On Point

State v. Aaron E. Applewhite, 2008 WI App 138, PFR filed 9/19/08
For Applewhite: Pamela Moorshead

Issue/Holding: Reasonable suspicion supported the frisk, given: the type of crime being investigated (residential burglary); the suspect’s admitted possession of, but initial reluctance to produce, two knives; and, his repeated reaching into his pants pockets, ¶¶3-11.

State v. Nathaniel L. Sumner, 2008 WI 94, reversing unpublished opinion
For Sumner: Craig Albee, Carol S. Josten

Issue/Holding:

¶23      Our protective search or “frisk” jurisprudence has consistently emphasized that the totality of all circumstances present and known to the officer must be taken into account to assess the legality of the procedure. Naturally, some factors will be of greater import than others in the reasonable suspicion calculus in a particular case. Our cases, most notably Kyles, have first broken down the reasonable suspicion issue into an analysis of each primary factor present and then concluded by viewing these primary factors in the totality of circumstances. See id., ¶¶17-18, 68-72 (listing “six factors that compose the totality of the circumstances” in that case, and then evaluating them in their totality). …

State v. Clemente Lamont Alexander, 2008 WI App 9
For Alexander: Michael C. Demo

Issue: Whether the police had reasonable suspicion to search the glove compartment of a car, stopped for a minor traffic violation (right turn on red without stopping), based on multiple factors: delay in pulling over, furtive movements, high-crime area, and post-stop observation of items on the driver seat normally found in the glove compartment.

Holding:

¶13   Based on the totality of the specific facts in the instant case, we conclude that the officers had a reasonable suspicion of dangerousness to justify the pat-down and protective search. First, the officer’s concern for their safety was evident by the immediate pat-down, rather than, as in Johnson, the first concern was the emissions violation. Second, unlike in Johnson, the traffic violation here was not resolved before any pat-down was conducted. Third, the instant case occurred in a high-crime area, known for violent crimes and weapons, at a time when the police were on alert due to recent “shots-fired” complaints. Fourth, the occupants here engaged in repeated furtive movements prior to complying with police directive to stop their vehicle. Finally, the protective search of the glove compartment was done only after the officers observed items, normally found in the glove compartment, on the driver’s seat. Discovering these items there, consistent with the furtive movements the officers had observed, and the delay in pulling over, led to reasonable suspicion that Alexander was hiding a weapon in the glove compartment.

…

¶15      These cases are not easy matters to decide. We must balance the right of citizens to be free from unreasonable government intrusions and guard against the police overstepping their authority, with the safety of law enforcement officers who are patrolling dangerous areas and approaching vehicles in a society where assaults on officers by armed suspects are increasing daily. See Johnson, 299 Wis. 2d 675, ¶22; State v. McGill, 2000 WI 38, ¶20, 234 Wis. 2d 560, 609 N.W.2d 795. We are convinced that the officers in the instant case had sufficient particularized facts to raise a reasonable suspicion that the situation was dangerous, and that the occupants of the vehicle may have had a weapon. We base our decision on the following factors: (1) the officers were in the area due to “shots fired” complaints and knew the area to be very violent, with substantial drug and gun activity; (2) the numerous furtive gestures of the occupants of the car observed by the officers before the car stopped; (3) the delay in stopping raising the suspicion of the officers that the occupants were buying time to hide weapons; (4) the officers belief that the situation was dangerous based on the occupants actions immediately upon stopping the car; (5) the items observed on the driver’s seat and the reasonable inferences that could be drawn therefrom; (6) the protective search being the first priority over the traffic stop; and (7) the trial court’s credibility determinations.

The court doesn’t quite mention the fundamental principle that before frisking, the police “must have reasonable suspicion that a person may be armed and dangerous,” State v. Joshua O. Kyles, 2004 WI 15, ¶26. (And even that articulation is a tad watered down from the original statement in Terry v. Ohio, 392 U.S. 1, 24 (1968), that the officer must be “justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous.”) The State, that is, must make an “armed-and-dangerous” showing separate and apart from the basis for the stop. The court of appeals was undoubtedly aware of this basic requirement, and it’s not as if teasing it out would have changed the result; it’s just that failure to stress it explicitly may encourage its to be further watered down.In any event, if you were wondering how far the appellate courts might go in (not) suppressing evidence uncovered during a routine traffic stop, this decision might be something of a boundary marker and you’ll have to make the best of it. Speaking of which …

The court stresses “furtive” gestures, a hallmark of frisk cases, but it’s worth keeping mind that the court very carefully links furtiveness here to the (supposedly) unusual delay in pulling over; see ¶11 (“cars normally pull over within one-half of a block”). The antipodal case is State v. Gary A. Johnson, 2007 WI 32, ¶¶34-36 (“single factor” of furtive movement not enough, at least in that instance). Most cases will probably fall in between (that is, after all, in the nature of antipodes, right?), and how courts will treat those remains to be seen. The objective will be to characterize Alexander as the outer limit of what is permissible, and it may well be that the sheer multiplicity of factors (¶15) supports that goal. On the other hand, the court’s attempt (¶13) to limit Johnson to its facts is potentially problematic; see also, especially, ¶16:

¶16      There seems to be a common factor in some of these cases, where the courts have concluded that the officers did not have justifiable basis for conducting a protective sweep—that factor being when the protective search takes place after the traffic investigation has been completed. See Johnson, 299 Wis. 2d 675, ¶¶45, 48, State v. Gammons, 2001 WI App 36, ¶¶1, 24, 241 Wis. 2d 296, 625 N.W.2d 623. As noted, such was not the case here—the facts and circumstances demonstrate that the officers’ primary concern was indeed weapons and safety, as evidenced by the fact that the protective search was the first thing the officers did. The protective search was not an afterthought, but the first concern. The facts and circumstances presented above demonstrate that the high-crime area in the instant case was only one of several factors justifying the officers’ actions.

Minor quibble: in this context, “protective sweep” as a matter of taxonomy isn’t quite correct, referring generally to cursory inspections for potentially dangerous individuals incident to arrest, Maryland v. Buie, 494 U.S. 325 (1990). The broader problem is that the court seems to encourage the police to frisk first and ask questions later—if they do, then that will show their “primary concern” to be “indeed weapons and safety,” thereby supporting the frisk (and therefore also critically distinguishing Johnson). It may well be that the cop’s subjective perception of danger is relevant, Kyles, 2004 WI 15, ¶4, but ultimately the test is an objective one: whether belief the suspect was armed and presently dangerous was reasonable. In this regard, establishing the area’s high-crime nature is relatively uncharted litigation terrain. It is almost a given that the cop will assert that the area was in the nature of an urban jungle (even when it’s rural or exurban; one size fits all). In this case, the testimony was a bit more refined than most, and perhaps nothing could have been done with it:

¶10      In the instant case, the facts are distinguishable from Johnson. Officer Newport testified about the high-crime area, stating that it was an area of violent crime, drug dealing, and active gangs. A number of homicides, attempted homicides, and shootings had occurred in this area, which Newport had five years of experience in patrolling. He had personally encountered armed criminals in the area, and was parked there on the evening of Alexander’s stop due to “shots-fired” complaints, some of which were drive-by shootings.

Nonetheless, this is a crucially recurrent, fact-specific issue that has to be contested where, and as fully as, possible. E.g., U.S. v. Wright, 1st Cir No. 06-1351, 5/4/07:

In most cases, the relevant evidence for this factual finding will include some combination of the following: (1) the nexus between the type of crime most prevalent or common in the area and the type of crime suspected in the instant case …; (2) limited geographic boundaries of the “area” or “neighborhood” being evaluated …; and (3) temporal proximity between evidence of heightened criminal activity and the date of the stop or search at issue[.]

And, United States v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000) (en banc), footnotes omitted:

The citing of an area as “high-crime” requires careful examination by the court, because such a description, unless properly limited and factually based, can easily serve as a proxy for race or ethnicity. District courts must carefully examine the testimony of police officers in cases such as this, and make a fair and forthright evaluation of the evidence they offer, regardless of the consequences. We must be particularly careful to ensure that a “high crime” area factor is not used with respect to entire neighborhoods or communities in which members of minority groups regularly go about their daily business, but is limited to specific, circumscribed locations where particular crimes occur with unusual regularity. In this case, the “high crime” area is in an isolated and unpopulated spot in the middle of the desert. Thus, the likelihood of an innocent explanation for the defendants’ presence and actions is far less than if the stop took place in a residential or business area.

Also keep very much in mind State v. Scott K. Fisher, 2006 WI 44, a right-to-bear-arms case which nonetheless contains this passage, ¶41:

… Fisher’s tavern, in contrast, cannot realistically be considered to be situated in a high-crime neighborhood. He testified that he knew of four businesses that had been robbed, some at gunpoint, in the last year or so in Black River Falls. The State has countered this evidence with publicly-available FBI crime statistics showing that crime rates in Black River Falls (population 6,225, according to the FBI statistics) do not differ significantly from rates in other areas of similar populations.^[6] We are not persuaded that Fisher can reasonably characterize Black River Falls at the time of his arrest as a high-crime area. Such a characterization would erase any meaningful distinction between a truly high-crime area and any other area.

Fisher wanted the court to affix the “high-crime” label to his area; the court found a reason not to—funny how that seems to work. In any event, take a hint from the foregoing: you don’t need to take the cops’ word; crime data are available; the figures are examined comparatively, not in a vacuum; there must be some nexus between the prevalent crime(s) and the particular suspicion; etc.

State v. Tamara C. Limon, 2008 WI App 77, PFR filed 5/7/08
For Limon: Wm. Tyroler, SPD, Milwaukee Appellate; Lisa A. Packard, Law Student

Issue/Holding¹:

¶17      The investigative stop stemmed from an anonymous citizen’s tip of drug use and loitering on the porch of the residence. … Where an anonymous tipster is involved, police are required to conduct an independent investigation to corroborate the information provided. …

¶18      Here, the tipster presented himself to the officer, thus allowing the officer an opportunity to personally assess the tipster, which led him to conclude that the tipster “seemed very credible. He wasn’t intoxicated. He wasn’t high. He was very articulate in what he was telling me, and I had no reason to doubt what he was telling me was true.” Moreover, the tipster jeopardized his anonymity and risked arrest if the tip proved to be false by approaching the officer in person, as opposed to making an anonymous telephone call, and by further telling the officer that he was frequently in the area where the residence was located. See State v. Rutzinski, 2001 WI 22, ¶32 & n.8, 241 Wis. 2d 729, 623 N.W.2d 516. “Risking one’s identification intimates that, more likely than not, the informant is a genuinely concerned citizen as opposed to a fallacious prankster.”Williams, 241 Wis. 2d 631, ¶35; see also United States v. Heard, 367 F.3d 1275, 1279 (11th Cir. 2004) (face-to-face anonymous tip presumed to be inherently more reliable than anonymous telephone tip).

¶19      Support for an anonymous tip can also be found via “police corroboration of innocent, although significant, details of the tip.” Williams, 241 Wis. 2d 631, ¶39. The officers corroborated that neither Limon nor the two men resided at the residence. If any of the three had permission to be at the residence, it is reasonable to infer that such information would have been offered to the police officers. Yet, there is no indication in the record that any explanation was provided.

Someone approached the police and complained about drug-dealing on the porch of an unoccupied lower flat. Several days later a squad on patrol espied Limon and two others on the porch and acted on the prior information. One thing led to another and a small amount of drugs were seized from Limon’s purse in a “frisk.” But before getting to that, the threshold question is whether the police had an adequate basis to seize her. Although the court indicates that “(t)he issue of her seizure is not relevant,” ¶2  n. 3, the court seems to mean that it prefers the nomenclature, “investigatory stop.” What, then, of her “stop”? That issue turns in part on reliability of the informant, who gave an in-person report but didn’t give his name and to that extent must be deemed unknown. The court implicitly recognizes that informant reliability is on a sliding scale, not a binary (reliable/unreliable) one. In other words, “the totality of the circumstances approach” doesn’t support “neat categories of known or anonymous” informants, United States v. Elmore, 482 F.3d 172, 181 (2^nd Cir. 2007). It follows that “when the informant is only partially known (i.e., her identity and reliability are not verified, but neither is she completely anonymous), a lesser degree of corroboration may be sufficient to establish reasonable suspicion,” id. Although the court here neither cites Elmore nor labels the informant partially anonymous, that is how it treats him as a pragmatic matter in the sense that it details the corroboration that led to the stop of Limon. (¶¶18, et seq.). Consider, however, Durden v. State, 2013 Ga. App. LEXIS 154 (3/8/13) (“face-to-face communication” distinguishable from anonymous phone tip,, such that former deemed “a concerned citizen whose reliability could be presumed”).

Issue/Holding²:

¶20      Upon telling one of the men to stand up and subsequently noting the presence of a fresh-looking marijuana blunt, the officers had reason to suspect a violation of the criminal statutes prohibiting possession of marijuana, as well as Milwaukee’s ordinance specifically pertaining to drug loitering, Milwaukee, Wis., Ordinance § 106-35.6.2. …

¶21      Limon argues that, pursuant to Ordinance § 106-35.6.2, the officer was required to ask the three individuals to explain their presence. According to her, the officer should have asked what the three were doing on the porch because it may have been that they had just arrived and were looking for the owner of the residence, or perhaps, they went to the wrong address. We do not agree with Limon that the officer was required to make this inquiry. Rather, when the officer asked Limon and the two men whether anyone resided at the residence, he adequately provided the three individuals with “an opportunity to explain [their] presence and conduct,” in accordance the ordinance. Id. As previously noted, if an innocent explanation had been available to the three, it is reasonable to infer that it would have been offered at the time.

Reasonable suspicion, then, for both possession and loitering. Take the latter first. The ordinance requires “opportunity to explain,” which the court finds satisfied by the officer asking the three if they lived at the house. Not quite the same as asking them to explain their purpose, is it? In effect, the court seems to assume (whether acknowledging it or not) that the “suspects” must volunteer their innocent purpose. The cops asked a specific question and got a responsive answer, but the question was too narrowly framed to address an “opportunity to explain.” Or so it might have been argued before this holding. The net effect is that the ordinance is now stretched pretty far in relation to compliance with this requirement. Keep in mind, though, that the court does not say how much time elapsed between asking the question and taking intrusive action. Whether the record shows the timing is beside the point. The court assumes (if implicitly) that sufficient time elapsed, in whatever increment. Put it like this: if the cop “stopped” the person simultaneous to the answer, then how much of an “opportunity” was really afforded? Same if a mere second elapsed. Point is, don’t treat this as laying down black-letter law applicable in all settings. Like anything else, it’s fact-contingent. The holding surely reduces the amount of wiggle-room you have but doesn’t abrogate the need to keep the facts uppermost in mind. Just the contrary.

When all is said and done, there still remains the question of exactly what Limon did that amounts to “loitering.” That term, after all, requires at a bare minimum, a type of behavior, more specifically: lingering aimlessly. Is that what Limon did? The court doesn’t say—but that is because, quite bluntly, the court can’t know, because the cops approached the trio at first sight and so the police themselves had no possible way of knowing whether the suspects were “loitering.” Can the court do away with this behavioral requirement by the simple expedient of ignoring it? Perhaps it means to, but that will only create due process tensions with respect to notice of what sort of behavior is off-limits.

What about possession of the blunt? The problem here is that it is a single blunt, of unknown age (nicely described by the officer as “fresh”; which is probably what he would have said about any non-carbonized substance). More lessons: next time the cop testifies that something is “fresh,” ask him about his training and experience in the area, and while he’s at it to distinguish hours’- from days’-old freshness, etc. The answers may hurt the cause, but leaving it at “fresh” dooms you anyway. In any event, the court started out saying there was reasonable suspicion for possession of marijuana, a statement that very clearly ascribes possession to Limon. But there is a good deal less than meets the eye:

¶23      Although she recognizes that “[t]he blunt, of course, was contraband—itself evidence of criminal activity,” Limon argues that the police lacked reasonable suspicion to attribute possession of the blunt to her. … The State, however, was not required to prove that Limon had possession of the marijuana in order to establish that the officers reasonably suspected that she was committing, was about to commit, or had committed a crime. See Wis. Stat. § 968.24. All that was necessary to justify the officers’ investigative stop was a “‘reasonable inference of wrongful conduct.’” State v. Griffin, 183 Wis. 2d 327, 333, 515 N.W.2d 535 (Ct. App. 1994) (citation omitted). …

So, in the end, the cops didn’t have a basis to assign possession to her? And if not, then just what was her “wrongful conduct”? The court simply doesn’t say. This is a result in search of a rationale.

State v. Ramon Lopez Arias, 2008 WI 84, on Certification
For Arias: Lora B. Cerone, SPD, Madison

Issue: whether extending a routine traffic stop by 78 seconds so that a dog could perform (without reasonable suspicion) a “drug sniff” amounted to an unlawful seizure.

Holding:

¶34      … . There remains no hard-and-fast time limit for when a detention has become too long and therefore becomes unreasonable. Sharpe, 470 U.S. at 685-86; Griffith, 236 Wis.  2d 48, ¶54.

…

¶39      Under the totality of the circumstances before us, we examine the public interest, the degree to which the continued seizure advances the public interest and the severity of the interference of Arias’s liberty interest. Griffith, 236 Wis.  2d 48, ¶37. The dog sniff occurred so Rennie could ascertain whether there were drugs in Schillinger’s vehicle. In that regard, the public interest in “prevent[ing] the flow of narcotics into distribution channels” has long been recognized as significant. Place, 462 U.S. at 704. The use of a narcotics sniffing dog furthers this public interest by locating narcotics that may not otherwise be detected. ^[18] The dog sniff was part of the on-going traffic stop of Schillinger that occurred because she was a minor and was transporting alcohol that Arias had placed in her vehicle. The dog sniff of Schillinger’s vehicle took 78 seconds to further the public’s interest. This brief 78-second extension of Arias’s seizure is significantly outweighed by the importance of preventing the flow of illegal drugs. ^[19]

¶40      In addition, Rennie diligently pursued his investigation in a manner that could quickly confirm or dispel his suspicions relative to the stop of Schillinger’s vehicle. Sharpe, 470 U.S. at 686. He observed beer being loaded into a car that was driven by Schillinger, whom he knew was under age. He quickly sought to ensure that Schillinger was not intoxicated, first by administering a preliminary breath test to her and then by inquiring whether drugs were in the vehicle. He released D’Jango to sniff the outside perimeter of the car. All these tasks took only 4 minutes, 10 seconds to accomplish. Rennie’s actions were systematic and efficient. Arias was not taken to a non-public location as the defendant was inRoyer. He remained seated in the passenger compartment of Schillinger’s vehicle. Therefore, the incremental intrusion on Arias’s liberty is time-focused, as it was in Griffith. On balance, we conclude that the incremental intrusion upon Arias’s liberty interest that resulted from the 78-second dog sniff is outweighed by the public’s interest served thereby. Accordingly, Arias was not subjected to an unreasonable seizure.

…

¶47      In sum, we observe that neither the Fourth Amendment nor Article I, Section 11 of the Wisconsin Constitution prohibit all seizures. Only unreasonable seizures are violative of constitutional rights. In examining the reasonableness of Arias’s seizure, we balance the public’s interest in preventing the distribution of illegal drugs, the furtherance of that interest by the continued seizure of Schillinger’s vehicle and the effect on Arias’s liberty interest under the Fourth Amendment and Article I, Section 11 of the Wisconsin Constitution. SeeMimms, 434 U.S. at 109; Griffith, 236 Wis.  2d 48, ¶37. The incremental extension of time expended in this stop that was occasioned by the dog sniff was a brief 78 seconds. It was only the 78 seconds of the dog sniff that added to Rennie’s efficient efforts to confirm or allay his suspicions that led to the initial stop. This incremental liberty intrusion does not outweigh the public interest served by it; therefore, the incremental intrusion occasioned by the dog sniff satisfies our test for reasonableness. Griffith, 236 Wis.  2d 48, ¶38. Accordingly, the “controlled substance investigation” comported with the strictures of the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution.

Leading prior cases are: State v. Betow, 226 Wis.2d 90, 593 N.W.2d 499 (Ct. App. 1999); State v. Christopher Gammons, 2001 WI App 36; and State v. Daniel L. Gaulrapp, 207 Wis. 2d 600, 558 N.W.2d 696 (Ct. App. 1996), which the court purports to reconcile with the current result by reducing Betow to dicta:

¶45      We note that Betow contains broad dicta that might be read so as to cause confusion with the appropriate inquiry for evaluating the constitutionality of a continuing seizure. For example, Betow asserts:

[T]he scope of the officer’s inquiry, or the line of questioning, may be broadened beyond the purpose for which the person was stopped only if additional suspicious factors come to the officer’s attention——keeping in mind that these factors, like the factors justifying the stop in the first place, must be “particularized” and “objective.”

Id. at 94. This dicta misstates the manner in which courts are to evaluate the reasonableness of the continuation of a seizure that was lawful at its inception.Betow was clarified by Gaulrapp’s explanation that, “[n]o seizure occurs when police, without the reasonable suspicion justifying a Terry stop, ask questions of an individual . . . so long as the police do not convey that compliance with the request is required.” Gaulrapp, 207 Wis.  2d at 609. The dicta in Betow quoted above is also inconsistent with Bostick, which concludes that law enforcement questions do not result in a seizure, so long as answers are not compelled.Bostick, 501 U.S. at 437. As we have explained, the appropriate inquiry involves balancing the public interest in the seizure, the degree to which the continued seizure advances the public interest and the severity of the interference with the liberty interest of the person detained. Griffith, 236 Wis.  2d 48, ¶37.

State v. Sean R. Fox, 2008 WI App 136
For Fox: Daniel M. Berkos

Issue/Holding: Permissive guest who had not stayed overnight lacked expectation of privacy in a mobile home:

¶21      The facts of this case contrast with those of Trecroci and more closely resemble those of Carter. Fox’s relationship to his hosts, Terry and McCoy, and to the trailer was not as firmly rooted as the defendant’s relationship in Trecroci was to her host. TheTrecroci defendant was engaged to the lessee of the attic, whereas Fox was merely a friend of the homeowner’s son. The record contains little evidence of the duration or closeness of Fox’s friendship with Terry or McCoy. As for the premises, Fox, like theCarter defendants, did not have a long-term relationship to the place, and, at the time of the search, used it for a largely (if not purely) commercial purpose, the production of methamphetamine. And, unlike Olson, but similar to Carter, Fox was not an overnight guest at the trailer; as discussed above, the record conclusively demonstrates that he slept at a motel while in the area.

¶22      Thus, we conclude that application of the three factors outlined in Trecrociweighs against Fox’s claim that he had a reasonable expectation of privacy in the trailer. Fox’s use of the premises upon his return was for a largely commercial purpose. His stay, while exceeding that of the Carter defendants, was only episodic over the course of three to four days. His relationship to his host was more attenuated than that of the defendant inTrecroci to her fiancé-host. Finally, Fox lacked the more firmly rooted relationship to the premises characteristic of an overnight guest (Olson) or a frequent visitor (Trecroci).

State v. Alexander Caleb Grunke / State v. Dustin Blake Radke, 2008 WI 82, reversing 2007 WI App 198
For Grunke: Suzanne Edwards
For Radke: Jefren E. Olsen, SPD, Madison Appellate

Issue: Whether § 940.225 criminalizes sexual contact or sexual intercourse with a victim already dead at the time of the sexual activity when the accused did not cause the death of the victim.

Holding:

¶1        … The issue presented is whether § 940.225 criminalizes sexual contact or sexual intercourse with a victim already dead at the time of the sexual activity when the accused did not cause the death of the victim.  We conclude that it does.  …

…

¶25      There is no statutory ambiguity or incompatibility between, on the one hand, a victim being incapable of consent because the victim is dead and, on the other hand, subsection (3)’s requirement that sexual intercourse occur “without the consent” of the victim. In order to achieve a conviction for third-degree sexual assault under Wis. Stat. § 940.225(3), the State must still prove the element “without consent” beyond a reasonable doubt; that endeavor is subject to a simple proof when the victim is a corpse.¶26      The defendants’ ambiguity argument with respect to the consent element of the statute suggests that they believe an element of a crime is rendered superfluous merely because it is simple to prove. They are mistaken. An element of a crime is not rendered superfluous because that element might be relatively easy to prove under the facts of a particular case. Rather, an element of a statute is superfluous when it is redundant of some other portion of the statute. See, e.g., State v. Dibble, 2002 WI App 219, ¶15, 257 Wis. 2d 274, 650 N.W.2d 908 (concluding that “reckless” and “utter disregard” are two distinct elements); State v. Dauer, 174 Wis. 2d 418, 431-32, 497 N.W.2d 766 (Ct. App. 1993) (concluding that “verbal, written or printed” threats are not redundant in regard to the crime of extortion). Similarly, no redundancy is created by the “without consent” element of subsection (3).

Lack of consent is an element of necrophilia? Apparently so:

¶27      Moreover, the presence of subsection (7), which states that Wis. Stat. § 940.225 applies whether the victim is dead or alive, does not render the “without consent” element of subsection (3) superfluous. This is so because the statute also recognizes certain circumstances in which consent is “not an issue,” thereby exempting the State from having to prove the lack of consent element in limited circumstances and without removing lack of consent as an element from other provisions. § 940.225(4). The absence of the circumstance of a dead victim from the list of circumstances in which consent is “not an issue” does not cause the lack of consent to become a superfluous element of the crime; rather, the absence merely leaves the element of consent intact. Subsection (7) reinforces that the State must prove that the sexual contact or sexual intercourse occurred without the victim’s consent even though the victim is dead; by the plain meaning of its terms, subsection (7)’s application is not so limited as the defendants contend.

As to which the dissent sagely observes, “I don’t think a corpse can give consent,” ¶48. However, necrophilia supports neither first- nor second-degree sexual assault, ¶30.