On Point

court of appeals decision (1-judge; not for publication); for Dewitt: Thomas E. Hayes; BiC; Resp.

Detention for 90 Minutes not Unreasonable

Stop of motorist Dewitt by officer who, because he was off-duty, could not under departmental rules himself perform arrest, wasn’t unnecessarily prolonged by 90 minute delay until on-duty officer could show up.

¶15 Dewitt has presented no evidence to show that Officer Geffert, or any other Reedsburg police officer, could have arrived any earlier; nor does he argue that it was unreasonable for Officer Johnson to rely on his understanding of county policy in not conducting the field sobriety tests and arrest himself. Finally, Dewitt has not shown that the ninety-minute delay was longer than reasonably needed to accomplish the purpose of the stop. See State v. Vorburger, 2002 WI 105, ¶63, 255 Wis. 2d 537, 648 N.W.2d 829 (seventy-minute detention period not unreasonable where the period of detention related to the procurement and execution of the search warrant); State v. Colstad, 2003 WI App 25, ¶¶17-18, 260 Wis. 2d 406, 659 N.W.2d 394 (it was reasonable for officer to direct defendant to wait thirty to forty-five minutes while officer attended to injured child and investigated the scene); Wilkins, 159 Wis. 2d at 628 (sixty- to eighty-minute detention prior to arrest was reasonable under the circumstances).

¶16 We conclude that it was reasonable for Officer Johnson to detain Dewitt for safety reasons and to avoid breaking department rules by waiting for an available on-duty officer to perform field sobriety tests and arrest Dewitt. The ninety-minute delay, while inconvenient, was “temporary and last[ed] no longer than is necessary to effectuate the purpose of the stop.” Royer, 460 U.S. at 500.

Dewitt drove recklessly, had bloodshot eyes and slurred speech and (as if that weren’t enough) admitted that he had in fact been drinking, ¶¶3-4. The trial court ruled that the off-duty officer had accomplished a de facto arrest, but one supported by probable cause. Sounds about right; but it’s not the route the court of appeals chose. The reasonable-delay analysis exemplifies the permeability of the border between temporary stops and full-blown arrests. “‘Unfortunately, the line between a lawful Terry stop and an unlawful arrest is not bright.’” U.S. v. Vega, 72 F.3d 507, 515 (7th Cir. 1995). The test is so general, e.g., State v. Jermichael James Carroll, 2008 WI App 161, affirmed on other grounds, 2010 WI 8, irreconcilable results are virtually guaranteed over time. Still, it might be wondered why the court of appeals in this instance didn’t just say, as the trial court did, that probable cause was abundant. Perhaps because if you’ve got an arrest, even of the “de facto” variety, then Miranda warnings are required for an admissible statement. Better to encourage temporary-stop conclusions when given an alternative, and dispense with potential Miranda issues — unless you think this take is overly cynical.

State v. Scott R. Jensen, 2010 WI 38, reversing 2009 WI App 26, prior history omitted; for Jensen: Robert H. Friebert; BiC; Resp.; Reply

¶1   … The issue presented is whether Waukesha County Circuit Court is the proper venue for Jensen’s trial because it is the “circuit court for the county where the defendant resides” pursuant to § 971.19(12), or whether Dane County Circuit Court, the circuit court for the county “where the crime was committed,” is the proper venue for his trial pursuant to § 971.19(1).

¶2   We conclude that Wis. Stat. § 971.19(12) establishes Waukesha County Circuit Court as the proper venue for Jensen’s trial because the State’s allegations against Jensen come within two categories of actions described in § 971.19(12). First, the State alleged that Jensen violated a law arising from or in relation “to the official functions of the subject of the investigation.” Second, the State alleged that Jensen violated a law “arising from or in relation to . . . any matter that involves elections . . . under chs. 5 to 12.” …

Efficient summary by the Chief Justice, concurring: “In practical terms, § 971.19(12) provides a special venue rule for certain offenses by public officials: trial in the county of the official’s residence. This venue provision supplants the usual rule of venue, which is of long standing and constitutional stature, that prosecution and trial generally take place where the offense occurred,” ¶56. Also noted: a potential equal protection argument, ¶73 n. 15. But a § 971.19(12) problem may be too obscure to ever cross your desk; even so, this is first and foremost a statutory construction decision, and you’ll want to take stock of the overarching principles bandied about. These include:

1. Punctuation: more specifically, the “serial comma” rule, discussed in some detail by the majority, ¶¶22-23.
2. Particular terms: legislative use of “any” or some form of “involves” signifies intent to apply “broad” meaning to statute, ¶¶29-30.
3. Context: “Statutory interpretation also requires that we examine the statutory language … in the context in which it is used, i.e., in relation to the language of closely-related statutes,” ¶31.
4. Legislative history: consulted to verify plain-meaning interpretation, not just to clarify ambiguity, ¶39, n. 17.

Clear enough, right? Well, the court not so long ago determined that the “serial punctuation” rule wasn’t especially meaningful, Peterson v. Midwest Security Ins. Co., 2001 WI 131, ¶23 n. 7 (“interpreting a legal text is not like diagramming a sentence or correcting an English paper. The rules of grammar and punctuation should not be applied at the expense of a natural, reasonable reading of the statutory language … Here, strict adherence to the ‘rule of the serial comma’ as advocated by the dissent operates to add a substantive requirement to the statute that it otherwise does not contain.”) Rules of grammar are important … except when they’re not. Besides, as the concurrence persuasively argues in effect, the statutory text is so opaque that typical rules of construction have little utility. (¶65: “The first quandary is that the text is grammatically challenged. It cannot be understood as written.”) Meaning is revealed only with detailed recitation, including contemporaneous news accounts, of the enactment’s history. While the statutory text may be irredeemably murky, its “goal of removing certain (but not all) cases involving public officials from prosecution and trial in Dane County to the county of the official’s residence is, however, clear. The legislative findings and history inform the application of § 971.19(12) to the present case,” ¶76. Is the concurrence more deferential to apparent legislative intent than the majority? You be the judge. But the larger lesson is that you ignore secondary sources at your peril.

court of appeals decision (1-judge; not for publication); for Jenkins: Walter Arthur Piel, Jr.; BiC; Resp.; Reply

Search & Seizure – Denial of Motion to Suppress without Evidentiary Hearing

¶2 n.2:

Jenkins’ motion papers were inadequate and the circuit court would have been correct in denying him an evidentiary hearing. All Jenkins filed was a one-page motion with the assertion the officers had looked inside his windows; the motion was not supported by an evidentiary affidavit based upon an affiant’s personal knowledge. Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972), and State v. Garner, 207 Wis. 2d 520, 532-33, 558 N.W.2d 916 (1996), require that a defendant must allege facts in a suppression motion which would entitle him to relief. A court addressing a pretrial suppression motion must

provide the defendant the opportunity to develop the factual record where the motion, alleged facts, inferences fairly drawn from the alleged facts, offers of proof, and defense counsel’s legal theory satisfy the court of a reasonable possibility that an evidentiary hearing will establish the factual basis on which the defendant’s motion may prevail.

Garner, 207 Wis. 2d at 533. Although we could affirm on the grounds that Jenkins was not entitled to an evidentiary hearing, we choose to address the merits because the parties have not briefed the adequacy of Jenkins’ motion.

For the benefit of the bench and bar, we point out that scarce judicial resources can be saved by close scrutiny of a defendant’s pretrial motions to ensure that they meet the threshold requirements of Nelson and Garner.

Lengthy quote provided because the court is clearly trying to convey a message — it is only a matter of time before the opinion is cited by the State for “persuasive” effect, and perhaps manages to find its way into a published, therefore binding, opinion. This is the second single-judge opinion to reach this conclusion recently. For the first, along with a critique, see this post. No need to repeat that critique here, except to say that even if it turns out to be “wrong,” the matter just is not as clear-cut as the court would like to think. That, and the expectation that scarce judicial resources will be conserved by litigating case-by-case the threshold question of whether to hold a suppression hearing could turn out to be a false hope. And that’s before the inevitable cascade of ineffective-assistance litigation.

Warrantless Entry – Exigent Circumstances

Exigent circumstances justified warrantless entry into Jenkins’ curtilage, given ample reason to think Jenkins had just been involved in a hit-and-run, was intoxicated, was inside the residence and could have himself sustained a head injury, ¶¶11-20. State v. Leutenegger, 2004 WI App 127, controlling.

court of appeals decision (1-judge; not for publication);  for Miske: Sarvan Singh; BiC; Resp.

Terry Stop – Voluntary Encounter

A voluntary encounter, rather than Terry stop, occurred where Miske came to a stop when approaching two squads flanking “an unlit back country road” at 1:00 a.m.:

¶12      When Miske and his partner stopped, they were on a narrow road, two DNR vehicles were parked on one side of the road and a sheriff’s squad with its emergency lights flashing was parked on the opposite side, leaving a narrow, eight to ten foot gap; also, in front of the squad, Wimmer was engaged with the motorcyclist he had stopped earlier. Miske and his partner did not stop in response to a visible or audible signal to stop.[5] Rather, the situation created two choices: either turn around or stop. Miske and his partner were free to do either; they voluntarily chose to stop.

At the suppression hearing, the State conceded and the trial found that a Terry stop had occurred, ¶¶2, 9. As the court of appeals indicates, it isn’t bound by either the concession or the trial court’s conclusion, ¶9 nn. 3, 4. Nonetheless, rejecting both ought to be accompanied by a certain amount of caution — or so you might think. But the court doesn’t trouble itself to so much as articulate the test for existence of a seizure, perhaps perceiving the matter too blatantly obvious for discussion. Not so. Seizure occurs with either “a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful,” or submission to “a show of authority.” California v. Hodari D., 499 U.S. 621, 626 (1991). The latter is the one relevant here. “[T]he test for existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” Id. at 628. It’s 1 a.m. on a back road. Officers have blocked off travel. As the court puts it, Miske’s choices are stark: stop or turn around. But it’s not as if it’s an urban area with alternative routes. Let’s say it again, it’s an unlit back country road and the choice to “turn around” might not be a choice in the sense that it means going many miles out of your way to get to your destination if at all. To top it off, the officer “motioned … that he wanted to speak to [Miske],” a fact mentioned but in passing, ¶6. Was that not a “show of authority”? All in all, the court’s “discussion” leaves much to be desired. Was Miske seized before he was questioned? How would you have applied facts to applicable law?

The court’s ensuing discussion, whether the officers’ questioning fulfilled the “public interest” consideration of officer safety is both confusing and gratuitous, ¶¶13-17. Is the court saying that the questioning amounted to a seizure, but reasonably so? Probably not, but it isn’t clear. In any event, if the interaction were truly consensual, as implied by the conclusion that Miske’s voluntarily stopped, then the questioning didn’t have to be supported by reasonable suspicion nor justified by “public interest.”

court of appeals decision (1-judge; not for publication); pro se; Resp. Br.

Custody Requirement, sec. 974.06

¶7        However, Olson is barred from collaterally attacking his criminal conviction under Wis. Stat. § 974.06 because he is no longer “‘in custody under sentence of a court.’”  See State v. Theoharopoulos, 72 Wis. 2d 327, 329, 240 N.W.2d 635 (1976) (quoting § 974.06 and recognizing that circuit court lacks jurisdiction to consider a motion for postconviction relief brought under § 974.06 if the defendant has completed his sentence).  Here, it is undisputed that at the time Olson filed his motion on September 25, 2009, his sentences had been completed.[5] Therefore, the circuit court lacked competency[6] to consider Olson’s motion under Wis. Stat. § 974.06.

[5] Olson is currently serving a different prison sentence for other crimes.  That, however, does not qualify him to seek relief from his convictions under Wis. Stat. § 974.06 in the instant case.  See State v. Bell, 122 Wis. 2d 427, 430-31, 362 N.W.2d 443 (Ct. App. 1984) (under § 974.06, a court has competency to proceed only when the claimant is still “in custody under the sentence he desires to attack”).

[6] As the State notes, many similar cases involving the application of Wis. Stat. § 974.06 speak in terms of a loss of jurisdiction.  However, it is more accurate to say that a circuit court loses competency to proceed.  See Green County Dep’t of Human Servs. v. H.N., 162 Wis. 2d 635, 655-56, 469 N.W.2d 845 (1991).

The court’s quote to, and reliance on, Bell may be a bit misleading: if the “different prison sentence” were running consecutive to the challenged conviction, then Olson would be “in custody” under it. Garlotte v. Fordice, 515 US 39 (1995):

… Following Peyton, we do not disaggregate Garlotte’s sentences, but comprehend them as composing a continuous stream. We therefore hold that Garlotte remains “in custody” under all of his sentences until all are served, and now may attack the conviction underlying the sentence scheduled to run first in the series.

But Olson has indeed completely discharged from custody on the challenged case, so the quoted principle is inapplicable.

State v. David D. Ramage, 2010 WI App 77; for Ramage: Jevin J. Mulrooney; BiC; Resp.; Reply

Co-tenant’s permissive use of Ramage’s computers conferred on her authority to consent to warrantless police removal of computer and search of their contents. Contrary authority, People v. Blair, 748 N.E.2d 318 (Ill. App. Ct. 2001); State v. Lacey, 204 P.3d 1192 (Mont. 2009), distinguished:

¶12 As Matlock notes, enforcement of a valid third-party consent stems from the property owner’s relinquishment of his or her Fourth Amendment right to privacy in the property by virtue of the third party’s relationship with the property and the owner: “The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements.” Matlock, 415 U.S. at 172 n.7. The attempt by Blair and Lacey, therefore, to restrict valid third-party consents only to searches does not wash. See United States v. James, 571 F.3d 707, 714 (7th Cir. 2009) (applying to a “seizure” the law governing valid third-party consents to searches) (safe taken from residence; subsequent search warrant authorized opening the safe); State v. Guthrie, 627 N.W.2d 401, 423 (S.D. 2001) (third party with “common authority” over the defendant’s personal property may validly consent to the property’s seizure) (third party brought the property to law enforcement).

¶13 … Folger’s agreement that the detective could take the computers out of the apartment so they could be subject to what the pre-printed form referred to as a “complete search,” and what the detective testified was “further analysis” gave the detective the right under the Fourth Amendment to do what he did.

In the court’s view, the contrary Illinois and Montana cases represent a “crabbed reading of the scope of a valid third-party consent,” ¶10. The court sums it up thusly: “the scope of Folger’s admittedly valid consent to examine and access the computers carried over to where the computers were accessed once the detective took them to the police department,” ¶15. The third-party consent doctrine is based on assumption of risk — by granting use to another, the owner assumes the risk that that person will let still others inspect the property. But assuming the risk that the permissive user will cart the property away? Isn’t that going a bit far? Nonetheless, granting that the court is correct, the crucial factual underpinning is not just that Folger had permission to use the computers, but that they weren’t password protected, ¶2. The circuit court stressed just this fact in denying suppression, ¶6, but the court of appeals’ analysis oddly doesn’t mention it. Here, for example, is a relatively recent law review discussion on the point:

The presence of password-protected files is an important consideration in assessing a third party’s authority to consent. For example, in Trulock v. Freeh, 236 the court held that a resident of a townhouse, Conrad, could not authorize the search of password-protected files of another resident, Trulock, on a computer that was jointly used when Conrad did not have access to the passwords. The court reasoned by analogy to the case of a mother who was found not to have authority to consent to the search of a locked footlocker in her son’s room, which was located in a home they shared, and added: “By using a password, Trulock affirmatively intended to exclude Conrad and others from his personal files.” 237 On the other hand, the lack of passwords to protect files has been held to defeat a claim that the defendant had exclusive control of a computer and that his housemate did not have authority to consent to search. 238

75 Miss. L.J. 193, 256-258.

Somewhat different principle (joint owner can’t object to co-owner’s consent to search computer), but assumption-of-risk discussion relevant, United States v. King, 3d Cir. No. 09-1861, 4/30/10 (“A computer is a personal effect, see, e.g, Andrus, 483 F.3d at 718-20 (analogizing a computer to a container). Therefore, we apply the Matlock rule and ask whether King relinquished his privacy in the hard drive with respect to Larkin.”)

U.S. v. Comstock, USSC No. 08-1224, 5/17/10

The federal scheme for detaining the equivalent of ch. 980 sexually violent persons beyond release date from federal prison, 18 U.S.C. § 1848, is a valid exercise of Congressional authority under the Necessary and Proper clause. In reaching this conclusion, the Court “assume(s), but we do not decide, that other provisions of the Constitution—such as the Due Process Clause—do not prohibit civil commitment in these circumstances.” Some highlights:

Second, the civil-commitment statute before us constitutes a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades. …

Here, Congress has long been involved in the delivery of mental health care to federal prisoners, and has long provided for their civil commitment. …

… Aside from its specific focus on sexually dangerous persons, §4248 is similar to the provisions first enacted in 1949. Cf. §4246.In that respect, it is a modest addition to a longstanding federal statutory framework, which has been in place since 1855.

Third,  … If a federal prisoner is infected with a communicable disease that threatens others, surely it would be “necessary and proper” for the Federal Government to take action, pursuant to its role as federal custodian, to refuse (at least until the threat diminishes) to release that individual among the general public, where he might infect others (even if not threatening an inter-state epidemic, cf. Art. I, §8, cl. 3). And if confinement of such an individual is a “necessary and proper” thing to do, then how could it not be similarly “necessary and proper” to confine an individual whose mental illness threatens others to the same degree?

Yeah, a communicable disease is exactly the same as a made-up “mental illness.” Just call the scheme what it is, preventive detention; now, that would be the “necessary and proper” thing to do.