspection by court confirmed DOC decision was neither arbitrary nor irrational when it banned material as prohibited gang-related publication).

State v. Cleveland R. Tidwell, 2009 WI App 153, PFR filed 10/9/09
For Cleveland: Jeremy C. Perri, SPD, Milwaukee Appellate

Issue/Holding: Evidence held sufficient to sustain conviction for attempted theft from person, where Tidwell demanded money from a restaurant clerk, hit his fist on cash register and fax machine next to cash register, and tried to grab and take the fax machine:

¶10   In the case at bar, Tidwell contends that the facts of this case are not “circumstances which made stealing particularly dangerous and undesirable.” Hughes, 218 Wis. 2d at 545. We disagree. Here, Tidwell approached Rondeau while she was behind the cash register counter and demanded money. The counter was very narrow and had only one entrance which was blocked by Tidwell, leaving Rondeau trapped in a small area within arms reach of Tidwell. When Rondeau did not immediately give Tidwell the money, he began smashing the fax machine and cash register with his fists, becoming louder and louder in his demands for the money.¶11   Tidwell even tried to grab the fax machine and a brief tug of war ensued between he and Rondeau before it was released. These actions caused Rondeau to be legitimately “upset; shaking and scared.” Tidwell’s actions, the shouting, the grabbing of the fax machine, and the pounding on the fax machine and cash register, are “the type of ‘particularly dangerous and undesirable’ actions to which theft from the person should apply.” See Graham, 237 Wis.  2d 620, ¶10. We conclude that there is sufficient evidence to allow a reasonable jury to find beyond a reasonable doubt that Tidwell was guilty of theft “from the person.”

The court also concludes that Rondeau had constructive possession of the restaurant’s property, hence the attempted theft was of his “person,” ¶12. Compare, Byrd v. Israel, 513 F. Supp. 1077, 1082 (E.D. Wis. 1981) (holding that “it was the store rather than its employees that were robbed”: “‘Although an allegation that the property taken was owned by one person and proof that it was owned by another may give rise to a fatal variance in larceny cases, the rule is otherwise as to robbery, (because) a taking by force or putting in fear is the gist of the offense.’ 67 Am.Jur.2d Robbery § 66 (1973) (footnotes omitted). See Walton v. State, 64 Wis.2d 36, 41-42, 218 N.W.2d 309 (1974). It matters less that the property belonged to a particular owner than that it belonged to someone other than the robber. See State v. Bowden, 62 N.J.Super. 339, 162 A.2d 911 (1960).”). It does seem as if the offense could have been charged as attempted robbery of the restaurant, and the net result is that the court of appeals has blurred the distinction between theft and robbery.