On Point

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

Issue/Holding: Warrantless entry of residence is supported when the State demonstrates both probable cause and exigent circumstances, ¶7. Exigent circumstances include: (1) hot pursuit of suspect; (2) threat to someone’s safety; (3) risk of evidence destruction; and (4) likelihood suspect will flee, ¶9.

The court goes on to collapse the 2^nd and 3^rd categories of exigencies, in that “a threat to safety also implicates … the destruction of evidence,” ¶10 n. 5. More particularly, the court essentially holds that during a destruction-of-evidence entry the police may conduct a “protective sweep”—activity which is clearly appropriate incident to arrest but unsettled beyond that specific context.

State v. Mitchell A. Lange, 2009 WI 49, reversing unpublished opinion
For Lange: Steven M. Cohen

Issue/Holding:

¶2       We are asked to determine whether a law enforcement officer complied with the Fourth Amendment to the United States Constitution when obtaining a blood sample from the defendant without a warrant to do so. Our prior cases establish that a warrantless blood sample taken at the direction of a law enforcement officer is consistent with the Fourth Amendment under the following circumstances: “(1) the blood draw is taken to obtain evidence of intoxication from a person lawfully arrested for a drunk-driving related violation or crime, (2) there is a clear indication that the blood draw will produce evidence of intoxication, (3) the method used to take the blood sample is a reasonable one and performed in a reasonable manner, and (4) the arrestee presents no reasonable objection to the blood draw.” ^[3]

State v. Brian K. Goodson, 2009 WI App 107
For Goodson: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶9        Objective bias can exist in two situations. The first is where there is the appearance of bias, Gudgeon, 295 Wis. 2d 189, ¶¶23-24. “[T]he appearance of bias offends constitutional due process principles whenever a reasonable person—taking into consideration human psychological tendencies and weaknesses—concludes that the average judge could not be trusted to ‘hold the balance nice, clear and true’ under all the circumstances.”Id. , ¶24 (citation omitted). Thus, the appearance of partiality constitutes objective bias when a reasonable person could question the court’s impartiality based on the court’s statements. Id.,¶26; Rochelt, 165 Wis.  2d at 378. The second form of objective bias occurs where “there are objective facts demonstrating … the trial judge in fact treated [the defendant] unfairly.”State v. McBride, 187 Wis.  2d 409, 416, 523 N.W.2d 106 (Ct. App. 1994) (citation and internal quotation omitted). Goodson argues both forms of objective bias are present here.

State v. Brian K. Goodson, 2009 WI App 107
For Goodson: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: The reconfinement judge should have recused himself, given that at original disposition he threatened to impose the maximum if the defendant was returned to court on revocation; State v. Gudgeon, 2006 WI App 143, deemed controlling:

¶12      The same analysis applies here. At the initial sentencing, the court assured Goodson it was “not kidding” about its commitment to impose the maximum sentence if Goodson violated his supervision rules. Later in the hearing, the court repeated the warning: “[A]s I have told you, you do one deviation from these rules, and you are going to come back here, and you are going to get the maximum.” The court then reminded Goodson yet again at the first reconfinement hearing what would happen if he violated the rules.

¶13      Here, the court unequivocally promised to sentence Goodson to the maximum period of time if he violated his supervision rules. A reasonable person would conclude that a judge would intend to keep such a promise—that the judge had made up his mind about Goodson’s sentence before the reconfinement hearing. This appearance constitutes objective bias.

…

¶17      A court may certainly tell a defendant what could happen if his or her extended supervision is revoked. But telling a defendant what will happen imperils the defendant’s due process right to an impartial judge at a reconfinement hearing. Our jurisprudence eschews the notion that a court may determine a sentence without scrutinizing individual circumstances. See McCleary v. State, 49 Wis. 2d 263, 271, 182 N.W.2d 512 (1971). This prohibition is not implicated when a judge “merely express[es] a general opinion regarding a law at issue in a case before him or her.” McCaughtry, 398 F.3d at 962. But “when a judge has prejudged … the outcome,” the decision maker cannot render a decision that comports with due process. Id.

The court goes on to attempt to reconcile a seeming split in caselaw, ¶¶14-16, namely “that while some cases hold apparent bias is sufficient to show objective bias, other authority holds actual bias is required.” The court derives a synthesis by holding that either actual bias or “great risk” thereof is required. In this case, the court concludes with respect to the trial court’s statement re “the agreement you and I had back at the time you were sentenced”: “There could not be a more explicit statement confirming that the sentence was predecided. This is definitive evidence of actual bias.” Remains to seen how far the “great risk” envelope can be pushed.Point of interest: No contemporaneous request for recusal was made; in other words, the issue was first raised by appellate counsel on postconviction motion. Apparently, then, the court of appeals must have seen the need for recusal either as so compelling to require sua sponte action or as so fundamental as to not be waivable. Nonetheless, keep in mind that the court did not discuss the issue in these terms, indeed did not discuss the impact of failure to object at all. You will have to make of that what you will.

State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell

Issue/Holding¹: Viewing of memory stick, concededly obtained in “private” search not covered by 4^th amendment, ¶13 n. 6, by off-duty police lieutenant who was defendant’s brother-in-law, was not a “government search”:

¶14      “Private searches are not subject to the Fourth Amendment’s protections because the Fourth Amendment applies only to government action.” State v. Payano-Roman, 2006 WI 47, ¶17, 290 Wis. 2d 380, 714 N.W.2d 548. …

…

¶16      Based on the findings of fact adopted by the trial court, when Bolender was given the memory stick, he was off-duty and went to Lisa’s home after receiving a call that she was upset about something having to do with his niece, Brittany. Bolender came into the situation being “on Todd[ Berggren]’s side,” as Berggren was someone he knew and trusted. Bolender “thought that this was probably a situation where something had been blown out of proportion.” He “never thought that the memory stick might contain the kind of pictures he observed” and “[h]e never thought that the pictures would contain evidence of a crime.” Bolender first tried to view the pictures on Lisa’s computer, which was in an open area of the house such that, if the memory stick had worked with Lisa’s computer, everyone present, including Cynthia and other children, would have been able to view the pictures.

¶17      We conclude that the viewing of the photographs by Bolender did not meet the requirements under Payano-Roman for a government search. First, despite the fact that Bolender was a lieutenant for the Oak Creek Police Department, his actions were not instigated by the police. Second, his actions were taken in his capacity as Brittany’s uncle; he acted in the interest of his family when he viewed the photographs that Brittany described as “nasty.” Finally, nothing in the record suggests that Bolender acted “‘for the purpose of assisting governmental efforts.’” See Payano-Roman, 290 Wis. 2d 380, ¶18 (citation omitted).

The result is fact-driven, the court expressly noting that it is “based on our deferential review of the trial court’s factual findings,” ¶18.

Issue/Holding²: “(S)ubsequent viewing” of memory stick by the police didn’t exceed the scope of the private search, therefore didn’t violate the 4^th amendment:

¶19      Berggren next contends that he had a clear expectation of privacy in the contents of the memory stick. Because we concluded that Bolender was acting in a private capacity and not in an official capacity when he viewed photographs on the memory stick, Berggren’s privacy expectations only become relevant insofar as they relate to the subsequent viewing of the photographs by the Oak Creek police officers. See United States v. Jacobsen, 466 U.S. 109, 113 (1984) (explaining the Fourth Amendment’s protection “as proscribing only governmental action; it is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official’”) (citation omitted).¶20      After an initial invasion of privacy by private action, “additional invasions of … privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search.” Id. at 115. Following the viewing of the photographs through the private actions of Brittany and Bolender, Berggren no longer had an expectation of privacy subject to Fourth Amendment protections. The subsequent viewing by Oak Creek police officers was not an additional search subject to the warrant requirement as it did not exceed the scope of the private searches that preceded it. Seeid. at 117 (“Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information.”). As a final matter, we need not address Berggren’s contention that Bolender’s authority to possess the memory stick was distinct from his authority to view its contents, as this argument also only becomes relevant if we had concluded that Bolender was acting in an official capacity. See Walter v. United States, 447 U.S. 649, 654 (1980) (“[I]t has been settled that an officer’s authority to possess a package is distinct from his authority to examine its contents.”); see also Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (unnecessary to decide nondispositive issues).

State v. Paul Anthony Butler, 2009 WI App 52, PFR filed 4/20/09
For Butler: Trisha R. Stewart Martin

Issue/Holding: Seizure and detention by security guard, until police arrived to conduct search, didn’t amount to government action so as to trigger 4^th amendment analysis, under 3-factor test of State v. Tomas Payano-Roman, 2006 WI 47:

¶14      As we see from Butler’s submissions that are in the Record, none of the elements of state-action identified by Payano-Roman is present here. First, the security guard acted entirely on his own—nothing he did in detaining and initially searching Butler was instigated by the police. Second, as a Chuck E. Cheese security guard, it was in his interest and in the interest of his employer to keep the restaurant’s parking lot safe for other drivers and pedestrians. Third, there is no evidence in the Record or in Butler’s offer-of-proof that indicates that the security guard’s detention and initial search of Butler was “‘for the purpose of assisting governmental efforts.’” See id., 2006 WI 47, ¶18, 290 Wis. 2d at 390, 714 N.W.2d at 553 (quoted source omitted). Finally, what the security guard did in detaining and initially searching Butler was not part of some “joint endeavor” with law enforcement. See id., 2006 WI 47, ¶19, 290 Wis. 2d at 390, 714 N.W.2d at 553. Thus, nothing the security guard did violated Butler’s Fourth Amendment rights against unreasonable searches and seizures.

The security guard detained, searched and handcuffed Butler for driving recklessly on company property (over 40 in parking lot). The guard then called the police because Butler was wearing an empty gun holster, so the guard thought Butler had a gun. The police searched the car and found a loaded hand gun in the glove compartment. It’s almost pointless to add that Butler was a felon. That the “detention and initial search” was not a “joint endeavor” appears to be relatively non-controversial. But that initial interaction yielded no evidence, so in that sense it’s also irrelevant. The real question ought to be whether Butler’s continued detention for the express purpose of assisting a police investigation triggered the 4^th A. The court simply doesn’t address that narrow issue, at least not explicitly. If cuffing and holding someone precisely so the police can come and conduct a search isn’t some sort of “joint endeavor” then it’s hard to imagine what might. And, if the court is correct in its sweeping statement (“nothing the security guard did violated Butler’s Fourth Amendment rights”), then what would stop some future security guard from conducting the search him or herself? This is to say that perhaps the court was simply addressing the narrow question being litigated (whether the “detention and initial search” involved state action), and not the distinct question of continued detention.

Separately: Does it matter that the guard (presumably) was licensed under § 440.26; does a state license help establish, well, state action? (The court doesn’t address the question.) Detailed discussion on the general problem of private guards in relation to state action: LaFave, Search & Seizure, § 1.8(d) (caselaw, to be sure, seems overwhelmingly to exempt private guards from state-action analysis; but there are arguments to the contrary, besides which Butler’s case is a bit different from the mine-run case, in that he was detained by a guard for the express purpose of allowing the police to perform a search).

What about Dog the Bounty Hunter? OK, not quite that Dog, but generically speaking, if the following case is representative, then a bounty hunter isn’t a “state actor,” at least when acting “without the assistance of law enforcement and for (his) own pecuniary interests”: U.S. v. Poe, 10th Cir No. 07-6237, 3/3/09.

State v. William Allen Wisth, 2009 WI App 53, PFR filed 4/29/09
For Wisth: Jeremy Perri, SPD, MilwaukeeAppellate

Issue/Holding: Defendant not entitled to request substitution of judge assigned to sentencing following revocation; § 971.20(5) is limited to pre-guilt phases:

¶14   We conclude that the plain meaning of Wis. Stat. § 971.20(5) is that substitution is permitted only prior to trial. When the issue of guilt or lack of guilt is resolved, a criminal “trial” is complete for purposes of this statute. Section 971.20(5) did not provide authority for Wisth to seek a substitution prior to his sentencing after revocation. Therefore, we affirm the judgment.

Relatively detailed discussion of statutory history, ¶¶10-13, supporting “legislative intent to limit substitutions of newly assigned judges to requests prior to trial.”