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State v. Dale W. Jenkins, 2009AP2918-CR, District II, 5/19/10

court of appeals decision (1-judge; not for publication); for Jenkins: Walter Arthur Piel, Jr.; BiC; Resp.; Reply

Search & Seizure – Denial of Motion to Suppress without Evidentiary Hearing

¶2 n.2:

Jenkins’ motion papers were inadequate and the circuit court would have been correct in denying him an evidentiary hearing. All Jenkins filed was a one-page motion with the assertion the officers had looked inside his windows; the motion was not supported by an evidentiary affidavit based upon an affiant’s personal knowledge. Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972), and State v. Garner, 207 Wis. 2d 520, 532-33, 558 N.W.2d 916 (1996), require that a defendant must allege facts in a suppression motion which would entitle him to relief. A court addressing a pretrial suppression motion must

provide the defendant the opportunity to develop the factual record where the motion, alleged facts, inferences fairly drawn from the alleged facts, offers of proof, and defense counsel’s legal theory satisfy the court of a reasonable possibility that an evidentiary hearing will establish the factual basis on which the defendant’s motion may prevail.

Garner, 207 Wis. 2d at 533. Although we could affirm on the grounds that Jenkins was not entitled to an evidentiary hearing, we choose to address the merits because the parties have not briefed the adequacy of Jenkins’ motion.

For the benefit of the bench and bar, we point out that scarce judicial resources can be saved by close scrutiny of a defendant’s pretrial motions to ensure that they meet the threshold requirements of Nelson and Garner.

Lengthy quote provided because the court is clearly trying to convey a message — it is only a matter of time before the opinion is cited by the State for “persuasive” effect, and perhaps manages to find its way into a published, therefore binding, opinion. This is the second single-judge opinion to reach this conclusion recently. For the first, along with a critique, see this post. No need to repeat that critique here, except to say that even if it turns out to be “wrong,” the matter just is not as clear-cut as the court would like to think. That, and the expectation that scarce judicial resources will be conserved by litigating case-by-case the threshold question of whether to hold a suppression hearing could turn out to be a false hope. And that’s before the inevitable cascade of ineffective-assistance litigation.

Warrantless Entry – Exigent Circumstances

Exigent circumstances justified warrantless entry into Jenkins’ curtilage, given ample reason to think Jenkins had just been involved in a hit-and-run, was intoxicated, was inside the residence and could have himself sustained a head injury, ¶¶11-20. State v. Leutenegger, 2004 WI App 127, controlling.

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