On Point

State v. Antonio K. Phillips, 2009 WI App 179, PFR filed 11/25/09
For Phillips: Michael J. Backes

Issue/Holding: Warrantless entry of residence, following controlled buy within it, was justified by the threat of destruction of evidence, given that, “after seeing the police outside the residence, Phillips retreated into the residence and shut the door after the police ordered him to stop,” ¶11. State v. Vanessa D. Hughes, 2000 WI 24; and State v. Edward Garrett, 2001 WI App 240, followed, as to idea that knowledge of police presence incentivizes imminent destruction of contraband.

Elephant in the room: “knock and talk.” After the controlled buy inside the house, the police determined to follow through with a knock and talk rather than a warrant. To their good fortune, Phillips happened to be in view, in the doorway, and when he saw them he retreated inside. He argues on appeal that the police thus created their own exigency, but the court holds that Phillips himself created the exigency by retreating inside; therefore, the court “need not delve into the” propriety of the knock and talk strategy, ¶11.

Interesting dissent, ¶¶20-30, which essentially makes the point that the knock and talk strategy was unreasonable in the first place, that its purpose of circumvent the warrant requirement. Nonetheless, the majority usefully catalogs a severe split among federal circuits on “whether the police impermissibly create exigent circumstances by knocking on the door,” ¶11 n. 5. Indeed, this is a recurrent issue—and, for those keeping score at home, whenever mention is made of a deep split among the circuits, think: “cert-worthy.” For a recent example of just how enthusiastically the police sometimes employ the practice, see Hardin v. State, 2009 Fla. App. LEXIS 15198 (Fla. 2d DCA October 9, 2009) (consent following knock and talk deemed coercive on somewhat extreme facts).

Incidentally, the fact that Phillips was standing in his doorway, not outside the house, when he spotted the police is irrelevant to the analysis, ¶19 n. 9. It’s a destruction-of-evidence, not hot pursuit, case, ¶19. Hard to see, though, how Phillips’ placement in the threshold of the doorway makes any difference anyway, so long as he was exposed to public view, United States v. Santana, 427 U.S. 38 (1976).

State v. Kevin Raphael Lee, 2009 WI App 96, PFR filed 7/1/09
For Lee: Robert E. Haney

Issue/Holding: Police investigating complaint of drug dealing were entitled to enter apartment and conduct “protective sweep” when they saw, through the open front door, clear evidence of drugs:

¶13      The officers who presented themselves at Lee’s front door were investigating a complaint of drug activity at Lee’s address. After gaining entry to the common area of the building by virtue of the consent given by the occupant of the downstairs unit, ^[7] they came upon the open front door of Lee’s apartment, with drugs in plain view inside. Officer Scott Iverson testified that the door to the apartment was “wide open” at a ninety degree angle. He stated further that “[w]e yelled Milwaukee police and there was no answer and we did it again….” Iverson also testified that “[w]e did a protective sweep to make sure there wasn’t anybody in there.” Officer Phillip Simmert, who responded with Iverson to Lee’s residence, testified that after the officers received no response when they announced their presence, they “cleared the unit to make sure nobody was hiding, [sic] jump out on us.”

¶14      We conclude that these facts would allow a reasonable police officer to believe that entry into Lee’s apartment in order to perform a protective sweep was necessary due to a potential threat to the officers’ safety. In light of the wide open door, the officers could reasonably believe that someone was likely inside. People do not customarily leave the front door to their residences open when they leave, especially when illegal narcotics are easily seen through the open door. The officers announced their presence and received no response. From this, the officers could reasonably believe that persons inside the apartment were aware that police officers were outside the open door, that controlled substances and other evidence of criminal activity were visible to the officers, that the occupants were the subject of police suspicion, and that a raid may be imminent. The officers could also reasonably believe that the occupants were, under these circumstances, nervous and agitated, and would take the steps necessary to evade apprehension.

¶15      Further, the officers could reasonably believe that the occupants were connected with drug activity and may be dangerous. Felony drug investigations may frequently involve a threat of physical violence and the likelihood that evidence will be destroyed. …

Protective sweep doctrine, in other words, extended beyond incident-to-arrest to destruction-of-evidence context. State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997), distinguished, ¶¶17-19: Kiekhefer possessed a large quantity of drugs, minimizing the potential for evidence destruction; and, there was no indication he was aware of the police presence, minimizing the potential threat to their safety.

State ex rel. David C. Myers v. Smith, 2009 WI App 49

Pro se

Issue/Holding: Writ of certiorari “misdirected” to wrong respondent (in this instance, review of inmate complaint, improperly naming as respondent institution warden rather than DOC Secretary or designee) must be dismissed:

¶10      We begin by observing that certiorari “is available only for the purpose of reviewing a final determination.” Id., ¶12. The writ must be directed “to the board or body whose acts are sought to be reviewed, otherwise the court cannot obtain jurisdiction either of the subject-matter or of the persons composing such board or body.” State ex rel. Kulike v. Town Clerk of Town of Lebanon, Dodge County, 132 Wis. 103, 105, 111 N.W. 1129 (1907). The final decision-making authority for an inmate complaint is identified by reference to the administrative code provisions.¶11      … [T]he DOC secretary is the final decision maker on an inmate complaint initiated under the ICRS.

¶12      We understand that, particularly for a pro se appellant, some sections of the administrative code may be difficult to navigate. Myers, however, appears to have followed the procedures and obtained a final determination by the secretary’s designee as envisioned by the code. He initiated a complaint using the ICRS, he was dissatisfied with the ICE’s determination, he sought review, a CCE reviewed the determination and recommended that the secretary approve the decision, and the secretary ^[3] adopted the CCE’s recommendation. Myers has not made, nor could he reasonably support, an argument that he did not know the final decision maker was the secretary. Accordingly, we affirm the order of the circuit court, which dismissed the petition for lack of jurisdiction because the writ was misdirected. See Kulicki, 132 Wis. at 105; Grzelak, 263 Wis. 2d 678, ¶12.

State ex rel. David C. Myers v. Smith, 2009 WI App 49

Pro se

Issue/Holding: Inmate may not utilize discovery to bypass security-based restrictions on access to banned material such as pornography:

¶16      Inmates must not be allowed to evade security restrictions by simply filing suit or petitioning for writ of certiorari and obtaining prohibited materials through discovery. Due process does not mean that a prisoner has an absolute right to everything relevant to his or her case. See Bell v. Wolfish, 441 U.S. 520, 545-46 (1979) (lawful incarceration necessitates the withdrawal or limitation of many rights). “There must be a ‘mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.’” Id. at 546 (citation omitted). Materials banned to further legitimate penological interests are properly withheld. See Aiello v. Litscher, 104 F. Supp. 2d 1068, 1075 (W.D. Wis. 2000). Myers’ right to due process was satisfied when an independent entity, here the circuit court, reviewed whether the DOC decision to deny him access to the book was arbitrary and capricious. Cf. George v. Smith, 467 F. Supp. 2d 906, 921 (W.D. Wis. 2006) (where in camera inspection by court confirmed DOC decision was neither arbitrary nor irrational when it banned material as prohibited gang-related publication).

State v. Cleveland R. Tidwell, 2009 WI App 153, PFR filed 10/9/09
For Cleveland: Jeremy C. Perri, SPD, Milwaukee Appellate

Issue/Holding: Evidence held sufficient to sustain conviction for attempted theft from person, where Tidwell demanded money from a restaurant clerk, hit his fist on cash register and fax machine next to cash register, and tried to grab and take the fax machine:

¶10   In the case at bar, Tidwell contends that the facts of this case are not “circumstances which made stealing particularly dangerous and undesirable.” Hughes, 218 Wis. 2d at 545. We disagree. Here, Tidwell approached Rondeau while she was behind the cash register counter and demanded money. The counter was very narrow and had only one entrance which was blocked by Tidwell, leaving Rondeau trapped in a small area within arms reach of Tidwell. When Rondeau did not immediately give Tidwell the money, he began smashing the fax machine and cash register with his fists, becoming louder and louder in his demands for the money.¶11   Tidwell even tried to grab the fax machine and a brief tug of war ensued between he and Rondeau before it was released. These actions caused Rondeau to be legitimately “upset; shaking and scared.” Tidwell’s actions, the shouting, the grabbing of the fax machine, and the pounding on the fax machine and cash register, are “the type of ‘particularly dangerous and undesirable’ actions to which theft from the person should apply.” See Graham, 237 Wis.  2d 620, ¶10. We conclude that there is sufficient evidence to allow a reasonable jury to find beyond a reasonable doubt that Tidwell was guilty of theft “from the person.”

The court also concludes that Rondeau had constructive possession of the restaurant’s property, hence the attempted theft was of his “person,” ¶12. Compare, Byrd v. Israel, 513 F. Supp. 1077, 1082 (E.D. Wis. 1981) (holding that “it was the store rather than its employees that were robbed”: “‘Although an allegation that the property taken was owned by one person and proof that it was owned by another may give rise to a fatal variance in larceny cases, the rule is otherwise as to robbery, (because) a taking by force or putting in fear is the gist of the offense.’ 67 Am.Jur.2d Robbery § 66 (1973) (footnotes omitted). See Walton v. State, 64 Wis.2d 36, 41-42, 218 N.W.2d 309 (1974). It matters less that the property belonged to a particular owner than that it belonged to someone other than the robber. See State v. Bowden, 62 N.J.Super. 339, 162 A.2d 911 (1960).”). It does seem as if the offense could have been charged as attempted robbery of the restaurant, and the net result is that the court of appeals has blurred the distinction between theft and robbery.

State v. Dana Eaglefeathers, 2009 WI App 2, PFR filed 1/9/09
For Eaglefeathers: Patricia A. Fitzgerald

Issue/Holding: Violation of the same condition in a single bond applicable to two different cases (failure to appear at both preliminary hearings scheduled for the same time and court) supports multiple bail jumping charges:

¶8        The parties do not dispute that the offenses charged against Eaglefeathers are identical in law; he was charged with two violations of the same statute, Wis. Stat. § 946.49. Rather, the dispute is over whether the offenses are identical in fact.  Offenses are different in fact if the offenses “are either separated in time or are significantly different in nature.” State v. Stevens, 123 Wis.  2d 303, 322, 367 N.W.2d 788, cert. denied, 474 U.S. 852 (1985). The test for whether offenses are significantly different in nature “is whether each count requires proof of an additional fact that the other count does not. The offenses are significantly different in nature if each requires a new volitional departure in the defendant’s course of conduct.” Anderson, 219 Wis.  2d 739, ¶20 (citations omitted).…

¶11      An offense is different in nature from another offense when it requires proof of a fact that the other offense does not.  Anderson, 219 Wis. 2d 739, ¶20. As the circuit court explained, each count of bail jumping associated with each case would require separate proof by the State. The State would be required to prove that the court notified Eaglefeathers of the preliminary hearing in each case, and that Eaglefeathers failed to appear in each case. Proof of notification and failure to appear in one case would not prove notification and failure to appear in the other. As a result, the two charges were significantly different in nature and therefore were different in fact for purposes of double jeopardy analysis.

The court goes on to say that the resulting presumption of legislative intent to impose cumulative punishments in this context isn’t rebutted, ¶¶15-18. But: “separate” proof? The conditions were contained in a single bond compelling an appearance at prelims “scheduled for the same time” (¶1). In other words, the cases were consolidated as a functional if not formal matter; and, even if that overstates the matter, how would it have been possible for Eaglefeathers to appear at the one but not the other? In the somewhat stilted language of the test: “each requires a new volitional departure in the defendant’s course of conduct”; how is it remotely possible to intentionally fail to appear at one hearing but not the other, when they’re both scheduled for the same time and place? The court doesn’t quite get around to saying, but instead merely asserts: “Proof of notification and failure to appear in one case would not prove notification and failure to appear in the other.” Sorry, but that’s just not a self-evident proposition. At least it wasn’t before, but perhaps it is now, but only because of judicial fiat suspending elementary laws of physics – in this instance, presuming that someone can be in two different places at the same time.

State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion
For Ferguson: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Where it was clear not only that Ferguson obstructed the police outsideher apartment but also that the jury so found, arguable omission of a “complete” instruction on whether the police acted with lawful authority in entering her apartment was harmless:

¶43      The jury instruction here was a correct statement of the law for police actions outside of Ferguson’s home. Therefore, although one may argue that the jury instruction was incomplete because it did not instruct on exigent circumstances, it did instruct relative to the actions of the police in arresting Ferguson once they were outside of her home where she continued her resistive course of conduct.¶44      It is true that a jury instruction that is incomplete, but is in all other respects a correct statement of the law, may be erroneous. See State v. Perkins, 2001 WI 46, ¶43, 243 Wis. 2d 141, 626 N.W.2d 762 (concluding that the jury instruction was erroneous because it failed to adequately define the element of “threat” for the offense of intentional threat to a judge); see also Rose v. Clark, 478 U.S. 570, 579-80 (1986) (explaining that a jury instruction was erroneous because, while it did instruct the jury on the “malice” element of the charged offense, it erroneously shifted the burden of proof). However, here any incompleteness in the instruction did not fail to define lawful authority.

¶45      Based on the test set forth in Harvey, we conclude that if the failure to instruct the jury on exigent circumstances was error, it was harmless. UnderHarris, the police were acting with lawful authority in continuing their arrest of Ferguson as they escorted her down the apartment building stairway and placed her in the squad car. Ferguson did not discontinue her resistive conduct when police removed her from her home. As a result, we can conclude that if the jury had been instructed on exigent circumstances as well as the instruction given, it is clear beyond a reasonable doubt that the jury would have convicted Ferguson of obstruction. Harvey, 254 Wis.  2d 442, ¶48.

The underlying rationale is spelled out a bit more clearly by the 3-Justice concurrence:

¶63      I conclude, however, that even if the entry and arrest for disorderly conduct were unlawful, the obstructing was sufficiently separate in time and location from any potentially unlawful conduct by the police. See State v. Annina, 2006 WI App 202, ¶11, 296 Wis. 2d 599, 723 N.W.2d 708 (citing with approval United States v. Bailey, 691 F.2d 1009, 1017-18 (11th Cir. 1982)) (“[T]he police may legally arrest a defendant for a new, distinct crime, even if the new crime is in response to police misconduct and causally connected thereto.”).