by admin
on February 21, 2008
State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly
Issue: Whether execution of a search warrant for business records exceeded the warrant’s scope in that the warrant: authorized only the search for and seizure of records that related to a specific business with specifically named clients; and also authorized only a search of that business’s office space and not the defendant’s personal office within that space.
Holding:
¶38 A search warrant’s execution must be conducted reasonably, and the search and seizure must be limited to the scope that is permitted by the warrant. State v. Andrews, 201 Wis. 2d 383, 390, 549 N.W.2d 210 (1996). Whether a seized item is properly within the search warrant’s scope depends on the search warrant’s terms and on the nature of the items that were seized. Id. at 390-91. The search warrant here was a premises warrant. [8] This court has held that a premises warrant generally “authorizes the search of all items on the premises so long as those items are plausible receptacles of the objects of the search.” Id. at 389. We continued by stating, “‘A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search.'” Id. at 389-90 (citation omitted).
¶39 We find LaCount’s assertion that the police exceeded the scope of the search warrant by searching LaCount’s personal office within GP&L’s office to be without merit. Because, the search warrant was a premises warrant, the police were entitled to search the entire premises, including the items within the premises, so long as such items were “plausible receptacles of the objects of the search.” Id. at 389. As a result, the search of LaCount’s personal office within GP&L’s office was warranted, because his office’s furnishings were plausible receptacles that were very likely to have contained the items that the search warrant authorized to be searched for and seized. Lawful searches, as here, may extend “‘to the entire area in which the object of the search may be found and [are] not limited by the possibility that separate acts of entry or opening may be required to complete the search.'” Id. at 389-90 (citation omitted).
…
¶41 We similarly hold that LaCount’s assertion that the police exceeded the scope of the search warrant by seizing records of GP&L’s clients other than those specifically named in the warrant is without merit. The DeSmidt decision is especially helpful on the issue relating to whether the police exceeded the scope of the search warrant. State v. DeSmidt, 155 Wis. 2d 119, 133-34, 454 N.W.2d 780 (1990). In that case, we stated that, when “there is probable cause to believe that there exists a pervasive scheme to defraud, all the records of a business may be seized.” Id. (citation omitted).
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by admin
on February 21, 2008
State v. Michael Anthony King, 2008 WI App 129
For King: Mark S. Rosen
Issue/Holding: Search warrant based on drug transaction occurring 30 days earlier lacked probable cause, ¶32 n. 7:
… From our review of the record, it would appear that probable cause as to the search of his residence was stale. The most recent information directly tied to King was thirty days old. To minimize the effect of this delay, the State pointed out that the affidavit in support of the warrant referred to over thirty individuals involved in the narcotics ring and detailed intercepted phone calls between Caraballo and other individuals, which took place within five days of when the warrant was issued. Details of the calls that took place within five days of the warrant’s issuance, however, make no mention of King. While we acknowledge that the “‘totality of the circumstances’” are to be considered, see Falbo, 190 Wis. 2d at 337 (citation omitted), there is nothing in the affidavit to support the combining of the older information pertinent to King with the newer information, in order to establish probable cause as of the date of the warrant’s issuance, cf. State v. Moley, 171 Wis. 2d 207, 213-14, 490 N.W.2d 764 (Ct. App. 1992) (concluding that a 1990 tip received by a detective, which was old information, combined with an aerial identification of marijuana plants the following year, i.e., new data, supported the inference that marijuana was growing on the property during the 1991 growing season and established “present probable cause”).
For a warrant to have been properly issued for King’s residence, more than “mere suspicion” was required to establish probable cause. See State v. Kiper, 193 Wis. 2d 69, 81, 532 N.W.2d 698 (1995). Although the affidavit details various items that narcotics traffickers commonly keep in their residence, it offers no explanation as to why, despite the lapse of thirty days from the last information directly linking King to Caraballo and despite the fact that law enforcement had not verified King’s address, evidence of criminal activity would nevertheless be present there. We cannot conclude that “a practical, commonsense decision” would have led to the conclusion that probable cause was sufficient as to King’s as-yet-to-be-verified residence. See State v. Ward, 2000 WI 3, ¶23, 231 Wis. 2d 723, 604 N.W.2d 517. Thus, the lack of probable cause is yet another basis on which the warrant could have been invalidated.
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by admin
on February 21, 2008
State v. Eric Dwayne Rogers, 2008 WI App 176, PFR filed 12/12/08
For Rogers: Mark D. Richards
Issue/Holding: Incorrect identification of automobile on face of warrant was mere technical irregularity based on “scrivener’s error”:
¶15 In this case, the executing officer had personal knowledge and the officer attached and incorporated a correct affidavit. The affidavit correctly identified Rogers’ car three times, describing the correct color, make, model, and style of the car along with the correct license plate. This information was based on the executing officer’s personal knowledge from prior encounters with Rogers and his car and from the confidential informant.
¶16 The face of the warrant, however, identified Rogers’ car incorrectly both times. First it identified a completely different car, then the correct car with two incorrect numbers in the license plate. The executing officer stated that the mistakes were a scrivener’s error from copying the information from an old search warrant.
¶17 We hold that the mistakes on the face of the warrant are a technical irregularity under Wis. Stat. § 968.22 and that the warrant meets the Fourth Amendment standard of reasonableness. When the executing officer has personal knowledge and attaches and incorporates an affidavit with the correct information, a magistrate may conclude that there is no reasonable probability that the officers will search the wrong premises. See State v. Gralinski, 2007 WI App 233, ¶¶15-16, 306 Wis. 2d 101, 743 N.W.2d 448 (courts review the magistrate’s inferences, not the police officer’s, though the magistrate may consider an officer’s special experience or knowledge). Accordingly, the officers’ seizure of cocaine evidence from Rogers’ car and their subsequent search of Rogers’ person were pursuant to a valid search warrant.
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by admin
on February 21, 2008
State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue/Holding:
¶15 Extrinsic sources include legislative history. Id. The drafting records of the Electronic Surveillance Control Law state that the law “represents Wisconsin implementation of the electronic surveillance portion of [Title III],” the Omnibus Crime Control and Safe Streets Act of 1968. [7] Drafting File for ch. 427, Laws of 1969, Analysis by the Legislative Reference Bureau of 1969 A.B. 860, Legislative Reference Bureau, Madison, Wis. Although the legislative history of the Electronic Surveillance Control Law is silent on whether the definition of “oral communication” was meant to incorporate the speaker’s “reasonable expectation of privacy,” the legislative history of Title III provides guidance.State v. House, 2007 WI 79, ¶14, 302 Wis. 2d 1, 734 N.W.2d 140 (stating that because the Electronic Surveillance Control Law is “patterned after Title III[, our] interpretation . . . benefits from the legislative history and intent of Title III”). Our interpretation is assisted as well by the federal decisions that have considered Title III.State v. Gilmore, 201 Wis. 2d 820, 830, 549 N.W.2d 401 (1996) (recognizing that in interpreting the Electronic Surveillance Control Law, we may look to federal decisions interpreting Title III).
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by admin
on February 21, 2008
State v. Brian Harold Duchow, 2008 WI 57, reversing unpublished decision
For Duchow: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether a school bus driver’s statements surreptitiously recorded by a voice-activated tape recorder in the student’s backpack were suppressible under WESCL.
Holding:
¶2 The dispositive issue in this appeal is whether Duchow’s tape-recorded statements were “oral communication” as defined in Wis. Stat. § 968.27(12), a part of the Electronic Surveillance Control Law. We conclude that the statements were not “oral communication” because Duchow had no reasonable expectation of privacy in the statements. Because the statements are not “oral communication,” they do not fall within the scope of the Electronic Surveillance Control Law; and therefore, the Electronic Surveillance Control Law provides no basis for suppression. [4] Accordingly, we reverse the decision of the court of appeals.
…
¶25 We begin by considering the place where Duchow spoke. Duchow and Jacob were on a public school bus being operated to transport children to school. Duchow was an employee of the school district and Jacob was a grade school pupil. Courts have held that an individual-employee’s expectation of privacy is diminished in places that the individual shares with others, as compared with places retained for his or her exclusive use. …
…
¶27 School bus drivers endure a similarly diminished expectation of privacy inside the school buses they operate. …
…
¶37 Our review of the totality of the circumstances presented here leads us to conclude that Duchow had no reasonable expectation in the privacy of his threats and abuse of Jacob on the school bus. The school bus was public property, being operated for a public purpose. The statements Duchow seeks to protect were threats directed at a child while the child was being transported to school. Because Duchow threatened Jacob, Duchow engaged in speech that was likely to be reported. Duchow assumed the risk of disclosure. Accordingly, we conclude that Duchow’s abusive speech had no reasonable expectation of privacy attendant to it. Therefore, his threats to Jacob are not “oral communication” within the meaning of Wis. Stat. § 968.27(12).
¶38 Duchow’s argument that he and Jacob were the only individuals on the bus is of no consequence….
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by admin
on February 21, 2008
State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro
Issue/Holding:
¶51 The trial court, having just heard a lengthy description of Payette’s violent and abusive conduct toward RS, directed that Payette not look at his victim during her statement to the court, because, the trial court said, “I just don’t want him intimidating her. We just asked him to turn around.” Payette claims that this order deprived him of his statutory (Wis. Stat. § 971.04 [15]) and due process right to be present at his sentencing, and he is, therefore, entitled to resentencing.
…
¶59 A trial court has considerable latitude in reasonable control of the courtroom and the conduct of parties and of witnesses before it. Wis. Stat. § 906.11(1); State v. Shanks, 2002 WI App 93, ¶10, 253 Wis. 2d 600, 644 N.W.2d 275 (“trial court has the power to alter courtroom procedures in order to protect the emotional well-being of a child witness”). We conclude that the limited restriction imposed here, based on the facts known to the trial court at the time, was a reasonable exercise of the trial court’s discretion to control the manner of proceedings before it. Neither Payette’s statutory nor constitutional rights were violated by this minor restriction during a small part of the sentencing hearing, nor has he demonstrated that he was in any articulable way prejudiced by it.
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by admin
on February 20, 2008
State v. Robert T., 2008 WI App 22For Robert T.: Bradley J. Bloch
Issue: Whether § 947.015 (2003-04) (“Bomb Scares”) is overbroad and therefore cannot support prosecution for a phoned-in but false bomb threat.
Holding:
¶12 Robert T. argues that the statute suffers from overbreadth because it prohibits speech that could be protected. We disagree. Prior Wisconsin opinions have held that only “true threats” are punishable, and consequently, Wis. Stat. § 947.015 must be read with the limitation that only a false bomb scare that constitutes a “true threat” can be charged.
…
¶15 Indeed, this is exactly what the supreme court of the state of Washington did with a similar statute prohibiting threats. In State v. Johnston, 127 P.3d 707, 708-09 (Wash. 2006), an intoxicated man, Tracey Johnston, made various threats following his arrest at the airport. He was charged with making threats to bomb or injure property, contrary to the Washington statutes. Id. at 709. At his jury trial, the trial court refused to give an instruction offered by Johnston defining a “true threat.” Id. In reversing the conviction, the supreme court explained:
Here, the statute reaches a substantial amount of protected speech. For example, threats made in jest, or that constitute political statements or advocacy, would be proscribed unless the statute is limited to true threats. Accordingly, the statute must be limited to apply to only true threats.
Id. at 711-12.
¶16 Wisconsin Stat. § 947.015 must be read with the requirement that only “true threats” can be prosecuted. Here, the police who responded to Robert T.’s phone call believed the threat was real. Also, Robert T. apparently intended to frighten the listener; thus, his call appears to fall within the ambit of a “true threat.” Therefore, the statute is constitutional.
The court rejects Robert T.’s interpretation of Virginia v. Black, 538 U.S. 343 (2003) that a “true threat” is limited to threats to a specific person or group:
¶19 In addition, we note that Wisconsin law has never limited a “true threat” to one which is directed at a person or group of persons and threatens bodily harm or death. Also, our research has been unable to find any cases which have adopted Robert T.’s interpretation of Virginia. Since Virginia was decided, numerous states have dealt with related statutes criminalizing bomb scare/threat and false alarms and numerous prosecutions have taken place for threatening to blow up property. See, e.g., Johnston, 127 P.3d 707; State v. Gibson, No. 2007-G-2755, slip op., 2007 WL 4150950 (Ohio Ct. App. Nov. 21, 2007); see also United States v. Brahm, ___ F. Supp.2d ___, 2007 WL 3111774, at *1 (D.N.J. Oct. 19, 2007) (charging a Wisconsin resident for posting information on a website that he knew to be false concerning acts that would cause damage to buildings or vehicles, and involving use of weapons of mass destruction and radiological dispersion devices). Certainly if the Supreme Court meant to severely limit the definition of “true threats” to apply only to threats of bodily harm or death directed to a person or group of persons, these other prosecutions would have been challenged. They have not been, and we are satisfied that Robert T.’s interpretation is wrong. Consequently, the trial court erred in so finding. Thus, the trial court’s order is reversed and remanded with directions that the trial court reinstate the delinquency petition.
But compare, Fogel v. Collins, 9th Cir No. 06-15395, 6/27/08 (“In most cases where courts have found that speech constituted a true threat, the threatening speech was targeted against specific individuals or was communicated directly to the subject of the threat.”)
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by admin
on February 20, 2008
State v. Timothy L. Neitzel, 2008 WI App 143
For Neitzel: David A. Nelson
Issue/Holding: Under the particular circumstances, the sole occupant of a locked, public restroom had no reasonable expectation of privacy given that he occupied the room for at least 25 minutes and then failed to respond to pounding on the door.
The court follows the 6-factor test adopted by State v. Juan M. Orta, 2003 WI App 93 (another public bathroom case, but with distinguishable facts, ¶17: there, multiple individuals were in a single stall, the door to which wasn’t locked). Although the majority purports to weigh each factor individually, it comes down to these crucial facts, ¶¶26-27: “Neitzel’s claim of privacy while using the only restroom for males at a gas station for at least twenty-five minutes, without responding to the officer’s knocking, is not consistent with historical notions of privacy. … While his initial use of the restroom was for its intended purpose, his expectation that he continue to have the private use of the locked restroom for at least twenty-five minutes, without responding to knocking and while dozing off, is not reasonable.”As you can gather, Neitzel either fell asleep or passed out drunk while on the toilet. (Do not attempt this trick at home.) The State apparently sought something like a bright-line rule that passage of time alone eliminates any expectation of privacy, but the court declines the invitation, ¶21 n. 5: “However, we do not establish a period of time beyond which there is no reasonable expectation of privacy. Instead, our analysis takes into account the period of time Neitzel was occupying the restroom scoupled with the knocking and lack of response.” The concurrence, however, is dubious about significant limits as a practical matter, ¶31 (“The majority’s result is dangerous because appellate courts usually do not like bright lines, and the next case will involve a twenty-minute stay in a mens’ or womens’ room. And then one of fifteen minutes, until the result is that nobody has an expectation of privacy in a locked rest room if someone knocks.”). Just so.
One wonders, too, exactly why a response to knocking would be necessary to assert a right to privacy. The majority simply asserts that “(a) person seeking privacy while using a public restroom of this type would customarily respond to a knock on the door by explaining how much longer he or she would be occupying the restroom,” ¶23. But as the concurrence suggests (¶30), the majority is reductionistic: human behavior is too idiosyncratic, too subject to uncontrollable variables, to be collapsed into such a rigid formulation. But here we are, and for the time being anyway, the holding is fact-specific.
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