On Point

State v. Debra Noble, 2002 WI 64, reversing 2001 WI App 145, 246 Wis. 2d 533, 629 N.W.2d 31
For Noble: Thomas H. Boyd

Issue/Holding: Suppression of evidence is required only where it has been obtained in violation of the defendant’s constitutional rights or of a statute specifically providing for suppression as a remedy. ¶14.

Issue: Whether, assuming that a detective’s examining defendant at a John Doe proceeding amounted to violation of the unauthorized practice of law statute, the defendant’s answers should be suppressed at a criminal proceeding for perjury based on those answers.

Holding: Noble’s constitutional rights weren’t violated: she was questioned only briefly, and wasn’t made a target of the Doe proceeding, ¶¶21-23; the detective’s participation wasn’t a “drastic step beyond his permissible duties” and didn’t make the proceeding “particularly unfair and oppressive,” ¶24; there’s no showing that the judge “acted partially” in permitting the detective to question Noble, ¶26. Further, there is no John Doe-related exception to the general rule that in the absence of statutory mandate, a constitutional violation is required for suppression. ¶28.

State v. Albert Jackowski, 2001 WI App 187
For Jackowski: Ronald C. Shiroka

Issue: Whether violation of a statutory requirement for issuance of a building inspection warrant (namely, the § 66.0119(2) condition that such a warrant be issued only upon showing that consent to enter was refused) supports suppression of evidence obtained after entry under the warrant.

Holding:

¶17. We accept, however, the State’s alternative argument that refusal of consent is not a constitutional requirement for issuance of an administrative warrant, and suppression is not available as a remedy for a “mere” statutory violation. As we have recently explained, numerous Wisconsin “cases stand for the proposition that the exclusionary rule is applicable in civil and criminal proceedings only where the evidence sought to be excluded was obtained in violation of a constitutional right or a statute that specifically requires suppression of wrongfully or illegally obtained evidence as a sanction.” State ex. rel. Peckham v. Krenke, 229 Wis. 2d 778, 787, 601 N.W.2d 287 (Ct. App. 1999).

¶18. We have discussed above the Fourth Amendment standard for the issuance of administrative inspection warrants, and a refusal of consent is not within it. When the Supreme Court noted in Camara that “it seems likely that warrants should normally be sought only after entry is refused,” it was not discussing the requirements for warrant issuance. The Court was simply explaining, at the end of its opinion, why its holding would not prove unduly burdensome to municipal building code enforcement. See Camara, 387 U.S. at 539-40. Thus, we conclude that the lack of an averment that consent to inspect had been refused is a statutory violation only, not an omission of constitutional dimension requiring suppression as a remedy. Finally, we note that Wis. Stat. § 66.0119 (or its predecessor, see footnote 3) does not specifically require suppression of any evidence obtained in violation of its provisions.

State v. Albert Jackowski, 2001 WI App 187
For Jackowski: Ronald C. Shiroka

Issue1: Whether review of issuance of an administrative warrant is entitled to the same deference as a criminal search warrant.

Holding: “Great deference” is no less accorded a magistrate’s decision to issue an administrative warrant than a criminal search warrant. ¶¶9-14.

Issue2: Whether a building inspection warrant must be supported by probable cause to believe code violations then exist in the building.

Holding:

¶11. The U.S. Supreme Court in Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523 (1967), explained the Fourth Amendment standards applicable to administrative building code inspections. The Court held that, absent consent, an inspection executed under an administrative code enforcement program requires a warrant, but administrative inspection warrants may be issued on a showing other than probable cause to believe ‘a particular dwelling contains violations.’ Id. at 534. Rather, the Court concluded that,

‘probable cause’ to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building … or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling.

Id. at 538 (emphasis added).

¶12. The Seventh Circuit discussed Camara‘s holding and applied it to a Wisconsin city’s ‘special inspection warrants’ in Platteville Area Apartment Assoc. v. City of Platteville, 179 F.3d 574 (7th Cir. 1999). The court noted that ‘Camara and the other decisions that allow the use of warrants for administrative or regulatory searches modify the conventional understanding of the Fourth Amendment’s “probable cause” requirement for warrants, since it is the essence of such searches that there is no probable cause to believe that a particular search will yield evidence of a violation of law….’ Id. at 578. Thus, Jackowski’s claim that the application for the inspection warrant was deficient because it did not establish probable cause to believe code violations then existed in his building is unavailing.

¶13. Jackowski does not challenge, nor did he in the trial court, the overall ‘reasonableness’ of the City of Franklin’s ‘regulatory package that includes compulsory inspections.’ Platteville, 179 F.3d at 578. We thus deem him to have conceded the existence of ‘reasonable legislative or administrative standards’ for conducting a building code enforcement inspection of his building. Camara, 387 U.S. at 538. Additionally, we observe that the application is made under oath and generally follows the ‘illustrative’ format provided in Wis. Stat. § 66.0119(3). The applicant is identified as a person authorized to conduct building inspections in the City of Franklin. The code provisions to be enforced are cited, and the need for the current inspection is described: citizen complaints of code violations, as well as a determination of whether previously cited violations (pending in municipal court) are still present.

State v. Stanley A. Samuel, 2001 WI App 25, 240 Wis. 2d 756, reversed, other grounds, 2002 WI 34
For Samuel: Robert R. Henak

Issue: Whether the evidence was sufficient to sustain conviction for interference with child custody, § 948.31(2) and abduction, § 948.30(1)(a).

Holding:

¶38      We adopt the State’s construction.  So long as the defendant has had a hand in physically removing the child from the parents’ possession, the defendant has taken the child away.  This physical removal can be accomplished by driving the child away in a vehicle.  The act of asportation means more than just shutting the door behind you.  Driving away in a vehicle is part of the continuous act of physical removal.  Samuel was directly involved in facilitating Tisha’s physical removal by driving her away from the house and from the area.  The evidence is sufficient.

(Same analysis applies to abducting, ¶39.)

State v. Davon R. Malcom, 2001 WI App 291, PFR filed 11/27/01
For Malcom: John D. Lubarsky, SPD, Madison Appellate

Issue: Whether the trial court properly amended the information, after close of evidence, to add a charge of keeping a place “which is resorted to by persons using controlled substances” to the charge of using the same place to manufacture, keep or deliver controlled substances (both charges being alternatives under § 961.41(2).

Holding: An amendment to the charge must satisfy two tests: it must not be “wholly unrelated” to the facts at the preliminary hearing; and it must not violate right to notice of the charge. ¶26. Both tests are satisfied here: the added charge was covered by the same statute; Malcom’s statement to the police supported the new charge; the evidence relied on by the state to prove the original charge was the same evidence that supported the added charge; both charges covered the same witnesses, same location, and same physical evidence; Malcom made no showing that he would have presented different witnesses to the added charge. ¶28.

State v. Dennis R. Fosnow, 2001 WI App 2, 240 Wis. 2d 699, 624 N.W.2d 883
For Fosnow: David D. Cook

Issue: Whether a postconviction diagnosis supporting an NGI defense amounted to newly discovered evidence, where the defendant had pled no contest after receiving unfavorable NGI evaluations.

Holding: The new diagnosis was merely a new appreciation of the importance of evidence previously known but not used and therefore didn’t satisfy the test for newly discovered evidence.

Exams by several experts provided no support for Fosnow’s NGI plea which he then dropped, leading to conviction on no contest pleas. Years later, a prison psychiatrist determined that he suffered from dissociative identity disorder at the time of his offenses. Fosnow argued in a § 974.06 motion that this new opinion was newly discovered evidence entitling him to plea withdrawal. The court of appeals’ rejection of the claim is certainly explicit, but whether it’s on a fact-specific or a more general basis isn’t entirely clear. The court, that is, stresses that the basis for an NGI defense was available before conviction, including Fosnow’s “extensive ‘psychiatric evidence,'” in particular, DID symptomatology. ¶¶16-22. This suggests a limited, fact-specific holding:

¶25 In sum, the examining psychiatrists at the time of his pleas either were aware of or had available the information necessary to evaluate Fosnow’s mental status at the time of the crimes. Fosnow and his trial counsel were aware of a possible DID diagnosis from Dr. Van Dyke’s report and did not choose to obtain additional evaluations that might have supported it in 1989….

But the court doesn’t end on that note; instead, it goes on to suggest that principles of finality generally preclude a new expert opinion from being newly discovered evidence. ¶¶26-28.

State v. Everardo A. Lopez, 2001 WI App 265
For Lopez: Margaret A. Maroney, SPD, Madison Appellate

Issue: Whether plea withdrawal is the appropriate remedy where the record contains no evidence that Lopez understood all elements of the offense

Holding:

¶22. The proper remedy upon determining that the State failed to establish that Lopez understood the elements of the offense with which he was charged when he entered his no contest plea is to remand the case to permit Lopez to withdraw his plea. State v. Nichelson, 220 Wis. 2d 214, 226, 582 N.W.2d 460 (Ct. App. 1998).

…

¶24. Nichelson is instructive even though we do not apply waiver to the case at hand. The State did not meet its burden in Nichelson, and the State has not met its burden here. At the plea withdrawal hearing, the State did not make any attempts to make a record fulfilling its burden. We do not remand for a hearing to give the State a second opportunity to make an affirmative showing that Lopez’s plea was voluntarily entered because we conclude that under Nichelson, when the State has failed to meet its burden of proof in a plea withdrawal setting, it should not get a “second kick at the cat.”