On Point

State v. Bill P. Marquardt, 2005 WI 157, on certification; prior history: 2001 WI App 219
For Marquardt: John Brinckman; Patricia A. Fitzgerald

Issue/Holding: The good-faith exception is inapplicable when indicia of probable cause are so lacking as to render official belief in its existence unreasonable. This inquiry is distinct from the question of whether the supporting facts are clearly insufficient.

¶33      Under Leon‘s rationale, sufficient “indicia” of probable cause refers to more than the fact that one or more judges have approved and signed the warrant. “[I]t is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.” Leon, 468 U.S. at 922-23 (footnote omitted). The exclusionary rule will apply when “a reasonably well trained officer would have known that the search warrant was illegal despite the magistrate’s authorization.” Id. at 922 n.23.

¶34      In short, the very point of the third Leon circumstance is that the good faith exception will not apply when the warrant is based on an affidavit so lacking in indicia of probable cause that a law enforcement officer——who ordinarily should not be expected to second-guess the warrant-issuing judge——can be said to have unreasonably relied on the warrant.

Three other potential circumstances also avoid the exception under the Leon test (see ¶25), but insufficient indicia of probable cause is the only one raised by Marquardt or discussed by the opinion. As construed by this decision, the test appears to be less than exacting. The prior court of appeals decision held that the warrant lacked probable cause; this isn’t enough: “an ‘indicia’ of probable cause is not the same as a probable cause determination. Rather, the standard for ‘indicia’ is less demanding. It requires sufficient signs of probable cause, not probable cause per se,” ¶37. Wisconsin imposes two other requirements before good faith is triggered, State v. Eason, 2001 WI 98, ¶74, 245 Wis. 2d 206, 629 N.W.2d 625, but only one is at issue in this case: that the warrant was based on a “significant investigation.”

State v. Bill P. Marquardt, 2005 WI 157, on certification; prior history: 2001 WI App 219
For Marquardt: John Brinckman; Patricia A. Fitzgerald

Issue/Holding: The search warrant was supported by sufficient “indicia of probable cause” to trigger the good-faith exception, including the following: Marquardt had not been seen for two days following his mother’s homicide, raising suspicion about his absence; the victim was covered in a blanket, raising an inference that the perpetrator was familiar with, and remorseful about, the victim; there was no indication of burglary or sexual assault, suggesting that the victim knew her killer, ¶¶39-44.

To gauge how thin this showing truly was, consider the 2-Justice dissent’s point (¶¶83-84) that the most the supporting affidavits showed was that Marquardt was missing for two days, but that an adult son’s 2-day absence hardly supplies indicia of probable cause that he killed his mother. As to the blanket covering up the body: “The majority cites no study, no peer-reviewed article, no text, not even a TV crime show or an article in a popular magazine to show that such a theory is either legitimate or has gained common knowledge or use,” ¶85. That is, no linkage—none—to Marquardt.

State v. Michael D. Sykes, 2005 WI 48, affirming unpublished decision of court of appeals
For Sykes: Jeffrey J. De La Rosa

Issue/Holding: Where the police had probable cause to arrest for criminal trespass, they did not have to subjectively intend to arrest the person for that offense in order to perform a search incident to arrest. And, though the search must be “contemporaneous” with the arrest (relatedly: probable cause must exist independent of the fruits of the search), it is not necessarily fatal that the search-incident preceded formal arrest.

This lesson has been drummed into our heads for decades now: arrest is determined under purely objective standards; long as the officer did something that can be characterized as tantamount to arrest, and long as that act was supported by probable cause, it just doesn’t matter s/he thought s/he was doing. The matter of timing of search in relation to arrest might be more complex, but the court doesn’t have much beyond abstract principle to say on this subject anyway, so we ought simply note it as a potential problem area and let it pass. Still … there is indeed more to be said, and the Chief says it in dissent, in a typically efficient and elegant manner, ¶¶37-48. Search-incident is circumscribed by the wonderfully self-descriptive “wing-span” rule. The dissent argues persuasively that Sykes’ property was well outside the reach of his wing-span, and thus searching it can’t possibly be justified under a search-incident rationale. The majority determines that it need not reach this issue, ¶21 and id., n. 6; whether or not that determination is procedurally sound is of no moment: just be sensitive to this rule and assert it when necessary.

State v. James P., 2005 WI 80, affirming, 2004 WI App 124

Issue: Whether biological father’s parental rights could be terminated on the ground of “abandonment” where he was not adjudicated as father until after alleged periods of abandonment.

Holding:

¶15 We hold that an individual who is in fact the biological father of a nonmarital child satisfies the definition of “parent” in § 48.02(13), as he is a “biological parent,” notwithstanding that he has not officially been adjudicated as the child’s biological father. Because such an individual satisfies the definition of “parent,” he may have his parental rights terminated based on periods of abandonment that occurred prior to his official adjudication as the child’s biological father, assuming he has failed to establish a “good cause” affirmative defense to the ground of abandonment.

Sheboygan County DSS v. Rachel B., 2005 WI 84, reversing unpublished decision
IssueWhether competency challenge to a TPR proceeding is waived under § 48.422(2) if not first raised in circuit court.

Holding:

¶2        We conclude such a competency challenge based on the violation of the statutory time limitation of Wis. Stat. § 48.422(2) cannot be waived, even though it was not raised in the circuit court.  The court of appeals erred in extending the holding in Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190, to violations of such a mandatory statutory time limitation under Wis. Stat. ch. 48. The circuit court did not hold the fact-finding hearing within the time limits established by § 48.422(2), and never granted a proper extension or continuance pursuant to Wis. Stat. §§ 48.315(1)(a) and (2), ^[2] and thus it lost competency to proceed before it ordered the termination of Rachel B.’s parental rights. Accordingly, we reverse the decision of the court of appeals, which had affirmed the order of the circuit court.…

¶31      We also conclude that recent changes to the Children’s Code do not affect our decision in this case, nor did the changes overrule B.J.N. and April O. sub silentio….

…

¶36     Because of the clear statutory language and legislative intent behind these statutes, we must emphasize the importance of strictly following the provisions of Wis. Stat. ch. 48. While we recognize the need for flexibility in the Children’s Code, we believe the legislature addressed this problem with the enactment of Wis. Stat. § 48.315. In this case, for example, the court perhaps could have granted a continuance if it had recognized good cause for the delay in open court or during a telephone conference on the record. Without such action, however, there is no choice for us but to follow the plain language of the statutes, and to hold that the court lost competency to proceed before it ordered the termination of Rachel B.’s parental rights. …

---

^[2] “The general requirements of § 48.315(2) control all extensions of time deadlines under the Children’s Code.” State v. April O., 2000 WI App 70, ¶5, 233 Wis.  2d 663, 607 N.W.2d 927.

Wisconsin Stat. § 48.315(2) states: “A continuance shall be granted by the court only upon a showing of good cause in open court or during a telephone conference under s. 807.13 on the record and only for so long as is necessary, taking into account the request or consent of the district attorney or the parties and the interest of the public in the prompt disposition of cases.”

State v. James E. Brown, 2006 WI 100, reversing summary order
For Brown: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding:

¶59      To earn a Bangert evidentiary hearing, a defendant must satisfy a second obligation. In addition to making a prima facie case that the circuit court erred in the plea colloquy, a defendant must allege he did not enter a knowing, intelligent, and voluntary plea because he did not know or understand information that should have been provided at the plea hearing. …

…

¶62      We share the State’s concern that this motion does not allege directly that the defendant did not know or understand certain information that should have been provided or addressed at the plea hearing. A defendant is not required to submit a sworn affidavit to the court, but he is required to plead in his motion that he did not know or understand some aspect of his plea that is related to a deficiency in the plea colloquy.

…

¶66      In this case, defense counsel persuasively documented deficiencies in the plea hearing transcript, but the motion did not allege directly that the defendant did not understand the nature of the charges against him. Counsel explained his decision not to submit an affidavit from the defendant or himself, but he did not explain why the defendant could not plead that he did not understand the nature of the charges. We are required to infer such an allegation from the totality of the motion. In this case, we accept counsel’s representations that the defendant lacked understanding about the charges and that the defendant’s “testimony will make this clear beyond dispute.”

¶67      In the ordinary case, defense counsel should plead with greater particularity a defendant’s lack of understanding. A defendant must identify deficiencies in the plea colloquy, state what he did not understand, and connect his lack of understanding to the deficiencies. See Hampton, 274 Wis.  2d 379, ¶57; State v. Giebel, 198 Wis.  2d 207, 217, 541 N.W.2d 815 (Ct. App. 1995). This procedure should prove fair to both parties.

The quoted language disturbs, in its suggestion of a requirement to “connect his lack of understanding to the deficiencies.” Neither case cited supports that proposition. In fact, Hampton, ¶57, stands for just the opposite; and Giebel merely says that the defendant failed to allege he didn’t know or understand the omitted information, hence fell short of his pleading requirement. If that were all, it might be enough to ascribe the phrase to a bout of imprecision. But that characterization is bit tougher to make given the court’s repetitive usage, “a defendant must allege he did not enter a knowing, intelligent, and voluntary plea because he did not know or understand information that should have been provided at the plea hearing,” which includes stress on “because.” And yet … the court upholds Brown’s motion which did not itself make any such connection between  ignorance of omitted information and decision to plead guilty. Moreover it simply isn’t conceivable that the court would cite without any explanation authorities that undermined rather than supported the principle. It is even less conceivable that the court overrule its own relatively recent decision, Hampton, in such a manner. Note, too, that Bangert(which is, after all, now being “revitalized,” ¶58) requires no such connection. Take similar account as well of State v. Kenneth V. Harden, 2005 WI App 252, ¶5 (“While some language in Bartelt was subsequently withdrawn in Bangert, ^[1] the holding that a defendant need not show that the misinformation ‘caused’ the plea has never been withdrawn. The precedent is binding on this court.”) Best then, not to make much of the language, potentially worrisome though it might be.

State v. Derek Anderson, 2005 WI 54, on certification
For Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate

Issue/Holding:

¶59 We agree with the State that while Krnak’s statement to Ellifson does not technically qualify as an excited utterance, or statement of recent perception due to timing problems, it does qualify under the residual hearsay exception because it contains several guarantees of trustworthiness similar to those found in statements admitted under the excited utterance exception….

¶60 We conclude that Ellifson’s testimony bears sufficient indicia of trustworthiness because “the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed.” Id. (quoting 5 Wigmore, Evidence § 1423, at 254 (Chadbourn rev. 1974)). The testimony at issue here arises from two coworkers who were engaged in an intimate conversation about problems they were experiencing with their adult sons….

¶61 Moreover, Krnak became visibly upset when relating this story, so much so that his face was red and he began shaking. Krnak appeared so distressed that Ellifson herself became upset upon hearing the story. Thus, Krnak was clearly under a great deal of stress when recounting his son’s attempt to do away with him. Also of significance is the fact that the conversation between Krnak and Ellifson appears to have been spontaneous….

¶62 … While Krnak’s statement does not technically qualify as an excited utterance because of the lack of evidence regarding when the attack occurred, the statement does demonstrate that it was made spontaneously under a great deal of stress caused by a startling event. The fact that the statement was made under circumstances similar to those forming the basis for the excited utterance exception weighs heavily in favor of its admissibility.