On Point

State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro

Issue: Whether repeated “dope dating” (giving a minor cocaine on multiple occasions in exchange for sex) amounts to causing the child to practice prostitution within the meaning of § 948.08.

Holding¹: “Practice” prostitution:

¶15      Payette is charged with violating Wis. Stat. § 948.08, ^[7] which provides that: “Whoever intentionally solicits or causes any child to practice prostitution or establishes any child in a place of prostitution is guilty of a Class BC felony.” ^[8] (Emphasis added.) This statute, except for the reference to a child, and the level of punishment, is identical in language to Wis. Stat. § 944.32. …¶16      The term “prostitution” is defined in Wis. Stat. § 944.30(1) to include someone who intentionally “[h] as or offers to have or requests to have nonmarital sexual intercourse for anything of value.” (Emphasis added.) The complaint clearly establishes that RS had nonmarital sexual intercourse with Payette repeatedly in exchange for something of value, namely cocaine. Although there are no reported cases specifically construing Wis. Stat. § 948.08, such is not the case for application of its sister statute, Wis. Stat. § 944.32. In State v. Johnson, 108 Wis. 2d 703, 711-12, 324 N.W.2d 447 (Ct. App. 1982), we explained that under § 944.32, the meaning of causing a person “to ‘practice’ prostitution” is “‘to do or perform often, customarily, or habitually.’” (Citation omitted.) The habitual nature of Payette’s trading cocaine for sex with RS (over thirty times) satisfies the § 948.08 requisite that RS did “practice prostitution” with Payette.

Holding²: “Caused” prostitution:

¶17   As we discussed in , 170 Wis.  2d 676, 682-83, 489 N.W.2d 715 (Ct. App. 1992), a criminal result (death of a person) may occur because of more than one cause. …¶18   Wisconsin JI—Criminal 901 explains: “‘Cause’ means that the defendant’s conduct was a substantial factor in producing” the consequence at issue. (Emphasis added.) The instruction continues to explain that “[t]here may be more than one cause” (of the consequence at issue) and that “[t]he act of one person alone might produce it, or the acts of two or more persons might jointly produce it.” Id.

…

¶21      Payette focuses on only whether the complaint alleges “solicitation,” although that is only one of the two alternative types of conduct prohibited by Wis. Stat. § 948.08. … Although § 948.08 is colloquially referred to as prohibiting “solicitation,” the statute also specifically, and alternatively, prohibits “causing” a child to practice prostitution. As we have seen, “cause” is “a substantial factor” which need not be the first cause, nor the sole cause, of a child practicing prostitution.

¶22      The complaint discloses a pattern in which Payette’s conduct is a substantial factor causing young girls (including RS) to repeatedly and habitually engage in nonmarital sexual acts with him in exchange for something of value, namely the cocaine which he provided. There is no dispute that each victim was under the age of eighteen at the time of the various offenses. On more than thirty occasions, Payette received sex with RS in exchange for cocaine pursuant to “an understanding” between them. Payette’s claim that the complaint does not allege that RS was not a prostitute before their encounter, and that the complaint does not allege that he initially proposed the “understanding” of trading sex for cocaine, is irrelevant to the permitted inference that Payette’s conduct was a substantial factor causing the prostitution so graphically described.

The court also holds, superfluously given its just-announced conclusion that the behavior alleged in the complaint satisfied the elements of the offense, that Payette has no factual-basis attack on his plea, ¶¶25-35. See, e.g., ¶ 27 (“As we have explained, the complaint establishes a factual basis for the pleas”). The court lays out the test for challenging a factual basis: the defendant must “show, by clear and convincing evidence, that there is no factual basis that the conduct admitted to actually falls within the charge,” ¶26; the “whole record,” including the sentencing and defense counsel’s statements, may be considered, ¶27.

State v. Jason K. Van Buren, 2008 WI App 26, PFR filed 1/23/08
For Van Buren: Waring R. Fincke

Issue/Holding: Possession of child pornography, § 948.12(1m), requires depiction of real, as opposed to “virtual,” children:

¶6        … Wisconsin Stat. § 948.12(1m) (2005-06) ^[1] criminalizes the knowing possession of any “photograph … of a child engaging in sexually explicit conduct.” To be convicted under this statute, a person (1) must know that he or she possesses the photograph, (2) must know the character and content of the sexually explicit conduct depicted, and (3) must know (or reasonably should know) “that the child engaged in sexually explicit conduct has not attained the age of 18 years.” Id.¶7        Van Buren states that the “statutory framework says absolutely nothing about actual or real, as opposed to computer generated or virtual, children. It does not address whether the State has to prove beyond a reasonable doubt that the person depicted in the material really exists or is actually under the age of 18.” These contentions are off the mark. The issue in Free Speech Coalition arose because the statutes there explicitly purported to restrict images of “non-real” children, i.e., images that “appear[ ] to be” or are “described” as images of children. See Free Speech Coalition, 535 U.S. at 241-42. But the Wisconsin statute speaks only of a “child,” and there is nothing to suggest that the statutory term “child” includes a “non-real” child. The statutes contain thousands upon thousands of nouns, very few of which are preceded by the word “real”—because “real” is implied in the general understanding of most nouns.

¶8        Admittedly, the situation may be somewhat different when one is discussing depictions of things; for example, one might say that the film Jurassic Park “depicts dinosaurs,” even though no real dinosaurs were used in the making of the film. But Wis. Stat. § 948.12(1m)(c) specifies that to be convicted under the statute, the person possessing the pornography must know or have reason to know “that the child engaged in sexually explicit conduct has not attained the age of 18 years.” This element does not speak of depictions at all, but rather of a “child [who] has not attained the age of 18 years.” This confirms that the plain language of § 948.12(1m) forbids only depictions of real children engaged in sexually explicit activity. ^[2]

Expert testimony on the issue is unnecessary:

¶12      We find the rationale of the Rodriguez-Pacheco majority far more convincing. We can explain our view on the issue no better than the First Circuit did:

In [ United States v. Nolan, 818 F.2d 1015 (1st Cir. 1987)], this circuit rejected a per se rule that the government must produce expert testimony in addition to the images themselves, in order to prove beyond a reasonable doubt that the images depicted are of real children.… The defendant in Nolan argued that “the prosecution failed to prove that the pictures were not composite representations or otherwise faked or doctored, or … computer-generated” or even “fabricated using photographs of nude children taken from legitimate sources.” Nolan held that the mere possibility, unsupported by evidence, that the images could have been produced by use of technology and not using real children was not sufficient to reject a lower court’s ruling founded on reasonable inferences derived from experience and common sense.

Rodriguez-Pacheco, 475 F.3d at 439 (citations omitted).

…

¶14      In this case, the jury was handed pictures that look, for all the world, like photographs of children engaged in sexually explicit conduct. The jury by its verdict drew the inference that the pictures were photographs of children engaged in sexually explicit conduct. Though Van Buren urges that one could also infer that the images were computer-generated, the task of an appellate court is not to search for inferences inconsistent with guilt. It is to accept the inferences drawn by the trier of fact “within the bounds of reason.” The jury concluded that the images here are just what they appear to be, and by no stretch of the imagination could we call that conclusion “incredible as a matter of law.”

The court leaves open (fn. 2) the statute’s coverage of “‘morphing’; i.e., innocent pictures of real children altered so that the children appear to be engaged in sexual activity.”

State v. Jason K. Van Buren, 2008 WI App 26, PFR filed 1/23/08
For Van Buren: Waring R. Fincke

Issue/Holding: Counsel’s failure to request a specific unanimity instruction with respect to juror agreement on which of the identified pictures was both harmful and shown to the victim was not prejudicial:

¶22      We reject this claim because Van Buren has not demonstrated the prejudice necessary to show ineffective assistance of counsel. The cases cited by Van Buren state that a criminal defendant is entitled to a jury trial, see State v. Cleveland, 50 Wis. 2d 666, 670, 184 N.W.2d 899 (1971), and jury unanimity, see State v. Koput, 134 Wis. 2d 195, 203-04, 396 N.W.2d 773 (Ct. App. 1986), rev’d on other grounds, 142 Wis. 2d 370, 418 N.W.2d 804 (1988). They do not relieve a defendant claiming ineffective assistance of the burden to show that, because of counsel’s unprofessional errors, the verdict is unreliable. In this case, Van Buren must show that there was a “reasonable probability” that the lack of a specific unanimity instruction resulted in a non-unanimous jury verdict. See Strickland, 466 U.S. at 694.¶23      He has not so shown. The victim identified the two pictures nearly simultaneously, and both are undisputedly photos of “naked kids.” There is simply no basis in the record to suggest that the jury might have believed the victim with respect to one of the images and not the other, or found one of the images harmful and the other not. Our confidence in the verdict, and its unanimity, is not at all undermined. See id.

State v. Tanya L. Marten-Hoye, 2008 WI App 19, (AG’s) PFR filed 2/20/08; prior history: Certification, rejected 9/10/07
For Marten-Hoye: Lora B. Cerone, SPD, Madison Appellate

Issue/Holding:

¶31      Wisconsin Stat. § 947.01 prohibits “violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance.” Ben-Ami observed Marten-Hoye walking away from Ben-Ami and using profane language in a loud voice. Marten-Hoye was also waving her arms around. It was nighttime on State Street and about ten to fifteen people stopped and watched Marten-Hoye’s actions. We conclude that Ben-Ami had reasonable grounds to believe that Marten-Hoye was engaging in unreasonably loud and profane language under circumstances in which she was likely to cause a disturbance. …

Waukesha County v. Eric D. Smith, 2008 WI 23, affirming unpublished decision
For Smith: Kirk B. Obear

Issue/Holding:

¶36 We conclude that under the circumstances of the present case, the Deputy’s knowledge at the time of the arrest would lead a reasonable law enforcement officer to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant. At the time of the arrest, the Deputy knew that the defendant had been driving well in excess of the speed limit late at night on a two-lane highway; that the defendant delayed pulling over after the deputy activated his emergency lights; that the defendant had twice driven across the centerline before pulling over; that the defendant had an odor of alcohol on his breath; that the defendant had admitted to consuming alcohol over a period of more than ten hours ending just prior to his encounter with the deputy; and that the defendant had supplied inconsistent and equivocal information regarding the amount of alcohol that he had consumed during that period of time. The state has met its burden of presenting evidence sufficient to establish that the Deputy had probable cause to believe that the defendant was operating a motor vehicle while under the influence of an intoxicant and had probable cause to arrest him for this offense.

State v. Dwight M. Sanders, 2008 WI 85, affirming as modified, 2007 WI App 174
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate

Issue/Holding: Where the defendant had already been removed from the premises following his arrest, a search of his bedroom couldn’t be justified under a search-incident rationale:

¶51      The State contends that Officer Garcia’s second search of the defendant’s bedroom was justified as a search incident to arrest under the Chimel standard because the bedroom was “within [the defendant’s] immediate presence or control when he barricaded himself in the bedroom and was out of the police officers’ sight.” ^[28]

¶52      Although the bedroom might be considered within the defendant’s immediate presence or control for Chimel purposes, we do not agree with the State that the second search of the bedroom was a search incident to arrest under the circumstances of the present case. The second search occurred after the defendant had been removed from the home. ^[29]  The defendant could not have gained possession of a weapon or destructible evidence from his bedroom when the defendant was not even inside the home when the bedroom and canister were searched and the contents of the canister seized.

The court distinguishes State v. Murdock, 155 Wis. 2d 217, 227, 455 N.W.2d 618 (1990),  but in the process stresses that the Chimel rule remains available even when the arrestee is handcuffed; the line is drawn when the defendant is removed from the scene: “The purposes of the search incident to arrest were achieved by removing the defendant from his home. By removing the defendant from the home, the officers eliminated the need to detect and remove any weapons that the arrestee might try to use to resist arrest or escape or to prevent the destruction or concealment of evidence,” ¶56.

Like effect: People v. Leal, Cal App No. H031174, 2/28/08 (“In sum, Thornton is limited to automobile-involved police action. (¶) For Fourth Amendment purposes, the difference between an automobile and one’s private residence is significant.”).

/td>

State v. Tanya L. Marten-Hoye, 2008 WI App 19, (AG’s) PFR filed 2/20/08; prior history: Certification, rejected 9/10/07
For Marten-Hoye: Lora B. Cerone, SPD, Madison Appellate

Issue/Holding: Where the officer handcuffed the defendant and told her she was under arrest for an ordinance violation, but also told her that she would “be released if she continued to be cooperative,” there was no arrest in fact and therefore the fruits of an ensuing search incident to (a non-existent) arrest were suppressible:

¶27      In sum, neither party has cited to a case sufficiently analogous to the facts of this case to guide its outcome. ^[11] Contrary to the parties’ assertions, no case establishes a bright-line rule as to when an arrest has been effected. Instead, each case focuses on the totality of the circumstances in the record to determine whether a reasonable person in the defendant’s position would have believed he or she was under arrest. Here, the record reveals conflicting circumstances: Ben-Ami told Marten-Hoye she was under arrest, but also that she would be issued a citation for a municipal ordinance violation and would be free to go. She placed Marten-Hoye in handcuffs but did not place her in a squad car, instead conducting the entire interaction in public. While Ban-Ami searched Marten-Hoye, another officer was writing out the citation that would have ended in Marten-Hoye’s release.

¶28      Considering all of the circumstances of the situation, we conclude that a reasonable person in Marten-Hoye’s position would not have believed he or she was “in custody” given the circumstances present here. First, we do not agree with the State that the fact that Ben-Ami told Marten-Hoye that she was under arrest necessarily establishes an arrest. Ben-Ami did not unequivocally tell Marten-Hoye that she was under arrest. Significantly, immediately after Ben-Ami told Marten-Hoye that she was under arrest, she also told her that she would be issued a citation and then would be free to go. ^[12] Although the statements by Ben-Ami are contradictory, we conclude that the assurance by Ben-Ami that Marten-Hoye would be issued a citation and released would lead a reasonable person to believe he or she was not in custody, notwithstanding the early statement that he or she was “under arrest.”

¶29      Next, we do not agree that police use of handcuffs transformed the interaction here into an arrest. In this case, Marten-Hoye’s being placed in handcuffs is associated with the fact that she was being loud and uttering profanities rather than indicating that she was being placed in police custody. Additionally, the entire interaction between Ben-Ami and Marten-Hoye was in public and Marten-Hoye was never transported to any other location. Although Ben-Ami’s statements conflict, we are persuaded that in their totality they would not lead a reasonable person to believe he or she was “in custody.” Accordingly, the search of Marten-Hoye is not justified as a search incident to an arrest.

A bit of chicken-roosting: over the years a sort of elastic test has evolved for determining when an arrest has occurred, typically when a Terry stop has evolved into a full-blown arrest. An all-time Case Summaries favorite exemplar is U.S. v. Vega, 72 F.3d 507, 515 (7th Cir. 1995), which in the process of observing that “the line between a lawful Terry stop and an unlawful arrest is not bright,” holds that drawing guns on a suspect and “asking” him to get into a police car for transport to another site didn’t amount to an arrest. Nor, similarly, is handcuffing someone necessarily enough to establish an arrest, U.S. v. Stewart, 388 F3d 1079 (7^th Cir. 2004) (“The permissible scope of a Terry stop has expanded in recent years to include the use of handcuffs and temporary detentions in squad cars.”); Jewett v. Anders, 7th Cir No. 06-2982, 4/11/08 (using force to bring suspect to ground, handcuffing him and detaining him in squad car 20 minutes or longer didn’t transform stop into arrest). And, if the detention, intrusive though it might be, doesn’t amount to an arrest then a search of the person more intensive than a pat-down can’t be justified as incident-to, which is the essence of the current case — those are the chickens coming home to roost.

What takes the case somewhat out of the norm is the idea that no arrest occurred even though Marten-Hoye was expressly told she indeed was under arrest. However, she was simultaneously told that her status as an arrestee was entirely conditional; if she continued to be cooperative she would not in fact be arrested. (A slight stretch of an analogy: it’s almost as if the cop imposed a sort of remedial contempt, whereby Marten-Hoye herself held the keys to her potential incarceration; cooperative behavior and she walks.) The court’s holding, in short, represents a narrow, fact-specific result. The State has an elegant solution to this little dilemma, ¶15 n. 9: “The State asserts that to answer whether a defendant was arrested, we must look to who is asserting that an arrest occurred, the State or the defendant, citing 3 Wayne R. Lafave, Search & Seizure § 5.1(a) (4th ed. 2004).” This approach strikes Case Summaries as what we like to term, “result-oriented.” Nor does LaFave seem to support the State’s unqualified view that the court must (which is to say, always) take into account who is arguing what. In any event, the court goes on to suggest that Knowles v. Iowa, 525 U.S. 113 (1998) (search incident to mere non-criminal traffic citation impermissible) takes this case out of that context. Does it matter that Marten-Hoye’s “arrest” was not only conditional but was for a local ordinance violation? You can perhaps make that argument, stressing that concerns for officer safety are much different in that context than arrest for a crime. It may also be that, as a practical matter, you’re much more likely to get a catch-and-release in the context of citation-offenses than where a criminal offense is involved. But: it is settled nonetheless that Wisconsin law does allow arrest (and search-incident) on a noncriminal offense such as an ordinance violation, State v. Robert J. Pallone, 2000 WI 77, ¶43 (“arrests for civil forfeitures are not per se unconstitutional. … Consequently, the Fourth Amendment does not preclude searches incident to arrests for noncriminal violations.”). A policy-based argument, then, that arrest is unsupported for an ordinance violation would seem to be an exercise in futility. It may be that Knowles has changed this landscape, but recall that in that case there was no attempt to arrest on the traffic violation, instead an unsuccessful attempt to create a search incident to mere citation rationale. More: Pallone (¶46) seems to have explicitly rejected such a possibility (“Because this was a search incident to an arrest [for an ordinance violation], not a search incident to the issuance of a traffic citation with no arrest, the Knowles rule does not apply to this case.”)

The particular facts, that is, very much matter. If Marten-Hoye had been told unconditionallyshe was under arrest, the court presumably would have perceived no impediment to an ensuing search. But that is not what happened. Just because the cop could have effectuated an arrest doesn’t mean that she in fact did. Though the court of appeals’ rationale leaves a bit to be desired, the result as indicated above is best seen narrowly: once the cop in effect told Marten-Hoye that she would not remain under arrest but instead would be released with issuance of a citation, the situation became controlled by Knowles. If the cop is going to issue a citation for an ordinance violation without an arrest, a search-incident isn’t permissible.

This isn’t to say questions don’t remain. The Certification perceived the following doctrinal tension:

As we previously explained, the facts in this case meet at the intersection of Knowles and Swanson, and highlight a possible overlapping of the bright-line rules established in these cases. Were the police prohibited from performing a full field search of Marten-Hoye based on the search incident to arrest exception to the warrant requirement because they told her that she was going to be given a citation and released (Knowles)? Were the police allowed to perform a full search incident to arrest because they handcuffed Marten-Hoye and told her she was under arrest, circumstances under which a reasonable person may have believed they were under arrest (Swanson)?

Perhaps. If so, the tension is relieved simply by saying that a reasonable person wouldn’t see him or herself as being under arrest if told a release is imminent. In other words, there’s no arrest under the Swanson test. But this isn’t to say that significant underlying tension is indeed absent. To see the source of this tension, though, take a look at U.S. v. Powell, DC Cir No. 05-3047, 4/17/07, which concludes, after elaborate discussion, that a search-incident may precede an arrest, so long as the arrest is effectuated straight-away:

Powell and our dissenting colleague also contend our decision is inconsistent with Knowles v. Iowa, 525 U.S. 113 (1998) (holding an officer may not conduct a search incident to arrest when, although the officer has probable cause to make an arrest, he issues a citation instead of arresting the suspect). But that is not correct either. Had the officers failed to arrest Powell and merely issued him a citation, then indeed the search would be invalid under Knowles. 525 U.S. at 117 (“The threat to officer safety from issuing a traffic citation … is a good deal less than in the case of a custodial arrest”). That, of course, is not what happened, and we do not say that having probable cause to arrest is by itself sufficient to bring a search within the Belton exception to the warrant requirement. Rather, it is the “fact of the arrest” that makes all the difference. Id. (quoting United States v. Robinson, 414 U.S. 218, 234 n.5 (1973) (“The danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty”)); see also Washington v. Chrisman, 455 U.S. 1, 7 (1982) (“Every arrest must be presumed to present a risk of danger to the arresting officer”). As we have recently noted: “The key point in Knowles … was not that the officer had a lawful ground for arrest upon which he did not rely, but that he did not arrest the defendant at all.” United States v. Bookhardt, 277 F.3d 558, 566 (D.C. Cir. 2002).

Note that Wisconsin caselaw seems to be to aligned with Powell, State v. Michael D. Sykes, 2005 WI 48; that is, search-incident need only be “contemporaneous” with, as opposed to preceding, arrest. Powell’s analysis is entirely unconvincing, because the plain fact is that the cop did arrest Knowles, albeit after conducting a search (taking into account the court’s big production of saying that it simply doesn’t matter that the search precedes the arrest). Some other point of distinction, then, must be found. Powell (Sykes, too, for that matter) had been detained though not under arrest prior to the search. But Knowles of course had also been detained, so the mere fact of detention can’t be meaningful either. Perhaps the point of departure is that without some explicit statement from the cop, Knowles (the subject of a simple traffic stop) could clearly assume that he would be released; neither Powell nor Sykes could say the same. Traffic stops thus might be seen as a subset of Terry-type detentions, in that without more there is a presumption of release (though to be sure Knowles doesn’t explicitly say as much). Perhaps that distinction also informs the Powell court’s otherwise inexplicable idea that Knowles wasn’t arrested “at all.” And if that is so, then M-H can say the same, albeit in a non-traffic setting: she wasn’t arrested “at all,” because she had been bluntly told that continued cooperation would lead to her immediate release. She no less than Knowles could assume imminent release from custody without arrest. But the only thing that might be said with confidence is that we probably haven’t seen the end of this discussion.

Contrast Virginia v. Moore, USSC No. 06-1802, 4/23/08 (arrest for minor offense based on probable cause but prohibited under state law nonetheless supports search-incident; in other words, mere violation of state arrest law doesn’t ipso facto violate 4th A).