On Point

State v. Christopher D. Sloan, 2007 WI App 146
For Sloan: Thomas E. Hayes

Issue/Holding: Immaterial differences of memory don’t establish the “deliberate falsity or reckless disregard” for truth required to trigger a Franks hearing, ¶¶17-21; nor is such a hearing mandated in the absence of specific request, ¶22.

State v. Christopher D. Sloan, 2007 WI App 146

Issue/Holding:

¶26 The trial court here did not find a nexus in the affidavit between the items sought and the house to be searched. Nonetheless, the trial court concluded, in deference to the judge who signed the warrant, that “[t]here’s the good faith exception here. If I were confronted with this affidavit, I think I would have issued the warrant.”

¶27 … “Good faith” is not a doctrine that absolves the neutral and detached judge or magistrate from a careful, critical and independent analysis of the facts presented when exercising the responsibility of determining whether probable cause for a search warrant exists. See Leon, 468 U.S. at 914. Because the trial court did not apply the correct law in deciding the motion to suppress, we have reviewed the record to determine whether the record supports a finding of probable cause to issue the search warrant. See Stan’s Lumber, Inc. v. Fleming, 196 Wis. 2d 554, 573, 538 N.W.2d 849 (Ct. App. 1995).

Might be best not to read this holding too broadly; that is, the holding should be read with the particulars in mind: the court’s ensuing analysis (¶¶31-38) indicates that there was virtually no reason to search the address in the warrant (such that sustaining the warrant, the court goes on to say, “would dilute the Fourth Amendment requirements of reasonableness and probable cause to the strength of mist or vapor”). Thus, on the particular facts, this case fits well within the established exception to the good-faith doctrine, State v. Bill P. Marquardt, 2005 WI 157, ¶¶37-38 (good-faith exception inapplicable when indicia of probable cause so lacking as to render official belief in its existence unreasonable).

State v. Quantae T. Hines, 2007 WI App 39
For Hines: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding: A defendant has a right to allocute during a reconfinement proceeding, the remedy for violation of which is resentencing, ¶¶18-20.

The outcome is largely controlled by State v. John C. Brown, 2006 WI 131, which held that reconfinement is essentially a sentencing proceeding. True, Brown didn’t discuss allocution, so this is a slight— very slight—extension of that holding. That said, the result is much more interesting when the facts are taken into account. After the reconfinement sentence was announced, Hines spoke up and made a pitch for leniency, ¶9. The trial judge was unmoved; as she later said, on postconviction motion, ¶10:

… Even assuming arguendo that the defendant had a due process right to allocution … he was clearly afforded that right…. The court considered the defendant’s statement but was not persuaded to alter its reconfinement decision. Any failure … to ask the defendant before ordering reconfinement whether he had anything to say was harmless….

And so, the question is really one of harmless error. The defendant was afforded an opportunity to speak, it’s just that this was immediately after rather than before pronouncement of sentence. The court of appeals might have said that such a violation was a mere trifle, but that’s decidedly not what it said. Instead, the result is comprehensible only as a bright-line rule, which the court barely hints at, in a passing remark, ¶18: “Part of the court’s consideration at a sentencing includes the defendant’s right to allocute before the court pronounces its decision. See Wis. Stat. § 972.14(2); Greve, 272 Wis. 2d 444, ¶35.” Thus, “before” means exactly that, and not a moment later.

State v. Kathy J. Johnson, 2007 WI App 41
For Johnson: Jeremy Perri, SPD, Milwaukee Appellate

Issue: Whether DOC policy, for inmates under sentence commencing prior to July 26, 2003, to take no position on an ERP petition constitutes approval of the petition under Wis. Stat. § 302.05(3)(e).

Holding:

¶8        Wisconsin Stat. § 302.05(3)(e) governs inmate petitions for the determination of eligibility for the ERP for inmates sentenced prior to the effective date of § 302.05, i.e., July 26, 2003. Section 302.05(3)(e) provides the procedure to be followed and states, in relevant part:

If an inmate is serving the term of confinement portion of a bifurcated sentence imposed under s. 973.01, the sentence wasimposed before July 26, 2003, and the inmate satisfies the criteria under par. (a) 1., the inmate may, with the department’s approval, petition the sentencing court to determine whether he or she is eligible or ineligible to participate in the earned release programunder this subsection….

(Emphasis added.)

…

¶14      Wisconsin Stat. § 302.05 sets forth no criteria which the DOC must use in its determination of whether to approve an inmate’s petition. Section 302.05 does identify those inmates who are not eligible for the ERP because they either were sentenced under one of the statutes listed in § 302.05(3)(a)1. or were participants in the intensive sanctions program. Wis. Stat. §§ 302.05(3)(a)1. and (d). Because inmates may be incarcerated under multiple sentences from multiple counties, the State argues, and we agree, that the DOC is in the best position to determine, and inform the court, whether a specific inmate is ineligible for the ERP because of the statutory exclusions. This approach is consistent with Wis. Stat. § 972.15(2b) which requires that the PSI preparer tell the court whether the defendant is statutorily eligible for the ERP under § 302.05(3)(a)1. It is also consistent with Truth-In-Sentencing,^[6] in which the legislature specifically took away from the administrative agencies the ability to grant parole or other early release and placed within the discretion of the courts the amount of extended supervision for which a defendant would be eligible, as well as the eligibility of a defendant to participate in any early release programs. If the legislature intended to give to the courts the responsibility of determining whether an individual is eligible for participation in a program, it is incongruous to read § 302.05(3)(e) as returning that discretion to the DOC, and essentially preventing the courts from ruling on an otherwise eligible defendant. Accordingly, we conclude that the DOC approval required by § 302.05(3)(e) is merely a determination that the petitioner is not statutorily excluded from eligibility for ERP, and the exercise of discretion as to whether the inmate should be included in ERP eligibility is a matter for the trial court. Here, the DOC did not provide the information required; in fact, the DOC provided no information at all with respect to whether Johnson was eligible for the ERP.

Thus, DOC refusal to act on a petition is tantamount to approval to bring the petition, ¶17. This holding, however, is limited to the current DOC practice of blanket refusal to act; if DOC were to exercise individuated discretion, then the outcome would be different, ¶18. The court also, in passing, indicates that an inmate’s previous participation in ERP may be factored against current eligibility, ¶16 n. 8.

State v. Thomas William Brady, 2007 WI App 33, PFR filed 2/13/07
For Brady: Suzanne L. Hagopian, SPD, Madison Appellate

Issue/Holding: Where the target of a search was not at home when the police forcibly entered pursuant to a search warrant, their unannounced entry did not, although not authorized by the warrant, violate the fourth amendment.

¶13   The first consideration is the safety of the police and others. Here, because Brady was not home, his safety was not endangered. Conversely, the officers were not threatened because their entry could not “provoke violence” from a surprised Brady. The safety consideration was not violated.

¶14   The second consideration is protection of property. Although the trial court found the home was forcibly entered, there was no damage to the lock or any other property. The sanctity of the homeowners’ property was preserved.

¶15   The last consideration is the privacy right. We reiterate, however, that this is a limited privacy right. Brady was not home, so there was not even a miniscule chance the deputies would infringe upon his dignity. Police would not, for example, break in and find Brady in an embarrassing or compromising situation. The intrusion upon the sanctity of the home—the primary violation of which Brady complains—was authorized by the search warrant, the issuance of which Brady has not challenged.

A threshold oddity: the court fails to cite State v. Dennis Moslavac, 230 Wis. 2d 338, 602 N.W.2d 150 (Ct. App. 1999), which refused to enforce the knock-announce rule when the premises are unoccupied. Perhaps that is because when the police entered someone was at Brady’s home (a resident of the premises, for that matter, ¶4), so it was indeed occupied—just not by Brady, the target of the search. Why, then, wasn’t safety indeed an issue? In brief, the court’s analysis has all the earmarks of a “standing” analysis: Brady’s privacy interests weren’t compromised because he wasn’t home at the time; yet, the court takes pains to say that it is not reaching a conclusion on what it describes as “standing,” that instead it is rejecting “Brady’s substantive challenge,” ¶7 and id. n. 2. But that rejection is largely premised, as the quote above indicates, on the fact that Brady wasn’t home, hence suffered no loss of privacy by virtue of manner of entry—however, to say that privacy interests weren’t breached is indeed to say that the person has no “standing” to complain, which makes the holding quite muddled. As Rakas v. Illinois, 439 U.S. 128 (1978) put it,

For we are not at all sure that the determination of a motion to suppress is materially aided by labeling the inquiry identified in Jones as one of standing, rather than simply recognizing it as one involving the substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge. … But this Court’s long history of insistence that Fourth Amendment rights are personal in nature has already answered many of these traditional standing inquiries, and we think that definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.

When a fourth-amendment decision refers to “standing,” then, it refers to the substantive issue of whether privacy interests were violated, a point made explicitly by State v. David Allen Bruski, 2007 WI 25, ¶22 (“an individual must have standing. … 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”; and going on, in footnote 2, to explain the difference between “standing” as a general requirement of litigation and the violation of 4^th A rights).

Not that it really matters. To see why, ask, What if Brady had been home? In that event, two of the three concerns noted above would be in play, yet he still wouldn’t be entitled to fourth amendment suppression, given the sweep of Hudson v. Michigan, 126 S.Ct. 2159 (2006), which for all practical purposes eliminated the knock-and-announce rule. The court of appeals cites Hudson, but oddly without giving it this sweeping application. Rather, as the blockquote above indicates, the ruling is narrowly limited to the facts, most significantly that Brady wasn’t home when the police entered, secondarily that no property was damaged during entry. Compare that seemingly fact-contingent analysis to Hudson’s broad language:

In sum, the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial–incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified.

Whether the person is or is not present when unannounced entry can’t make any difference to the social costs incurred by “the massive remedy of suppressing evidence,” so it’s hard to see why Hudson wouldn’t apply to Brady’s situation. If anything, the potential deterrence factor weighs more heavily when the occupant is present, for the simple reason that the potential for tragic mishap is greater; Hudson was at home when the police entered, but his presence wasn’t enough to outweigh the social costs. This is another way of saying that although Brady is fact-bound, it effectively kills off knock-and-announce litigation in Wisconsin. If you’re home, suppression isn’t permissible under Hudson, and if you’re away then your privacy rights haven’t been infringed under Brady. The real issue is whether an Art. I, § 11 argument survives Hudson, and on that critical point the court of appeals’ entire analysis is as follows, ¶8 n. 3: “The equivalent provision in the Wisconsin Constitution is art. I, § 11. Because the two constitutions contain ‘substantially identical provisions,’ see Alston v. State, 30 Wis. 2d 88, 94, 140 N.W.2d 286 (1966), we may apply the United States Supreme Court’s Fourth Amendment analyses to our own parallel state constitutional questions.” That’s the extent of the court’s analysis. And so it is that the “New Federalism” revolution ends with a whimper, not a bang.

State v. Dennis M. Gralinski, 2007 WI App 233
For Gralinski: Martin Kohler; Craig Powell, PFR filed 10/5/07

Issue: Whether use of the defendant’s credit card number to purchase online membership to a child pornography site established probable cause for a search warrant of the defendant’s home.

Holding:

 ¶12     Gralinski argues that the special agent’s affidavit did not demonstrate probable cause for searching his home. Specifically, he contends that “the search warrant affidavit in the present case essentially stated only a single, facially non-incriminating fact supposedly connecting Gralinski to illegal activity—his credit card number was used in an online transaction to purchase a membership to a website later found to contain images of child pornography.” Gralinski argues that it was unreasonable for the trial court to infer that he conducted the credit card transaction given the significant amount of credit card fraud that exists. ^[3]He further argues that to get from the fact that Gralinski’s credit card number was used “to a reasonable probability that Gralinski’s home contained evidence of possession of child pornography in September 2005 requires the piling of inferences and near total reliance on the stated training and experience of the affiant in lieu of the requirement that a magistrate be presented with sufficient facts.” We disagree with these contentions and conclude that the warrant-issuing commissioner had a substantial basis for concluding that there was probable cause to issue the warrant to search Gralinski’s residence.

…

¶19      Gralinski’s circumstances are different than those present in Weber, where other than the order placed by Weber at the government’s solicitation, the only other fact suggesting that Weber may have had child pornography in his house on the day of the search was the advertising material that had been intercepted almost two years prior. Id. at 1345. Here, the affidavit detailed the fact that Gralinski’s credit card had been used to purchase a membership that afforded him access to website s containing child pornography. In addition, the affidavit contained information relating to the special agent’s experience and knowledge of individuals who are involved with child pornography and of the longevity of images viewed through the Internet to remain on a computer. SeeMultaler, 252 Wis. 2d 54, ¶43.

¶20      … In addition, the nature of the materials constituting child pornography in Weber (photographs) compared to the Internet images involved here, makeWeber inapposite. …

…

¶24      Here, like the court in Gourde II, we conclude that the use of a credit card issued to Gralinski to purchase a membership to website s containing child pornography, together with customer records confirming Gralinski’s home address, e-mail address, and credit card information, result in the inference that there was a fair probability that Gralinski had, in fact, received or downloaded images. See id., 440 F.3d at 1071. The details provided on the use of computers by individuals involved in child pornography found in the affidavit supporting the search of Gralinski’s home strengthens this inference. See id. at 1072; Ward, 231 Wis. 2d 723, ¶28 (noting that “‘[a]lthough the finding cannot be based on the affiant’s suspicions and conclusions, the magistrate may make the usual inferences reasonable persons would draw from the facts presented’”) (citation omitted; alteration in Ward); see also State v. Lindgren, 2004 WI App 159, ¶¶18-20, 275 Wis. 2d 851, 687 N.W.2d 60 (holding that affiant “placed a plausible scenario, based on facts and experience, before the court,” which provided sufficient justification for a search of the home of the defendant, who took nude photographs of a minor employee at his business).

State v. Christopher D. Sloan, 2007 WI App 146
For Sloan: Thomas E. Hayes

Issue/Holding: There was an insufficiently established “nexus” between the contraband found in a package and its return address to support a search warrant for that address:

¶31 What Hennen does not describe in his affidavit is critical to our analysis. He never tells the reader that he believes Sloan is, or has recently been, engaged in any criminal activity at the residence to be searched, or why he believes that is the case. To establish probable cause to support this warrant, there must be some factual connection between the items that are evidence of the suspected criminal activity and the address to be searched. “Probable cause to believe that a person has committed a crime does not automaticallygive the police probable cause to search his house for evidence of that crime.”State v. Marquardt, 2005 WI 157, ¶81, 286 Higginbotham, 162 Wis. 2d at 995). “[P]robable cause cannot be upheld … if the affidavit provides nothing more than the legal conclusions of the affiant.” Kerr, 181 Wis. 2d at 378 (citing Higginbotham, 162 Wis. 2d at 992).

¶32 Hennen does not describe surveillance that shows anything about the house that suggests criminal activity might be afoot. Surveillance disclosed only the general configuration of the house (square) where the street number is located (by the front door, above the mailbox), and that two vehicles registered to Sloan were parked at that address. There is no report that anyone was observed at the address. There is no claim of prior police reports of drug sales or other suspicious activity at that address, nor is there evidence of Sloan’s prior actual or suspected involvement with marijuana or other controlled substances. Hennen does not claim that Sloan fits any relevant profile of someone involved in the manufacture, sale or distribution of marijuana or other controlled substances. ^[9] The owner of the residence was not Sloan. There is no evidence that police interviewed the owner or did any investigation to discover drug-related activity at that address. Indeed, if Sloan’s statement to UPS was to be believed, it was unlikely that contraband would be found at the residence since he said he was leaving for Florida the next day. Nothing in the affidavit provides a reasonable factual basis upon which to conclude that a crime had been or likely would be committed at the residence, or that there was evidence of a crime at the residence. No facts were provided in Hennen’s affidavit which tend to show where Sloan acquired or packed the marijuana he attempted to ship with UPS.

…

¶38 In short, the affidavit tells the reader what Hennen believes a drug trafficker does by way of recordkeeping, but gives the reader no reason to conclude Sloan is a drug trafficker, or that other people traffic in drugs at that residence. If the affidavit here is sufficient to establish probable cause for an expansive residential search, then a similar search of a residence, after a person is found in possession of a small quantity of marijuana or other controlled substance, would be permitted with nothing more to support the search than a return address on a document, and vehicle registration at that address. Such an outcome would dilute the Fourth Amendment requirements of reasonableness and probable cause to the strength of mist or vapor. Some of the missing facts might have been developed with more investigation (or a controlled delivery of the package, as in Beal) and then used to established a factual link sufficient to support probable cause for a search of the residence. Unfortunately, perhaps in a rush to obtain a warrant, no such facts were developed. The lack of any factual connections between crimes by Sloan or others and the residence to be searched is fatal to a finding of probable cause. Consequently, we reverse that portion of the trial court’s decision upholding the search warrant.

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 ^[9] See State v. Lindgren, 2004 WI App 159, ¶¶18-20, 275 Wis. 2d 851, 687 N.W.2d 60. The Lindgren court held that because the affidavit included a detailed profile of a child molester which provided sufficient justification for a search of the home, the search of the home of the defendant who took nude photographs of a minor employee at his business was supported by probable cause.