On Point

State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding:

¶23 Whether an individual had a reasonable expectation of privacy in an area subjected to a search depends on two prongs. Smith v. Maryland, 442 U.S. 735, 740 (1979); Dixon, 177 Wis. 2d at 468. First, whether the individual’s conduct exhibited an actual (i.e., subjective) expectation of privacy in the area searched and the item seized. Then, if the individual had the requisite expectation of privacy, courts determine whether such an expectation of privacy was legitimate or justifiable (i.e., one that society is willing to recognize as reasonable).

¶24 In considering whether an individual’s expectation of privacy constitutes a legitimate or justifiable one, our court has stated that the following factors may be relevant:

(1) whether the accused had a property interest in the premises; (2) whether the accused is legitimately (lawfully) on the premises; (3) whether the accused had complete dominion and control and the right to exclude others; (4) whether the accused took precautions customarily taken by those seeking privacy; (5) whether the property was put to some private use; (6) whether the claim of privacy is consistent with historical notions of privacy.

Id. at 469 (citing State v. Fillyaw, 104 Wis. 2d 700, 711 n. 6, 312 N.W.2d 795 (1981)). The list is neither controlling nor exclusive. Rather, courts consider the totality of the circumstances when evaluating the latter prong of the reasonable expectation test.

State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding:

¶20 …Bruski, as the proponent of a motion to suppress, has the burden of establishing that his Fourth Amendment rights were violated by the search. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978). ^[1]

¶21 To have a Fourth Amendment claim, the proponent must initially satisfy two requirements. First, the search must have been done by a government agent. …

¶22 Second, an individual must have standing. ^[2] Rakas, 439 U.S. at 140. There is not a bright-line test for determining when an individual has standing, but standing exists when an individual has a reasonable expectation of privacy. Id. at 144. The proponent of a Fourth Amendment claim bears the burden of proving that he or she had a reasonable expectation of privacy. State v. Whitrock, 161 Wis. 2d960, 972, 468 N.W.2d696 (1991) (citing Rawlings, 448 U.S. at 104). ^[3]

---

^[1] … This court generally follows the United States Supreme Court’s interpretation of the search and seizure provision of the Fourth Amendment in construing Article I, Section11 of the Wisconsin Constitution. State v. Young, 2006 WI 98, ¶30, _ Wis. 2d _, 717 N.W.2d729.^[2] Fourth Amendment standing differs from traditional notions of standing. Fourth Amendment standing analysis “focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.” Rakas v. Illinois, 439 U.S. 128, 139 (1978). Defining an individual’s Fourth Amendment rights “is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.” Id. at 140. Standing, in the context of the Fourth Amendment, refers to a threshold substantive determination, which is distinct from Article III standing.

^[3] In his brief, Bruski urged the court to overrule State v. Callaway, 106 Wis.2d 503, 317 N.W.2d 428 (1982), and construe Article I, Section 11 of the Wisconsin Constitution to confer automatic standing to defendants charged with possession of illegal material. … Given our agreement with the United States Supreme Court that “‘Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted,'” Rakas, 439 U.S. at 133-34 (internal citation omitted), we continue to follow the Court’s interpretation of the Fourth Amendment when construing Article I, Section 11 of the Wisconsin Constitution.

State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15
For Johnson: Eileen A. Hirsch, SPD, Madison Appellate

Issue: Whether Johnson’s statement, “I don’t have a problem with that,” made in response to an officer’s assertion that they were “going to search the vehicle” was voluntary consent or mere acquiescence.

Holding:

¶19      As the record indicates, neither Stillman nor Dummer asked for Johnson’s permission to search the car. Stillman did not recall asking for consent, but indicated he would have noted that fact in his report if he had. Dummer clarified that Stillman advised Johnson that “we were going to search the vehicle.” Johnson’s response to that command must consequently be construed as acquiescence. On the basis of the undisputed testimony of Stillman and Dummer, we therefore conclude that the circuit court’s statement that Stillman obtained Johnson’s consent to search the vehicle was against the great weight and clear preponderance of the evidence, and was, therefore, clearly erroneous. …

The dissent draws a distinction between “voluntary acquiescence,” which it characterizes as consistent with valid consent and “involuntary acquiescence,” which isn’t. See ¶¶66-76. The dissent construes the majority opinion as: “a verbal, but positive, response to a request to search or a statement that a search will be conducted, … is always ‘acquiescing’ to law enforcement,” ¶71, emphasis supplied. That construction vastly overstates the holding: for one thing, the disjunctive “or” makes all the difference in the world. You don’t acquiesce to “a request” but you certainly do to the inevitability of a command. The majority recites the facts in some detail, which include the construction by an officer on the scene that Johnson’s statement meant “he wasn’t going to do anything to stop you,” ¶18. It is quite novel, then, that asserted police intent to search without offering a choice in the matter and eliciting a response of, OK, I won’t interfere, is something other than mere acquiescence to the stated intent. Point is, the holding certainly represents a nice restatement of the mere acquiescence principle but it isn’t nearly as dramatic a statement as the dissent would have it. The State conceded error on the issue, for good reason.

State v. Barry M. Jenkins, 2007 WI 96, reversing 2006 WI App 28
For Jenkins: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue/Holding:

¶31      A “fair and just reason” has never been precisely defined. State v. Shimek, 230 Wis. 2d 730, 739, 601 N.W.2d 865 (Ct. App. 1999). Indeed, the fair and just reason standard “lack[s] any pretense of scientific exactness.” United States v. Barker, 514 F.2d 208, 220 (D.C. Cir.) (en banc), cert. denied, 421 U.S. 1013 (1975). This court has said that the term contemplates “the mere showing of some adequate reason for the defendant’s change of heart,” Libke v. State, 60 Wis. 2d 121, 128, 208 N.W.2d 331 (1973), and that “the exercise of discretion requires the [circuit] court to take a liberal, rather than a rigid, view of the reasons given for plea withdrawal.” Bollig, 232 Wis. 2d 561, ¶29. Nonetheless, “[w]hether a defendant’s reason adequately explains his or her change of heart is up to the discretion of the circuit court.” Kivioja, 225 Wis. 2d at 284 (citing Canedy, 161 Wis. 2d at 584).

…

¶62      A fair and just reason for plea withdrawal before sentence will always be subject to case-by-case analysis. As a general rule, a fair and just reason for plea withdrawal before sentence will likely exist if the defendant shows that the circuit court failed to conform to its statutory or other mandatory duties in the plea colloquy, and the defendant asserts misunderstanding because of it. In such a circumstance, the State may show that it has been prejudiced, in which case the court will have to decide whether the deficiency in the plea colloquy compromised the knowing, intelligent, and voluntary nature of the defendant’s plea. Cf. State v. Van Camp, 213 Wis. 2d 131, 139, 569 N.W.2d 577 (1997). A defendant may proffer a fair and just reason, including misunderstanding and changed circumstances, based on matters outside the plea colloquy record. When the plea colloquy is sufficient, however, the defendant’s fair and just reason should rely on matters outside the plea colloquy record or be able to show why it is fair and just to disregard the solemn answers the defendant gave in the colloquy. A failure to recognize the implications of a valid plea colloquy would “debase[ ] the judicial proceeding at which a defendant pleads and the court accepts its plea.” United States v. Hyde, 520 U.S. 670, 676 (1997).

…

¶89      Finally, we address the question of whether an assertion of innocence is necessary under the fair and just reason standard. We note that like the manifest injustice standard, the fair and just reason standard does not require that the defendant assert his innocence. See Reppin, 35 Wis. 2d at 385 n.2 (stating that under the manifest injustice standard, “[t]he defendant may move for withdrawal of his plea without alleging that he is innocent of the charge to which the plea has been entered.”). However, an assertion of innocence is a factor “that bear[s] on whether the defendant’s proffered reason of misunderstanding, confusion or coercion [is] credible.” Shimek, 230 Wis. 2d at 740 n.2. In other words, an assertion of innocence is not necessary, but it helps the circuit court evaluate the defendant’s “fair and just reason.”

State ex rel Frederick Lee Pharm v. Bartow, 2007 WI 13, affirming 2005 WI App 215
For Pharm: Jon G. Furlow, Nia Enemuch-Trammell,Roisin H. Bell (Pro Bono)

Issue: Whether, following Pharm’s release in another state prison on life-time parole and his return here under the IAD to serve a Wisconsin sentence, he was subject to ch. 980 commitment proceedings on his release from that sentence.

Holding:

¶24      Furthermore, the language of the IAD is clear and unambiguous. The IAD applies to detainers lodged against prisoners that are based on untriedindictments, informations or complaints. … There is nothing in the IAD that indicates that the rights accorded to prisoners under it attach when there are no untried charges outstanding. Therefore, we conclude that under the plain language of the statute, a prisoner has the following rights after he or she files a Request for Disposition under Article III (§ 976.05(3)): (1) transportation to a receiving state to answer pending charges; (2) commencement of a trial within 180 days in the receiving state; (3) return to the sending state to complete the prisoner’s term of incarceration; and (4) upon completion of the prisoner’s term of incarceration in the sending state, return to the receiving state to serve any term of incarceration that has been imposed there.

Nor did the civil commitment invalidate Pharm’s waiver of extradition, ¶¶36-39.

State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182
For Howell: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: Failure to establish a factual basis for the guilty plea triggers Bangert procedure, ¶¶56-59, citing State v. Monika Lackershire, 2007 WI 74. In this instance (because of a last-minute inclusion of a ptac theory the complaint didn’t assert any accomplice- or vicarious-liability facts; nor did the trial court inquire into ptac liability) the record is inadequate; and, because the postconviction asserted lack of knowledge (that he didn’t know his mere presence at the crime scene wasn’t enough for ptac), a Bangert hearing is mandated, ¶¶60-71.

State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182
For Howell: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding: The defendant’s understanding of the charge must be detailed, in anon-perfunctory manner, on the record of the guilty plea:

¶52      The circuit court did not establish Howell’s understanding of the information it relayed to Howell by personally questioning him. Rather than asking Howell to summarize his understanding, the circuit court asked him questions that required simple “yes” or “no” responses.

¶53      As we explained in Bangert, “[a] defendant’s mere affirmative response that he understands the nature of the charge, without establishing his knowledge of the nature of the charge, submits more to a perfunctory procedure rather than to the constitutional standard that a plea be affirmatively shown to be voluntarily and intelligently made.” ^[30] By referring simply to Howell’s “assistance” in the crime and asking Howell for only a single word response, the circuit court did not appropriately ascertain Howell’s understanding. A defendant must “at some point [have] expressed his knowledge of the nature of the charge” to satisfy the requirement of Wis. Stat. § 971.08. ^[31]

¶54      The circuit court did not establish that Howell was properly advised of the nature of the charge by his trial counsel. The circuit court asked Howell’s trial counsel only whether he was satisfied that Howell was entering the guilty plea knowingly and voluntarily, to which counsel answered “yes.” This question by the circuit court and Howell’s trial counsel’s response were not adequate. “A statement from defense counsel that he has reviewed the elements of the charge, without some summary of the elements or detailed description of the conversation, cannot constitute an ‘affirmative showing that the nature of the crime has been communicated.'” ^[32]

¶55      We thus agree with Howell that, as demonstrated by the record, the plea colloquy was defective in that the circuit court failed to inform Howell of the nature of the charge and failed to ascertain Howell’s understanding of the nature of the party-to-a-crime charge.