On Point

State v. Jonathan W. Nawrocki, 2008 WI App 23
For Nawrocki: Scott D. Obernberger

Issue/Holding:

¶2        The issue presented in this case is whether a showup identification is necessary, thus meeting the first test of admissibility under Dubose, when probable cause exists to justify an arrest of a suspect, but it does not exist on the particular offense under investigation. ^[3] We conclude that whenever probable cause exists to justify detention of a suspect, regardless of whether it exists on the offense under investigation, a showup identification is not necessary within the meaning of Dubose.¶3        Because it is undisputed that officers, while lacking probable cause to arrest Nawrocki on the offense under investigation, had probable cause to arrest him on another offense, we conclude the showup was not necessary and was thus inadmissible underDubose. We therefore reverse the circuit court’s order denying Nawrocki’s motion to suppress evidence of the showup identifications. However, we remand for the circuit court to determine whether the victim’s in-court identification was based on an untainted, independent source, and for further proceedings that may be necessary consistent with this opinion.

All the rest is commentary. The parties agreed that the police had probable cause to arrest Nawrocki for various possible offenses but not the offense for which they obtained a show-up ID, ¶23. Dubose,2005 WI 126, ¶33, says there must be some necessity for use of the show-up procedure (such as that “the police lacked probable cause to make an arrest”) and the question therefore becomes whether they need probable cause for this offense, or whether any old offense will do. The court of appeals says it’s the latter:

¶26      We observe that the absence of probable cause makes a showup procedure necessary because officers lack a legal basis to detain the person and thus cannot acquire identification evidence by another, less suggestive procedure, such as a lineup or photo array. Id. Stated differently, a showup is necessary when officers lack other constitutional means to obtain a suspect’s identification. However, where probable cause exists, whether it is related to the offense under investigation or some other offense, officers have the constitutional means to detain the suspect and secure an identification using a procedure that is less conducive to misidentification. We therefore conclude that a showup is unnecessary and thus inadmissible under Dubose when probable cause exists to justify an arrest, regardless whether it exists on the particular offense under investigation.^[8]¶27      The State’s narrow interpretation of the necessity test runs counter to the purposes of Dubose. The supreme court in Dubose established a rigorous test for the admissibility of showup identification evidence grounded in the due process guarantees of Article 1, Section 8 of the Wisconsin Constitution and the principles enunciated by the Supreme Court in Stovall. The Dubose court adopted this standard in light of evidence that misidentification had led to an epidemic of wrongful convictions, and that the showup procedure was particularly suggestive and thus conducive to misidentification. A rule permitting admission of inherently suggestive showup identification evidence in situations in which officers have a legal basis to detain a suspect (but lack a legal basis related to the offense under investigation) would likely result in a higher incidence of misidentification and wrongful convictions in Wisconsin, the serious ills Dubose sought to remedy.

¶28      Applying the necessity test as we have construed it here, we conclude the circuit court erroneously admitted evidence of Gerhardt’s and Albert’s showup identifications of Nawrocki. It is undisputed that the officers had probable cause to detain and arrest Nawrocki for other potential criminal violations and thus could have employed an identification procedure less prone to misidentification. Therefore, the showup procedure was unnecessary in this case, and the circuit court thus erred in admitting testimony about the showup identifications at trial.

The underlying idea, that probable cause is not offense-specific, is certainly well-grounded in search-and-seizure caselaw. State v. Sykes, 2005 WI 48, ¶27, 279 Wis. 2d 742, 695 N.W.2d 277 (“as long as there was probable cause to arrest before the search, no additional protection from government intrusion is afforded by requiring that persons be arrested for and charged with the same crime as that for which probable cause initially existed”) – which reinforces a point made elsewhere on this pagethat showups are now tested by fourth amendment principles.

State v. Jonathan W. Nawrocki, 2008 WI App 23
For Nawrocki: Scott D. Obernberger

Issue/Holding:

¶29      Having concluded that the showup identifications of Nawrocki were not necessary and therefore should have been suppressed, we next must address whether Albert’s and/or Gerhardt’s in-court identifications of Nawrocki were based on an independent source that was untainted by the impermissible showup identification. “[T]he exclusion of evidence of the out-of-court identifications does not deprive the prosecutor of reliable evidence of guilt. The witness would still be permitted to identify the defendant in court if that identification is based on an independent source.” Dubose, 285 Wis. 2d 143, ¶38 (citation omitted).¶30      The admissibility of an in-court identification following an inadmissible out-of-court identification depends on whether “the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Roberson, 292 Wis. 2d 280, ¶34 (quoting State v. Walker, 154 Wis. 2d 158, 186, 453 N.W.2d 127 (1990) (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963))). To be admissible, “the in-court identification must rest on an independent recollection of the witness’s initial encounter with the suspect.” Roberson, 292 Wis. 2d 280, ¶34 (citations omitted). The party seeking admission of the in-court identification carries the burden of demonstrating by clear and convincing evidence that the in-court identification was not tainted by the inadmissible out-of-court identification. See id., ¶35 (citation omitted).

The court proceeds to conclude that fact-finding is required, necessitating remand:

¶38      While Gerhardt’s testimony raises questions about whether his in-court identification actually rests on his recollection of his initial encounter with the assailant, we cannot decide this issue on the record before us. The critical question not fully answered in the record is whether, during the robbery, Gerhardt got a good enough look at the assailant to identify the person as Nawrocki. We therefore remand for the circuit court to hold an evidentiary hearing for the purpose of determining whether the in-court identification was based on an independent source untainted by the impermissible showup identification. When making its determination, the circuit court should take into account the following seven factors adopted from United States v. Wade, 388 U.S. 218, 241 (1967):

(1) the prior opportunity the witness had to observe the alleged criminal activity; (2) the existence of any discrepancy between any pre-lineup description and the accused’s actual description; (3) any identification of another person prior to the lineup; (4) any identification by picture of the accused prior to the lineup; (5) failure to identify the accused on a prior occasion; (6) the lapse of time between the alleged crime and the lineup identification; and (7) the facts disclosed concerning the conduct of the lineup.

State v. McMorris, 213 Wis. 2d 156, 168, 570 N.W.2d 384 (1997) (citing Wade, 388 U.S. at 241).

State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: Once it became aware that the jail administrator was requiring that the defendant wear an armband taser device during the jury trial, the court, “the trial court had an affirmative, sua sponte duty to inquire into the necessity for the device,” ¶32. “The judge alone controls the courtroom and alone has the authority and the duty to make a restraint decision,” ¶34.

State v. Ray Shawn Cherry, 2008 WI App 80
For Cherry: John T. Wasielewski

Issue/Holding:

¶5        The statutes governing this issue are clear. If a trial court sentences a defendant to a felony involving a sex crime contrary to Wis. Stat. §§ 940.225, 948.02(1) or (2) 948.025, or 948.085, the trial court must order the defendant to pay the $250 surcharge for the DNA sample. Wis. Stat. § 973.046(1r). When the felony does not involve a sex crime under one of those statutes, however, the trial court may order the defendant to pay the $250 DNA surcharge. Sec. 973.046(1g). Thus, in the latter situation, the trial court has the discretion to decide whether or not to impose the DNA surcharge.

State v. Ray Shawn Cherry, 2008 WI App 80
For Cherry: John T. Wasielewski

Issue: Whether the sentencing court properly exercised discretion in imposing a DNA surcharge, where it misconstrued such action as mandatory rather than permissive and ignored the defendant’s prior such assessment.

Holding:

¶9        We hold that in assessing whether to impose the DNA surcharge, the trial court should consider any and all factors pertinent to the case before it, and that it should set forth in the record the factors it considered and the rationale underlying its decision for imposing the DNA surcharge in that case. Such is the exercise of discretion contemplated both by the statute and our supreme court’s pronouncement in State v. Gallion, 2004 WI 42, ¶19, 270 Wis. 2d 535, 678 N.W.2d 197 (The exercise of discretion contemplates a process of reasoning: “‘This process must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standard.’”) (citation omitted).

¶10      Thus, in exercising discretion, the trial court must do something more than stating it is imposing the DNA surcharge simply because it can. We also do not find the trial court’s explanation that the surcharge was imposed to support the DNA database costs sufficient to conclude that the trial court properly exercised its discretion. To reach such a conclusion would eliminate the discretionary function of the statute as a DNA surcharge could be imposed in every single felony case using such reasoning. We are not going to attempt to provide a definite list of factors for the trial courts to consider in assessing whether to impose the DNA surcharge. We do not want to limit the factors to be considered, nor could we possibly contemplate all the relevant factors for every possible case. In an effort to provide some guidance to the trial courts, however, we conclude that some factors to be considered could include: (1) whether the defendant has provided a DNA sample in connection with the case so as to have caused DNA cost; (2) whether the case involved any evidence that needed DNA analysis so as to have caused DNA cost; (3) financial resources of the defendant; and (4) any other factors the trial court finds pertinent.

The court of appeals has long held that a sentencing court erroneously exercises discretion when it treats as mandatory a disposition that in fact is discretionary. E.g., State v. Martin, 100 Wis. 2d 326, 302 N.W.2d 58 (Ct. App. 1981) (sentence overturned where court stated it would never grant probation on drug offense). Cherry fits precisely within that paradigm, at least as a pragmatic matter, in that the sentencing court also treated as mandatory something that is discretionary. The court of appeals, then, could have simply cited Martin and then gone on to other business. But it didn’t, relying instead on Gallion, which makes the impact broader. In brief, the court seems more than willing to apply Gallion to aspects of sentence other than imprisonment—not just this costs case but also, and recently, fines, State v. Ahern Ramel, 2007 WI App 271, ¶14 (“under Gallion some explanation of why the court imposes a fine is required”). The factors will differ depending on the context, of course, but that there must be some articulation of relevant factors may not be doubted.

State v. Tamara C. Limon, 2008 WI App 77, PFR filed 5/7/08
For Limon: Wm. Tyroler, SPD, Milwaukee Appellate; Lisa A. Packard, Law Student

Issue/Holding:

¶34      Here, the officers were outnumbered and without backup when, following an anonymous tip that drug dealing and drug loitering activities were taking place on the porch of a residence in a high-crime area, they approached Limon and two men. The officers learned that the three did not live at the residence, and it appears that no explanation as to their presence was forthcoming. Shortly thereafter, a smokeable form of marijuana was observed on the porch. Under these circumstances, we conclude that the protective search of Limon’s purse was warranted based on the officers’ reasonable suspicion that they were in danger of physical injury. See Wis. Stat. § 968.25. The absence of backup at the scene and the fact that Limon’s arrest occurred shortly after the police made their investigative stop—within approximately one minute based on testimony at the suppression hearing—support this conclusion. Cf. State v. Mohr, 2000 WI App 111, ¶¶15-16, 235 Wis. 2d 220, 613 N.W.2d 186 (concluding that frisk was unreasonable where it occurred twenty-five minutes after the initial traffic stop and backup was present, because it was done as a general precautionary measure rather than because the officer thought the defendant was dangerous).

The test for a frisk is long-settled: there must be reasonable suspicion that the subject “is armed and presently dangerous.” Terry v. Ohio, 392 U.S. 1, 24 (1968). The court of appeals waters this down a bit (¶27: “danger of physical injury”), but the ensuing analysis suggests that the court is indeed testing a belief that Limon was armed. It’s also settled that no per se rule supports a frisk merely on suspicion of drug dealing, as the court also recognizes, ¶30. What, then, did support the belief that Limon might be armed? The presence of a single blunt at someone else’s feet? That’s a stretch. The fact “the officers were outnumbered” (3-2, if you’re keeping score at home)? What’s that got to do with whether Limon might be armed? This comes down to one thing and one thing only: the claim that it was a “high crime” area. The careful practitioner will have to take this into account in litigating suppression issues, and do whatever he or she can to establish a record going beyond the cops’ mere assertion that lots of bad stuff happens ‘round these parts, ‘specially after dark. For one thing, publicly available FBI data may shed some light, as the supreme court itself recognized, in State v. Scott K. Fisher, 2006 WI 44, ¶41. You may also be able to readily find locally collated data; Milwaukee, for instance, tabulated by police district. Take into account, too, that there ought to be some sort of “nexus” between the offense being investigated and the likelihood of armed danger, as U.S. v. Wright, 485 F.3d 45 (1st Cir 2007) recognizes:

In most cases, the relevant evidence for this factual finding will include some combination of the following: (1) the nexus between the type of crime most prevalent or common in the area and the type of crime suspected in the instant case …; (2) limited geographic boundaries of the “area” or “neighborhood” being evaluated …; and (3) temporal proximity between evidence of heightened criminal activity and the date of the stop or search at issue[.]

Keep in mind, too, that ultimately we’re talking about discrete areas. The overwhelming tendency is for officers to say that, wherever they happen to find themselves is “high crime.” Make sure, if you can, to put boundaries on the area, United States v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000) (en banc) (“The citing of an area as ‘high-crime’ requires careful examination by the court, because such a description, unless properly limited and factually based, can easily serve as a proxy for race or ethnicity”). Maybe nothing will come of it and in the end the court may simply choose to ignore you, as Limon’s court did her on this point. Is there a “nexus” between a single blunt and armed danger? Perhaps the court didn’t see the need for a showing that specific; perhaps the court perceived that the anonymous report of “drug dealing” added something to the equation. Whatever ambiguities attend the decision, one thing to emerge clearly is that if you leave unrefuted the anecdotal assertion “high crime,” it will become a matter of established fact. More: it will have trumping force.

State v. Aaron E. Applewhite, 2008 WI App 138, PFR filed 9/19/08
For Applewhite: Pamela Moorshead

Issue/Holding:

¶12      The next question before us is whether Bastil’s discovery of contraband in Applewhite’s pockets is supported by the “plain touch” doctrine. When the pat-down itself is based on reasonable suspicion, the “plain feel” or “plain touch” exception to the warrant requirement may apply, and “when an officer touches or feels an object during a pat[-]down which his or her training and experience lead the officer to believe may be contraband, the officer is justified in retrieving the item.” State v. Ford, 211 Wis. 2d 741, 746, 565 N.W.2d 286 (Ct. App. 1997) (citing State v. Guy, 172 Wis. 2d 86, 100-02, 492 N.W.2d 311 (1992)).

…

¶14      The “plain touch” exception to the warrant requirement is an extension of the “plain view” doctrine. Buchanan, 178 Wis. 2d at 449. To pass constitutional muster, three factors must be present:

(1) the evidence must be in plain view; (2) the officer must have a prior justification for being in the position from which [he or] she discovers the evidence in “plain view”; and (3) the evidence seized “in itself or in itself with facts known to the officer at the time of the seizure, [must provide] probable cause to believe there is a connection between the evidence and criminal activity.”

Id. (citation omitted).

[¶¶16-17: Officer’s training and experience: baggies he felt in suspect’s pocket = packages of narcotics]

¶19      Bastil testified that he had been with the Sheboygan Police Department for two years and had previously worked as a police officer in Atlanta. He explained that he had worked as a street level narcotics and beat officer and had trained in the handling of controlled substances and their packaging at the City of Atlanta Police Academy. We are satisfied that Bastil had the knowledge and experience to immediately recognize that the objects in Applewhite’s pocket were likely packaged narcotics.