On Point

State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. LaZotte, SPD, Madison Appellate

Issue/Holding:

¶21      …. The legislature has the authority to designate a prior conviction as a penalty enhancer rather than an element of the offense. Almendarez-Torres, 523 U.S. at 246. Although the legislature is permitted to designate a prior conviction as a penalty enhancer, it does not follow that the legislature is forbidden from designating a prior conviction as an element. ^[9] Unless otherwise designated by the legislature, a fact relevant to conviction is presumed to be an essential element of a crime. ^[10]

In short: “Determining whether a fact is an element or a penalty enhancer is an exercise in statutory interpretation,” ¶22. Of course, this potentially means review of extrinsic sources as well as the statutory text, but in view of the presumption the court has just announced, you’d think that there must be expressly declared intent to make the “fact” an enhancer, else by default it’s an element. While the outcome is adverse to the immediate litigant, Warbelton, to some extent it is simply a response to Apprendi-related caselaw developments, which the court usefully generalizes as: “a fact must be submitted to a jury and proven beyond a reasonable doubt if it increases the potential penalty for a crime beyond the penalty which could otherwise be imposed,” ¶20. Presuming that a penalty-increasing “fact” is an “element” greatly reduces the chances of Apprendi-type error, because it greatly increases the odds that the fact will indeed be submitted to the jury. That said, when it gets around to scrutinizing the statute, the court hardly relies on the presumption (indeed, doesn’t so much as mention it), but instead undertakes detailed analysis of both legislative history as well as text of the stalking legislation, ¶¶26-40.

Interesting discussion, in U.S. v. O’Brien, 1st Cir No. 07-2312, 9/23/08, on “this new algorithm,” noting as a complicating feature: “Congress in enacting complex criminal statutes rarely considers explicitly whether some designated fact should be deemed an element or a sentencing factor–a distinction, after all, primarily of concern to courts in administering the statutes.” And doesn’t that distinction reinforce the Warbelton presumption?

State v. Jose C. McGill, 2000 WI 38, 234 Wis. 2d 560, 609 N.W.2d 795, affirming unpublished decision
For McGill: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether the officer had reasonable suspicion to believe McGill armed and dangerous, and therefore to frisk him, following a routine traffic stop.

Holding: Judged by the requisite objective test, the frisk was justified, given that: the driver didn’t stop immediately; after pulling over, the driver got out and began walking away; the driver was unusually nervous; the driver smelled of intoxicants and illegal drugs; the driver “twitched and acted nervous with his hands; the officer was alone, it was nighttime in a poorly lighted spot, ¶¶27-33.

The court stresses, ¶29, “that he was unusually nervous — beyond the level of nervousness that the officer normally observed in individuals he stopped.” See also State v. Vandenberg, 2003-NMSC-030, ¶¶28-31 (frisk upheld where driver “more nervous than most people who are stopped for a routine traffic offense”; but, court “caution(s) that while nervousness may be a relevant factor in the calculus, we do not consider nervousness alone sufficient to justify a frisk for weapns”).

State v. Lance R. Ward, 2000 WI 3, 231 Wis.2d 723, 604 N.W.2d 517, reversing State v. Ward, 222 Wis. 2d 311, 588 N.W.2d 645.For Ward: Daniel P. Dunn

Issue: Whether the exclusionary rule applies where the police relied on judge-made law that automatically countenanced all no-knock entries to search for drugs and that law was subsequently overturned.

Holding: Police action in good faith reliance on supreme court pronouncements insulate that conduct from the exclusionary rule.

At the time of the entry of Ward’s home, the court had upheld a blanket exception to the knock-and-announce rule. Because “the officers’ actions were in conformance with the law in Wisconsin, as articulated by this court, allowing for no-knock entries,” excluding the evidence wouldn’t advance exclusionary rule purposes. ¶49.

State v. Lisa Orta and Ricardo Ruiz, 2000 WI 4, 231 Wis.2d 782, 604 N.W.2d 543, reversing unpublished decision
For Orta: Mark F. Nielsen, Schwartz, Tifte & Nielsen
For Ruiz: Michael P. Reisterer, Jr.
For amici (SPD & WACDL): Mary E. Waitrovich, SPD, Madison Appellate, & Howard B. Eisenberg

Issue: Whether the exclusionary rule applies where the police rely on judge-made law that automatically countenanced all no-knock entries to search for drugs and that law was subsequently overturned.

Holding: Police action in good faith reliance on supreme court pronouncements of the supreme court insulate that conduct from the exclusionary rule, “(f)or the reasons set forth in Ward.” ¶2.

State v. Terry Griffith, 2000 WI 72, 236 Wis. 2d 48, 613 N.W.2d 72, affirming unpublished decision of court of appeals
For Griffith: Paul G. LaZotte

Issue: Whether the police lacked authority to ask the name and birth date of a passenger of a lawfully stopped car.

Holding: The police may request identifying information from passengers during traffic stops, ¶45, and though the passenger may rightfully decline to answer, ¶52, when, as here, the passenger falsely answers and otherwise resists the police, he may charged with the resulting offenses.

After the police stopped a car, they asked passenger Griffith his name and date of birth. He gave false information. He was arrested and escaped, leading to a variety of charges. His principal contention is that the initial questioning violated the fourth amendment; everything that followed was tainted by this illegal police action. Conceding that the stop was lawful, he first argues that its purpose had already been served by the time the police asked him for identifying data. The court stresses the lawfulness of the stop, critically distinguishing Brown v. Texas, 443 U.S. 47 (1979) on that basis. ¶33. Resolution of the propriety of the questioning turns on “the incremental intrusion” that this conduct added to the lawful stop. ¶38. This, in turn, depends on whether questioning went beyond the scope of the stop, and whether the questioning itself was “nonconsensual.” ¶40. The court assays the factors in favor of police questioning. ¶¶45-48 (not clear whether investigation stemming from stop had concluded; general public value to identifying witnesses to police-citizen encounter; additional interest in determining whether passenger licensed and available to drive car upon driver’s arrest). Nor was the encounter nonconsensual: all events “took place in public view,” and lasted “only a few minutes.” ¶51.The passenger could have rightfully refused to answer, without penalty. ¶52. But merely posing a question doesn’t amount to a seizure. ¶53. A stop may be unreasonably prolonged, but “the length of time required to ask a question is not sufficiently intrusive to transform a reasonable, lawful stop into an unreasonable, unlawful one.” ¶61.

UPDATE: the Illinois supreme court has since held that, “during the course of a routine traffic stop, a police officer’s mere request for identification from a passenger … passes constitutional muster.” People v. Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260 (2003). The opinion also contains a fairly detailed discussion of the “divergence of opinion among the federal and state courts as to the parameters of the Terry ‘scope’ requirement when determining the propriety of police questioning during a traffic stop. But see People v. Harris, 207 Ill. 2d 515, 802 N.E.2d 219 (2003) (clarifying Gonzalez: may not run warrant check on passenger absent reasonable suspicion or direct connection to purpose of stop); People v. Heather, Ill App. 4th Dist No. 4-02-0627, 7/04 (continuing to question driver and running warrant check on passenger after traffic stop was complete “changed the fundamental nature of the stop into an impermissible investigation of past wrongdoing”); State v. Rankin / Staab, Wash. SCt No. 72509-8, 6/10/04 (state constitution “affords automobile passengers a right of privacy that is violated when an officer requests identification from a passenger for investigative purposes, absent an independent basis for making the request”); St. George v. State, Tex App 2d Dist No. 2-03-422-CR, 8/31/04 (“an investigation of the passenger of a vehicle is not included in the scope of a mere traffic stop. … an officer must have separate reasonable suspicion of a passenger in order to request identification and check for outstsanding warrants against that passenger”); Commonwealth v. Campbell, 2004 PA Super 440, ¶12, 11/22/04 (“the police can require both the driver and the passengers in the vehicle to identify themselves during a routine traffic stop regardless of whether there is reasonable suspicion that the passengers are engaged in criminal activity”).

Contra, People v. Vibanco, Cal App No. H029524, 4/30/07; U.S. v. Soriano-Jarquin, 4th Cir No. 05-4962, 7/11/07 (“a simple request for identification from passengers falls within the purview of a lawful traffic stop and does not constitute a separate Fourth Amendment event”); State v. Smith, 683 N.W.2d 542 (Iowa 2004) (check on passenger’s ID after stop concluded didn’t amount to seizure; Smith was free to decline to cooperate). Note, too, that resolution of this dispute may turn on outcome of broader issues, such as whether police are entitled to ask questions unrelated to purpose of stop, or whether “mere questioning” is tantamount to a (prolonged) seizure.

See generally T. Fusco, Annotation, Permissibility Under Fourth Amendment of Detention of Motorist by Police, Following Lawful Stop for Traffic Offense, to Investigate Matters Not Related to Offense, 118 A.L.R. Fed. 567 (1994).

The Supreme Court’s subsequent decision in Larry D. Hiibel v. Sixth Judicial District Court, 03-3554, 542 U.S. __, 6/21/04 (neither fourth nor fifth amendment precludes arrest of a person simply for refusing to provide identification during a stop supported by reasonable suspicion) doesn’t necessarily sanction police authority to require a passenger’s identification during a traffic stop, absent reasonable suspicion. That issue is distinct from the one presented in Hiibel whose result, as the Court noted, is based on the following idea: “The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop.” Still, the case should be reviewed closely. (Indeed, Campbell, in the course of finding no expectation of privacy in identification information, deems Hiibel “instructive,” see ¶¶14-18. The implication is potentially profound: if there’s no expectation of privacy, then the acquisition of identification information through illicit means (such as unjustified detention) is at least arguably not suppressible.)

See State v. Johnson, Ariz. App. No. 2 CA-Cr 2006-0079, 9/10/07 for discussion re: “when the seizure of passengers in a vehicle, incident only to a driver’s traffic violation, terminates.”

State v. Melvin L. Moffett and Jerrell I. Denson, 2000 WI 130, 239 Wis. 2d 629, 619 N.W.2d 918, affirming State v. Moffett/Denson, 2000 WI App 67, 233 Wis. 2d 628, 608 N.W.2d 733
For Moffett: Patrick J. Stangl; for Denson: Joseph L. Sommers

Issue:

¶2 The parties present the following question to this court: May the State charge the defendants with two crimes, that is, with being parties to the crime of attempted first-degree intentional homicide and with the crime of conspiracy to commit first-degree intentional homicide when both crimes had only one and the same intended victim? Stating the question more generally, may an accused be charged with both being a party to an attempt to commit a crime and a conspiracy to commit the same crime?

Holding:

¶18  The defendants argue that Wis. Stat. § 939.72(2) is clear evidence of a legislative intent not to charge an accused with conspiracy to commit intentional homicide and with being a party to the crime of attempted first-degree intentional homicide.  We disagree with the defendants.  The clear language of Wis. Stat. § 939.72(2) refers to convictions, not charges. Nothing in the legislative history of Wis. Stat. § 939.72(2) suggests otherwise.[12]  We agree with the State that by limiting Wis. Stat. § 939.72(2) to convictions and by enacting Wis. Stat. § 939.65 allowing the State to bring multiple charges, the legislature has clearly expressed its intent to allow the State to proceed with both charges in the present case.

The court cautions, though, that the result is limited to this, a pleading, context:

¶12 We agree with the State. Nothing in Wis. Stat. § 939.72 bars the State from charging a defendant with the crime of conspiracy and with being a party to the crime that is the objective of the conspiracy. Quite simply, Wis. Stat. § 939.72 governs only convictions and does not bar the State from bringing and proceeding with charges set forth in multiple statutes. The issue under Wis. Stat. § 939.72(2) of whether defendants can be convicted of the crime of conspiracy to commit intentional homicide and of being parties to the crime of attempted first-degree intentional homicide is not before us at this juncture of the case.

State v. Thomas G. Martwick, 2000 WI 5, 231 Wis.2d 801, 604 N.W.2d 552, reversing unpublished decision
For Martwick: Robert P. Rusch

Issue: Whether plants found on Martwick’s property were within his curtilage, and therefore subject to the warrant requirement, or in “open fields.”

Holding: The plants were in open fields, outside the curtilage, and therefore could be seized without a warrant.

The sheriff thought Martwick was growing marijuana on his property, but didn’t have enough information to get a warrant. Two deputies went out to spy on him, and found five marijuana plants 50-75 feet from his house, along a path leading to some ginseng sheds. ¶9. The four-factor curtilage test is found in United States v. Dunn, 480 U.S. 294, 300 (1987): proximity to home; existence of enclosure; use to which area put; steps taken by resident to protect area from observation. ¶30. Applying them here: Proximity militates (strongly, perhaps) in favor of curtilage. ¶34. During the term just past, the court found a truck to be within the curtilage of a farmhouse 200 feet away. State v. O’Brien, 223 Wis. 2d 303, 588 N.W.2d 8 (1999). But that case is distinguishable, largely because it involved a farmhouse. ¶¶35-36. Martwick put up no enclosure around his house. ¶37. The plants were growing in an area not used “for anything in particular.” ¶41. Finally, the fact the plants were found among dense trees that shielded them observation from the street isn’t meaningful: Martwick did not himself plant the trees, and thus “simply has not exercised dominion over his woods, so as to make the woods an intimate part of his home.” ¶42.

The decision splits 4-3, with a concurrence by Justice Prosser, whose stress on the following factors ought to be closely reviewed, because he cast the deciding vote: “Martwick did not place any enclosure around his woods or take any steps to discourage public entry onto his property. He did not use the woods for the kind of lawful activities intimately associated with the home. Therefore, the circuit court was correct….” ¶60. See also U.S. v. Cousins, 10th Cir No.04-2218, 7/26/06 (to effect that even partial enclosure of area supports curtilage, but finding exception where “the unenclosed side is the expected path one would take to get to the sideyard”).

Review of a curtilage-determination is the familiar bipartite one: trial court findings of historical fact (in this context, the Dunn factors) are reviewed for clear error; but whether those facts establish curtilage is a matter of constitutional fact, reviewed de novo, ¶¶16-24. See also U.S. v. Cousins, 10th Cir No.04-2218, 7/26/06 (same).