On Point

State v. Bill Paul Marquardt, 2001 WI App 219, PFR filed 9/20/01
For Marquardt: James B. Connell

Issue: Whether evidence seized under a warrant defective because unsupported by probable cause may be admissible under the good-faith doctrine.

Holding: Given that, subsequent to trial-level litigation, the supreme court recognized the good-faith exception to the exclusionary rule, in State v. Eason, 2001 WI 98, ¶74, 629 N.W.2d 625, the matter is “remand(ed) for a good faith hearing consistent with Eason.” ¶22.

State v. Bill Paul Marquardt, 2001 WI App 219, PFR filed 9/20/01
For Marquardt: James B. Connell

Issue: Whether the search warrant was supported by probable cause.

Holding:

¶18. …. The State points to several facts in the affidavits: (1) Mary’s telephone was off the hook the day she was killed, suggesting “that the perpetrator had been inside the residence”; (2) Mary was shot and stabbed, and no valuables were taken, suggesting the crime was an intentional homicide, as opposed to a break-in, and that the perpetrator was probably a male; (3) there were footprints at the crime scene that could be compared with footware if any are located; (4) Mary was covered with a blanket, which suggests the perpetrator knew, or was familiar with the victim; and (5) Marquardt’s father stated that his son had not been heard from since Mary’s body was discovered.

¶19. Although these facts may lead a reasonable police officer to pursue further investigation of Marquardt, we conclude that there is nothing in the facts to tie Marquardt to the crime, much less to tie his home to the crime. Although the warrant-issuing judge may have been provided sufficient facts to excite an honest belief in a reasonable mind that the particular types of objects sought-including shoes, knives, and guns-could be linked with the commission of the crime, there was no fact that suggested those items would be found in Marquardt’s cabin. We conclude that Marquardt has established that the facts are clearly insufficient to support a probable cause finding and, therefore, we reject the judge’s probable cause determination. See Ward, 2000 WI 3 at ¶2.

State v. Cherise A. Raflick, 2001 WI 129
For Raflik: Michael J. Fitzgerald, Dean A. Strang

Issue/Holding:

¶1. This case requires us to decide whether suppression is the proper remedy when a telephonic application for a search warrant is not recorded in accordance with Wis. Stat. § 968.12(3)(d)1, and when the factual basis for the warrant is reconstructed in an ex parte hearing after the warrant has been executed. We conclude that suppression is improper, and that the warrant application in this case was appropriately and adequately reconstructed.

As the court notes, three constitutional protections are implicated by this Issue: fourth amendment (unreasonable search & seizure); 14th amendment due process (meaningful judicial review); and Art. I, § 21 (meaningful appeal). Given conceded procedural regularities (probable cause, etc.) other than lack of contemporaneous record, no direct fourth amendment violation occurred. ¶17. As to the irregularity that did occur, the court holds that at least where, as here, the failure to record a warrant application isn’t the result of police misconduct, the fourth amendment is satisfied “when a careful reconstruction of a warrant application is made.” ¶21. Various factors should be considered, such as length of unrecorded segment, time between application and reconstruction, and extent of issuing judge’s role in reconstruction. ¶26. As to the rights to meaningful appeal/review, prior case law allowing reconstruction of missing trial transcripts is relevant. State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987); State v. DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App. 1985):

¶39. We hold that the reconstruction procedures articulated in Perry and DeLeon may be used in a situation where a telephonic warrant application has mistakenly not been recorded. Where there is no evidence of intentional or reckless misconduct on the part of law enforcement officers, a reconstructed warrant application may serve as a functional equivalent of the record of the original application. Such a reconstruction, when made appropriately, can protect the defendant’s right to a meaningful appeal, as well as the defendant’s ability to challenge the admission of evidence in a suppression hearing.

Reconstruction of a missing warrant application will virtually always be required. ¶40. Application of the Perry–DeLeon factors satisfies the court that the reconstruction was the functional equivalent of the original application. ¶¶42-43 (court stressing that only 18 hours lapsed between application and reconstruction). That the issuing judge conducted the hearing, and asked leading questions, wasn’t inappropriate. ¶¶44-48. Nor need the hearing have been adversarial, given that it occurred prior to issuance of a charge; however, a post-charge reconstruction hearing might well require presence of counsel. ¶¶49-51. Finally, the burden of proof is to the same degree of certainty as the reconstructed proceeding; because suppression is judged by preponderance of evidence, that is the standard that applies to warrant-application reconstruction. ¶¶53-57.

State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate

Issue: Whether the trial court’s response to a jury request to see a written report and a transcript of a witness’s testimony — that these items were “not available” — without first seeking defense input was error.

Holding: The defendant’s presence is required at any critical stage, but not where a mere point of law is discussed. Although the jury’s requests in this case were doubtfully mere points of law, any error was harmless — the report was never moved into evidence and therefore couldn’t have been sent to the jury, and the witness’s testimony raised nothing complicated or difficult to remember. ¶¶65-66. (The court reiterates “strong” disapproval of ex parte judicial communication with a deliberating jury. ¶64 n. 7.)

State v. Murle E. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, reversing 2000 WI App 137, 237 Wis. 2d 313, 614 N.W.2d 25
For Perkins: William E. Schmaal, SPD, Madison Appellate

Issue: Whether and to what extent threats are protected from prosecution under the first amendment.

Holding:

¶17 This court agrees with the State and the defendant that some threatening words are protected speech under the First Amendment. Only a “true threat” is constitutionally punishable under statutes criminalizing threats. The phrase “true threat” is a term of art used by courts to refer to threatening language that is not protected by the First Amendment.

…

¶29 This court has considered these cases and concludes that the test for a true threat that appropriately balances free speech and the need to proscribe unprotected speech is an objective standard from the perspectives of both the speaker and listener. A true threat is determined using an objective reasonable person standard. A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. In determining whether a statement is a true threat, the totality of the circumstances must be considered.

Like effect: U.S. v. Fuller, 7th Cir. No. 03-4081, 10/27/04; U.S. v. Stewart, 7th Cir No. 03-2675, 6/14/05. For detailed discussion as to why the “true threat” test is “determined under an objective standard that focuses on the speaker” — i.e., focus is on the fear instilled in the person threatened, not the speaker’s actual intent to carry out the threat — see State v. Kilburn, 151 Wn.2d 36, 84 P.3d 1215 (2004). But in determining the sufficiency of evidence establishing a true threat under this standard

An appellate court must be exceedingly cautious when assessing whether a statement falls within the ambit of a true threat in order to avoid infringement on the precious right to free speech. It is not enough to engage in the usual process of assessing whether there is sufficient evidence in the record to support the trial court’s findings. The First Amendment demands more.

Thus, the appellate court must, in this context, independently review “those ‘crucial’ facts that necessarily involve the legal determination whether the speech is unprotected.” See also State v. Johnston, WA SCt No. 76544-8, 1/26/06.But for an opposing view, possibly creating a cert-worthy split, see U.S. v. Cassell, 9th Cir No. 03-10683, 5/24/05 (“We are therefore bound to conclude that speech may be deemed unprotected by the First Amendment as a ‘true threat’ only upon proof that the speaker subjectively intended the speech as a threat”), specifically taking Fuller to task for not taking into account Virginia v. Black, 538 U.S. 343 (2003).

State v. George S. Tulley, 2001 WI App 236
For Tulley: Patrick M. Donnelly

Issue: Whether excluding defendant and his attorney from in camera voir dire of several jurors was reversible error.

Holding: A defendant has both constitutional and statutory rights to be present, with assistance of counsel, at voir dire, and the trial court therefore erred in excluding them from the in camera proceedings. ¶6. However, deprivation of these rights is not subject to automatic-reversal and, largely because the court excluded the jurors interviewed in camera, the error was harmless. ¶11. State v. Harris, 229 Wis. 2d 832, 601 N.W.2d 682 (Ct. App. 1999) distinguished.

Beyond narrowly distinguishing Harris on the facts, the court cites no authority for the idea that denial of assistance of counsel at a critical stage is subject to harmless error analysis.

State v. Derrick Benton, 2001 WI App 81
For Benton: James Kachelski.

Issue: Whether the defendant can challenge seizure of property from an auto where he claimed no ownership or possessory interest in either the auto or the seized property.

Holding:

¶11            Although the trial court upheld the search of the car in which Benton was riding as one incident to either an arrest or as an inventory search, we need not reach those issues because, as the State points out, Benton lacked a reasonable expectation of privacy in the area of the car where the guns were found and may thus not challenge the search.  See Rakas v. Illinois, 439 U.S. 128 (1978).[2]  The fundamental principle recognized by Rakas is that Fourth Amendment rights against unreasonable searches and seizures are rights personal to those whose Fourth Amendment interests have been invaded:

Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.  A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.  And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule’s protections.

Id., 439 U.S. at 133–134 (internal citations omitted).  Here, as in Rakas, Benton “asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized,” id., 439 U.S. at 148; indeed, all of the car’s occupants, including the driver, disclaimed any possessory interest in the car or the guns.  Moreover, as in Rakas, Benton has not demonstrated that he had “any legitimate expectation of privacy in the … area under the seat of the car” in which he was a mere passenger.  Id., 439 U.S. at 148–149 (“passenger qua passenger simply would not normally have a legitimate expectation of privacy” in that area).  Accordingly, Benton lacks standing to contest the search.