On Point

State v. Jack E. Johnson, 2013 WI App 140; case activity

As part of their investigation of Johnson’s involvement in a homicide, Wisconsin police wanted to search Johnson’s rented residence in Rosarito, Mexico. They contacted FBI Special Agent Eckel, the U.S. liaison between Mexican and American law enforcement authorities. Eckel called a liaison in Mexico and told him that United States law enforcement authorities wanted to search Johnson’s residence and needed to make sure the search was lawfully conducted so any evidence found could be used in an American court. The Mexican liaison told Eckel that, according to the attorney general for Baja California, Mexico, where Johnson’s residence was located, a warrantless search would be legal as long as Johnson’s landlord consented. Mexican and American authorities searched Johnson’s residence after the landlord consented to the search. Wisconsin authorities made a list of items that they wished to take from the home, including a computer that they suspected Johnson used in carrying out the crime. The list was approved by Mexican law enforcement, and Wisconsin law enforcement thereafter received a warrant from a Wisconsin judge to search the computer. (¶¶2-4).

Johnson moved to suppress the evidence resulting from the search of his residence, arguing it was illegal under Mexican law and violated his Fourth Amendment rights. The court of appeals accepts the Fourth Amendment may be implicated by a search in a foreign country based on the “joint venture doctrine,” which holds that the exclusionary rule may be invoked if American law enforcement officials substantially participated in the search or if the foreign officials conducting the search were actually acting as agents for their American counterparts:

¶7        The Fourth Amendment’s prohibition against unreasonable searches or seizures, U.S. Const. amend. IV, is implicated in certain situations when foreign officials conduct searches targeting American citizens in foreign countries, United States v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987). In such cases, federal precedent instructs that a search of a foreign residence is reasonable—and therefore constitutional—if it complies with foreign law. Id. at 491. Federal courts have also recognized a “good faith” exception to the exclusionary rule when United States officials reasonably rely on foreign interpretations of the legality of a search as “the exclusionary rule does not function as a deterrent in cases in which the law enforcement officers acted on a reasonable belief that their conduct was legal.” Id. at 492.

On appeal the state concedes the record does not support a finding that Mexican law includes an exception to the warrant requirement based on landlord consent. (¶9 n.2). Accordingly, the court assumes the search was not legal under Mexican law, and so turns to the good faith exception.

Following United States v. Leon, 468 U.S. 897, 909 (1984), Wisconsin has applied the good faith exception to an unlawful search carried out in reliance on a facially valid search warrant, State v. Eason, 2001 WI 98, ¶73, 245 Wis. 2d 206, 629 N.W.2d 625, and on clear and settled precedent, State v. Dearborn, 2010 WI 84, ¶46, 327 Wis. 2d 252, 786 N.W.2d 97, and Johnson does not argue that the good faith exception to the exclusionary rule should not be extended to cases involving reliance on foreign authorities conducting foreign searches. (¶10). The policies justifying those applications of the good faith exception apply here:

¶11      Employment of the good faith exception in this case is in accord with our supreme court’s instruction that application of the exclusionary rule should be restricted to cases where the rule’s remedial objectives will be best served, focusing on the efficacy in deterring future Fourth Amendment violations. [Dearborn, 327 Wis. 2d 252], ¶35. The threat of suppression of evidence by a United States court is unlikely to have any effect on the legal opinions provided by Mexican authorities to United States law enforcement officials or how Mexican authorities conduct a search on their soil. More importantly, it would not alter the behavior of United States law enforcement officials who have relied on the assurances of foreign authorities that a search is legal. See Leon, 468 U.S. at 916. Holding American law enforcement officials “to a strict liability standard for failings of their foreign associates would be even more incongruous than holding law enforcement officials to a strict liability standard as to the adequacy of domestic warrants.” Peterson, 812 F.2d at 492.

As applied to this case, the court holds U.S. law enforcement officials involved in the search of Johnson’s Mexican residence acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment, Dearborn, 327 Wis. 2d 252, ¶33. “It was objectively reasonable for American law enforcement to believe in the legality of a joint Mexican-American search under the control of Mexican law enforcement that was carried out based on contact between the FBI liaison to Mexico and his counterpart in Mexico who contacted the head law enforcement officer in Baja California who advised as to how a warrantless search could occur.”(¶12). Further, under the facts of this case, it was not necessary for U.S. officials to conduct a separate inquiry into Mexican law to confirm the information received from the Baja California attorney general: “…[W]e presume high-ranking Mexican law enforcement personnel know their own laws.” (¶13).

State v. Jeffrey M. Halida, 2013AP1298, District 2, 11/13/13; court of appeals decision (1-judge; ineligible for publication); case activity

Halida was arrested for OWI after a motorcycle accident. In response to routine medical questions asked before the blood draw, he told the officer he took two Oxycodone pills earlier that day for a hand injury. (¶¶4-6). The officer’s reference to Halida’s statement at trial was not prejudicial because “[i]n view of the record, the mention of Oxycodone was superfluous and immaterial, even though unnecessary to the State’s prosecution of the case.” (¶9). The officer’s brief statement was the only mention of the Oxycodone and there was no suggestion the drug affected Halida’s ability to drive. (¶¶9-10.) Moreover, the charges and instructions unmistakably communicated to the jury that Halida’s guilt depended on the evidence of his alcohol consumption, so there is no basis to believe that the jury factored in the Oxycodone when weighing Halida’s guilt. (¶11). Finally, even if the jury did consider the Oxycodone, there was overwhelming evidence of guilt: Halida smelled of alcohol and had bloodshot eyes; he admitted he had been drinking for almost twelve hours until shortly before the accident; and his blood alcohol was .178. (¶10).

You know the NYC stop-and-frisk litigation where the Second Circuit sua sponte removed the district court judge.  The plaintiffs have moved for en banc reconsideration.  Read the story and the pleadings here.

Speaking of traffic stops, this one led to 3 enemas, a colonoscopy and a now lawsuit.  Ick.  Click here.

Public defender disbarred for sexually harassing clients.  And just what type of conduct qualifies as “sexual harassment”?  You’ll have to click here to find out.

Appellate lawyers in the audience will love this one.  Know how our appellate courts defer to virtually all trial court sentencing decisions?  Across the pond, British appellate judges review sentencing decisions de novo.  Imagine that.  Read about it here.

Judge Posner reflects on judging.  If you missed the NYT book review, click here.

DA goes to jail for failing to turnover exculpatory evidence.  Read about it here.

Steve P. v. Maegan F., 2013 WI 89, dismissing review of an unpublished court of appeals decision; per curiam (Justice Prosser did not participate); case activity

This is every appellate lawyer’s nightmare–pouring your heart into an emotionally charged case presenting a provocative legal issue briefed by 5 different parties and amici and then having the supreme court declare that review was improvidently granted.

The record for this case is confidential so On Point’s explanation of what happened may be imprecise.  This appears to be a child custody battle between the biological parents of Giovanna P. and a couple who wanted to adopt her but couldn’t because the biological parents’ rights had not been terminated.  So the prospective adoptive parents filed a Chapter 54 petition for guardianship of Giovanna, which the circuit court dismissed and the court of appeals affirmed. 

They then petitioned for review (apparently) asking: Should the Wisconsin Supreme Court modify the legal standard to be applied in third-party guardianship actions under Chapter 54 so as to require circuit courts to consider the best interests of the child?  See Barstad v. Frazier, 118 Wis. 2d 549, 348 N.W.2d 479 (1984), which holds that “a parent is entitled to custody of his or her children unless the parent is either unfit or unable to care for the children or there are compelling reasons for awarding custody to a third party.”

Last winter, the circuit court found Giovanna to be a child in need of protective placement and last summer the DA petitioned to terminate the parental rights of her biological parents.  The TPR trial is set for January 2014.  According to SCOW:  “Because it appears the above-described circuit court proceedings may fully and finally resolve Giovanna P.’s custody and placement in the coming few months, we dismiss the petition for review as improvidently granted.”  Slip op., ¶5.

(Possible) translation:  The “best interests of the child” standard is going to be applied in the TPR proceeding; no need for us justices to resolve the question presented.  What a tough case for all involved.  If anyone is wondering, it’s rare for SCOW to dismiss a petition as improvidently granted.  Assuming Westlaw reports them all, the court did so once in the 2012-2013 term and twice in the 2011-2012 term.  The result of such a finding that the court of appeals decision stands.

Wood County Human Services v. James D., 2013AP1378, District 4, 11/7/13; court of appeals decision (1-judge; ineligible for publication); case activity

One of the elements of protective placement is that the person has a disability that is permanent or likely to be permanent, § 55.08(1)(d). The County failed to prove this element by clear and convincing evidence because its psychological expert was unable to testify that James suffered from a permanent or likely to be permanent disability, and none of the other witnesses provided evidence that could remedy the lack of the expert’s opinion on that issue:

¶14      We have stated that in order to meet its burden of proof for protective placement, the government “must present a witness who is qualified by experience, training and independent knowledge of [the individual’s] mental health to give a medical or psychological opinion on each of these elements.” [Walworth County v.] Therese B., [2003 WI App 223,] 267 Wis. 2d 310, ¶13[, 671 N.W.2d 377]….

¶15      At the hearing, Waltonen [the psychologist] testified that given the information he was provided, he was unable to testify that James suffers from a permanent or likely to be permanent disability. Waltonen acknowledged that he was not provided information concerning James’s history of substance abuse or his prior diagnosis of alcohol-induced dementia. However, the burden lay with the County to present a qualified witness to provide a medical or psychological opinion as to the permanence of any disability James may suffer. Although James was previously diagnosed with alcohol-induced dementia, no medical or psychological opinion was offered at trial from Waltonen that James continues to suffer from that ailment.

¶16      The County argues that even if Waltonen’s testimony is disregarded, the evidence was sufficient to support the court’s finding that James suffers from a permanent, or likely to be permanent, disability. The County asserts that the testimony of Jason [James’s son] and Miloch [a social worker] in conjunction with the report prepared by Sersch [a protective services evaluator], demonstrates that James continues to suffer from ongoing symptoms of alcohol-induced dementia. I am not persuaded. Although the testimony of Jason and Miloch established that James continues to drink alcohol and is likely to continue to do so in the future, and although Miloch’s testimony established that James suffers from problems with his memory, neither individual gave a medical or psychological opinion that James’s alcohol-induced dementia was likely to be permanent. Furthermore, although Sersch stated in his report that James suffers from alcohol-induced dementia, lacks the capacity to provide sufficient care for himself and is in need of protective placement, Sersch’s report does not indicate that James’s disability is permanent or likely to be permanent.

Sun Prairie v. Brent D. Curry, 2013AP1206, District 4, 11/7/13; court of appeals decision (1-judge; ineligible for publication); case activity

Police had reasonable suspicion to stop Curry, who was driving on a residential street at 3:40 a.m., turned around, sped past the officer’s car, and then turned at a high rate of speed into the driveway of a residence. He then sat in the car for a few minutes before getting out and walking up the driveway; when approached and questioned, he admitted to drinking. (¶¶3-8).

¶15      I agree with the circuit court that the officer could have reasonably suspected that Curry was engaged in some type of theft-of-property-related crime based on the following facts: the time of night, Curry’s lingering in the vehicle, the license plate check showing Curry probably lived at a different address, Curry’s odd action consisting of sitting in the car for a time and then walking to and along the front of the garage and away from the front door of the house, and the officer’s knowledge of problems with thefts of property from vehicles in the neighborhood.

¶16      In addition, I conclude that the officer could have reasonably suspected that Curry was driving while intoxicated based on the following circumstances: the time of night, Curry’s series of unusual driving behaviors, including fast acceleration, Curry’s lingering in the vehicle, and Curry’s behavior after he exited the vehicle….

Dodge County v. Giovanina Louise Ray, 2013AP1588, District 4, 11/7/13; court of appeals decision (1-judge; ineligible for publication); case activity

The general prohibition against inattentive driving in § 346.89(1) covers falling asleep behind the wheel. Ray argued the statutory language prohibiting a person from being “so engaged or occupied as to interfere with the safe driving” of the vehicle required engagement or occupation with something “external” and doesn’t apply to sleeping because, based on the common meanings of the words, being “engaged” or “occupied” in sleeping is an oxymoron. The court of appeals holds the provision’s plain language, when read in conjunction with all of § 346.89, prohibits any behavior that diverts the driver’s attention from the task of safe driving. (¶8). “As a matter of common sense, sleeping while driving ‘interfere[s] with the safe driving of [the] vehicle.’  Falling asleep while driving is extremely dangerous.” (¶9).

The court rejects the county’s requests for costs and fees under Rule 809.25(3), concluding that while Ray’s argument was rejected “her position … is not frivolous.” (¶10).