On Point

City of Milwaukee v. Tanya M. Bean, et al., 2001 WI App 258, PFR filed 11/8/01
For Bean: Jerome F. Buting, Pamela S. Moorshead

Issue1: Whether prostitution activities in the area encompassed by the injunction were shown sufficiently to constitute a nuisance.

Holding:

¶13. Although it is true, as the appellants argue, that the infusion of prostitution in the affected areas can, on one level at least, be addressed by the enforcement of the laws making that and related activity illegal, the difficulties and dangers inherent in that route make injunctive relief appropriate because enforcement of the injunction can be done by police officers in uniform with adequate means of self-protection. Additionally, although the individual appellants are but a small part of the problem, the same is true of all the persons prostituting themselves in the affected areas. A rule that prohibited injunctive relief against a person acting independently but whose independent acts when combined with the independent acts of others created a public nuisance, merely because the person was acting independently, would render this type of public nuisance immune to effective redress. Accordingly, the trial court had the authority to issue an injunction to abate the appellants’ role in what the undisputed evidentiary submissions prove is a public nuisance.

Issue2: Whether the injunction was reasonably related to abatement of the nuisance it addressed.

Holding: The prohibition against loitering in doorways, and at bus stops and pay phones “gives fair notice and is easy to obey.” ¶16. However, the ban on being within 25 feet of any other person subject to the injunction while engaged in proscribed activities is struck as unconstitutionally vague. Id. The prohibition against engaging passersby in conversation is overbroad and trenches on the right of association; it is to be modified on remand “to ensure that it does not encompass appellants’ relatives and friends[.]” ¶18. But this restriction is valid as to strangers, ¶¶19-20, excepting legitimate efforts to hail cabs, ¶20 n. 4.

State v. Joseph E.G., 2001 WI App 29, 240 Wis. 2d 481, 623 N.W.2d 137
For Joseph E.G.: Susan E. Alesia, SPD, Madison Appellate

Issue: Whether § 301.45(1m) (1997-98) violates equal protection and substantive due process in failing to excuse juveniles convicted of false imprisonment from sex offender registration.

Holding:

¶12 In contrast to the facts that could relieve an offender from registration for those crimes enumerated in WIS. STAT. § 301.45(1m), the crime of false imprisonment is never consensual and never a crime solely because of the age of the victim. … Therefore, we conclude the classification created by § 301.45(1m) is rationally related to protecting the public, meets one of the legislative objectives of registration, and does not violate constitutional guarantees of equal protection as applied to Joseph.” “¶14 Joseph’s substantive due process contention is simply a restatement of his equal protection claim. … Accordingly, we need not provide a separate substantive due process analysis.

State v. Matthew J. Trecroci, Ryan J. Frayer, Ronnie J. Frayer, Scott E. Oberst, Amy L. Wicks, 2001 WI App 126
For defendants: Robert R. Henak

Issue: Whether warrantless police entry of a stairway in a multiple unit building was lawful.

Holding: Existence of reasonable expectation of privacy in a stairway leading to the upper levels of a dwelling is decided case-by-case, rather than under bright-line rule. ¶¶33-34. The various factors listed in State v. Thompson, 222 Wis. 2d 179, 186, 585 N.W.2d 905 (Ct. App. 1998) support these defendants’ expectations of privacy:

1. Property interest/legitimate presence: The defendants included the owner who lived on the second floor, and others who rented the attic from him. ¶37.
2. Dominion & control/actions evincing privacy: The defendants were the only ones with unlimited access to the stairway, which they regulated with a deadbolt lock. ¶¶38-40.
3. Use of property:
   • The owner used the stairway to access his residence, and he therefore had a clearly reasonable expectation of privacy, ¶41;
   • the question is closer for the other defendants, who rented the attic and used it for a purely commercial purpose (drugs), entitling them to less protection than for a residence, but because this use was covert and secretive, and because of the efforts undertaken to keep others out, the use “is consistent with historical notions of privacy.” ¶¶42-43.

State v. Kelsey C.R., 2001 WI 54
For Kelsey C. R.: Susan Alesia, SPD, Madison Appellate

Issue: Whether the police had reasonable suspicion to frisk Kelsey, a juvenile, before placing her in a squad car and transporting her home at her mother’s request.

Holding: The most significant feature of this fractured ruling is majority support for the principle that there is no “blanket-rule that a police officer may frisk a person just because the officer is going to place that person inside a police vehicle.” ¶50 (3-vote plurality). The dissent (2 votes) also rejects such a rule, ¶91, meaning that this rejection commands a clear majority of 5 votes. (The 2-vote concurrence would adopt the per se rule, and upholds the frisk on that basis. ¶54.) Nonetheless, the frisk is upheld. In order to justify a frisk, the police must have reasonable suspicion, apart from justification for the stop, to believe that the person may be armed and dangerous. ¶47. The police did not have any reason to believe that this 15-year-old girl, who seemed more vulnerable than dangerous, needed to be frisked for their safety. (Note: this holding derives from agreement on the point between the two-vote concurrence and two-vote dissent. See ¶¶3 n.1, and ¶52.) However, the police had reasonable suspicion to believe that Kelsey was armed and dangerous, because: she had fled from the police; she had been leaning against a storefront with her hood over her head; her age; it was dark, with few people around; it was a high-crime neighborhood; she told the police she was afraid, but didn’t say why; placing someone in a squad is a factor to be considered. ¶¶49-50.

State v. Thomas, 2008 Ohio 6595, 12/11/08 (policy of patting down every person placed in squad while officer writes ticket unreasonable). Arguably contrary authority: U.S. v. McCargo, 2nd Cir No. 05-4026-cr, 9/13/06 (frisk of suspect being transported for on-scene ID upheld on theory of administrative-search, inventory-like rationale); but case distinguishable, precisely on basis that transported person was reasonably suspected of recent crime.

State v. Robert F. Hart, 2001 WI App 283
For Hart: John Deitrich

Issue: Whether the need to transport in a police vehicle a person, who is not in custody, is itself an exigency justifying a pat-down search for weapons.

Holding:

¶17. … With five members of the court declining to adopt a per ser rule, the law in Wisconsin is that the need to transport a person in a police vehicle is not, in and of itself, an exigency which justifies a search for weapons.

¶18. In light of the supreme court’s rejection in Kelsey C.R. of a ‘search incident to a squad car ride’ exception, more specific and articulable facts must be shown to support a Terry frisk. Morgan, 197 Wis. 2d at 209. The record in this case offers no specific or articulable facts that would make a police officer reasonably fear for his or her safety. This was a routine traffic stop; it is not like those cases where an officer has confronted a person who is acting nervous or uncooperative, who is in a high-crime area late at night, or who has companions in the car. We conclude that the marijuana pipe may not be admissible as the result of a Terry search.

¶19. Before continuing this opinion, we must note that a routine pat-down of a person before a police officer places the person in a squad car is wholly reasonable. We recognize that police policy mandates pat-downs for the general safety of the officer. Nevertheless, evidence gleaned from such a search will only be admissible in court if there are particularized issues of safety concerns about the defendant.

For additional cases re: placing someone in squad isn’t necessarily justification in and of itself for frisk, see, State v. Askerooth, fn. 8, MN SCt No. C6-02-318, 6/17/04.

Authority for the idea that the police may not, “as a matter of routine, … order a detained motorist to sit in the back of a police cruiser”: State v. Berrios, TN Crim App 04-03042, 3/3/06 (refusing to extend Pennsylvania v. Mimms, which allows officer to order occupants out of car upon traffic stop to “routine, suspicionless frisks”).

State v. Tronnie M. Dismuke, 2001 WI 75, 244 Wis. 2d 457, 628 N.W.2d 791, reversing and remanding, 2000 WI App 198, 238 Wis. 2d 577, 617 N.W.2d 862
For Dismuke: Richard D. Martin, William S. Coleman, SPD, Milwaukee Appellate<

Issue: Whether a defendant may have to bear costs of being produced from prison for court appearances.

Holding:

¶4 We reverse. Our decision in State v. Ferguson, 202 Wis. 2d 233, 549 N.W.2d 718 (1996) interpreted the term ‘fees’ in a related subsection of the criminal costs statute, Wis. Stat. § 973.06, to include only those sums ‘ordinarily charged to and payable by another,’ not internal operating expenses of a governmental unit. The record in this case contains conflicting information and no evidence about whether the expenses associated with executing orders to produce are generally ‘charged to and payable by another,’ or are merely internal operating expenses of the Milwaukee County Sheriff’s Department. The record is similarly underdeveloped and murky on the specific amounts assessed in this case, and there is no record at all on the constitutional issues. Accordingly, we reverse the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion.

…

¶26 Accordingly, because of the inadequacies in this record, we hold only that our decision in Ferguson applies to the determination of taxable ‘fees of officers allowed by law’ under Wis. Stat. § 973.06(1)(a). This requires a determination of whether the expenses associated with the execution of orders to produce are ordinarily charged to and payable by another or are merely internal operating expenses of a governmental unit. If the former, they are taxable, provided they are ‘allowed by law,’ which requires a determination of whether the actual assessments were consistent with Wis. Stat. § 814.70. The constitutional issues in this case cannot be resolved because there is no record upon which to resolve them. Therefore, we reverse the court of appeals and remand this case to the circuit court for further proceedings consistent with this opinion.

State v. Eddie McAttee, 2001 WI App 262
For McAttee: Russell D. Bohach

Issue: Whether the Riverside probable cause finding was tainted by a factual misrepresentation (specifically, that McAttee had been implicated by a “coconspirator”) in the police report submitted in support of continued detention.

Holding: Though describing the informant as a coconspirator “may have been legally inexact, it also may have accurately conveyed the police’s understanding, at least in the vernacular.” The officer’s use of the term wasn’t “calculated to mislead.” ¶¶19-20.

“The issue of whether suppression is an appropriate remedy for a Riverside/Gerstein violation is unresolved by the Supreme Court although the Supreme Court has held that exclusion is appropriate for other constitutional violations,” Lawhorn v. Allen, 11 Cir No. 04-11711, 3/11/08.