On Point

State v. Douglas D., 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, reversing unpublished court of appeals decision
For Douglas D.: Eileen A. Hirsch, SPD, Madison Appellate

Issue: Whether purely written speech may be punished as disorderly conduct, § 947.01, even where no disturbance results.

Holding: The disorderly conduct statute, applied to speech alone, is neither overbroad nor “underbroad” (i.e., discriminating on the basis of content), and therefore “the First Amendment does not inherently bar the State from applying § 947.01 to unprotected speech, even if the unprotected speech is purely written speech.” ¶21.

Issue2: Whether a student’s writing assignment satisfied the requirements of disorderly conduct.

Holding: Though disorderly conduct “requires more than mere offensive speech or behavior,” threatening a public school teacher while in school is the type of conduct that may tend to cause or provoke a disturbance and therefore satisfy § 947.01. ¶28. However, the threat must be a “true” one¶¶31-32, and in this case the alleged threat, which was part of a 13-year-old boy’s creative writing assignment, was “impetuous” and at least partly in jest, and in context did not amount to a true threat. ¶39.

Companion case, to same effect — State v. A.S., 2001 WI 48, 243 Wis. 2d 204, 626 N.W.2d 725 (first amendment permits applying DC statute, § 947.01, to speech alone):

¶17 We conclude that application of the disorderly conduct statute to speech alone is permissible under appropriate circumstances. The right of free speech is not absolute. When speech is not an essential part of any exposition of ideas, when it is utterly devoid of social value, and when it can cause or provoke a disturbance, the disorderly conduct statute can be applicable.

State v. A.S. also sustained a DC conviction under a “true threat” exception to the first amendment:

¶23 In applying the test to A.S.’s statement, we conclude that his statements, as alleged in the petition, did constitute true threats. Under the totality of the circumstances, a reasonable speaker in the position of A.S. would foresee that reasonable listeners would interpret his statements as serious expressions of an intent to intimidate or inflict bodily harm. M.L. told him that his statements were scaring her. She asked him several times to stop making the statements. The recent events at Columbine High School, which A.S. made reference to during the course of his statements, heightened the anxiety of the listeners. A reasonable person in the position of A.S. had to know that his listeners were concerned about what had happened at Columbine and about what could happen if A.S. was determined to carry out his threats.

Also see People v. George T., Cal. SCt No. S111780, 7/22/04 (high school student’s “dark poetry,” which referred to bringing guns to school to kill students, enjoyed 1st amendemnt protecttion from criminal prosecution; note, however, that the result is narrowly fact-specific and turns on characterization of the poem as “ambiguous and plainly equivocal”). And, detailed discussion inPorter v. Ascension Parish, 5th Cir No. 04-30162, 12/10/04 (somewhat unusual facts in that Porter’s sketch of a violent siege was two years old and taken to school by his brother without his knowledge: “For such writings to lose their First Amendment protection, something more than their accidental and unintentional exposure to public scrutiny must take place.”)

State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams

Issue: Whether charges of completed and attempted sexual assault of the same victim were multiplicitous.

Holding:

¶34. The nature of the two acts was different because the attempted sexual assault was foiled by the victim’s resistance. There was some time separation between the two acts, sufficient for a question and answer. Further, Meehan had an opportunity to reconsider his course of action because Nickolas told him ‘no’ after the first act. See State v. Carol M.D., 198 Wis. 2d 162, 170, 542 N.W.2d 476 (Ct. App. 1995) (‘Offenses are separated in time if the defendant had time to reconsider his … course of action between each offense.’). Accordingly, we conclude that the two acts were not identical in fact.

State v. Timothy P. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359
For Koenck: Lew Wasserman

Issue: “(W)hether in a prosecution under § 948.07 the charges must be dismissed because the State cannot prove that the victim had not attained the age of eighteen [because the ‘victim’ is fictitious].” ¶7.

Holding:

¶28 Within the contemplation of WIS. STAT. § 948.07, an attempt is complete when the defendant, with intent to commit a crime, takes action in furtherance of such intent and the failure to accomplish the crime is due to a factor beyond his or her control or one unknown to him or her. Huebner v. State, 33 Wis. 2d 505, 520, 147 N.W.2d 646 (1967). We conclude that the fictitiousness of the girls constituted an extraneous factor beyond Koenck’s control that prevented him from successfully enticing a child for the express purpose of sexual intercourse or contact. Id. at 520-21. Koenck did everything necessary to insure the commission of the crime intended, and his conduct is not excused because of the fortuitous circumstance rendering it impossible to effectuate the intended result. State v. Damms, 9 Wis. 2d 183, 190-91, 100 N.W.2d 592 (1960).

The court rejects Koenck’s argument that attempt principles are inapplicable:

Reading §§ 948.07 and 939.32(1)(d) together, it is clear that the legislature, by enclosing the attempted and completed act in the same statute, did not intend to eliminate the crime of attempted child enticement, but determined that the attempted act of child enticement was as egregious as the completed act and thus each warranted the same penalty. Contrary to Koenck’s assertions, merging the completed and the attempted crime into one statute does not render the principles of attempt inapplicable. The reference in § 939.32(1)(d) to § 948.07 indicates that the principles of attempt apply to § 948.07 violations.

For discussion of Internet “sting” cases under federal enticement statutes, see U.S. v. Tykarsky, 446 F. 3d 458 (3rd Cir 2006) (upshot: no requirement that there be an actual, minor “victim”; lengthy discussion of “law of impossible attempts” and distinction between factual and legal impossibility).

State v. James W. Whistleman, 2001 WI App 189
For Whistleman: Michael J. Devanie

Issue: Whether storage of images on a computer disk satisfies the “pictorial reproduction” element of § 948.12.

Holding:

¶7 … The computer disks taken from Whistleman’s residence produce visual images on the computer screen when a person inserts the disks into a computer and clicks on a file. We conclude the disks thus come within the ordinary meaning of “pictorial reproduction.”…

¶9. We also observe that two of the items preceding “or other pictorial reproduction”-“undeveloped film” and “photographic negatives”-are processed in particular ways to produce a “photograph,” and thus are one way to produce a picture of a child, while “motion picture” and “videotape,” each created through other and distinct processes, produce pictures of a child on a screen. The legislature’s choice of the broad term “or other pictorial reproduction” following various specific items, which are created and processed in different ways in order to produce a picture of a child, indicates an intent to penalize items that are able to readily produce pictures of children engaging in sexually explicit conduct, whatever the particular process or technology. It is not reasonable to conclude that in choosing the broad term “or other pictorial representation,” the legislature intended to exclude one particular, and increasingly common, means of storing and producing visual images.

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

Issue: Whether McAttee’s arrest was supported by probable cause.

Holding:

¶11. First, Detective Kuchenreuther was entitled to rely on Officer Smith’s knowledge of the confidential informant. See State v. Black, 2000 WI App 175, ¶17 n.4, 238 Wis. 2d 203, 617 N.W.2d 210 (arresting officer may rely on collective knowledge of police force conveyed to the officer prior to arrest), review denied, 2000 WI 121, 239 Wis. 2d 310, 619 N.W.2d 93, cert. denied, 121 S. Ct. 1166 (2001). And Officer Smith had ample reason to rely on the information provided by this informant.

…

¶12. Second, for purposes of probable cause to arrest, the police were entitled to rely on information from a known and reliable informant without independently determining the reliability of the informant’s source or the source’s information….

¶14. McAttee cites no authority requiring police to gain additional information, corroborating that received from a reliable informant, before making an arrest. Here, clearly, the information disclosed by the informant was vital; it established probable cause to arrest McAttee for the homicide….”

Lengthy discussion of collective knowledge doctrine in U.S. v. Ramirez, 9th Cir No. 05-50165, 1/16/07, crux of which is that officer requesting that stop or arrest be made need not explain factual basis for that determination.

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

Issue: Whether seizure of evidence may be sustained on a search-incident-to-arrest rationale, where the officer had probable cause to arrest, but was not going to arrest.

Holding:

¶11. What happens, however, when the police officer does not intend to make an arrest? Here, it is clear there was no intent on the part of the police officer to search Hart incident to the inevitable formal arrest for OWI. Indeed, although there may have been probable cause, both parties were operating under the assumption that no arrest would occur. Therefore, none of the concerns that justify prearrest searches would come into play. The police officer had no reasonable belief that Hart would be motivated to conceal evidence or harm the officer.

¶12. On this interpretation of the facts and the case law, the attorney general cannot successfully argue that the subjective intent of the police officer is irrelevant. His intent not to arrest as he communicated it by words and deeds removed the Cupp concerns which traditionally justify the search as incident to arrest. We determine with respect to the formal arrest for drug paraphernalia, which occurred after the pipe was discovered, probable cause rests entirely on the pipe itself, which as fruit of an unlawful search must be suppressed.

Take note, however, of State v. Michael D. Sykes, 2005 WI 48, ¶33: “Any discussion in Hart that could be interpreted to invalidate a search incident to an arrest for which arrest the officer has probable cause is overruled.”

State v. Edward Garrett, 2001 WI App 240, PFR filed
For Garrett: Michael P. Sessa

Issue:Whether entry into a closet, after defendant was arrested in his residence, was justified under the “protective sweep” doctrine.

Holding: Under Maryland v. Buie, 494 U.S. 325 (1990), the police may conduct a “protective sweep” of premises, incident arrest, of spaces immediately adjoining the place of arrest, or if they have reasonable belief the place harbors an individual posing a danger. ¶21. Here, the police entered a closet at least 32 feet from the place defendant was arrested; this is too far to be considered in the immediate vicinity. ¶24. However, the facts support the alternative basis for a sweep, reasonable belief:

¶27. The facts surrounding the instant case include: (1) the officers were investigating a drug transaction; (2) information consisting of people buying drugs from Garrett’s building suggested drug dealing was occurring; (3) the closet door was slightly ajar; (4) the closet was large enough to hide a person; (4) the suspect had just fled from the living room, where the closet was located; and (5) the space between the couch and the door was large enough for a person to gain access to the closet. Based on these facts, Detective Kaltenbrun testified that he had a reasonable suspicion that the closet harbored a dangerous individual. We conclude that the protective sweep of the closet was reasonable in that Detective Kaltenbrun could have reasonably believed that an individual was hiding in the closet, the search was narrowly confined to the closet where such an individual could be found, and the sweep was narrowly confined to a brief visual inspection of the closet.

Note, first, that the sweep followed a warrantless entry (under exigent circumstances rationale): there is a split of federal authority (and thus a potentially cert-worthy issue) on the question of whether Buie “authorize(s) protective sweeps even when officers have not entered a suspect’s home pursuant to an arrest warrant,” U.S. v. Gandia, 2nd Cir No. 04-6477-cr, 9/19/05 (collecting cases — the majority of which, including Leaf v. Shelnutt, 400 F.3d 1070, 1086-88 (7th Cir. 2005), favor expansion of Buie to warrantless situations); permutation: U.S. v. Miller, 2nd Cir No. 04-2637-cr, 11/16/05 (“an officer in a home under lawful process, such as an order permitting or directing the officer to enter for the purpose of protecting a third party, may conduct a protective sweep”). Garrett was a warrantless sweep, and thus supports placement of Wisconsin within the majority camp. However, Garrett’s brief simply did not raise this issue of authority to conduct the sweep, arguing simply instead that on the facts the police didn’t have cause to believe another person was present. The case therefore isn’t controlling — but an earlier case, State v. Walter Horngren, 2000 WI App 177, ¶20, 238 Wis.2d 347, 617 N.W.2d 508, did permit a sweep in a warrantless (indeed, non-arrest: community caretaker) entry. Still: the Wisconsin supreme court has never discussed authority to conduct a Buie sweep following warrantless entry; moreover, given the national split, the issue remains viable pending definitive resolution by the Supreme Court. Finally, authority to conduct a sweep following a warrantless, consenusual entry raises different considerations from those discussed by Garrett or Horngren, and likely isn’t controlled by them.

That threshold probelm aside, it might be wise to keep in mind that this doctrine is fact-intensive, and ought not support categorical rules, such as a “drug house” exception — see, e.g., U.S. v. Hauk, 10th Cir No. 04-3113, 6/24/05. That said, the protective sweep doctrine isn’t quite settled. There is, for one thing, authority for the idea, “that arrest is not always, orper se, an indispensable element of an in-home protective sweep,” U.S. v. Gould, 5th Cir. No. 02-30629 (en banc), 4/12/04:

Rather, the sweep in Buie was evaluated on a general Fourth Amendment reasonableness standard, and was justified, in reliance on the principles of Terry v. Ohio, 88 S.Ct. 1868 (1968), and Michigan v. Long, 103 S.Ct. 3469 (1983), where there was reasonable suspicion that the area swept harbored a person posing a danger to the officers present and the sweep was limited to a cursory inspection of places where a person may be found and lasted no longer than necessary to dispel the reasonable suspicion of danger nor longer than what it takes to complete the arrest and leave the house.

Wisconsin has similarly extended the protective sweep authority in at least one instance to a non-arrest context, entry based on community caretaker rationale, State v. Walter Horngren, 2000 WI App 177, ¶20, 238 Wis.2d 347, 617 N.W.2d 508. But it should be kept in mind that nationally it remains an open question just how far the protective sweep doctrine extends — see, e.g., U.S. v. Vargas, 2nd Cir. No. 03-1535, 7/16/04 (holding open question whether “a protective sweep under Buie is constitutional only when conducted in the course of arresting someone on the premises”; noting further that “whether Buieestablished such a bright-line rule is an issue upon which circuit courts have differed”; and collecting cases on both sides of split); U.S. Walker, 10th Cir No. 05-2287, 1/31/07 (10th Cir limits sweep of home as incident to arrest, as opposed to exigent circumstances related solely to officer safety; however, sweep can be justified in non-arrest situation by concerns for citizen safety).Note that the requirements of a sweep haven’t really been fleshed out in Wisconsin; Gould articulates these as follows:

First, it is at least implicit in Buie that although the protective sweep may extend to areas of the home where the police otherwise (i.e., apart from the protective sweep doctrine) then have no right to go, nevertheless when undertaken from within the home, the police must not have entered (or remained in) the home illegally and their presence within it must be for a legitimate law enforcement purpose.Further, the protective sweep must be supported “by a reasonable, articulable suspicion”, Buie at 1099, “that the area to be swept harbors an individual posing a danger to” those on the scene. Id. at 1100.

Next, the legitimate protective sweep may not be “a full search” but may be no more than “a cursory inspection of those spaces where a person may be found.” Id. at 1099.

Finally, the sweep is subject to two time limitations. First, it may “last[] no longer than is necessary to dispel the reasonable suspicion of danger,” id.; and, second, it may last no longer than the police are justified in remaining on the premises. See id. (“and in any event no longer than it takes to complete the arrest and depart the premises”); see also id. at 1098 (police permitted “to take reasonable steps to ensure their safety after, and while making, the arrest”).

And, when there has been a sweep not preceded by arrest, “the government [is] obligated to establish specific and articulable facts that warranted the agents’ belief that there was someone hiding … who posed a danger to them,” Vargas. See also U.S. v. Waldner, 8th Cir No. 04-3415, 10/10/05: courts which have extended the protective sweep doctrine do so “only under the second prong of Buie, which requires a showing of a reasonable suspicion of dangerous individuals in the house. [Cites]” (refusing to permit sweep, in absence of reasonable suspicion of dangerous individuals in house, in non-arrest situation involving service of domestic violence protective order). Similarly, Horngren, ¶21, the community caretaker case, seems to require for a cursory inspection sweep a reasonable belief by the police that someone on the premises posed a danger to them or to herself.

A separate problem: Does the protective-sweep doctrine limited to in-home detention (and frisk), or does it authorize such action immediately outside a home in which an arrest is effected? According to U.S. v. Maddox, 10th Cir. No. 03-2311, 11/15/04, “the officer-safety interests at issue in Buie” attach to the area immediately outside the home, and therefore “the same reasonableness test employed in Buie for the protective sweep of the broader arrest area applies to this protective detention.” (But: the facts in that case are fairly extreme; the court’s analysis, not to say result itself, seems more a straightforward application of Terryitself than its permutation in Buie.) More recent authority suggests growing support for the idea that a Buie sweep extends to “an arrest made just outside of the home” given, that is, “sufficient facts” in favor of a potential threat coming from inside the home, U.S. v. Lawlor, 1st Cir No. 04-2044, 4/27/05; U.S. v. Paopao, 9th Cir No. 05-10653, 10/10/06.