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Appellate Procedure – Affirmance on Different Theory; Search & Seizure – Plain View

State v. Jason W. Kucik, 2009AP933-CR, District 1, 11/16/10

court of appeals decision (3-judge, not recommended for publication); for Kucik: Thomas J. Nitschke; Resp. Br.; ReplyKucik Supp. Br.State’s Supp. Br.

Appellate Procedure – Affirmance on Different Theory than Posited Below

¶31      We agree with the State that it is appropriate for us to consider the alternate basis to affirm the trial court that the State raised for the first time at oral argument.  Kucik was given an opportunity to address the merits of the State’s argument in supplemental briefing.  Given that fact, as well as the principle articulated in Holt that “[a]n appellate court may sustain a lower court’s holding on a theory or on reasoning not presented to the lower court,” see id. at 125, we elect to decide this issue and will not apply waiver, see A.O. Smith, 422 Wis. 2d at 493.

Bit more to it than that. Holt indeed says – and there may be no more oft-cited appellate procedure case – that a “correct” trial court result will be affirmed even if the lower court’s rationale was “wrong.” On the other hand, A.O. Smith says, without citing Holt, that an appellate court may choose to decide an issue not raised until oral argument, “the issue was fairly debated at oral argument such that fundamental fairness was not violated.” An aside: oral argument, at the court of appeals level, is an endangered species. In 2009, the total number of oral arguments in District I criminal cases was 1 (out of 143 decided criminal appeals); COA overall, 6 (of 459). And after this case, you may want to think long and hard before requesting oral argument; be careful of what you wish for. So to the extent that this holding is bound up in the impact of oral argument, its reach is necessarily limited almost to the point of vansihment. Still, there is no reason the novel (to the appeal) issue can’t be “fairly debated” via supplemental briefing, which certainly broadens the potential impact. Which brings us to the particular context of this case.

The issue at hand relates to 4th amendment suppression; without belaboring the point, a defendant is entitled to a full and fair suppression hearing. What happens, then, if the novel appellate rationale addresses post-hearing facts rather than purely legal principles – facts that the defendant had no opportunity to litigate precisely because they are raised as appellate afterthoughts? This came up in Steagald v. United States, 451 U.S. 204, 229 (1981): “The Government, however, may lose its right to raise factual issues of this sort before this Court when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation.” The Kucik lead opinion cites, with apparent approval, the State’s assurance that its novel argument relies only on facts adduced at the hearing and as found by the trial court, ¶30. The concurrence (and decisive vote) all but says that, because a criminal case affects the “public interest,” the State as a litigant simply isn’t bound by the waiver rule, ¶43. For its part, the dissent argues intriguingly that Kucik didn’t have the opportunity to develop a factual record on what should have been the decisive issue, that no justification was ever offered for failure to obtain a warrant before entering Kucik’s home and, eventually, seizing illegal weapons, slip op., ¶55 and id. n. 10 (html). If the dissent is correct, then a compelling argument can be made that Kucik has now been denied a full and fair suppression hearing. If, on the other hand, the matter indeed turns purely on a legal rationale, then the Holt rule applies noncontroversially. Regardless, reflexive reliance on that rule, perhaps in play here, ought to be resisted, and to that end the fact-law distinction should be kept in mind.

Search & Seizure – Plain View

Because the police a) had probable cause to believe that Kucik had committed disorderly conduct by striking one person with a “slapjack” and threatening to shoot another person, and b) consent to be in Kucik’s bedroom where they saw in plain view a large number of weapons, the police c) had probable cause to believe there was a connection between the disorderly conduct and those weapons, and to seize them, ¶¶32-38. In the course of seizing those weapons, the police uncovered illegal, short-bareled shotguns: because the police were to that point engaged in lawful activity, the shotguns weren’t suppressible.

Kucik, because of his threatening behavior, was detained under ch. 51 emergency detention, not arrested. That doesn’t matter to 4th amendment analysis, which is remorselessly objective in it orientation: so long as the officers reasonably could have done something, it simply doesn’t matter whether, in the event, they did it. They reasonably could have arrested Kucik for disorderly conduct, and it doesn’t matter that he was instead detained under ch. 51. The lead opinion reminds that one component of the plain view doctrine (whether discovery of the evidence must be “inadvertent”) might be in question, ¶32 n. 7 (html). Still, as the opinion further notes, the supreme court has “continued to list the requirement,” and because Kucik’s challenge doesn’t involve the requirement, the court “do(es) not attempt to resolve whether inadvertence remains a requirement,” id.

Interestingly, there is no caselaw authorizing plain-view seizure of evidence material to such detentions – but, as Judge Fine points out, that is simply “because the issue has apparently not come up before now,” ¶46 (conc. op.). He would authorize seizure, id.; the court doesn’t reach the issue.

Judge Fine would also uphold the seizure under the community caretaker doctrine, ¶48, citing State v. Pinkard, 2010 WI 81, for the idea that this doctrine “extends to homes as well as automobiles.” True. But this idea is very much the subject of nation-wide dispute, giving grant of Pinkard’s cert petition a non-negligible shot. The final word has not yet been written on this subject.

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