On Point

Question presented:

When a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pretrial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges?

Lower court decision: United States v. Kaley, 677 F.3d 1316 (11th Cir. 2012)

Docket

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The issue of pretrial orders under the federal property forfeiture statute that freeze a defendant’s assets–and thereby impair (or destroy) the defendant’s ability to hire counsel of choice–obviously makes this case of interest to attorneys retained to defend federal criminal charges. While Wisconsin’s property forfeiture statutes do not have language like the federal statute, the constitutional issues could arise under state law, so the decision in this case could prove important to lawyers hired to defendant state criminal defendants as well.

As explained in the Court’s statement of the question presented, 18 U.S.C. § 853(e) authorizes a district court, upon an ex parte motion of the government, to restrain an indicted defendant’s assets that are subject to forfeiture upon conviction. The statute does not provide for a post-restraint, pretrial adversarial hearing at which the indicted defendant may challenge the propriety of the restraints. In United States v. Monsanto, 491 U.S. 600 (1989), the Court rejected a Fifth and Sixth Amendment challenge to the restraint of an indicted defendant’s assets needed to pay counsel of choice, but explicitly left open the question “whether the Due Process Clause requires a hearing before a pretrial restraining order can be imposed.” Id. at 615 n.10. Even before Monsanto the federal circuit courts divided on the need for, and the scope of, a hearing on the pretrial restraining order, and cases since then have firmly entrenched a split among the eleven circuits that have addressed it. The Seventh Circuit is among those holding that due process requires a pretrial hearing where the defendant may test probable cause as to both the predicate offense and the forfeitability of the property. United States v. Michelle’s Lounge, 39 F.3d 684 (7th Cir. 1994). By contrast, in the  case under review the defendants demanded a hearing to challenge the probable cause determination, but the Eleventh Circuit held the hearing was limited to whether the restrained assets were traceable to or involved in the conduct charged in the indictment. The decision in this case will resolve the split in the circuits, and if the Court affirms the Eleventh Circuit the practice in this circuit will change.

As to Wisconsin law, no published case addresses Monsanto in particular or a court’s pretrial power to freeze assets in general. Nor do our property forfeiture statutes—Wis. Stat. §§ 946.86 and 946.87, §§ 961.55 and 961.555, and §§ 973.075 and 973.076—have an exact parallel to the restraining order provision under federal law. The forfeiture provisions of §§ 946.86 and 946.87 appear to apply only after conviction under § 946.83 (racketeering activity) or §946.85 (running a continuing criminal enterprise), though the civil remedies under § 946.87 allow for certain injunctions, including requiring the defendant to divest property involved in racketeering activity or running a continuing criminal enterprise. Both §§ 961.555(2)(a) and 973.076(2)(a) allow for forfeiture proceedings to be adjourned till adjudication of the criminal case, but under §§ 961.55(4) and 973.075(3) the property is subject to the “orders and decrees of the court having jurisdiction over the forfeiture proceedings.” To the extent any of these statutes might be used to freeze a criminal defendant’s assets before trial, the Court’s decision in Kaley will define the minimum process due a defendant before such a freeze can be ordered.

State v. Royce Markel Wheeler, 2013 WI App 53; case activity

Police went to a duplex in response to domestic abuse complaint from what they believed was the lower unit, with the caller saying she had been assaulted and was bleeding. (¶¶2, 4-6). After officers spent some 20 minutes knocking on the duplex’s common front door and yelling, a woman named Bates opened the door, saying she lived in the upper unit. (¶6). She said she knew nothing about domestic violence in the lower unit, but consented to a search of the basement area, which found nothing. Police then asked her for consent to search the upper unit; she consented to this, too, and identified her boyfriend as the only person who might be up there. (¶¶7-8). Before police began their search, however, two men left the upper unit, one of whom was Wheeler, the defendant. (¶7). After detaining the men, police searched the unit and, in the attic, found a gun and a partially open potato chip bag containing cocaine. (¶9). Bates later admitted that she did not live there, but that Wheeler had asked to lie and say she did and to tell the police no one else was there. (¶10).

Apparent authority to consent to search

The police reasonably concluded that Bates had authority to give them consent to search the upper unit, distinguishing State v. Guard, 2012 WI App 8, 338 Wis. 2d 385, 808 N.W.2d 718, and State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998):

¶19      Unlike the circumstances in Kieffer, the police in this case did not attempt to obtain consent from a third-party property owner. Rather, they attempted to obtain consent from a person claiming to reside in the unit.  Although Bates did indeed lie about her residency and whether anyone was in the unit, her actions did not indicate that she lacked the authority to consent to a search of the unit.  According to testimony from the suppression hearing, Bates came down the stairs leading from the upper unit to the common door to make contact with the police.  She expressly told police that she lived in and controlled the upper unit.  When asked about the domestic violence call associated with the lower unit, Bates offered to contact the landlord, pulled out her cellular phone, and acted as though she was making the phone call.  The presence of other individuals did not necessarily vitiate Bates’s clear assertions—through her words and actions—that she lived in the upper unit.

….

¶21      Unlike the circumstances in Guard, Bates established a relationship to the upper unit.  Although we recognize that “‘officers may not always take [a person’s] consent to a search at face value,’” they “‘must consider the surrounding circumstances.’”  State v. Tomlinson, 2002 WI 91, ¶25, 254 Wis. 2d 502, 648 N.W.2d 367 (citation omitted).  The circumstances surrounding police in this instant case are the following: (1) Bates came down the staircase between the upper unit and the common entrance and opened the door for the police, a seemingly clear indication that she lived in the upper unit; (2) Bates identified herself; (3) Bates expressly stated that she lived in the upper unit; (4) Bates granted consent to search both verbally and in writing; and (5) Bates acted as though she had access to the landlord by pretending to call him or her.

¶22      Moreover, the record demonstrates that Wheeler wanted police to believe that Bates had authority over the upper unit.  It is undisputed that Wheeler instructed Bates to lie to police and claim that she lived in the upper unit.  To argue now that police wrongly relied on Bates’s authority, when Wheeler orchestrated the attempt to mislead police, is disingenuous.

Scope of the consent to search

The consent to search was not limited by Bates, so the police did not exceed the scope of the consent by going into the attic:

¶26      Based on the testimony of the officers at the suppression hearing, the trial court found that Bates did not limit the scope of the officers’ search.  Police told Bates that they were responding to a domestic violence call and were looking for people who may have been involved in the incident, specifically, anyone who may be injured and/or hiding.  Bates consented, simply saying something to the effect of “I have no problem with that.”  At no point did Bates attempt to limit the scope of the consent by telling officers to avoid the attic space.  At no point did Bates attempt to add a written limitation to her written consent.  Given the facts that:  (1) Bates did not object to the officers’ search of the attic area, (2) police were looking for injured parties in relation to a domestic violence call who may have been hiding, and (3) the attic area was large enough for a person to hide, we conclude that the police did not exceed the scope of Bates’s consent when they searched in the attic area and retrieved cocaine and a firearm.

Whether the cocaine was in plain view

Over a dissent, the court concludes that the plain view doctrine authorized seizure of the potato chip bag containing cocaine:

¶28      All three elements are satisfied in this case.  First, the officers visibly saw, in plain view, a potato chip bag after entering the attic. The bag was already open.  By simply obtaining the bag and looking inside, the officers did not violate the scope of their consent.  Second, having a right to be in the attic, the officers had a lawful right of access to the bag.  The potato chip bag was in plain view and was open.  Upon looking inside of the already-open bag, the officers discovered a chunky, white substance.  Based on their experiences, the officers reasonably suspected the substance to be cocaine.  We conclude, therefore, that the open potato chip bag, and in turn, the cocaine found inside, were within the officers’ plain view.

The dissent disputes this application of the doctrine, saying “only the potato-chip bag was in ‘plain view’; the cocaine inside the bag was not.  Under controlling Fourth-Amendment law as set out in Arizona v. Hicks, 480 U.S. 321 (1987), looking inside the bag was a no-no because the officers were searching for persons, not contraband, and they had no reason to look inside the bag.” (¶33). Explained more colorfully:

¶35      Here, the scope of the consent was for persons, not contraband.  Unless the persons for whom the officers had consent to search were even smaller than the Lilliputians, perhaps the size of the family about whom “The Littles” was written, there was no possibility that they were in the potato-chip bag. [Footnote omitted.]

Both the majority and dissent agree the gun was in plain view, as there is no contention it was hidden in any way. (¶¶29, 36).

State v. Antoine Leshawn Douglas, 2013 WI App 52; case activity

Miranda violation — interrogation by police

After a lawful arrest, but before being given Miranda warnings, Douglas initiated a conversation with the arresting officer in which he stated he wanted “to work” for the police by offering information about some marijuana dealers. After the officer declined that offer there was a “pause,” followed by Douglas changing the subject and volunteering information about a gun; that information was used to support a search warrant. (¶¶3, 8). Because Douglas volunteered the information and was not responding to the officer’s questions, the trial court properly concluded that Douglas’s comments about the gun were not in response to interrogation or its functional equivalent:

¶16      First, other than following up on Douglas’s question concerning his possible help in getting marijuana dealers, the only questions Officer Robinson asked were routine booking questions, and those questions may be asked irrespective of whether the officer gives Miranda warnings to the person in custody from whom the booking information is sought, or whether the person has invoked his or her right to silence or to have the help of a lawyer.  State v. Bryant, 2001 WI App 41, ¶¶14–15, 241 Wis. 2d 554, 563–564, 624 N.W.2d 865, 869–870.

¶17      Second, Miranda does not require suppression of voluntary statements made by a person in custody unless, as we have seen, those statements are elicited by the functional equivalent of interrogation.  Miranda, 384 U.S. at 478 (“Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.  The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated.”); Innis, 446 U.S. at 300–301.  Significantly, as the trial court recognized, the only question that Robinson asked Douglas was in response to Douglas’s offer to help get marijuana dealers, and that question had nothing to do with guns.  Thus, assuming without deciding that any further responses by Douglas in connection with the dealing of marijuana would have to be suppressed if offered at any trial on a marijuana charge to prove, for example, “knowledge,” see Wis. Stat. Rule 904.04(2), Douglas’s change-of-subject offer to get a gun for Robinson was volunteered after what the trial court found was a “pause” and while Robinson was continuing to fill out the required paperwork. …

….

¶19      In sum, on our de novo review, we agree with the trial court that Douglas’s get-the-gun offer was freely volunteered and was not the result of either Miranda interrogation or its functional equivalent.

The court distinguishes State v. Martin, 2012 WI 96, ¶¶36-41, 343 Wis. 2d 278, 816 N.W.2d 270, on which Douglas relies, because in that case the officer’s statements to the defendant were clearly the functional equivalent of interrogation. (¶18).

Sentencing — erroneous exercise of discretion

The circuit court did not erroneously exercise its discretion in imposing consecutive sentences for the three crimes Douglas was convicted of:

¶21      Douglas … faults the trial court for not … giving “any rational and explainable basis for the consecutive sentences imposed for weapons-based crimes, instead focusing on the defendant’s history with marijuana and his need for treatment.”  But that is not an accurate representation of the trial court’s expressed rationale; it specifically noted that Douglas deliberately had a gun even though he “clearly had to have known that [he] can’t have a firearm based on [his] prior cases” and a letter that he got from Illinois telling him that he could not possess any weapons.  The weapon matters were all part of what the trial court noted was Douglas’s continuing criminality, a criminality that had to be stopped by a significant period of incarceration followed by in-community supervision. …. While the trial court did not specifically assess each crime to which Douglas pled guilty as if it were the only crime to be considered at sentencing, its sentencing analysis fully considered the appropriate sentencing factors for all of Douglas’s admitted crimes.  It also gave Douglas a significant break by not only not following the State’s sentencing recommendation, but also by permitting the State to dismiss the five felony bail-jumping charges and the two other marijuana cases.  See State v. Conger, 2010 WI 56, ¶24, 325 Wis. 2d 664, 684–686, 797 N.W.2d 341, 351–352.  (“[W]hether to reject a plea agreement is squarely within the court’s authority.”); State v. Kenyon, 85 Wis. 2d 36, 45, 270 N.W.2d 160, 164 (1978) (“Prosecutorial discretion to terminate a pending prosecution in Wisconsin is subject to the independent authority of the trial court to grant or refuse a motion to dismiss ‘in the public interest.’”).  Douglas’s appellate complaint that the trial court erroneously exercised is discretion is without merit.

City of South Milwaukee v. Todd J. Kester, 2013 WI App 50; case activity

Sex offender residency restrictions – constitutionality; ex post facto and double jeopardy

 South Milwaukee’s ordinance prohibiting persons convicted of certain child sex offenses from living within 1,000 feet of a school or other facility frequented by children does not violate the double jeopardy or ex post facto prohibitions of the state or federal constitution:

¶31      Kester fails to offer the “clearest proof” that the Ordinance is a criminal and punitive measure rather than its stated purpose as a civil, nonpunitive regulatory scheme.  As such, the City’s Ordinance as applied to him does not violate the Double Jeopardy and Ex Post Facto Clauses.

While this case is not directly related to SPD practice, restrictions like those imposed by the ordinance here are one of the many potential collateral consequences of a conviction of a child sex offense.  The result is not surprising, as it is the one most courts have reached, with the leading case being Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (rejecting challenges based on procedural and substantive due process and ex post facto grounds). In a few places the opinion reflects the common reductionist, sometimes inaccurate beliefs about convicted sex offenders–e.g., “We state the obvious: All convicted child sex offenders have proven themselves to be dangerous” (¶30), as though every child sex offender is the same, no matter the facts of the crime or how long ago it was committed, and is bound to reoffend, and so a blanket residency rule is necessary and efficacious. Of course, the literature disputing those notions–for instance, here and here–would get little weight because of the deference courts accord to legislative judgments on these matters.

For those interested in the court’s reasoning, the court applies the well-worn test for looking at the legislation’s intent and effects, the court concludes the single reference to punishment in the ordinance “is outweighed by express language in the Ordinance declaring it to be ‘a regulatory measure aimed at protecting the health and safety of children in South Milwaukee.’” (¶23). Next, the court applies the factors from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963), for determining whether a law is punitive for double jeopardy and ex post facto challenges, and which were employed in Smith v. Doe, 538 U.S. 84 (2003) (upholding Alaska’s sex offender registration law against an ex post facto challenge). It agrees with Kester the ordinance involves an affirmative disability or restraint, but concludes that residency restrictions have not historically have been regarded as punishment (and do not resemble the historical punishments of shaming or banishment). (¶¶26-27). The court acknowledges the ordinance serves a deterrent purpose, but rejects the claim it promotes retribution. (¶28). Finally, the ordinance is not excessive in relation to its nonpunitive purpose; even though residency restrictions in other municipalities are less onerous and thus show that the city’s objectives can be reached with less drastic means, the city may make  reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences. In any event, “the City did not have to enact the best measure to reach its aims, only a reasonable one.” (¶30).

Local sex offender residency restrictions — preemption of ordinance by state law

The South Milwaukee ordinance is not pre-empted by state laws governing sex offenders, rejecting the claims of Kester (and amicus WACDL) that contrary to Anchor Sav. & Loan Ass’n v. Equal Opportunities Comm’n, 120 Wis. 2d 391, 397, 355 N.W.2d 234 (1984), the ordinance defeats the purpose and violates the spirit of state legislation:

¶19      Kester contends that the Ordinance defeats the purpose and violates the spirit of the state’s scheme to reassimilate sex offenders into society, see Wis. Admin. Code § DOC 328.04(1) (Dec. 2006), and protect public safety by minimizing the population density of sex offenders, see Wis. Stat. § 301.03(19). Accepting Kester’s contention as to the purpose and spirit of the state’s laws, the Ordinance is not demonstrably contrary to these goals. The purpose of the Ordinance is to reduce the risk of reoffense by child sex offenders. See SMMC § 23.167-1. Such a purpose advances both the reassimilation of sex offenders into the larger community and the protection of the public. Kester has not shown that the Ordinance defeats the purpose or violates the spirit of the state laws regulating child sex offenders. Accordingly, we find that the Ordinance is not preempted by state law.

Kester also made a claim regarding a municipality’s power to define public nuisances and, based on that claim, a procedural due process argument. But the court rejects those arguments, too, holding that the ordinance does not require a showing that Kester presents a risk of reoffending—that is, that his residing where he does creates an “actual nuisance”—or a hearing at which such a risk would have to been shown. Instead, the court treats the ordinance as making it a “nuisance per se” for a person who has been convicted of certain denominated offenses to live within 1,000 feet of certain facilities. (¶¶8-12). Any hearing is therefore limited to whether the person satisfies those two criteria. (¶¶13-14).

State v. Bryant A. Preinfalk, 2012AP2060-CR, District 4, 3/14/13; court of appeals decision (1-judge, ineligible for publication); case activity

The stop of Preinfalk’s car was lawful because in light of observations made by the officer, the anonymous tip provided reasonable suspicion to conclude the car was occupied by persons who had been involved in a fight at the Sidelines Bar:

¶11      It is not disputed that the tip in this case was anonymous. And I will assume, without deciding, the record does not contain any indicia of the informant’s veracity. However, regardless of this assumption, I conclude that the statements provided by the anonymous informant were nevertheless reliable in light of the evidence corroborating them. The caller stated that he or she was near the vicinity of Coal Street and that the perpetrators were getting into a Blazer and leaving Cole Street. Almost contemporaneously, Officer Wacker observed a green Chevy Blazer “leaving from directly in front of Sidelines” on Coal Street. The details of the statements provided by the anonymous caller were corroborated by Officer Wacker, bolstering the tip’s reliability “well enough to justify the stop.” See White, 496 U.S. at 327-332….

Preinfalk argued in part that the tip was unreliable because it provided “only readily observable information that any passerby could have provided”; besides rejecting the argument as undeveloped (¶11 n.2) the court cites State v. Williams, 2001 WI 21, ¶39, 241 Wis. 2d 631, 623 N.W.2d 106, for the proposition that corroboration of “innocent, although significant, details” of an anonymous tip bolsters its reliability.

Grant County v. Daniel A. Vogt, 2012AP1812, District 4, 3/14/13; court of appeals decision (1-judge, ineligible for publication), petition for review granted 10/15/13; case activity

Where police officer pulled up behind parked car without activating his emergency lights, approached the car, rapped on the window, and directed the driver to roll the window down, the driver was seized under State v. Williams, 2002 WI 94, ¶23, 255 Wis. 2d 1, 646 N.W.2d 834, and United States v. Mendenhall, 446 U.S. 544, 554-55 (1980):

¶13      It is undisputed that the officer “rapped”³ on Vogt’s window and indicated that he wanted Vogt to roll his window down. Vogt and the County dispute whether the officer “commanded” Vogt to roll his window down, or whether the officer motioned for Vogt to do so. However, those distinctions are not determinative in this case because without clarification, we must assume that the officer directed Vogt to roll down his window, rather than asking him if he would do so. A request might not be viewed as a seizure under these circumstances. However, when a uniformed officer approaches a vehicle at night and directs the driver to roll down his or her window, a reasonable driver would not feel free to ignore the officer. Accordingly, I conclude that a seizure took place.

¶14      It is undisputed that the officer did not otherwise have reasonable suspicion to conduct an investigatory stop. Accordingly, I reverse the judgment of conviction and the order denying Vogt’s motion to suppress.

---

³  The parties devote substantial argument regarding the strength upon which the officer “rapped” on Vogt’s window. I do not address those arguments because the determining factor here is not how forcefully Vogt rapped on the window.

State v. Todd A. Laws, 2012AP1930-CR, District 2, 3/13/13; court of appeals decision (1-judge, ineligible for publication); case activity

Stop of Laws’s vehicle was lawful because it was based on reasonable suspicion he was driving while intoxicated, contrasting State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634:

¶9        Each case stands on its own unique facts; however, the conduct in this case arguably provided more reason for suspicion than that in Post.  First, Laws’ swerving was observed around bar time, at 2:45 a.m.  See Wis. Stat. § 125.32(3).  In Post, the supreme court noted that the 9:30 p.m. timing of Post’s weaving was significant, although “not as significant as when poor driving takes place at or around ‘bar time.’”  Post, 301 Wis. 2d 1, ¶36.  So the timing here was suspicious, particularly since the driving took place on a Saturday night/Sunday morning, as opposed to during the normal workweek.  In addition, the officer in Post had followed Post and observed his weaving for about two blocks.  Id.  Here, the officer followed Laws for much longer—one-half to one mile—and noted continuous weaving the entire time.  Although Laws argues the significance of the officer observing no other law violations by him during that time, we think it more significant that the swerving continued throughout all of this lengthier observation period.  Finally, we note that in this case the officer observed Laws swerving both before and after he stopped at a stop sign.  This is of import because pausing at the stop sign would have afforded Laws an opportunity to reconstitute himself and proceed thereafter with normal driving.  His failure to do so, combined with the distance over which he continually swerved, adds to the likelihood that the swerving was not due to a momentary distraction such as changing the radio station, reaching for food, or perhaps sneezing, but was more likely due to a sustained, impaired physical condition such as excessive drug or alcohol use or lack of sleep. [Footnotes omitted.]

Post, recall, rejected any bright-line rule that weaving within a single lane may alone give rise to reasonable suspicion or that weaving within a single lane must be erratic, unsafe, or illegal to give rise to reasonable suspicion, opting instead to “maintain the well-established principle that reviewing courts must determine whether there was reasonable suspicion for an investigative stop based on the totality of the circumstances.” (¶26).