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COA: circuit court erred in imposing jail contempt sanction for refusing to give phone passcode

State v. Lamondo D. Turrubiates, 2020AP233, 11/23/21, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Police arrested Turrubiates and the state charged him with several counts having to do with an alleged assault on his girlfriend. During the arrest police took his phone. The state came to believe the phone might contain evidence of crimes by Turrubiates, and it moved the circuit court to compel him to provide his passcode, despite the fact that it had not yet obtained a warrant to search the phone. See Riley v. California, 573 U.S. 373, 401 (2014). The court ordered Turrbiates to provide the passcode and he refused; it then found him in contempt of court and ordered him jailed until he reveals the code (though it stayed this sanction pending appeal).

Turrubiates argues that the order to compel was unlawful because there was no warrant to search the phone, so the court lacked the power to order Turrubiates to comply with an unconstitutional search. The court of appeals declines to address the merits of this argument, noting that a warrant has since issued, so the argument is no longer tied to the facts of the case. (¶¶10-11).

The appellate court agrees with Turrubiates, however, that the lower court didn’t follow mandatory procedures for imposing a remedial contempt sanction, and thus overturns the portion of the order sending Turrubiates to jail:

The procedure for imposing a remedial sanction for contempt is set forth in WIS. STAT. § 785.03(1)(a), which states: “A person aggrieved by a contempt of court may seek imposition of a remedial sanction for the contempt by filing a motion for that purpose in the proceeding to which the contempt is related. The court, after notice and hearing, may impose a remedial sanction authorized by this chapter.”

Thus, before a court may impose a remedial sanction for contempt, an aggrieved party must file a motion seeking the imposition of a remedial sanction. Id.; see also Evans, 267 Wis. 2d 596, ¶23. The court must then provide notice and hold an evidentiary hearing on the aggrieved party’s motion “for due process purposes.” Evans, 267 Wis. 2d 596, ¶24 (citation omitted). The hearing must be “sufficient to permit the court to make specific findings regarding whether the alleged contemnor intentionally disobeyed its orders.” Id., ¶25.

In this case, the State never filed a motion seeking the imposition of a remedial sanction for Turrubiates’ failure to comply with the order to provide his cell phone passcode. Moreover, the circuit court failed to hold an evidentiary hearing before it found Turrubiates in contempt and imposed a remedial sanction. In addition, as Turrubiates notes, the court did not apply the substantive contempt standard set forth in WIS. STAT. § 785.01(1)(b) by making a factual finding that he had intentionally disobeyed a court order. Under these circumstances, we agree with Turrubiates that the court failed to follow the procedures required by WIS. STAT. § 785.03(1)(a), and its contempt order must therefore be reversed. See Evans, 267 Wis. 2d 596, ¶3 (reversing a contempt order where the circuit court failed to hold an evidentiary hearing as required by § 785.03(1)(a)).

(¶¶14-16). The court rejects the state’s argument that its motion to compel satisfied the requirement of a motion for sanctions; it notes that the motion did not allege that Turrubiates had violated a court order (it couldn’t, since there had been no order when it was filed) and did not request sanctions, so it couldn’t be a motion for sanctions. (¶17). For similar reasons, the court disagrees with the state’s argument that the hearing on the motion to compel was an evidentiary hearing on contempt. (¶18).

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