On Point

State v. David R. Kaster, 2006 WI App 72, PFR filed 4/26/06; prior appeal: 2003 WI App 105
For Kaster: Robert R. Henak

Issue/Holding: Kaster’s prior appeal held that school staff need not be under contract for purposes of § 948.095; providing voluntary services at the time of the alleged assault suffices. This prior holding did not, the court now resolves, expand the scope of the statute so as to deprive Kaster of fair notice of the proscribed conduct:

¶7        Here, Kaster argues that our interpretation of Wis. Stat. § 948.095 in Kaster requires that a defendant must actually be providing services at the time of the alleged sexual contact to be covered by the statute, which he contends is an additional element that we added. Kaster bases his proposition on the following statement in our opinion: “Finally, we conclude that the evidence at trial was sufficient to allow the jury to conclude that Kaster was providing services to the school or school board when he committed the … assault.” Id., ¶17. Therefore, Kaster asserts, he was “denied his right to present a defense on that element of the offense” because he “was not on notice of [our] interpretation of the statute at the time of the trial ….”

¶8        Because the statute put Kaster on notice that a conviction required that he be providing services at the time of the alleged sexual contact, we reject his argument. In Kaster, we addressed Kaster’s contention that the statute did not cover him because he was not school staff. The foregoing quote that Kaster highlights did not create an additional element but instead provided a description of Kaster’s relationship with the school for the purpose of analyzing whether Kaster was school staff. Id. Our goal was simply to further parse the definition of school staff and its application to Kaster. Thus, we reject Kaster’s argument that he was denied the right to present a defense and that we should exercise our discretionary reversal authority under Wis. Stat. § 752.35.

The court’s discussion is a bit opaque. Kaster, was a high school swim coach, but his contract was seasonal and the challenged assault occurred outside the swim season (though he was then working for the team as what he characterizes an “intermittent volunteer”). He thus argued in his prior appeal that he was not under contract with the school board at the time of the assault and that the statute did not cover someone such as him providing merely volunteered service. The court rejected that argument, holding that you don’t have to be “under contract” to be considered school staff for purposes of § 948.095. Kaster further argued the 1^st time around that the evidence was insufficient, but the court said, in the remark quoted above in ¶7, that the jury had a basis to conclude that he had provided services to the school at the time of the assault. One little problem: the court didn’t explain then, and perpetuates that failure now, exactly what services an “intermittent volunteer” such as Kaster must provide. Nor was the jury given any guidance on that question. Kaster therefore argues that as a matter of due process the definition must be limited “to those volunteers actively providing services to a school at the time of the alleged assault,” else the statute would be too vague. The court seemingly, on this new round, rejects that argument, though other than the conclusory remark in ¶8 gives no analysis. Moreover, the PFR points out that “the jury instructions here did not require a finding that Kaster was providing services to the school at the time of the alleged assault,” which leads to a very serious defect, namely that a conviction can’t be affirmed on a theory never resolved by the fact-finder. Again, no discussion on this point by the court of appeals.

State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: By fleeing from a police command to stop, the defendant provided probable cause to arrest for obstructing, and the officer therefore was acting with “lawful authority” under § 946.41(1), ¶¶77-78.

State v. Cesar Farias-Mendoza, 2006 WI App 134
For Farias-Mendoza: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding: A suspect who had agreed to be transported to police headquarters for questioning was arrested within the meaning of the fourth amendment once the police left him unattended for over five hours in a locked room:

¶23      We disagree with the State’s conclusion. While a defendant is not automatically seized anytime he is taken to a police station for questioning, see State v. Kramar, 149 Wis. 2d 767, 782-84, 440 N.W.2d 317 (1989), the United States Supreme Court has recognized that an initially consensual encounter can be transformed into a seizure or detention under the Fourth Amendment, Kaupp v. Texas, 538 U.S. 626, 632 (2003). Assuming Farias-Mendoza’s initial trip to the station was consensual, we nonetheless conclude that when Farias-Mendoza was left in a locked room for five hours, he was “seized” within the meaning of the Fourth Amendment. Under these circumstances, a reasonable person would not have believed that he was “free to leave.” See Mendenhall, 446 U.S. at 554.

¶24      The State contends that Farias-Mendoza could have knocked on the door, asked to be let out and escorted from the building. Not only do we doubt that a reasonable person would think to do that after having been transported to the police station, questioned for thirty minutes about a homicide, and left in a locked room, we question the State’s suggestion that it was Farias-Mendoza’s duty to try to get out of the locked room. The State cites no authority for such a proposition, and we are unconvinced that Farias-Mendoza was required to seek to leave. A reasonable person who is locked in an interview room for five hours would not believe that he was free to leave. Accordingly, we conclude that Farias-Mendoza was illegally seized.

a defendant is not automatically seized anytime he is taken to a police station for questioning— no, but it sure is a crucial factor, see, e.g., A.M. v. Butler, 360 F3d 787 (7th Cir. No. 2004); and, U.S. v. Shaw, 6th Cir No. 05-6110, 9/26/06 (frisk, handcuffing, and transport of defendant to CID office for questioning amounted to arrest, facts deemed indistinguishable from Dunaway, and similar to Kaupp; and perhaps more to the point of the block quote above, the court summarily rejects the government contention that he voluntarily accompanied the police).

State v. Cesar Farias-Mendoza, 2006 WI App 134
For Farias-Mendoza: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding: The “causal chain” between the defendant’s illegal arrest and his statement wasn’t attenuated where: he gave the statement within 25 minutes of the circumstance establishing the arrest, ¶¶28-29; there were no intervening circumstances, ¶¶30-31; and, there were suggestions of purposeful misconduct, ¶¶32-34.

State v. Jed A. Giebel, 2006 WI App 239
For Giebel: Robert E. Bellin, Jr.

Issue/Holding:

¶12   The test for voluntariness asks whether consent was given in the “absence of actual coercive, improper police practices designed to overcome the resistance of a defendant.” State v. Clappes, 136 Wis.  2d 222, 245, 401 N.W.2d 759 (1987). In making this determination, no single factor is dispositive. State v. Hughes, 2000 WI 24, ¶41, 233 Wis.  2d 280, 607 N.W.2d 621. Rather, we examine the totality of the circumstances and place special emphasis on the circumstances surrounding the consent and the characteristics of the defendant.Id. The State has the initial burden to show that the defendant’s consent was voluntary. Id., ¶42. To do so, the State must demonstrate by clear and convincing evidence that the defendant gave consent, without any duress or coercion, express or implied. State v. Phillips, 218 Wis.  2d 180, 197, 577 N.W.2d 794 (1998). In Wisconsin, the State need not prove that the defendant knew of the right to refuse consent. See State v. Xiong, 178 Wis.  2d 525, 532, 504 N.W.2d 428 (Ct. App. 1993).

State v. Jed A. Giebel, 2006 WI App 239
For Giebel: Robert E. Bellin, Jr.

Issue: Whether Giebel’s “consent” to a search of his computer, in response to a police claim of a subpoena and accompanied by an expression that Giebel assumed he had no choice, was voluntary or mere acquiescence to asserted police authority.

Holding:

¶17   Three considerations weigh heavily in our decision. First, Giebel, whom the circuit court found to be of average intelligence, was unlikely to know that a subpoena is significantly different from a search warrant. Second, the officers lent legal significance to the subpoena by telling Giebel that it was “a subpoena from Judge Carver.” Finally, Giebel’s response to the subpoena indicated that he believed resistance was futile.

¶18   Consent must be more than mere acquiescence to a claim of lawful authority. See Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968). In State v. Kiekhefer, 212 Wis. 2d 460, 471-74, 569 N.W. 2d 316 (Ct. App. 1997), we held that where the police represented that they could obtain a search warrant when in fact they could not, that misleading statement of authority led to consent that was not the product of free and unconstrained choice. Orderly submission to law enforcement officers who, in effect, incorrectly represent that they have the authority to search and seize property, is not knowing, intelligent and voluntary consent under the Fourth Amendment. See United States v. Elliott, 210 F.Supp. 357, 360 (D. Mass 1962).

¶19   Subtle suggestions, strategically made, may amount to deception or trickery where the intent is a misrepresentation of authority. Here, we cannot fathom any other reason for Lewis’ display of the subpoena. The subpoena simply showed Giebel’s address as the one associated with an email account. Had Giebel asked Lewis how the investigation led to his home, perhaps the subpoena would have been relevant. Here, the subpoena simply had no application to the conversation as it occurred.

¶20   Like the circuit court, we ascertain no outright deceit or blatant misrepresentation by Lewis or Mack; however, we believe that a reasonable police officer would understand, appreciate, and anticipate that a person of average intelligence would not grasp the distinction between a subpoena and a warrant. We are convinced that when the officers offered Giebel a fleeting glimpse of the subpoena signed by a judge, they suggested authority they did not possess. It was this suggestion of authority that led Giebel to believe he could not refuse consent for the officers to search his room and seize his computer.

Though it should be obvious anyway, keep in mind that threat to obtain warrant for which probable cause does exist doesn’t vitiate consent, U.S. v. Hicks, 539 F. 3d 566 (7th Cir No. 07-3613, 8/20/08).

State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶10      A biased tribunal, like the lack of counsel, constitutes a “structural error.” See id. at 8; Franklin v. McCaughtry, 398 F.3d 955, 961 (7th Cir. 2005); State v. Carprue, 2004 WI 111, ¶59, 274 Wis. 2d 656, 683 N.W.2d 31. …

¶11      Our supreme court has also on occasion iterated the importance of an impartial tribunal. Guthrie v. WERC, 111 Wis. 2d 447, 331 N.W.2d 331 (1983) … stated, “It is, of course, undisputable that a minimal rudiment of due process is a fair and impartial decisionmaker.” Id. at 454 (emphasis added). “A ‘fair trial in a fair tribunal is a basic requirement of due process.’”Id. at 454 (citation omitted).

¶12      The court echoed these thoughts in Marris v. City of Cedarburg, 176 Wis. 2d 14, 498 N.W.2d 842 (1993). … It explained that, “Since biases may distort judgment, impartial decision-makers are needed to ensure both sound fact-finding and rational decision-making as well as to ensure public confidence in the decision-making process.” Id. at 25-26. …