On Point

State v. Jeffrey Allen House, 2007 WI 78, affirming unpublished opinion
For House: Michael J. Steinle

Issue/Holding¹:¶

¶12      House contends that because money laundering, racketeering, and continuing criminal enterprise are not specifically enumerated crimes for which wiretaps are authorized under the Wisconsin wiretap statutes, the order authorizing the wiretap in this case was unlawful. We begin our analysis by examining the words of Wisconsin’s wiretap statute, Wis. Stat. § 968.28. …

¶13      A plain reading of the statute reflects that the crimes of money laundering, racketeering and continuing criminal enterprise are not specifically enumerated crimes. Nevertheless, the State argues that a circuit court may authorize wiretaps for those crimes insofar as they constitute “dealing in controlled substances,” which is an enumerated offense under § 968.28. We disagree. Not only is such an interpretation inconsistent with the plain words of the statute, it also contradicts the legislative intent that § 968.28 be a restrictive statute. By authorizing a wiretap for money laundering, racketeering, and continuing criminal enterprise, the circuit court expanded the scope of a wiretap beyond the statutory limit. It therefore erred in providing such an authorization.

…

¶28      The State’s view that the circuit court may authorize wiretaps for racketeering, continuing criminal enterprise, and money laundering because those crimes constitute “dealing in controlled substances” conflicts with the narrowly circumscribed scope of § 968.28. By authorizing a wiretap for racketeering, continuing criminal enterprise, and money laundering, the circuit court expanded the scope of the wiretap beyond the limit authorized by law.

¶29      The State correctly asserts that dealing in controlled substances may provide a foundation for racketeering or continuing criminal enterprise charges and that money laundering may be an aspect of a drug dealing operation. However, those offenses may also be based on crimes not enumerated in § 968.28. Thus, including them in an order authorizing a wiretap in effect authorizes a wiretap for other crimes that would support a racketeering, continuing criminal enterprise, or money laundering charge.

The court recites WESCL history, which derives from federal legislation: “Our interpretation of the state statutes therefore benefits from the legislative history and intent of Title III and from federal decisions considering Title III,” ¶14. Thus, analysis of federal cases and Title Congressional history will be highly relevant to construction of WESCL. That analysis reveals that wiretap legislation such as WESCL passed by states may be more, but may not be less, restrictive than Title III, ¶17, and that overarching principle guides the court here:

¶33      In sum, we conclude that money laundering, racketeering, and continuing criminal enterprise are not specifically enumerated offenses in § 928.28 and that those offenses are not included within “dealing in controlled substances,” which is an enumerated offense. Such a construction would contradict the legislative intent that § 968.28 be a restrictive statute and would result in expanding the scope of a wiretap authorization beyond the statutorily imposed limitations. Accordingly we determine that the circuit court erred in authorizing a wiretap for offenses not enumerated in Wis. Stat. § 968.28.

The lead opinion, incidentally, has 3 votes. A 3-vote concurrence would hold the wiretap valid, but the single-vote dissent joins the lead opinion on the issue of invalidity of the order, making the lead opinion the majority. (The dissent is really on a separate ground, whether this invalidity requires suppression.)

Issue/Holding²: Where the wiretap order is invalid because it authorized interceptions for “unenumerated” crimes, suppression is nonetheless not required because the order also authorized taps for enumerated crimes:

¶48      With scant and equivocal law on the effect of including non-enumerated offenses in a wiretapping order, we must decide whether the purposes of the wiretapping statutes have been fulfilled despite the violation of § 968.28 by including surplus, non-enumerated offenses in the wiretap order. We determine that under the circumstances here, the purposes have been fulfilled.

…

¶50      … The focus of the application and the order was distribution and possession with intent to distribute cocaine, heroin, and ecstasy, as well as conspiracy to commit those crimes.

¶51      Those crimes are all squarely within the scope of § 968.28. Because the focus of this case was on enumerated crimes, the intercept procedures were used in a situation “calling for the employment of this extraordinary investigative device.”Giordano, 416 U.S. at 527. The addition of the non-enumerated crimes does not undermine this purpose.

…

¶60      In the present case, the purposes of the wiretap statutes have been fulfilled and the error appears to be of no material consequence. The enumerated crimes that served as the basis for the wiretap order were crimes of sufficient magnitude to warrant a wiretap. Further, the privacy protections of the probable cause requirements under § 968.30(3) were met. There is no contention that the police intercepted any of House’s communications that were unrelated to the enumerated offenses in the order, and House was charged with only enumerated offenses. Accordingly, even though we have concluded that the circuit court erred in listing the non-enumerated offenses, we determine the error does not constitute an unlawful interception such that suppression is warranted.

State v. David L. Vanness, 2007 WI App 195
For Vanness: Chad Lanning

Issue/Holding: Right to public trial under the 6th amendment was violated when the courthouse was locked (though the courtroom doors themselves remained open) during the defense case and State’s rebuttal:

¶8 The right to a public trial is a basic tenet of our judicial system, Walton v. Briley, 361 F.3d 431, 432 (7th Cir. 2004), rooted in “the principle that justice cannot survive behind walls of silence….” Sheppard v. Maxwell, 384 U.S. 333, 349 (1966).…

¶9 While a public trial is a basic tenet of our judicial system, it is not without exceptions. Walton, 361 F.3d at 433. A trial may be closed only when the test set out in Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), has been met. ^[3] See Waller v. Georgia, 467 U.S. 39, 47 (1984). However, where an unjustified closure is trivial, there is also no constitutional violation. See Braun v. Powell, 227 F.3d 908, 919-20 (7th Cir. 2000); Peterson v. Williams, 85 F.3d 39, 42-43 (2nd Cir. 1996). Absent these exceptions, closing a trial to the public violates the constitution.

…

¶12 … In short, the triviality inquiry goes principally to the length of the closure and what parts of the trial were closed.

¶13 … We also conclude the court’s intent is irrelevant to determining whether the accused’s right to a public trial has been violated by an unjustified closure. Rather, our analysis must focus on the effect of the closing to determine whether a defendant’s constitutional right to a public trial has been violated.

…

¶16 Here, the courthouse was closed from 4:30 p.m. to about 7 p.m. From 4:24 p.m. to 5:04 p.m., the court was in recess. From 5:04 p.m. to 6:15 p.m., the court was in session, and the jury heard Vanness’s defense and the State’s rebuttal. The court was then in recess until the doors to the courthouse were opened around 7 p.m. Unlike Peterson and Al-Smadi, the closure of over an hour while the court was in session of a one day trial was not “extremely short.” See Peterson, 85 F.3d at 44.

¶17 Additionally, like Walton and Canady, important portions of the trial were closed. The public was denied access to the trial during both Vanness’s defense and the State’s rebuttal, including testimony from two new witnesses. Like the announcement of the verdict, we conclude the accused’s response to the accusations against him or her, and the State’s rebuttal are critical proceedings in criminal trials. See Canady, 126 F.3d at 364. Therefore, the closure was not a trivial violation. Consequently, because Vanness’s constitutional right to a public trial was violated, the order and judgment are reversed and the matter is remanded for a new trial.

Though the court isn’t explicit on the point, it’s clear that violation of the right to public trial is “structural” error, i.e., reversible without resort to harmless error analysis; in effect, “triviality” analysis serves as a structural-error screen in this context—once you get past triviality analysis, reversal is automatic – without any consideration of the impact of the error on the outcome, as the reversal in this case illustrates.

State v. Henry E. Routon, 2007 WI App 178, PFR filed 7/23/07
For Routon: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶18   Wisconsin Stat. § 939.31 sets forth the elements of the crime of conspiracy applicable under Wis. Stat. § 961.41(1x).^[8] Section 939.31 provides:

…. whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned or both ….

Thus, there are three elements: (1) an intent by the defendant that the crime be committed; (2) an agreement between the defendant and at least one other person to commit the crime; and (3) an act performed by one of the conspirators in furtherance of the conspiracy. Wis JI—Criminal 570 (2001); State v. West, 214 Wis. 2d 468, 476, 571 N.W.2d 196 (Ct. App. 1997).

State v. Henry E. Routon, 2007 WI App 178, PFR filed 7/23/07
For Routon: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶36   Routon, as noted above, argues that the single sale to Agent Smith is, as a matter of law, insufficient evidence of an agreement. However, in the cases on which he relies, there was no evidence, as there is here, of an ongoing business that had the predominant purpose of selling a product for an illegal use. …

¶37   We do not agree with Routon that the evidence here shows “[a] single, casual transaction.” Although there was only one sale to Agent Smith, the reasonable inference the court drew from the evidence is that Routon marketed and sold psilocybe spores and grow kits to a number of other purchasers as part of his ongoing business. This is important because evidence of an ongoing business may, as here, provide evidence of the seller’s knowledge of the illegal use of the product sold and an intent to further, promote, and cooperate in that illegal use.

State v. Lamont D. Powell, 2007 WI App 127
For Powell: Nicholas C. Zales

Issue/Holding:

¶3        The sixty-day limit in Wis. Stat. § 961.555(2)(b) is mandatory and a forfeiture petition must be dismissed unless the requisite hearing is held within the sixty-day period because a person may not be deprived of his or her property “for an indefinite time” without a prompt judicial assessment of whether forfeiture is justified. See State v. Baye, 191 Wis. 2d 334, 339–340, 528 N.W.2d 81, 83 (Ct. App. 1995); see also State v. Rosen, 72 Wis. 2d 200, 204, 206–208, 240 N.W.2d 168, 170, 171–172 (1976) (applying a predecessor provision identical, as material, to § 961.555(2)(b)). Although it is true, as the State points out, that the statute does not indicate whether a dismissal for non-compliance with § 961.555(2)(b) should be with prejudice or without prejudice, if the State could, as it tried here, avoid the statute’s sixty-day command by the simple expedient of filing a new forfeiture petition based on the same facts, the sixty-day limitation would be meaningless. See Kindcare, Inc. v. Judith G., 2002 WI App 36, ¶3, 250 Wis. 2d 817, 821, 640 N.W.2d 839, 841 (protective placement) (“We hold that the circuit court loses competence if the probable-cause hearing is not held within seventy-two hours after the person is first taken into custody, and that the mere filing of a new petition does not start the clock anew.”). Accordingly, once the sixty-day period mandated by § 961.555(2)(b) has expired, the circuit court loses competency, and the State may not start the clock running anew by filing another forfeiture petition based on the same facts. Thus, the new action is a nullity, and the circuit court’s order of dismissal is modified to be a dismissal with prejudice. ^[5]

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 ^[5] The State argues that because the circuit court lost competency once the sixty days mandated by Wis. Stat. § 961.555(2)(b) expired, it had no competency to do anything further in the case, and that this permitted the State to file its forfeiture petition again. We disagree. An appeal from the circuit court cannot be taken without a writing reifying the circuit court’s action. See Wis. Stat. § 808.03(1). Thus, Brandt v. Labor & Industry Review Commission, 166 Wis.  2d 623, 627, 480 N.W.2d 494, 496 (1992), recognized that dismissal is appropriate where a circuit court lacks competency to adjudicate the matter before it.

State v. Philip R. Bons, 2007 WI App 124, PFR filed 4/24/07
For Bons: Vladimir M. Gorokhovsky

Issue: Whether a concededly proper traffic stop (for speeding) was extended without sufficient cause when the officer, after issuing the ticket and returning the license, asked to search the car.

Holding:

¶15  We conclude that Ramstack could have formed a reasonable suspicion that Bons was engaged in illegal activity, in addition to the traffic violations, when he extended the traffic stop. Ramstack saw a shot glass sitting on the console of the vehicle in close proximity to the driver’s seat. Bons appeared unusually nervous and he rolled up the windows and locked the doors when Ramstack asked him to exit the vehicle. This behavior, coupled with the presence of the shot glass on the console, gave Ramstack reasonable suspicion that Bons had been committing or was about to commit a crime involving alcohol, see Wis. Stat. § 346.935 (open container prohibition), and therefore provided Ramstack with the justification to extend the traffic stop to investigate further.

Bons was known to be driving without a license, but apparently no attempt was made to take him into custody for that offense, so the search can’t be justified as search incident to arrest. And, although the citations had been processed and Bons’s DL returned (¶6), Bons had a compelling argument that the entire transaction was too seamless for the court to deem the traffic stop concluded and the successful request to search part of a severable, consensual encounter. See generally State v. Reginald Jones, 2005 WI App 26, keeping in mind that Bons’s lack of valid DL meant he couldn’t simply drive away. And so, the only way to uphold the consent-based search is to say that it was based on continuing lawful detention. The shot glass was probably the deciding factor, though the court doesn’t say so explicitly. (Nervousness is an overworked factor, see, e.g., State v. Christopher E. Betow, 226 Wis.2d 90, 593 N.W.2d 499 (Ct. App. 1999); and just how is that locking your car generates suspicion—to the contrary, such behavior is a critical demonstration that you’re exercising your right to and expectation of privacy as to the car’s contents? Guess what the court would be saying if Bons had left the car door wide open and the contents exposed to view.)

State v. Frank C. Newer, 2007 WI App 236, PFR filed 11/8/07; prior history: Certification, 8/8/07, denied, 9/10/07
For Newer: Francis R. Lettenberger

Issue/Holding: The police have reasonable suspicion to stop a vehicle whose owner’s DL is known to have been revoked, given no reason to think someone other than the owner is behind the wheel:

¶2    We now reverse the circuit court’s suppression of the evidence and remand for further proceedings. We adopt the view articulated by the supreme court of Minnesota in State v. Pike, 551 N.W.2d 919, 922 (Minn. 1996): that an officer’s knowledge that a vehicle’s owner’s license is revoked will support reasonable suspicion for a traffic stop so long as the officer remains unaware of any facts that would suggest that the owner is not driving. Because we uphold the stop on these grounds, we do not address the alternative grounds proffered by the State.

…

¶9    Here, the officer did not observe the driver of the vehicle and had no reason to think that it was anyone other than the vehicle’s owner at any time during the stop. The officer was entitled to rely on the reasonable assumption that the owner of a vehicle is most likely the driver. ^[4]

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 ^[4] We also reject Newer’s attempt to analogize this case to State v. Lord, 2006 WI 122, 297 Wis. 2d 592, 723 N.W.2d 425. Lord stands for the proposition that an officer does not have reasonable suspicion to stop a vehicle merely because it is displaying temporary tags in accordance with the law of this state. Id., ¶7. The Lord court relied on Delaware v. Prouse, 440 U.S. 648 (1979), in which the Supreme Court rejected stops merely to determine whether a vehicle is properly registered. Lord, 297 Wis. 2d 592, ¶4. The Lord court did not address a situation like this one, in which a reasonable assumption of lawbreaking can be drawn from the circumstances. Id.