On Point

“de minimis non curat lex”

On Point will be out of commission until 6/28. Mr. Badger has kindly consented to waive copyright protection in the interim, after which he returns to well-earned obscurity.

State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding: Answering call on lawfully seized cell phone proper, given existence of “probable cause to believe that the cell phone was a tool used in drug trafficking,” plus exigent circumstances (danger of evidence destruction), ¶¶35-42.

Probable cause, of course, is typically fact-specific and in that sense the court’s discussion (¶¶25-29) is mundane. The impact of this case will be felt relative to exigent circumstances: the court’s analytical approach applies at a fairly high level of generality, not merely to other sorts of electronic devices such as pagers, ¶36 (though the court does caution that “cell phones and pagers are not interchangeable,” ¶38), but more importantly to devices seized outside of the arrest context, ¶35 n. 7. In other words, the result is not dependent on a search-incident rationale.

¶41      The consistent approach taken in these cases is that the courts scrutinized the nature of the evidence obtained, i.e., numeric codes on a pager, stored text messages, and incoming phone calls, and balanced that with an inquiry into whether the agent reasonably believed that the situation required a search to avoid lost evidence. Based on that assessment, it appears that the courts then reserved the exigent circumstances exception for searches directed at the type of evidence that is truly in danger of being lost or destroyed if not immediately seized. That approach is consistent with Wisconsin case law addressing exigent circumstances. See Faust, 274 Wis. 2d 183, ¶12 (stating that the rule for determining whether exigent circumstances are present requires an inquiry into whether the officer reasonably believed that the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence).

¶42      Hence, we are satisfied that exigent circumstances justified Belsha’s answering Carroll’s cell phone. The fleeting nature of a phone call is apparent; if it is not picked up, the opportunity to gather evidence is likely to be lost, as there is no guarantee——or likelihood——that the caller would leave a voice mail or otherwise preserve the evidence. Given these narrow circumstances, Belsha had a reasonable belief that he was in danger of losing potential evidence if he ignored the call. Thus, the evidence obtained as a result of answering that phone call was untainted.

State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161
For Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding: Exigent circumstances did not support browsing through image gallery of lawfully seized cell phone:  “That data was not in immediate danger of disappearing before Belsha could obtain a warrant,” ¶33.

The court of appeals had merely assumed that such browsing was improper on the facts, but the supreme court now distinctly holds “that that search was indeed improper and that the evidence obtained from that search at that time was tainted,” ¶33.

7th circuit court of appeals decision

Warrantless Entry – Emergency Doctrine – 911 Call

According to David, the police violated the fourth amendment by entering without probable cause and refusing to leave as soon as Karen asked them to go. Like the district judge, we think that a 911 call provides probable cause for entry, if a call back goes unanswered. The 911 line is supposed to be used for emergencies only. A lack of an answer on the return of an incomplete emergency call implies that the caller is unable to pick up the phone—because of injury, illness (a heart attack, for example), or a threat of violence. See United States v. Jenkins, 329 F.3d 579, 581 (7th Cir. 2003); United States v. Richardson, 208 F.3d 626, 629–30 (7th Cir. 2000). Any of these three possibilities supplies both probable cause and an exigent circumstance that dispenses with the need for a warrant. See Brigham City v. Stuart, 547 U.S. 398 (2006). There are of course other possibilities. Perhaps a child dialed 911 by mistake, or perhaps the ringer had been set to silent so the phone did not alert anyone to the incoming call from the 911 dispatcher. But probable cause just means a good reason to act (the fourth amendment protects people against “unreasonable” searches and seizures); it does not mean certainty, or even more likely than not, that a crime has been committed or a medical emergency is ongoing. See Illinois v. Gates, 462 U.S. 213, 235 (1983).

Not binding on state courts obviously, but it’s nonetheless a result you probably want to know about. There’s at least one reported Wisconsin decision dealing with warrantless entry following 911 call, State v. David M. Larsen, 2007 WI App 147, ¶¶20-21, but there don’t appear to be any “hang-up” 911 cases. Hanson may be inconsistent with U.S. v. Cohen, 481 F.3d 896 (6th Cir 2007) (“the virtually complete lack of information conveyed by the silent 911 hang-up call and the total absence of corroborating evidence indicating that criminal activity was afoot requires us to give the 911 hang-up call little weight in evaluating the totality of the circumstances”), which was itself more recently ratified by United States v. Smith, 594 F.3d 530, 540 (6th Cir. 2010) (with the embellishment “that a silent 911 call can provide some support for a reasonable suspicion of  criminal activity but, by itself, cannot support a finding that the law enforcement officers had a reasonable suspicion of criminal activity,” albeit finding reasonable suspicion for a Terry stop on the particular facts. Keep in mind that reasonable suspicion doesn’t support warrantless entry, State v. Jeffrey Stout, 2002 WI App 41, ¶¶14-15.)

seventh circuit court of appeals decision

Ineffective Assistance – NGI Defense – Habeas Review

Counsel performed deficiently by failing to: adequately prep his NGI expert witness, who had performed only a competency evaluation of Wilson and wasn’t given the opportunity for a reinterview with the distinct purpose of an NGI evaluation; present testimony of family members familiar with Wilson’s mental deterioration; and retain another expert.

Given the gravity of the charge against Wilson and the ample evidence that he was driven to kill Fischer by an insane delusion, we conclude that Schnack’s assistance to Wilson fell below the minimum professional level required (by interpretation of the Sixth Amendment) of a lawyer representing a murder defendant; the Illinois courts were unreasonable to think otherwise. Wilson’s imperative need for better and more timely preparation of Parwatikar (the attempt to prepare him hours before he testified came too late), for a reinterview of Wilson by Parwatikar, for acceptance of Parwatikar’s advice to hire another expert, and for putting the lay witnesses to Wilson’s mental deterioration on the stand, compels our conclusion. The only reasons the state courts gave for thinking Schnack’s representation adequate was that Parwatikar was a distinguished psychiatrist and that Schnack “questioned Parwatikar in a cogent manner, enabling Parwatikar to come across in a favorable light.” Unmentioned was that Parwatikar had told Schnack that his testimony alone would not be adequate, that he was correct, and that his credibility was demolished on crossexamination.

Posner wrote the majority decision, Evans the dissent; two of the federal judiciary’s most gifted writers. Summary won’t remotely do justice to either, but here are some highlights. Wilson was delusional when he shot and killed his boss because Wilson thought the boss part of a conspiracy by “the Catholics.” But immediately after the shooting, Wilson called 911, confessed and expressed regret — which suggested that he might have been sane. And, indeed, the state’s expert testified he was. But what about Wilson’s undoubtedly being pressurized by delusions? Illinois has banished inability-to-conform-conduct from its NGI law. Instead, Wilson had to prove by clear and convincing evidence that his mental illness prevented him from appreciating the criminality of his act. His 911 call expressing regret gave him, as the majority put it in a bit of understatement, a seemingly tough row to hoe. The majority nonetheless, in an absolute tour de force, discerns what it terms the “deific decree” principle in NGI cases, which stresses a defendant’s inability

to appreciate his act as being morally wrong, whatever the source of his moral beliefs. Convinced that he was the victim of a vast conspiracy—that his persecutors, including his boss, were infiltrating his home in order to frame him for the crime of child molestation, and that if he left the state he could well face catastrophe on his return—Wilson may have thought, at the moment he killed Fischer, that he was doing a morally justified deed.

Judge Posner concludes that “It is a reasonable inference that the Supreme Court of Illinois would approve an insanity defense along the lines” just suggested. Judge Evans takes issue with that perception, and more. He makes telling points, including a strong argument that the trial attorney may well have had strong tactical reasons for not having his expert reinterview Wilson (“Why take the chance of losing [the favorable opinion]?”). But the problem is that we don’t really know what the attorney had in mind, because the state court didn’t take evidence on the issue. The majority orders a hearing on remand (describing its deficient performance ruling as merely “tentative”), and the state will be allowed to adduce evidence of attorney tactics (as distinct from what the majority characterizes as “insouciance”). In the end, the attorney may well be held effective. It is just that the dissent thinks the exercise “unnecessary” because, given the facts he had to work with, counsel played the best hand he could considering that the deck was stacked against him.

One final point, relating to a technical issue of habeas review. AEDPA imposes a regime of deferential review, but under current 7th Circuit caselaw, where the state court doesn’t reach a particular issue, review under AEDPA is plenary. (“Current,” because a recent cert grant raises this very question of the no-deference exception.) Illinois courts didn’t address the issue of whether Wilson was prejudiced by what is now deemed to be his attorney’s deficient performance, so that question is subject to plenary review. The court remands for an evidentiary hearing on prejudice, but isn’t explicit about why. The burden of showing prejudice, as well as deficiency, is on the defendant, plenary review or not. The only way Wilson can hope to show prejudice is to have his original expert testify after reexamination that Wilson was indeed insane; or to have another expert so testify.

City of Ontario v. Quon, USSC No. 08-1392, 6/17/10

Assuming without deciding that police officer Quon had a reasonable expectation of privacy in the text messages of his department-issued pager, the Court concludes that the warrantless review of Quon’s pager transcript was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope.

The 4th amendment came into play because Quon’s employer was a government agency, but the proper analytical framework is up in the air. In O’Connor v. Ortega , 480 U. S. 709 (1987), a plurality held that privacy expectations should resolved case-by-case; and that even legitimate expectations of privacy could be overcome by the employer’s “noninvestigatory, work-related purposes,” 718, 725-26. The Court has no need inn this case to fashion a majority rule: “The case can be decided by determining that the search was reasonable even assuming Quon had a reasonable expectation of privacy. … Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.” Fair enough. Speaking of prudence: might be wise to keep in mind that employer-issued devices don’t belong to the employee. Oh, and if despite the risks, you find yourself utterly compelled to engage in sex talk while on your employer’s clock, you shouldn’t use the employer’s device to get those kicks. Not unless you want to increase the chances of getting caught. In any event, here’s the operative principle, culled from the O’Connor plurality:

Under the approach of the O’Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]”or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’” the circumstances giving rise to the search. 480 U. S., at 725–726. The search here satisfied the standard of the O’Connor plurality and was reasonable under that approach.

The pager search was undertaken because usage was exceeded contracted-for limits, and there was “a legitimate interest in ensuring that employees were not being forced to payout of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications. … As for the scope of the search … it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the character limits were efficacious.”

From OPD’s perspective, the fact that Quon likely had only a limited privacy expectation, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon’s life. OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been. That the search did reveal intimate details of Quon’s life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters. The search was permissible in its scope.

It follows that the warrantless search need not be the “least intrusive” possible; it need only be reasonable. Finally, the fact that a search might have violated a statute (in this instance, the federal Stored Communications Act), doesn’t make it per se unreasonable.

City of Ripon v. Jonathan Lebese, No. 2009AP2996-FT, District II, 6/16/10

court of appeals decision (1-judge; not for publication); for Lebese: Wendy A. Patrickus; BiC; Resp.

¶13     The circuit court’s “preliminary ruling” was based on the well-established standards of reasonable suspicion. Lebese’s counsel had proffered that the additional defense witness would corroborate Lebese’s account that he swerved in an evasive maneuver to avoid colliding with the car to his right. However, as the circuit court explained, for purposes of a motion to suppress and the reasonable suspicion inquiry, the focus is not on the explanations underlying the conduct the officer observed. Rather, the focus is on whether the officer’s observations leading up to the Terry stop would give rise to reasonable suspicion. See Amos, 220 Wis. 2d at 798-99. Here, the officer testified, and the circuit court found, that he had observed the vehicle swerve onto the yellow centerline and weave within its lane such that it was touching the white dotted line separating lanes of traffic. The circuit court also recognized the early morning hour, 1:30 a.m., as something that the officer had to consider.  In the end, Lebese’s testimony, and the proffered testimony of the witness, as to an innocent explanation for the swerving does not contradict the officer’s testimony that he observed the vehicle swerve nor does it alter any other fact found to support the officer’s reasonable suspicion. Place was not required to rule out the possibility of innocent behavior before initiating a Terry stop. See Anderson, 155 Wis. 2d at 84.

Lebese’s argument was largely procedural: prior to hearing from a witness who would have corroborated Lebese’s version of the incident, the trial court made a “preliminary ruling” as described above in the block quote; this, Lebese says in effect, preempted his due process right to fully present his case. But in this instance, substantive law melds with procedure and on the merits Lebese loses even with the missing witness. Granted that witness wouldn’t have really added anything, it still seems like a pretty minimal basis for a stop. Judge for yourself (¶¶3-5). Weaving a bit within the lane of travel, early in the morning — that’s about it.