On Point

court of appeals decision (1-judge, not for publication); for Gracia: Tracey A. Wood; case activity; petition for review granted 5/14/12

Warrantless Entry – Community Caretaker 

Entry into Gracia’s bedroom by police, who had linked him to a serious traffic accident, was justified by the community caretaker doctrine; State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d 505, distinguished.

¶15      At first glance, this would seem to be an Ultsch case because the investigating officer’s initial reason for trying to find the driver was the same—an accident between a motor vehicle and an immovable object, which accident may have caused significant damage to the vehicle.  But that’s where the similarity ends.  In Ultsch, the officers encountered a man leaving the residence.  They did not ask nor did they say that they were concerned with the well-being of the driver.  They simply wanted to know where she was and, after the man indicated that the driver was his girlfriend and was probably asleep, he left.  Then, the police just barged in.

¶16      Here, however, the investigating officer explained why they were there and also that they were concerned that the driver might be injured.  They wanted to find out if that was so.  Unlike the police in Ultsch, an officer in this case testified that he asked Gracia’s brother right away to check on his condition, and waited outside until the brother told the police to come in.  So, it is obvious that Gracia’s brother was concerned enough about Gracia’s well-being to invite the police in.  He was so concerned that, despite Gracia’s appeal that everyone “go away”, the brother instead forced the bedroom door open, without any solicitation by police.  This shows us that the police were at the bedroom door for a bonafide reason, to see if Gracia was injured, a concern shared by the brother.  The police, therefore, had a right to be in the place they were in.  They had indicated their concern that the driver of the vehicle might be injured, asked a family member to check on the driver, were granted entry to the trailer home by consent of a family member and were led by the family member to the driver’s bedroom door.  They did not force the door open.  The brother did.  The focus therefore was always on checking to see if there was injury; it was done in a sincere, unpretentious manner, much unlike the officers in Ultsch.

On the other hand, the case is similar to State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592, because of demonstrable concern for the resident’s safety:

¶18      In terms of the third factor requirement to balance the public interest against the level of intrusion by looking at the exigency faced by the police and the availability of alternatives to the intrusion,[8] see id., this case is much more like Pinkard than Ultsch.  In Pinkard, officers entered a residence through an open door “out of concern for the safety of Pinkard and his companion” due to an anonymous tip regarding a possible cocaine overdose.  Id., ¶¶46-47.  As the court pointed out, “[i]f Pinkard and his companion had been suffering from a cocaine overdose, a reasonable inference based on these facts, the officers were presented with a significant exigency….”  Id., ¶47.  Here, as in Pinkard, the officers entered Gracia’s bedroom through an open door out of concern for Gracia’s safety, a concern voiced to Gracia’s brother from the beginning and a concern obviously shared by his brother.  A reasonable police officer, invited into a home by a family member in order to check on another family member’s physical condition resulting from a bad accident, should not have to turn down the invitation, should not have to turn away if the family member opens the door for the officer, and should not have to cover his or her eyes and remain motionless when the door is opened.  The balance in this case weighs in favor of the intrusion.  The police were validly exercising their community caretaker function when they crossed the threshold of Gracia’s bedroom.

OWI Enhancer – Collateral Attack 

Gracia’s waiver of counsel in a prior (1998) OWI conviction used to enhance the present OWI held valid. The record shows that he new he could have an attorney but decided he didn’t need one, “since he had in fact been drinking and driving and since the State was recommending the minimum penalties, an attorney could not do anything for him,” ¶26. Thus, “he made a deliberate choice and understood the seriousness of the charge as well as the range of penalties,” id. Failure of the trial court to fully comply with Wis JI—Criminal SM-30 doesn’t impair the waiver:

¶27      Yet, Garcia complains that he was not aware of the difficulties and disadvantages of proceeding pro se because he did not specifically understand in 1998 that an attorney might be able to explore defenses based on police conduct and other issues unrelated to his guilt or innocence.[9]  This is one part of the Wis JI—Criminal SM-30 that the 1998 court did not convey to him.  Nevertheless, the law does not require that Garcia had to understand every possible type of defense; the law only requires a general understanding of the difficulties and disadvantages of proceeding pro se.  See Klessig, 211 Wis. 2d at 205.  At the 2010 hearing, Gracia acknowledged that he understood that a lawyer could “go to court” for him, and that he had seen lawyers on television and was familiar with the O.J. Simpson trial.[10]  We can infer from that testimony that Gracia had an understanding that a lawyer would stand up for him in court and might know more about his case and possible defenses than he did.  In other words, Gracia’s testimony makes it clear that he understood the role of a lawyer, in general terms.  He simply made a cost-benefit analysis that pleading guilty and taking the minimum penalties recommended by the State was a better choice for his pocket book than paying a lawyer.  This is exactly what the 2010 court reasoned and we agree.  His waiver was valid.

State v. Luke T. Nirmaier, 2011AP1355-CR, District 3, 12/28/11

court of appeals decision (1-judge, not for publication); for Nirmaier: Michael M. Rajek; case activity

The odor of alcohol on Nirmaier following a traffic accident resulting in substantial bodily injury triggered the implied consent law, notwithstanding absence of probable cause to arrest at that point:

¶9        Wisconsin Stat. § 343.305(3) outlines different scenarios in which an officer may invoke the implied consent law and request a chemical test of an individual’s breath, blood, or urine.  Although an officer normally invokes the implied consent law after arresting an individual for an alcohol or drug related operating offense, see Wis. Stat. § 343.305(3)(a), an officer may also invoke the implied consent law before arrest in limited, specified circumstances, see e.g., Wis. Stat. § 343.305(3)(am), (ar).  Subdivision 343.305(3)(ar)1., which was enacted on March 15, 2010 and became effective on March 30, 2010, allows an officer to request a chemical test before arrest if an individual is involved in an accident that causes substantial bodily harm to a person and the officer detects the presence of alcohol or drugs.  See 2009 Wis. Act 163; see also Wis. Legislative Council Act Memo for 2009 Wis. Act 163 (April 19, 2010), available at https://docs.legis.wisconsin.gov/2009/related/lcactmemo/sb303.pdf.

Not quite clear just what Nirmaier was arguing, which if nothing else diminishes whatever persuasive value the opinion might have. That is, the court of appeals noted that “he fails to explain how” the statute had been “misapplied,” therefore hadn’t adequately briefed the issue, ¶11. Additionally, Nirmaier failed to respond to the State’s contention that probable cause for OWI arrest wasn’t required in this context, and thereby conceded the point, ¶12. In other words, the issue (probable cause to arrest is required as a constitutional matter before the implied consent law is triggered?) was neither sharpened nor joined.

Separately: counsel admonished because his brief “failed to provide citations to the record in his statement of the facts and failed to provide a recitation of Wis. Stat. § 343.305(3)(ar)1.,” footnote 2. Basic stuff, really, but mentioned here as a reminder, should one be necessary, that the court of appeals briefing protocols to be observed fully. The sanction, incidentally, could have been worse than an admonition.

Shawano County v. Anne R., 2011AP2040, District 3, 12/28/11

court of appeals decision (1-judge, not for publication); for Anne R.: Donna L. Hintze, SPD, Madison Appellate; case activity

Anne R. challenges the extension of her mental health commitment / involuntary medication order, on the ground the County failed to prove she would be a proper subject for commitment if treatment were withdrawn, § 51.20(1)(am). The court rejects the argument, citing opinion testimony at the extension hearing that if treatment were withdrawn her behavior would deteriorate.

¶9        To the extent Anne argues the opinion itself was insufficient to meet the County’s burden, we disagree.  The court was entitled to rely on Coates’ opinion in its determination to extend the mental commitment.  See Wis. Stat. § 805.17(2) (factual and credibility determinations are for the fact finder).  Anne offers no legal authority that the circuit court’s reliance on this opinion was insufficient.  See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (We need not consider arguments unsupported by reference to legal authority.).  Nevertheless, we observe that, in addition to his opinion, Coates testified that Anne continues to experience delusions and paranoia.  He explained that if treatment were withdrawn Anne’s behavior would deteriorate.  In his written report he said that the deterioration would be “to a point where she could no longer take care of herself or properly socialize.”  We conclude the evidence sufficiently supports the court’s determination that if treatment were withdrawn, Anne would be a proper subject for commitment.

The extension hearing evidence also supported an involuntary medication order, § 51.60(1)(g)4.:

¶11      Anne’s argument focuses on whether the County sufficiently proved she was incompetent to refuse medication under Wis. Stat. § 51.61(1)(g)4.b.  Anne argues the County failed to meet its burden of proof because it only introduced evidence showing she lacks insight into her mental illness.  Specifically, she asserts the County failed to establish that the “lack of insight interfered with her ability to make an informed choice regarding medications.”

¶12      We disagree.  Coates did not merely testify that Anne lacked insight into her mental illness.  He explained in his written report that he recommended an involuntary medication order because he found Anne not “competent to make an informed consent[2] regarding the advantages and disadvantages of accepting treatment by psychotropic medications.”  He then testified that it was Anne’s lack of insight into her mental illness that formed the basis of his involuntary medication recommendation.  This evidence sufficiently supports the court’s determination that Anne is incompetent to refuse medication.

 

State v. Jason E. Goss, 2011 WI 104, affirming court of appeals summary order;  for Goss: Daniel J. Chapman; case activity

¶2   We are asked to determine whether the officer’s request for the PBT breath sample was made in violation of Wis. Stat. § 343.303, which states that an officer “may request” a PBT breath sample “[i]f a law enforcement officer has probable cause to believe that the person is violating or has violated s. 346.63,” which prohibits driving or operating a motor vehicle with a prohibited alcohol concentration.  We agree with Goss that the legislature’s intent was to require probable cause for a request for a PBT breath sample for all non-commercial drivers, including those who are subject to a reduced prohibited alcohol content standard.  This case presents a question we have not previously addressed: whether probable cause exists to request a PBT breath sample when the driver is known to be subject to a .02 PAC standard, the officer knows it would take very little alcohol for the driver to exceed that limit, and the officer smells alcohol on the driver. We now hold that under these circumstances, there is probable cause to request a PBT breath sample.  The PBT breath sample in this case was requested on the basis of probable cause as the statute requires, and we therefore affirm the court of appeals.

…

¶28  This case presents a question we have not previously addressed: whether probable cause exists to request a PBT breath sample when the driver is known to be subject to a .02 PAC standard, the officer knows it would take very little alcohol for the driver to exceed that limit, and the officer smells alcohol on the driver.  We now hold that under these circumstances, there is probable cause sufficient to request a breath sample.  The PBT breath sample in this case was requested on the basis of probable cause as the statute requires, and we therefore affirm the court of appeals.

Goss argued that § 343.303 requires more than mere detection of alcohol before a PBT may be administered to a non-commercial driver, citing County of Jefferson v. Renz, 231 Wis. 2d 293, 310, 603 N.W.2d 541 (1999). (Probable cause isn’t required for commercial drivers, because alcohol in any amount suffices, ¶12.) Renz held, in the context of a PAC of .10, that “probable cause” was a lesser quantum than “probable cause to arrest.” Goss had 4 priors, so this case arises under a PAC of .02 – in other words, standards involving  very low PAC and quantum of belief. (The officer knew about the priors before requesting the PBT, ¶¶3-4.) Goss was thus constrained by unfavorable facts to argue that the statutory scheme categorically prohibits a PBT of a non-commercial driver based solely on smell of alcohol. The court rejects that approach, holding that priors are to be considered in the determination of PBT probable cause, ¶¶22-24, citing State v. Lange, 2009 WI 49, ¶33, 317 Wis. 2d 383, 766 N.W.2d 551. The smell of alcohol on Goss coupled with the officer’s knowledge of the low PAC ceiling established probable cause, ¶26.

The court drops a footnoted reference to State v. Fischer, 2010 WI 6, ¶32, 322 Wis. 2d 265, 778 N.W.2d 629 – a glancing, but possibly portentous reference, ¶14 n. 11. In that case, the court imposed an absolute bar on adducing expert testimony based on PBT results; but a federal court subsequently held that Fischer’s right to present a defense was violated. The habeas grant was premised on the idea that the testimonial bar was not on account of concerns about unreliable evidence. But the footnote in Goss suggests that evidentiary reliability is indeed the rationale for trial-level exclusion of PBT evidence. Don’t be surprised if the issue is revisited, especially given the advent of Daubert in this state. Besides, it wouldn’t be the first time a Wisconsin court has told a federal court it got something wrong, State v. Dean, 103 Wis.2d 228, 307 N.W.2d 628, 642 (1981) (explaining that McMorris v. Israel, 643 F.2d 458 (7th Cir. 1981), in granting a right to admit favorable polygraph result, “erred” by virtue of “a mistaken interpretation” of Wisconsin caselaw).

State v. Cedric O Clacks, 2011AP338-CR, District 4, 12/22/11

court of appeals decision (not recommended for publication); for Clacks: Jefren E. Olsen, SPD, Madison Appellate; case activity

Evidence held sufficient to prove contested, fourth element of identity theft (intentional representation user of personal identification document of another authorized to use it), § 943.201(2)(a) as party to the crime.

¶15      Specifically, Clacks contends that handing the credit card to a sales clerk to make a purchase and signing the electronic credit card slip cannot, by itself, prove that Clacks or the others involved represented that the card was being used with the cardholder’s authorization or consent.  This is so, according to Clacks, because handing the credit card to the salesperson to make a purchase and signing the electronic credit card slip is evidence of use of the credit card, and thus constitutes the first element.  Clacks contends there must be some evidence of an intentional representation by either him or one of the others that is “over and above” the act of using the card. Otherwise, asserts Clacks, the fourth element would be superfluous because it would automatically be proven in every case where the first element of the offense is proved.

…

¶19      With respect to the fourth element—the intentional representation that the individual using the card was authorized to do so—there was evidence that Clacks or one of the others involved signed the electronic receipt for each of three transactions.  Signing the receipt is a representation that the individual presenting the card is authorized by Nelson to incur a charge on the account.  Clacks does not contend that a “representation of authorization” within the meaning of the fourth element must be words and may not be conduct.  His position is that, even if a representation can be conduct, it cannot be conduct that is necessary to prove use of Nelson’s personal identification.  However, beyond asserting that signing the electronic receipt is evidence of the first element, Clacks does not develop an argument explaining why that evidence is necessary to prove use of Nelson’s personal identification document.  We conclude the evidence of signing the electronic receipt is not necessary to prove the first element and that it is sufficient to establish the fourth element.

Though convicted of identity theft for unauthorized use of a credit card, ptac, Clacks was properly ordered to pay restitution for the costs of replacing the victim’s car key and key locking system. The offense stemmed from theft of the victim’s purse, an act that could be traced to Clark in some fashion. Therefore, a sufficient causal nexus was established between Clark’s actions and the loss of the victim’s car key, ¶¶20-25.

¶25      Because we conclude it is reasonable to infer that Clacks participated in stealing the purse, we conclude the evidence establishes a causal nexus between his actions and the loss of Nelson’s car key.  Accordingly, we affirm the restitution order, including an amount sufficient to replace Nelson’s car key and key locking system.

The test is whether there’s “a causal nexus … between the ‘crime considered at sentencing’ and the disputed damage.” State v. Canady, 2000 WI App 87, ¶9, 234 Wis. 2d 261, 610 N.W.2d 147.

Dane Co. DHS v. Johnny S., 2011AP1659, District 4, 12/22/11

court of appeals decision (1-judge, not for publication); for Johnny S.: Dennis Schertz; case activity

¶7        Johnny contends he was not able to meaningfully participate at the trial for three reasons.  First, he appeared by telephone, not videoconference, and he did not waive his right to appear by videoconference.  Second, he could not hear what was being said during trial. Third, he was not given enough opportunities to speak with his attorney.  In the following paragraphs, we address each contention and conclude Johnny’s right to meaningfully participate in the trial was not violated on any of these grounds.

…

¶12      Here, the circuit court carefully considered each witness’s testimony and explained its credibility assessment.  The court’s credibility determinations are not implausible and are supported by the record.  We therefore accept the circuit court’s factual determination that Johnny chose to appear by telephone as not clearly erroneous.  Based on this factual determination, we agree with the circuit court that Johnny waived any right to appear by videoconference.

…

¶15      There was no evidence on the record regarding Johnny’s inability to hear statements during trial other than Johnny’s testimony.  The circuit court assessed Johnny’s credibility and concluded he was not credible for reasons we have already noted.  There is no basis for disturbing this credibility determination.

¶16      Finally, we address Johnny’s contention that he was not given sufficient opportunities throughout the trial to speak with his attorney.  The circuit court found that he was, and we conclude this finding is supported by the record.

State v. Kenneth M. Sobczak, 2012 WI App 6 (recommended for publication), petition for review granted, 6/13/12; for: Sobczak: Ryan J. Hetzel; case activity

¶6        The issue in this case is whether the girlfriend—as a guest in Sobczak’s parents’ home—had the authority to consent to the officer’s entry into the Sobczak residence and to the search and seizure of Sobczak’s laptop.[1]  We hold that she did

State v. Kieffer, 217 Wis. 2d 531, 577 N.W.2d 352 (1998), distinguished:

¶12      In contrast, Sobczak’s girlfriend had actual authority to consent to the officer’s entry into the house and to the search and seizure of Sobczak’s laptop.  While a mere guest in a home may not ordinarily consent to a search of the premises, the analysis is different when the guest is more than a casual visitor but instead has “the run of the house.”  4 Wayne R. LaFave, Search & Seizure, § 8.5(e) (4th ed. 2011).  Under those circumstances, the guest may consent to a search of the residence.  Id.  Sobczak’s girlfriend was invited to stay at Sobczak’s house for the weekend.  Nothing in the record indicates that Sobczak restricted her use of the property during the weekend. Sobczak gave her permission to use his laptop and allowed her to stay in the residence by herself while he was at work.  As the Supreme Court said in Matlock, if a third party has “mutual use of the property” and “joint access or control for most purposes,” then the third party may consent to a search of the property regardless of whether he or she owns the property.  Matlock, 415 U.S. at 171, n.7.  The girlfriend thus had authority to allow the officers to enter the residence and to search and seize Sobczak’s computer.

¶13      We stress that our holding is limited to the facts of the case, namely, that the girlfriend had the authority to consent to police entry into Sobczak’s home and to a search and seizure of his laptop.  We are not holding that the girlfriend’s status as a houseguest gave her carte blanche to consent to a search of all the contents in the home.  Rather, her authority to consent to a search was limited to the property that she possessed “common authority” over.  As a weekend houseguest who was permitted to stay in the home by herself, the girlfriend had the authority to receive people into the home, and thus had the authority to permit the officer to enter.  Similarly, Sobczak gave her permission to use his computer, so she had the authority to consent to the officer’s search and seizure of that item.  We make no comment on the other areas of the home that the girlfriend may have had “common authority” over, as it is not germane to this case.

State v. Verhagen, 86 Wis. 2d 262, 272 N.W.2d 105 (Ct. App. 1978), and State v. McGovern, 77 Wis. 2d 203, 252 N.W.2d 365 (1977), also distinguished:

¶16      Neither of these two cases compel the result that Sobczak seeks.  In Verhagen, Mrs. Verhagen was no longer residing in the home and had given up her rights to use and occupy the home.  The only reason she was at the property at the time of the search was to collect her belongings.  She therefore did not share mutual use of the house with Mr. Verhagen.  In McGovern, the individual who consented to the search did not live in the house but rather lived in a tent outside.  Sobczak’s girlfriend, by contrast, was staying at Sobczak’s house for the weekend.  There was no testimony that her use was restricted in any way, and she was allowed to stay in the house by herself while Sobczak was at work.  The girlfriend had the entire use of and access to the Sobczak house that the wife in Verhagen and the tent dweller in McGoverndid not.  Verhagen and McGovern are therefore not controlling.