On Point

State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi

Issue/Holding: Dismissal of an appeal as having been directed to a non-final order doesn’t in and of itself bar the court of appeals from deciding to grant leave to appeal, ¶7 n. 2:

In its jurisdictional memoranda, the State asks us to construe its notice of appeal as a petition for leave to appeal in the event that we decline jurisdiction over the appeal.  For logistical reasons, we conclude that it makes more sense to construe the State’s memoranda as its petition for leave, and we do so by separate order.

State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi

Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3^rd to -2^nd; instead, the State’s remedy is to seek leave to appeal a non-final order:

¶2      A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel.  State v. Hahn, 2000 WI 118, ¶¶28-29, 238 Wis.  2d 889, 618 N.W.2d 528.  An order granting such a collateral attack motion is interlocutory in nature so long as the underlying criminal proceeding is ongoing.…

¶7      Because the collateral attack on Knapp’s prior OWI conviction would not affect the State’s ability to attain a conviction here, where the applicable prohibited alcohol concentration would remain the same under either a second or third offense, we conclude that the State has no appeal as of right under Wis. Stat. § 974.05(1)(d).  We further conclude that we lack jurisdiction over the appeal under Wis. Stat. § 808.03(1) and Wis. Stat. Rule 809.10(4) because the order appealed from is not final.  The proper mechanism to seek immediate review in these circumstances is by leave to appeal under Wis. Stat. Rule 809.50.^[2]  Accordingly, we hereby dismiss the appeal for lack of jurisdiction.

The court simultaneously published an opinion casually noting that successful attack on an alleged OWI prior, if on a different ground, could be appealed by the State as a matter of right from the judgment of conviction. State v. Daniel J. Machgan, 2007 WI App 263, ¶5. Presumably, then (and assuming that result is correct, which could be a stretch), Knapp’s prosecutor could just wait until after conviction and then appeal the collateral-attack order. Sweet! Note further, though, that although the court dismissed the appeal-of-right, it is separately considering whether to grant leave to appeal (Case No. 2007AP002697 – CRLV), and has ordered briefing on “whether double jeopardy would bar the State from appealing the issue as of right following sentence.”

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

Issue/Holding:

¶34      Turning to the present case, the State contends that Johnson’s movement in the interior of the car was a sufficiently compelling factor to justify Stillman’s protective search of Johnson’s car. The State asserts that the court of appeals improperly concluded this single factor, by itself, was not enough to establish reasonable suspicion.

¶35      We agree with the State that the presence of a single factor, if sufficiently compelling, may give rise to reasonable suspicion justifying a protective search.…

¶36      Under the totality of the circumstances present in this case, we conclude that Johnson’s “head and shoulders” movement did not give Stillman reasonable suspicion to conduct a search of Johnson’s person and car.

…

¶41      As in Kyles, where we concluded officers lacked reasonable suspicion to conduct a protective search, Johnson was not suspected of a crime associated with weapons possession, and officers had had no prior contact with Johnson suggesting that he was a dangerous individual. The stop occurred in early evening in an area that was well lit. Johnson cooperated with officers, producing documentation showing that his vehicle had recently passed an emissions test. Despite complaining of a bad leg, Johnson complied with Stillman’s lawful request for him to exit the vehicle.

…

¶43      Were we to conclude that the behavior observed by the officers here was sufficient to justify a protective search of Johnson’s person and his car, law enforcement would be authorized to frisk any driver and search his or her car upon a valid traffic stop whenever the driver reaches to get his or her registration out of the glove compartment; leans over to get his wallet out of his back pocket to retrieve his driver’s license; reaches for her purse to find her driver’s license; picks up a fast food wrapper from the floor; puts down a soda; turns off the radio; or makes any of a number of other innocuous movements persons make in their vehicles every day. In each of these examples, the officer positioned behind the vehicle might see the driver’s head and shoulders move, or even momentarily disappear from view. Without more to demonstrate that, under the totality of circumstances, an officer possesses specific, articulable facts supporting a reasonable suspicion that a person is dangerous and may have immediate access to a weapon, such an observation does not justify a significant intrusion upon a person’s liberty.

A highly fact-specific case with, to be sure, exceptionally favorable facts. The trial court’s ruling (¶7, that Johnson consented to the search by acquiescing to it) was a stretch. About all the police had was a supposedly furtive gesture; nothing more, really, than appearing to reach under his seat (¶3). If there’s an overarching principle, that’s probably it: a furtive gesture alone isn’t enough. See, e.g., U.S. v. Spinner, D.C. Cir. No. 05-3160, 1/16/07:

Some additional fact is needed to get from the defendant’s conduct (or his nervousness) to his likely being dangerous….We recognize that “traffic stops may be dangerous encounters,” … Still, the suspicion that someone is armed — or, in this case, might have a weapon available in his vehicle — must be based upon something more than his mere nervousness. A person stopped by the police is entitled to be nervous without thereby suggesting he is armed and dangerous or, indeed, has anything to hide. Were nervous behavior alone enough to justify the search of a vehicle, the distinction between a stop and a search would lose all practical significance, as the stop would routinely — perhaps invariably — be followed by a search. We do not read Long to reach so broadly into the rights of motorists to be free of searches based upon less than probable cause.

Note in particular the absence of any claim the stop occurred in a high-crime area, something the court of appeals drew careful attention to, 2006 WI App 15, ¶16, string-citing cases which contrastingly involved high-crime areas, including State v. Roosevelt Williams, 2001 WI 21, in which a furtive movement together with minimal other factors, did support a search. Nonetheless the supreme court interestingly does not assign much if any signficance to this (non-)factor (though the court does draw attention to the high-crime case Kyles because even there a frisk was unsupported), ¶42.

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

Issue/Holding:

¶45      Another factor weighs strongly against the reasonableness of the protective search in this case. Before Johnson was asked to exit the vehicle and submit to a pat down, he gave Stillman paperwork showing that his vehicle had passed an emissions test recently, and that, as a result, the registration suspension had been lifted. Officers may detain a person on a stop for a routine traffic violation only for as long as necessary to complete the investigation of the violation. See Knowles v. Iowa, 525 U.S. 113, 117 (1998). The paperwork Johnson provided to Stillman established that Johnson’s vehicle was no longer subject to an emissions suspension.  ^[17]

---

 ^[17]  We recognize that the officers noted that Johnson had failed to signal a turn prior to the stop. The record does not establish whether the officers had finished their investigation with respect to his failure to signal a turn. What is clear in light of Knowles v. Iowa, 525 U.S. 113 (1998), is that once an investigation for a minor traffic violation is completed, the officers’ generalized concern for safety does not provide a basis for a full protective search.

State v. Steven P. Muckerheide, 2007 WI 5, affirming unpublished opinion
For Muckerheide: Mark S. Rosen

Issue/Holding: On a trial of homicide by intoxicated use of a motor vehicle, § 940.09(1)(b), where the defense was that the death would have occurred anyway because the deceased grabbed the wheel just prior to the accident, evidence that the deceased “had, on prior occasions, gestured as if to grab the steering wheel of his father’s vehicle and, on one occasion, had actually grabbed the wheel,” was properly excluded as irrelevant:

¶28     As the State pointed out in its brief, the one occasion on which Braun allegedly grabbed the wheel of his father’s vehicle was dissimilar in several respects to the occasion in which Braun allegedly grabbed the wheel of Muckerheide’s vehicle. There was no evidence that, on the prior occasion, Braun had been intoxicated or under the influence of drugs, but there was evidence that Braun had been drinking and doing cocaine prior to the accident in Muckerheide’s vehicle. There is no dispute that an individual often acts differently when he/she is under the influence of drugs and alcohol. Additionally, Braun’s father would have testified that Braun had gestured toward the steering wheel on several occasions, whereas Muckerheide never asserted that Braun had made gestures toward the steering wheel in Muckerheide’s vehicle prior to the accident. Finally, there is no evidence that Braun had ever grabbed the steering wheel when riding with Muckerheide on occasions prior to the accident, as Braun had allegedly done when riding with his father.¶29      Due to these dissimilarities, we conclude that Muckerheide’s offered other acts evidence does not make a consequential fact more probable or less probable. Id. at 785-86. As this court stated in Whitty v. State, 34 Wis. 2d 278, 291-92, 149 N.W.2d 557 (1967), our seminal case regarding other acts evidence, it is universally established that evidence of other acts “is not admitted in evidence for the purpose of proving general character, criminal propensity or general disposition on the issue of guilt or innocence because such evidence, while having probative value, is not legally or logically relevant to the crime charged.”

State v. Sullivan, 216 Wis. 2d 768, 771-72, 576 N.W.2d 30 (1998), it will be recalled, establishes a 3-part test for admissibility of § 904.04 extraneous conduct evidence, ¶20: acceptable purpose under § 904.04(2); relevancy under § 904.01; danger of unfair prejudice under § 904.03. The variant presented by this case is that it deals with evidence sought for use by rather than against the defendant. Draw your own conclusions as to whether identity of extraneous-conduct evidence has a distorting effect on the outcome. One noteworthy point, though: Muckerheide argued that Sullivan’s 3^rd step, unfair prejudice, isn’t applicable where the other-acts evidence is advanced by the defendant; the court, while expressly declining to reach that argument, nonetheless equally explicitly “urge(s) circuit court to discuss and analyze all three steps of the Sullivan analytical framework,” ¶32.

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

Issue/Holding:

¶32 Bruski argues that he had a reasonable expectation of privacy in his travel case, even if he did not have a reasonable expectation of privacy in Ms. Smith’s vehicle. The question of whether an individual may have a reasonable expectation of privacy in personal property found inside a vehicle that he or she does not have a reasonable expectation of privacy in has not been addressed by the United States Supreme Court. It is a matter of first impression in this state.

…

¶34 The court of appeals in this case seemingly followed the bright-line rule rationale …. The Fourth Amendment does not lend itself to bright-line rules, see Rakas, 439 U.S. at 147, and we will not adopt one in this case.

…

¶37 The Court has set forth principles that are especially pertinent in resolving whether Bruski had a reasonable expectation of privacy in the travel case. First, personal property found in vehicles is treated differently than personal property found in dwellings. There is a lesser expectation of privacy in vehicles. …

The court thus effectively overruled the coourt of appeals’ holding, 2006 WI App 53, ¶19, that “(w)ithout a reasonable expectation of privacy in the vehicle, he has no expectation of privacy relative to his travel case as a matter of law, even though he owned the case.” However, the court goes on to decline to find a reasonable expectation of privacy in the container, given the circumstances:

¶39 As mentioned above, there is a reduced expectation of privacy in vehicles. … Bruski left the travel case in a vehicle that he did not own. He left it in a vehicle in which he had established no connection. He left it in a vehicle where he had no reasonable expectation of privacy. ^[5]

¶40 Courts “have been reluctant to find a reasonable expectation of privacy where the circumstances reveal a careless effort to maintain a privacy interest.” United States v. Angevine, 281 F.3d 1130, 1135 (10th Cir. 2002) (citing United States v. Anderson, 154 F.3d 1225, 1232 (10th Cir. 1998)). Bruski left his travel case in a vehicle he did not have a reasonable expectation of privacy to while he was in such a state that he appeared dead, and required physical shaking to be roused.

¶41 The ease with which Officer Beauchamp came across the travel case illustrates Bruski’s carelessness and failure to take “precautions customarily taken by those seeking privacy.” Dixon, 177 Wis. 2d at 469. … Additionally, Bruski had not done anything to protect any privacy interest he may have had. The travel case was not locked. It did not have identifying information on its exterior. Nothing indicated that Bruski had an expectation of privacy in the travel case. Even when Officer Beauchamp was in the process of opening it, Bruski had neither a verbal or nonverbal response.

The court suggests that State v. Matejka, 2001 WI 5 (search of passenger’s jacket upheld on theory of driver’s consent) contrastingly shows 4^th A standing, because that case “involved personal property that had been removed from a vehicle, facts that do not exist in this case,” ¶45 n. 6:

State v. Matejka, 2001 WI 5, 241 Wis. 2d 52, 621 N.W.2d 891, presented a different issue than the one that arises in this case. Defendant Jennifer Matejka claimed the government had violated her Fourth Amendment rights when it searched her jacket. The court held that the search of Matejka’s jacket was reasonable based on the driver’s consent to the search of his vehicle. Her jacket (i.e., personal property) had been retrieved from the vehicle being searched. Before a government agent searched the jacket, it had been removed from the vehicle and the agent had been given a description of her specific jacket. The Matejka court did not address whether Matejka had a reasonable expectation of privacy in her jacket. Her standing to challenge the search of her jacket may be inferred because the court addressed her Fourth Amendment claim. Matejka involved personal property that had been removed from a vehicle, facts that do not exist in this case.

Just how valid is the distinction, though? Matejka’s jacket was left inside the van after she (and the other passengers) were ordered out. Her jacket was retrieved by the police, and searched, after the passengers complained of being cold, 2001 WI 5, ¶¶8-12. Bruski, too, left his property behind when “asked” to get out, 2007 WI 5, ¶9. Presumably, if he’d asked for the case then his situation would be indistinguishable from Matejka’s and, like her, he’d have standing to challenge an ensuing search. Seems like a fairly arbitrary distinction, though it might be this: by insisting that the item be delivered to him, he would thereby be exercising sufficient dominion and control so as to assert a right to, and freedom of interference with, that property. In any event, the court has explicitly recognized the distinction and so it must be kept in mind.

State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi

Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3^rd to -2^nd; instead, the State’s remedy is to seek leave to appeal a non-final order:

¶2      A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel.  State v. Hahn, 2000 WI 118, ¶¶28-29, 238 Wis.  2d 889, 618 N.W.2d 528.  An order granting such a collateral attack motion is interlocutory in nature so long as the underlying criminal proceeding is ongoing.…

¶7      Because the collateral attack on Knapp’s prior OWI conviction would not affect the State’s ability to attain a conviction here, where the applicable prohibited alcohol concentration would remain the same under either a second or third offense, we conclude that the State has no appeal as of right under Wis. Stat. § 974.05(1)(d).  We further conclude that we lack jurisdiction over the appeal under Wis. Stat. § 808.03(1) and Wis. Stat. Rule 809.10(4) because the order appealed from is not final.  The proper mechanism to seek immediate review in these circumstances is by leave to appeal under Wis. Stat. Rule 809.50. ^[2]  Accordingly, we hereby dismiss the appeal for lack of jurisdiction.

The court simultaneously published an opinion casually noting that successful attack on an alleged OWI prior, if on a different ground, could be appealed by the State as a matter of right from the judgment of conviction. State v. Daniel J. Machgan, 2007 WI App 263, ¶5. Presumably, then (and assuming that result is correct, which could be a stretch), Knapp’s prosecutor could just wait until after conviction and then appeal the collateral-attack order. Sweet! Note further, though, that although the court dismissed the appeal-of-right, it is separately considering whether to grant leave to appeal (Case No. 2007AP002697 – CRLV), and has ordered briefing on “whether double jeopardy would bar the State from appealing the issue as of right following sentence.”