On Point

Scott Schmidt v. Brian Foster, 7th Circuit Court of Appeals No. 17-1727, 5/29/18, reversing Schmidt v. Pollard, No. 13-CV-1150 (E.D. Wis. Mar. 20, 2017); reversed en banc 12/20/18

A criminal defendant is entitled to counsel at all “critical stages” of the case. You probably think that a hearing, before a murder trial, that determines whether the accused will get to present his only defense counts as such a “critical stage.” The Wisconsin Court of Appeals, however, “easily reject[ed]” that notion in this (published) case. The Seventh Circuit now disagrees, saying the Wisconsin decision “unreasonably applied Supreme Court precedent and, frankly, ignored reality.” [continue reading…]

Waukesha County v. M.J.S., 2017AP1843, 5/30/18, District 2, (1-judge opinion ineligible for publication); case activity

Section 51.61(1)(g)4 and Outagamie County v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607 establish that a person subject to a possible involuntary medication order is entitled to receive a reasonable explanation of the proposed medication, why it is being prescribed, its advantages and disadvantages (include side effects), and alternatives to it. If the person is incapable of expressing an understanding of these matters or incapable of applying the information to his situation in order to make an informed decision, then he is incompetent to refuse them. In this case, M.J.S. failed to show for the examination where a doctor would have attempted the statutorily-required explanation. The circuit court ordered involuntary meds; the court of appeals reversed. [continue reading…]

State v. Justice G. Armstead, 2017AP1586-CR, 5/30/18, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

Armstead pled NGI to 2 misdemeanors, pursuant to §971.16. The court ordered his conditional release into the community for 6 months, along with involuntary medications. Five months into the order, Armstead filed a motion for postdisposition relief  arguing that both the examining physician and the circuit court applied the wrong legal standard for ordering involuntary medications. The circuit court denied the motion. The conditional release order expired a week later but Armstead appealed anyway. The court of appeals dismissed his appeal as moot. In doing so, it made a significant error of law. [continue reading…]

State v. Jamal L. Williams, 2016AP883-CR, 2018 WI 59, 5/30/18, reversing in part, a published court of appeals opinion, 2017 WI App 46, case activity (including briefs)

In a 5-0 opinion (Roggensack and A.W. Bradley did not participate) SCOW overruled two court of appeals decisions, State v. Elward and State v. Radaj, which had held that the §973.046  mandatory DNA surcharge violated the Ex Post Facto Clauses of the state and federal constitutions. SCOW delved into the reasoning of both cases and found it “faulty.” It further held that a circuit court may consider a defendant’s opposition to paying restitution as part of his character or lack of remorse when choosing a sentence. [continue reading…]

Collins v. Virginia, USSC No. 16-1027, 2018 WL 2402551, 5/29/18, reversing Collins v. Commonwealth, 790 S.E.2d 611 (Va. 2016); SCOTUSblog page (includes links to briefs and commentary)

Police learned a stolen motorcycle that had evaded them on two occasions was likely parked at a house where Collins stayed. When they got to the house, they saw a motorcycle parked in the driveway with a tarp over it. They walked up the driveway, lifted the tarp, and confirmed that it was the stolen bike. The Supreme Court now holds that, though the motorcycle was an automobile–and hence subject to the “automobile exception,” which dispenses with the warrant requirement where there’s probable cause to search a vehicle–this fact does not justify the officers’ invasion of the home’s curtilage to search it. [continue reading…]

State v. Jasetta Smith, 2017AP1807-CR, 5/23/18, District 2, (1-judge opinion; ineligible for publication); case activity (including briefs)

Better go easy on the perfume or cologne. An officer ran the license plates on the car Smith was driving at 1:08 a.m. one night. He saw that the registered owner’s license was suspended, stopped the car, learned that Smith was not the owner, and smelled the overpowering odor of perfume and cigarettes. In his experience, strong perfume indicates an attempt to mask the odor of drugs.

He also observed that Smith and her passenger did not want to look at him. When Smith spoke to him, he saw that her eyes were glassy and bloodshot. Smith couldn’t find her proof of insurance so the officer returned to his car to issue a compliance order and called for back up. A second officer arrived, not based on the call. But then the back up officer also arrived. About 7 minutes into the stop, the 1st officer learned that Smith had been arrested before for OWI. He asked the other two officers to conduct a dog sniff. At 1:21 the dog alerted on the vehicle. Smith admitted to smoking marijuana earlier that day, and the officers found roaches in the car.

Smith was charged with possession of THC and operating a motor vehicle while under the influence of a restricted controlled substance. She moved for suppression arguing that the dog sniff unreasonably extended the stop. The court of appeals disagreed and affirmed the denial of suppression.

¶18 Smith’s eyes were glassy and bloodshot, an indication that Smith may be under the influence of some type of drug or alcohol.  She and her passenger evaded direct eye contact with the officer—behavior that indicates something to hide.  When [the 1st officer] checked, he found that Smith had a recent prior drug-related arrest.  The strong odor of perfume and cigarettes indicated a possible attempt to cover up the smell of drugs.  While Smith points to other facts indicating that there was no issue, the facts known to the police at the time the dog sniff was conducted, and the reasonable inferences drawn from the facts, provided reasonable suspicion of criminal activity and supported the extension of the stop to continue the investigation with the dog sniff.

¶19 Officers need an objectively reasonable inference of wrongful conduct to support a finding of reasonable suspicion.  We agree with the circuit court that the officers’ decision to conduct a canine sniff was reasonable under the totality of the circumstances.  The main goal of an investigative stop is to quickly resolve ambiguity associated with suspicious conduct.  That is exactly what the officers did here.  Given our decision, we need not reach the State’s argument that, even absent reasonable suspicion, the dog sniff itself did not unreasonably extend the stop as it was performed contemporaneously and within the reasonable period of time it took for the officer to write up the traffic citation.

Have you ever been stuck in an elevator with a person wearing too much perfume? Some people just like it strong (or maybe have subpar olfactory lobes). One take away from this decision is: allergies plus a few extra spritzes of your favorite perfume or cologne can, in the right circumstances, amount to reasonable suspicion to search your car for drugs. Along these lines, consider SCOW’s decision in State v. Floyd, the air freshener case last term.

State v. Dylan D. Radder, 2018 WI App 36; case activity (including briefs)

In a decision every trial-level criminal defense lawyer must read, the court of appeals affirms the denial of a motion to suppress without an evidentiary hearing because the motion failed to allege sufficient facts to raise a question of disputed fact that must be resolved at a hearing. Understand the standards set out in this decision, make sure your motions attempt to adhere to them, and be prepared to argue your suppression motions satisfy them, as every prosecutor and trial judge will be eager to invoke this decision to deny your motions without a hearing. [continue reading…]