On Point

State v. Anthony D. Guard, 2012 WI App 8 (recommended for publication); for Guard: Richard L. Zaffiro; case activity

Warrantless Entry – Duplex, Common Hallway

Guard, a resident of a duplex upper flat, had a reasonable expectation of privacy in a hallway by which his unit was accessed, such that warrantless police entry into that hallway without consent or exigent circumstances violated the fourth amendment; factors enunciated by State v. Rewolinski, 159 Wis. 2d 1, 12, 464 N.W.2d 401 (1990), applied:

¶18      Applying those relevant factors, the facts in the record establish that:  (1) Guard, as a resident of the duplex, had a property interest in the premises; (2) Guard was lawfully in the duplex; (3) Guard, as a resident, had the same right as other residents to control access to his dwelling;[5] (4) the only entrance to his dwelling was the side entrance, which also provided access to the back entrance to the lower unit and gave both units access to the basement; (5) the existence of a closed exterior security door blocking entrance from the outside to the common hallway demonstrates control of access to his dwelling; (6) there is no evidence the tenant in the lower unit had a key to access the back hall through the security door and the interior door; and (7) Guard’s possible allowance of others to enter with his permission (e.g. a pizza delivery person, or a UPS delivery person) does not transfer the only entrance to his dwelling to an area freely accessed by all in the duplex, much less by the general public.  See Trecroci, 246 Wis. 2d 261, ¶39 (Allowing “third parties to enter and use the stairway” with the consent of the owner or tenant “alone does not negate a reasonable expectation of privacy.”); see also State v. Peck, 143 Wis. 2d 624, 638, 422 N.W.2d 160 (Ct. App. 1988) (An inquiry into a person’s reasonable expectation of privacy should focus not on “the ability of third parties to gain access to or view the property[,] but rather the manner in which the possessor holds the property out to the public.”).

Several other factors militating in favor of privacy noted: closed (if unlocked) exterior door; private, as opposed to commercial, use of unit (exemplified by “social encounter” at time of police entry), notwithstanding possible illicit enterprise at site; overriding respect for sanctity of home, ¶¶19-21.

Third-Party Consent 

When the officers approached the duplex, they found two women on the front porch, one of whom said, “You can use the hallway there” (in the back) to get to the upper flat. However, before proceeding to the back, the officers failed to “make even minimal efforts to verify that one of the women was, in fact, a resident of the duplex …. The record does not establish that the officers knew of any connection between the woman identifying the side entrance and Guard; in fact, she did not even know Guard’s name,” ¶25. The record does not support reasonable belief by the police that they had received consent to enter from someone having joint control or access, applying State v. Kieffer, 217 Wis. 2d 531, 542, 577 N.W.2d 352 (1998):

¶27      There is no evidence in the record before us that the woman actually used either the side entrance or the back stairs.  The side entrance provided access to the back stairs, according to the record before us, which was the only means of access to the upper unit.  The side entrance, as we have discussed, was actually two doors―a solid interior door and a full-size exterior security door with metal bars.  There is no evidence in the record that the woman providing directions to the side entrance had a key to those doors, or that she ever used those doors to access the basement, much less to access the upper unit or the first-floor unit.  The State has not established on this record by clear and convincing evidence that the woman who gave the police information about the back stairs as the way to access the upper unit also had the authority to consent to police entry to the only means of access to that upper unit.  See Trecroci, 246 Wis. 2d 261, ¶¶6, 39-40 (In the context of an identifiable marijuana smell apparently emanating from an attic, the owner/occupant of a residential building did not have the authority to consent to a search of the locked attic rented to third parties but accessed from the same locked stairway as two other apartments.); see also Kieffer, 217 Wis. 2d at 542-47 (father-in-law had no actual authority to consent to search of loft area rented by daughter and son-in-law where there was no established mutual use of the loft area and where officers made no inquiries as to father-in-law’s access to the area).

Nor, given the paucity of police efforts to investigate the women’s connection to the duplex, could the officers reasonably rely on apparent authority to consent, ¶28.

Exigent Circumstances 

Probable cause coupled with exigent circumstances support warrantless entry but, assuming (from the smell of burning marijuana) the existence of probable cause, the police lacked exigent circumstances for their entry, applying State v. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621 and State v. Garrett, 2001 WI App 240, 248 Wis. 2d 61, 635 N.W.2d 615:

¶33      The record demonstrates no exigent circumstances at the time the officers opened the closed security door, pushed the interior door open beyond the four or five inch opening that existed, and entered the back hallway.  The officers were not in “hot pursuit” of anyone. Nothing in the record suggests that the three individuals the officers encountered outside of the duplex had any connection to Guard.  In fact, the officers did not believe the individuals presented a threat to their safety.  Rom testified that he did not “find anything that … concerned [him] with them.”  Nor does the record suggest that Guard could have escaped from the duplex without the officers’ knowledge because the officers had control of the only means of access to the upper unit.

¶34      There is no evidence in this record that Guard or his companions were aware of police presence when the officers opened the closed security door, when they explored the basement, when they checked the door to the first floor, or when they climbed the stairs. … The record establishes by clear and convincing evidence that the occupants of the upper unit were unaware of the officers’ presence, and that neither a reasonable perception of a threat to the officers’ safety, nor a reasonable concern about the destruction of evidence, existed until the officers actually reached the top of the stairs leading to the upper unit and announced themselves.

That last paragraph is a seeming, if veiled, reference to the idea that knowledge of the police presence greatly increases the occupants’ incentive to destroy the drugs;  Hughes and Garrett embody the point, as does State v. Antonio K. Phillips, 2009 WI App 179. Though the court is less than explicit, it follows that ignorance of police presence cuts against the idea of exigency.

State v. Lisa L. Payne, 2010AP1995-CR, District 3, 12/20/11

court of appeals decision (not recommended for publication); for Payne: Eric R. Pangburn; case activity

The court, in imposing a sentence to prison confinement term of 13 months, expressly took into effect the possibility that Payne’s medical needs would not “be addressed adequately in a county jail.” Upon postconviction challenge to the sentence, “however, the court clarified that the length of Payne’s sentence was not dependent upon the care that she would receive in either jail or prison,” as follows:

I did not sentence her to prison because I thought that that is the best place that her needs could be met.  I sent her to prison because I thought she should serve approximately one year of time in confinement, be it in the county jail or in prison, and that if she was going to serve that amount of time, her emotional and physical needs could best be met in the setting of the Wisconsin State Prison.

The clarification saves the day:

¶7        Based on this record, we conclude the court properly exercised its sentencing discretion.  Having determined that a year of confinement was necessary to achieve the sentencing objectives identified, the court then determined that confinement in a state prison was more appropriate than confinement in a county jail.  It was in this regard only that the court took into account the limitations of a county jail in meeting Payne’s medical needs.  This was a sensible consideration of Payne’s particular circumstances in the greater context of a sentence designed to satisfy the interests of both the public and the defendant.  It was entirely proper for the court to give Payne’s medical needs the limited consideration they received.

Doesn’t quite explain the somewhat unusual derivation of 1 year 1 month though, does it? Of course, there’s nothing intrinsically wrong with a confinement sentence of 13 months, it’s just that some explanation might be warranted as to why 12 months couldn’t do the trick – the trial court did, after all, acknowledge that “approximately one year” sufficed; a sentence of 12 months satisfies the prison threshold, § 973.15(1); and, crucially, confinement is supposed to be the minimum amount of confinement needed to advance the sentencing goals, State v. Gallion, 2004 WI 42, ¶23, 270 Wis. 2d 535, 678 N.W.2d 197: why wasn’t 12 rather than 13 months the minimum necessary?

Sentencing discretion generally, discussed ¶¶3-4. (Omitting, curiously, the part about the minimum necessary.)

State v. Douglas J. Richer, 2011AP1197-CR, District 3, 12/20/11

court of appeals decision (1-judge, not for publication); for Richer: Matthew F. Anich, Tyler William Wickman; case activity

Richer wasn’t in custody (to a degree associated with formal arrest) so as to require Miranda warnings:

¶15      Here, Richer’s argument focuses only on the time period before Mathison placed him under arrest for operating while intoxicated. He lists several factors he contends show he was “in custody” for purposes of Miranda.  Specifically, he asserts he was in custody because he “was surrounded by three police vehicles and four officers, had his[] driver’s license taken away, [was] directed to stand in a specific location, was asked accusatorial questions,[5] had his[] vehicle blocked in, [and] was in an isolated, dead-end parking lot.”

¶16      We reject Richer’s characterization of the evidence and conclude Richer was not in custody during Mathison’s initial investigation. First, Mathison’s actions in parking his vehicle behind Richer, asking Richer for his driver’s license, asking him certain questions about whether he was drinking and driving, and asking him to move away from his vehicle to perform field sobriety tests do not rise to the functional equivalent of a formal arrest.  Moreover, that three other officers were present during Mathison’s interaction with Richer does not show he was subject to restraints comparable to those of a formal arrest.  Only one of the other officers had some, if any, interaction with Richer.  Richer was not handcuffed, frisked, physically restrained, or moved to another location.  No officer drew a weapon or made any show of force.  He remained in a public place throughout the entire interaction.  A reasonable person in Richer’s position would not believe his freedom was restricted to a degree associated with a formal arrest.

Factors informing test for custody discussed, ¶¶13-14, principally as articulated by State v. Torkelson, 2007 WI App 272, ¶17-18, 306 Wis. 2d 673, 743 N.W.2d 511 (2007)

From the academy:

• Deirdre D. Brown, “One Strike and You’re Out: Padilla Advisement About Public Housing Eligibility” (“Attorneys must begin to recognize that there already exist an ethical and moral duty to advise clients of the collateral consequence of the loss of public housing eligibility and that this duty to advise meets the Sixth Amendment requirement for effective assistance to counsel.”)
• David S. Rubenstein, “AEDPA’s Ratchet: Invoking the Miranda Right to Counsel after the Antiterrorism and Effective Death Penalty Act” (“…  AEDPA’s procedural standard of review has effected a shift in substantive law, even if courts did not intend that shift. To remedy this skewing of substantive law, this Comment proposes that the Supreme Court discourage trial and direct-review courts from basing their decisions on AEDPA cases.”)
• Eve Brensike Primus, “A Crisis in Federal Habeas Law” (a riposte to Nancy King and Joseph Hoffmann’s “Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ”)

Lawyers and judges behaving badly:

• “Client In Love Relationship with Lawyer Gets Better Representation, Lawyer Argues” (“My advice to a woman going through a divorce is, find a competent trial lawyer and make him your boyfriend.”)
• “Transcript: Told to Sit Down, Be Quiet, Lawyer Blocked Judge’s Drug Queries, Was Jailed for Contempt” (Mr. Badger is especially fond of this portion of the transcript – JUDGE: “I’m not interested in what you think. Haven’t you gotten that yet?”)
• “Judge Blasts ‘Spectacularly Incompetent’ Lawyers After Man With Iron-Clad Alibi Is Convicted“
• “Double trouble for KC lawyer who appeared with client’s twin“
• Mississippi v. Smith (“Tunica County Circuit Court Judge Albert B. Smith III acknowledged that he abused his contempt powers and exhibited poor courtroom demeanor. The Mississippi Commission on Judicial Performance recommends punishment of a public reprimand, a $1,000 fine, and an assessment of costs totaling $100. We accept the Commission’s re commendation.”)
• Matter of Robert T. Hall (“Respondent’s above-described representations that the State had moved to dismiss case no. 2010 TR 017760 and that he had allowed the motion were false, and he knew that they were false. At no time had the State’s Attorney’s office moved for the dismissal of the case.”)

Miscellany

• George D. Gopen, “Writing Clear and Effective Legal Prose” (“Here are the five most important ways in which the passive allows us to communicate far better than the active.”)
• Maggie Clark, “States beginning to rethink indigent defense systems” (“Nevada, Idaho, Michigan and Pennsylvania have all established special commissions to look at indigent defense in general and flat fees in particular.”)
• The Restyled Federal Rules of Evidence (fully searchable pdf)
• “The Legal Elephant Parade That Is the Ninth Circuit“
• Michael D. Cicchini returns in fine form, with “Judges-Gone-Wild, Part I: The Circuit Court Version“
• Split in federal circuit authority, “Re Propriety of Internet Restrictions During Probation for Sex Crime Convicts“
• Mike Sacks, “Justice Anthony Kennedy Confronts Sixth Amendment Case, Hints At Change Of Heart, Cites Hamlet” (“The key actor in the play — the Hamlet in the play — is the person who did the [DNA] test,” Justice Kennedy said, “and she or he is not here.” Neither is Hamlet. Unless it was a self-deprecating reference to the Justice’s “own reputation for Hamlet-like indecision.” Oh well.); Richard Friedman, “The Cellmark report, and what it shows” (“This is a Confrontation Clause problem, pure and simple.” Admirable certitude.)
• Good luck to the dynastic Warhawks!

State v. Charles A. Clayton-Jones, 2010AP2239-CR, District 4, 12/15/11

court of appeals decision (not recommended for publication); for Clayton-Jones: Martin E. Kohler, Craig S. Powell; case activity

 Clayton-Jones resolved a 2006 charge (involving sexual assault of a boy) with a plea bargain, in which the state was to recommend 12 years initial confinement. Before sentencing, he allegedly violated bond conditions, and the state sought to be relieved of its bargained-for allocution limit. But the state withdrew this effort, in the face of Clayton-Jones’ compelling legal argument that it was seeking an impermissible remedy. The plea agreement remained intact, Clayton-Jones was sentenced to 10 years IC, and immediately after sentencing the state filed a new complaint alleging a 2008 sexual assault of the same boy. On this interlocutory appeal, the court rejects dismissal of the new charge against a theory of vindictive prosecution.

Clayton-Jones must show either actual vindictiveness, or a reasonable likelihood of vindictiveness, ¶16, citing State v. Johnson, 2000 WI 12, ¶¶16-18, 232 Wis. 2d 679, 605 N.W.2d 846. Actual vindictiveness is rarely found, and not raised by Clayton-Jones.

¶18      Instead, the question here is whether there is a “realistic likelihood of vindictiveness” carrying with it the presumption of vindictiveness.  The core inquiry in this regard is whether the circumstances indicate that the challenged prosecutorial action was an “impermissible governmental response to non-criminal, protected activity.”  Johnson, 232 Wis. 2d 679, ¶28.  As the Johnson court explained:

The legal principles surrounding prosecutorial vindictiveness developed in a series of United States Supreme Court cases recognizing the basic principle that it is a violation of due process when the state retaliates against a person “for exercising a protected statutory or constitutional right.”

Id., ¶20 (citation omitted).

The claim of retaliation because the sentencing court imposed less time than the prosecutor recommended necessarily fails, because it raises the specter of a reaction to something the judge, not Clayton-Jones, did, ¶19. As for the argument that the new charge amounted to retaliation for his opposition to prosecutorial withdrawal from the plea bargain: the new charge may well represent the prosecutor’s interest in increasing Clayton-Jones’ exposure to punishment, but this doesn’t mean that such motive is illicit:

¶27      The only reasonable conclusion to draw from these facts is that the prosecutor simply learned that her request was legally impermissible.  There is no reason to suppose that the prosecutor continued to desire the impermissible remedy—one that might well have been cause for later reversal on appeal—after the prosecutor learned that it was contrary to established law.  This situation does not show that the prosecutor was attempting to punish Clayton-Jones for his opposition to what the prosecutor apparently came to realize was her own flawed motion.

¶28      In addition, we agree with the State that the situation here is unlike the cases brought to our attention in which vindictive cause and effect have been found to exist.  See, e.g., Blackledge v. Perry, 417 U.S. 21, 22-23 (1974) (after defendant was tried and convicted of a misdemeanor and acted to trigger a statutory right to a trial de novo in a higher court, the prosecutor filed a felony charge based on the same conduct); see generally Johnson, 232 Wis. 2d 679, ¶¶19-32 (the “presumption of vindictiveness arises when a prosecutor files more serious charges against a defendant after the defendant appeals his conviction and wins a new trial,” id., ¶32).

Conduct underlying a charge explicitly dismissed and “read-in” for sentencing purposes may not be used to support a subsequent prosecution, ¶31. Although it isn’t “clear … what must minimally occur before alleged conduct is treated as a ‘read-in’ for purposes of the Wisconsin rule prohibiting a future prosecution,” Clayton-Jones’ argument that the read-in principle bars this prosecution “relies on a factual assertion unsupported by the record,” ¶¶,32-33.

¶39      In sum, the sentencing court in the 2006 prosecution did not know about the alleged fellatio when it sentenced Clayton-Jones and, therefore, that conduct could not have been “read in” and considered for sentencing purposes in that case.  Thus, the “read-in” rule that Clayton-Jones relies on has no application here.

on review of summary opinion; for Miller: Martha K. Askins, SPD, Madison Appellate; case activity

Terry Stop – Reasonable Suspicion

Issue (composed by On Point): 

Whether information obtained from a jail inmate and other, anonymous sources established reasonable suspicion for a Terry stop.

Neither the court of appeals summary order nor Miller’s petition for review is available on-line. The briefs filed in the court of appeals indicate that Miller’s car was stopped after the police received information that he was transporting drugs. The sources were a jail inmate facing parole revocation (10 months before the stop); several anonymous calls to a local Crime Stoppers line (1-2 months before the stop); and another anonymous tipster who called a deputy sheriff’s cell phone (a day or so before). The issue is, as search-seizure cases tend to be, highly fact-intensive, but if nothing else the questions of whether to label calls to the police “anonymous” and whether such calls should be assigned reliability under Terry, see State v. Williams, 2001 WI 21, 241 Wis. 2d 631, 623 N.W.2d 106, will likely be discussed. If you’re interested in the issue, consult Miller’s well-written briefs, accessible via the case activity link above.

on review of unpublished decision; for Frey: Devon M. Lee, SPD, Madison Appellate; case activity

Sentencing Discretion – Reliance on Dismissed Charge

Issue (composed by On Point): 

Whether sentencing discretion was erroneously exercised by undue reliance on, including unfounded inferences drawn from, a charge dismissed “outright.”

Frey was charged with sexually assaulting two girls. Both testified at the preliminary hearing. Frey ended up pleading no contest to assaulting one, but the other (“Ariel”) was dismissed “outright” (that is, without any admission of culpability). Frey argued below that the sentencing court’s reliance on the dismissed charge was an erroneous exercise of discretion – concededly,  a sentencing court can consider unproven offenses, indeed including charges dismissed outright, Elias v. State, 93 Wis. 2d 278, 282-84, 286 N.W.2d 559 (1980), but in this case, Frey argues, “the court’s consideration of the dismissed charge regarding Ariel permeated the court’s remarks” (Principal Br. in COA, p. 10). (He relatedly argues that the sentencing court drew an unfounded inference of sexual intercourse.) Frey, then, is arguing the sentencing limits that may be imposed on a dismissed charge. In sum, he argues, “a dismissed outright charge is one that a court should not consider at sentencing, except for the limited purpose of determining a defendant’s character,” Reply Br., COA, p. 1. Review therefore will likely address not whether, but the extent to which a dismissed charge, unaccompanied by any admission of culpability, may be factored into sentencing.