On Point

State v. Cassius A. Foster, 2011AP1673-CRNM: Review of a court of appeals summary disposition; case activity

State v. Alvernest Floyd Kennedy, 2012AP523-CR: Review of an unpublished court of appeals decision; case activity

State v. Michael R. Tullberg, 2012AP1593-CR: Review of an unpublished court of appeals decision; case activity

Issues presented (composed by On Point)

Whether the draw of the defendant’s blood was performed without a warrant and, if so, whether the warrantless blood draw was constitutional under the U.S. Supreme Court’s decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013).

Whether the results of a blood draw done in violation of McNeely are admissible under the good-faith exception to the exclusionary rule adopted in State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, and Davis v. United States, 131 S. Ct. 2419 (2011).

Though not formally consolidated, these three cases will be argued together because they all address the important issue of the ramifications of McNeely. Recall that until McNeely, Wisconsin (and some other jurisdictions) held that the dissipation of alcohol from the blood stream created a per se exigency that allowed police to conduct warrantless, nonconsensual blood draws. State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). In McNeely, of course, the U.S. Supreme Court held that the natural dissipation of alcohol in the blood does not constitute a per se exigency that justifies a warrantless blood draw; instead, the totality of circumstances must be analyzed to determine whether an exigency exists justifying a warrantless blood draw. McNeely, 133 S. Ct. at 1563.

As explained in our post on McNeely, now that Bohling is no longer good law, the police will either need a warrant for a blood draw or will have to establish that there were exigent circumstances beyond mere dissipation of alcohol. McNeely doesn’t say much at all about what might constitute exigent circumstances for a warrantless blood draw, so the decisions in these three cases will provide more guidance. The court could look to Schmerber v. California, 384 U.S. 757 (1966) (which Bohling misread as permitting a per se rule) as an example of an application of the proper test, and it may also consider the facts regarding the officer’s ability (or inability) to get a warrant quickly in the particular case. Stay tuned.

In addition, it appears that the blood draws in all three of these cases occurred before McNeely was decided. If the court determines any of the blood draws was done without a warrant and in the absence of exigent circumstances, it will also have to address whether the results of the test should be suppressed. Note that the day after the petitions in these cases were granted, the court of appeals issued a decision (recommended for publication) holding that, under Dearborn, results of a driver’s blood test should not be suppressed if they were obtained without a warrant or exigent circumstances before McNeely was decided because the arresting officer acted in good faith reliance on Bohling. See State v. William A. Reese, 2012AP2114-CR (Wis. Ct. App. Feb. 20, 2014) (unpublished). Expect the supreme court to do the same, if it reaches the issue.

Finally, both Kennedy and Tullberg raised other issues in their appeals, and Foster may well have, too. (The issues raised by Kennedy are summarized in our post on the case.) None seems worthy of review on its own, but the court may reach some or all of those issues. Clearly, the McNeely issues will be both the primary focus for the court and the reason why practitioners should keep an eye on the decisions the court issues.

State v. William A. Reese, 2014 WI App 27; case activity

The results of a driver’s blood test should not be suppressed even if they were obtained without a warrant and in the absence of exigent circumstances in violation of Missouri v. McNeely, 133 S. Ct. 1552 (2013), because the arresting officer acted in good faith reliance on established Wisconsin Supreme Court precedent at the time the blood draw was conducted.

Reese was arrested for OWI in 2009. The police took a blood sample from Reese without a warrant, consistent with the holding in State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), that the dissipation of alcohol from the blood stream creates a per se exigency that allows a warrantless, nonconsensual search. In 2013, while Reese’s direct appeal was pending, the U.S. Supreme Court held that the natural dissipation of alcohol in the blood does not constitute a per se exigency that justifies a warrantless blood draw. McNeely, 133 S. Ct. at 1563. Instead, the totality of circumstances must be analyzed to determine whether an exigency exists justifying a warrantless blood draw. Id.

As a result of McNeely, then, Bohling is no longer good law, so Reese argued his blood results should be suppressed because there was no evidence of exigency beyond dissipation of alcohol.  The court of appeals holds suppression is not appropriate under State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, which adopted a good-faith exception to the exclusionary rule for police officers’ objective reliance on settled Wisconsin precedent: 

¶22      As was the case in Dearborn, the police officer here was following the “clear and settled precedent” when he obtained a blood draw of Reese without a warrant. The deterrent effect on officer misconduct, which our supreme court characterized as “the most important factor” in determining whether to apply the good faith exception, would, as in Dearborn, be nonexistent in this case because the officer did not and could not have known at the time that he was violating the Fourth Amendment. See id., ¶49. At the time of the blood draw the officer was following clear, well-settled precedent established by the Wisconsin Supreme Court, which the court has stated “is exactly what officers should do.” Id.,¶44. Accordingly, because the officer reasonably relied on clear and settled Wisconsin Supreme Court precedent in obtaining the warrantless blood draw and because exclusion in this case would have no deterrent effect, we conclude that the blood draw evidence should not be suppressed.

The court also rejects Reese’s argument that the police lacked probable cause to arrest him for OWI. (¶¶2-4, 8-13).

Our post on McNeely noted the likelihood that the good-faith exception to the exclusionary rule adopted in Dearborn (and Davis v. United States, 131 S. Ct. 2419 (2011)) would be invoked to avoid suppression of the results of warrantless blood draws occurring before McNeely in reliance on Bohling. Others (e.g., Orin Kerr, who represented the defendant in Davis) have noted that the application of the Davis/Dearborn good-faith exception can be murky; the exception has also been unreasonably extended. Its application here, however, was predictable and unsurprising because the situation is so close to those in Davis and Dearborn as to be indistinguishable.

State v. Michael R. Griep, 2014 WI App 25, petition for review granted, 8/5/14, affirmed, 2015 WI 40; case activity

Griep’s right to confront the witnesses against him was not violated by allowing the supervisor of an unavailable lab analyst to testify to his opinion about the defendant’s BAC based entirely on the report prepared by the unavailable analyst. Though it recognized the uncertainty surrounding this issue, the court of appeals concludes it must follow State v. Barton, 2006 WI App 18, 289 Wis. 2d 206, 709 N.W.2d 93, which holds that such surrogate expert testimony is admissible.

Griep was charged with OWI. The analyst who tested the blood sample taken from him was unavailable to testify at trial, so in her place the state called her supervisor, who testified that “all indications are that the procedures were followed, the instrument was operating properly,” and that in his “independent opinion,” based on the data set forth in the documentation of the testing, Griep’s BAC was 0.152. (¶¶4-6). The trial court overruled Griep’s objection to the supervisor’s testimony, citing Barton and State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 91, and rejecting Griep’s reliance on Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (Confrontation Clause violated by admission of affidavit setting out results of forensic testing of substance alleged to be cocaine).

Griep’s appeal was held in abeyance pending the U.S. Supreme Court’s decisions in Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705 (2011), which extended the reasoning of Melendez-Diaz to the admission of a testing certificate through a surrogate analyst, and Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012), a fractured decision that failed to clarify the extent to which an expert can testify about the work of an unavailable analyst on which the testifying expert’s opinion relies. The court of appeals then certified this case to the Wisconsin Supreme Court, which denied the certification after deciding State v. Deadwiller, 2013 WI 75, 350 Wis. 2d 138, 834 N.W.2d 362. Because Deadwiller “cited and discussed Barton favorably, albeit in a completely different fact situation” (¶3), the court of appeals concludes Barton is still good law that it must adhere to in this case even though Griep “makes a good argument when he asserts that the surrogate expert testimony in this case was a subterfuge for admitting an unavailable expert’s report in violation of Bullcoming … and Williams v. Illinois ....” (¶2). In particular:

¶20     As Griep points out, Barton relied in part on reasoning that “the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert’s opinion.” Id., ¶22 (citation omitted). This precise logic is one of the core disputes that fractured the court in Williams v. Illinois. We also note that, unlike the DNA profiles at issue in Williams v. Illinois and Deadwiller, which were produced from samples found on victims, before any suspect was identified, the analysis of Griep’s blood was conducted for the very purpose of accusing Griep and creating evidence for use at trial. See [United States v.] Turner, 709 F.3d [1187,] 1192 [(7th Cir. 2012)]. If the DNA profile in Williams, produced by a lab in Maryland, not for the purpose of accusing anyone in particular but to provide objective data about the DNA found on a victim, which could then be compared with a database of other DNA records, Williams, 132 S. Ct. at 2229, was deemed to be offered “for the truth of the matter asserted” by a majority of the justices in Williams, it is difficult to understand how the analysis of Griep’s blood alcohol level, which was done for the sole purpose of prosecution, was not also offered “for the truth of the matter asserted.”

¶21     There is also some strength to the logic of Griep’s argument that even when a nontestifying expert’s report is not admitted into evidence, a surrogate expert’s testimony may in effect put the statements in the report into evidence. See Turner, 709 F.3d at 1191 (noting that a surrogate expert “had no first-hand knowledge” concerning the procedures followed in the testing and the conclusion based upon that resulting data and reasoning that the surrogate “put … out-of-court statements before the jury”)….

¶22  Nonetheless, with our supreme court so recently and favorably citing Barton, see Deadwiller, 350 Wis. 2d 138, ¶¶37-40, we have no choice but to conclude that Barton remains the law of our state. Only the state supreme court has the power to overrule our past decisions, Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997), except when United States Supreme Court precedent overrules those decisions in such clear terms that the Supremacy Clause compels our adherence to federal law instead, [State v.] Jennings, [2002 WI 44,] 252 Wis. 2d 228, ¶43[, 647 N.W.2d 142]. Under the reasoning of Barton, the availability of a well qualified expert, testifying as to his independent conclusion about the ethanol testing of Griep’s blood as evidenced by a report from another state lab analyst, was sufficient to protect Griep’s right to confrontation. No binding federal precedent clearly overrules Barton.

On Point has discussed this confrontation issue in posts on Williams v. Illinois, the PFR grant and decision in Deadwiller, and the certification in this case, so we won’t repeat the particulars here. Practitioners dealing with this issue should take to heart the court’s expression of agreement with Griep’s argument and continue to argue that Barton can’t stand, for it barely acknowledged the sea-change in Confrontation Clause jurisprudence initiated by Crawford v. Washington, 541 U.S. 36 (2004), engaged in no real analysis of Crawford‘s rule, and instead relied heavily on the pre-Crawford decision in State v. Williams. The argument will be rejected for now based on this opinion, but the issue will be preserved in the event the U.S. Supreme Court finally resolves the issue. And that may happen sooner rather than later, for as the court of appeals notes (¶¶3 n.1, 23) there are a number of pending cert petitions that raise the issue.

State v. Herbert O. Richard, 2014 WI  App 28; case activity

Richard is entitled to an evidentiary hearing on his petition for discharge because the independent psychologist’s opinion that amendments to the Static-99 show Richard’s risk to reoffend is below the legal threshold constitutes a fact on which a court or jury may conclude that Richard does not meet the criteria for commitment as a sexually violent person, thus satisfying the standard for getting a discharge hearing under § 980.09(2) (2011-12).

Richard was committed in 2008 after a trial in which the state’s experts relied on actuarial instruments including the Static-99. In 2009 he filed a petition for discharge, citing research that ultimately led to revision of the Static-99 and arguing he would have a lower risk of reoffense under the revised instrument. The court of appeals held the revision of the Static-99 by itself did not support a full discharge hearing in the absence of a new evaluation in which an expert actually applied the Static-99R to Richard. In 2012 Richard filed another discharge petition, this time supported by an expert’s evaluation that concluded, based in part on the new, lower recidivism risk tables of the Static-99R, that Richard no longer met the standard for commitment.

The circuit court denied the petition, saying Richard’s expert relied on the same facts all the previous experts relied on. The court of appeals reverses:

¶20      …[A] petition alleging a change in a sexually violent person’s status based upon a change in the research or writings on how professionals are to interpret and score actuarial instruments is sufficient for a petitioner to receive a discharge hearing, if it is properly supported by a psychological evaluation applying the new research. See [State v.] Richard, 333 Wis. 2d 708, ¶¶13-14, 17, 19; [State v.] Combs, 295 Wis. 2d 457, ¶¶25, 27, 32; [State v.] Pocan, 267 Wis. 2d 953, ¶12. Richard’s petition meets these requirements.

The court rejects the state’s arguments that the data on which the new opinion was based was known before, and discussed at, Richard’s original trial and that the Static-99 was only one of three actuarial instruments used at Richard’s trial:

¶23      …[W]e are unpersuaded by the State’s piecemeal approach. The State does not tackle Richard’s broader contention that, at the time of his commitment trial, the Static–99 scoring tables had not yet been adjusted to reflect new research about the effect of aging on recidivism. See Hoffman v. Economy Preferred Ins. Co., 2000 WI App 22, ¶9, 232 Wis. 2d 53, 606 N.W.2d 590 (WI App 1999) (unrefuted arguments are deemed conceded). Indeed, Pierquet, the State’s own psychologist, stated in her April 2011 reevaluation report that the tables were first presented at an academic conference in September 2009, and publication in a peer-reviewed journal had not yet been accomplished.

A seemingly straightforward application of the settled law on what it takes to get an evidentiary hearing on a discharge petition. But that law isn’t quite so settled any more, for as the court notes (¶12 n.9), 2013 Act 84 changed the pleading standard. The standard applicable to this case specified the judge should deny the petition without a hearing unless the petition alleged facts from which a factfinder may conclude the person’s condition has changed since the date of his or her initial commitment order. As amended, § 980.09 requires the judge to deny the petition without a hearing unless the petition alleges facts from which the factfinder would likely conclude the person’s condition has changed; moreover, the relevant time period is changed to be either since original commitment or since the most recent order denying a petition for discharge after a hearing on the merits, if the person had such a hearing since original commitment.

So while this case and Pocan and Combs still help answer the question about what constitutes “new” information in support of discharge, they don’t address what it takes for new information to be enough to make it “likely” a finder of fact would grant discharge. That will be the next topic of disputation. On Point will hazard a guess that meeting the new standard will almost certainly take more evidence than Richard presented here–the report of a single expert based on changes in one actuarial instrument.

State v. Stanley K. Bullock, 2014 WI App 29, case activity

How “voluntary” does this sound to you?

The defendant was convicted of 1st-degree reckless homicide for the stabbing death of his girlfriend.  He said that masked attackers broke into their apartment and stabbed him and his girlfriend.  He called 911.  The responding paramedics found the defendant conscious with stab wounds and his girlfriend dead.  During his ambulance ride to the hospital (and while experiencing pain and disorientation), the defendant gave his account of the masked attackers to a policeman.  Then, upon arriving at the hospital, the defendant was arrested on an unrelated crime.  While handcuffed to a bed in ICU and medicated for pain and blood pressure, 2 police officers persuaded the defendant to give a recorded statement about the stabbings.  The first 3 minutes (the part where police did the “persuading”) was not recorded.  The rest was.  The defendant moved to suppress the ambulance statement and the ICU statement.

Issue:  Were the defendant’s statements voluntary?

Holding: Yes.  Both statements were voluntary.  Following State v. Hoppe, 2003 WI 43, ¶38, 261 Wis. 2d 294, 661 N.W.2d 407 , the court of appeals examined the totality of the circumstances, weighing the personal characteristics of the defendant against pressures imposed by law enforcement.  It held that the defendant’s moaning due to pain did not interfere with his ability to speak.  His inability to identify the date did not prevent him from answering questions appropriately.  Besides he was 45, had prior contact with the justice system, and, most importantly, failed to identify any coercive tactics used by the police.  Slip op. ¶¶ 19-22 (citing State v. Clappes, 136 Wis. 2d 222, 401 N.W.2d 759 (1987)).  Furthermore, Mincey v. Arizona, 437 U.S. 385 (1978)(statements to police from hospital bed suppressed) doesn’t apply here because Mincey’s injuries were worse, he couldn’t talk, and he repeatedly asked for a lawyer. Slip op. ¶¶ 23.

The oddities: Judging from this decision, the statements at issue were not incriminating so what difference would suppression of them make?  The briefs don’t say. Indeed, the State points out that neither a recording nor a transcript of the hospital statement were in the appellate record.  So we don’t know what the defendant really said. One might expect the court of appeals to get in a huff over that omission, but the decision is mum. It did get miffed over the defendant’s failure to cite to the record for its description of what transpired during the 3 minutes before the recording began, and thus refused to draw an adverse inference from the officers’ failure to record those 3 minutes.

Judicial notice.  Even worse, the court of appeals went outside the record to decide for itself that the defendant was familiar with the criminal justice system and hence “less vulnerable to any alleged police pressure.”  Specifically, the State’s brief, invoking the “judicial notice” rule, directed the court to CCAP entries showing other cases where the defendant was charged with crimes and listed those crimes by name.  Foul! There was no evidence or hearing on the defendant’s experiences in those cases.  Who knows whether they made him more vulnerable or less vulnerable to police pressure? (What if the police beat him in one of those cases?) This seems to be an improper application of § 902.01, which authorizes judicial notice of “facts not subject to reasonable dispute.”  By all means, take judicial notice of a judgment entered on CCAP.  But, sorry, inferring invulnerability to police pressure based on a short list of CCAP cases is a finding of fact, which the court of appeals lacks jurisdiction to do.  Wurtz v. Fleischman, 97 wis. 2d 100, 107 n.3, 293 N.W.2d 155 (1980)(citing Wis. Const. Art. VII §5(3)).

State v. Chonsea Jerome King, 2013AP1068-CR, District 4, 2/13/14; court of appeals decision (not recommended for publication); case activity

A police officer saw a car parked in a lot linked by “numerous [pieces of] intelligence” to illegal drug activity. It was 9:25 p.m. The officer watched it for about five minutes, but did not see anyone exit the vehicle or any activity outside the vehicle, though they did observe the interior lights in the car turn on and off “a couple [of] times.” (¶3). The “intelligence” about the parking lot and his observation of the occupants of the vehicle led the officer believed illegal drug activity might be afoot, so he pulled his patrol car behind the parked vehicle, put on his high-beam headlights, exited the patrol car wearing attire that clearly identified him as a police officer, and asked the defendant, who had stepped out of his vehicle, to sit back down inside his vehicle, which the defendant did. (¶4).

The court of appeals holds this was a seizure under United States v. Mendenhall, 446 U.S. 544, 552 (1980), and rejects the state’s reliance on State v.[Charles E.] Young, 2006 WI 98, ¶67, 294 Wis. 2d 1, 717 N.W.2d 729, which said it is “unreasonable to expect an officer, traveling alone near midnight, in a problem area, to leave his squad car and approach a suspicious car full of people”:

¶15      In Young, the supreme court observed that although an officer’s use of a spotlight may constitute a show of authority, many courts have found it an insufficient show of authority to constitute a seizure. See id., ¶65 n.18. We assume, without deciding, that the State is correct that a seizure did not occur at the point where [Officer] Tilley pulled his patrol car behind King’s vehicle, turned on his high beams, and exited his car and approached King’s vehicle. We do not agree with the State, however, that a seizure did not occur when Tilley asked King to return to the inside of his vehicle. The question under Mendenhall is whether a reasonable person would have believed himself or herself free to leave. We conclude that under the totality of the circumstances in this case—a police vehicle parked in close proximity, bright lights illuminated, an approaching officer, and direction by that officer to return to the inside of the person’s vehicle—a reasonable person would not have believed that he or she was free to leave.

Having found King was seized, the court also concludes the officer lacked reasonable suspicion for the seizure:

¶19      Reasonable suspicion that criminal activity is afoot requires more than mere presence in a public place. See State v. Pugh, 2013 WI App 12, ¶12, 345 Wis. 2d 832, 826 N.W.2d 418. We have held that without more, an individual’s presence in a known drug-trafficking area, an officer’s observation of a brief meeting between the individual and another man on the street, and the officer’s experience that drug deals often occur in brief on-street meetings, did not create a reasonable suspicion to justify an investigatory stop. See State v. [Charles D.] Young, 212 Wis. 2d 417, 433, 569 N.W.2d 84 (Ct. App. 1997). In the present case, we have even fewer facts to suggest criminal activity was afoot. King’s car was observed parked for at least five minutes, at 9:25 p.m., in a parking lot known for drug activity. No interactions between the occupants of the vehicle and other individuals were observed, and there was no testimony that the location of the vehicle aside, King’s behavior was otherwise peculiar or suspicious. The fact that the interior light went on and off appears to add nothing to the analysis. Accordingly, considering the totality of the circumstances, we conclude that in this case Tilley’s observations prior to King’s seizure did not give rise to reasonable suspicion to initiate the seizure.

Dane County DHS v. Nancy M., 2013AP1886 & 2013AP1887, District 4, 2/13/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP1886; 2013AP1887

During the first day of a fact-finding hearing to the court to determine whether there were grounds to terminate Nancy’s parental rights, the trial court admitted evidence about Nancy’s bonding with her two children. Nancy objected, and the County and GAL agreed the line of questioning was not relevant to the grounds phase of the TPR proceeding, although it would later be relevant in the dispositional phase, if grounds were found. (¶5). The circuit court agreed the testimony was not relevant to the grounds phase but explained that it would allow the testimony on the premise that the court would merely “store” the testimony and then “pull it back out” in the event that the TPR proceeded to the dispositional phase. (¶6). On the second day of trial, however, the court said it had reconsidered the propriety of conditionally admitting the specialist’s testimony during the grounds phase, and decided it had been “too creative procedurally”; it retrospectively sustained Nancy’s objection to the testimony and ordered it stricken. (¶8). The court ultimately found grounds to terminate and proceeded to disposition, at which point the bonding testimony was admitted. (¶9).

The court of appeals rejects Nancy’s argument she should get a new trial due to the trial court’s erroneous “conditional” admission of the bonding evidence at the grounds hearing. First, it’s not clear the trial court erred at all, as it ultimately sustained Nancy’s objection and struck the evidence. (¶17). Second, Nancy analogizes the error here to cases where evidence was erroneously admitted during a jury, as opposed to court, trial: In a trial to the court, even if evidence is improperly admitted, it is presumed that the error is harmless unless it is clear that, but for such evidence, the court’s decision would probably have been different, because a circuit court is presumed to disregard inadmissible evidence, McCoy v. May, 255 Wis. 20, 25-26, 38 N.W.2d 2 (1949). And even without that presumption,  the record reflects sufficient evidence on which the circuit court could find that the County proved the ground on which it petitioned (continuing need of protective services); thus, the court of appeals is not persuaded that but for the bonding testimony, the circuit court’s findings would have been different. (¶¶20-25).