Full text available at: www.wisbar.org
Date: 11/22/06
Case No: 2006AP31
Issue: Informants; Search Incident to Arrest; Suppression of Evidence
Holding: Information provided by a confidential informant was insufficient to create reasonable suspicion. The tip neither demonstrated a basis of knowledge nor allowed for much corroboration. There was also no valid consent to search because the detention extended beyond the permissible scope of the traffic stop and police lacked reliable information to support further detention.
Summary:
A confidential informant told police that Kolk
would be transporting Oxycontin to Madison. The informant provided a
description of Kolk and his automobile. Officers set up surveillance,
observed Kolk leave his residence and drive, possibly in the direction
to Madison. They stopped Kolk for speeding, gave him a written
warning, and asked to search the vehicle. The officer frisked Kolk and
found a bottle of pills he identified as oxycodone. Officers arrested
Kolk because he did not have a prescription for the drugs, searched the
vehicle incident to arrest and found more drugs. At trial, Kolk moved
to suppress the evidence; both Kolk and the State focused on the frisk
as the key moment in the encounter and contested issues of reasonable
suspicion, danger to the officer, the permissible scope of the pat-down
search, and consent. However, the appellate court did not find it
necessary to examine the issues of danger to the officer or the scope
of the pat-down search because neither reasonable suspicion nor consent
was present.
The court found that the information from the confidential informant
was insufficient to create reasonable suspicion. It distinguished the
reliability of the information the police received from that of State
v. (Roosevelt) Williams, 2001 WI 21, 241 Wis. 2d 631, 623 N.W.2d 106.
The court noted that unlike (Roosevelt) Willliams, in Kolk’s case the
police were only able to corroborate: 1) Kolk’s identity; 2) what kind
of vehicle he drove, and 3) the fact that he would drive it, possibly
on the way to Madison. The court found the information was both more
widely available and less significant than that in (Roosevelt)
Willliams. The tip neither demonstrated a basis of knowledge nor
allowed for much corroboration. The court held that under all of the
facts and circumstances, the information possessed by the police was of
insufficient reliability to justify Kolk’s continued detention.
The State responded that the informant provided predictive information
that strengthened the reliability of the tip. The court disagreed
noting that the predictive information essentially amounted to the
prognostication that Kolk would drive his vehicle in a direction that
would not preclude his being headed to Madison. It distinguished
Kolk’s case from Alabama v. White, where officers observed a woman
drive at a predicted time, take the most direct route toward a motel
the tipster predicted, and stopped her just short of that motel. 496
U.S. 325 (1990). The court noted that the Supreme Court upheld that
stop but called the case “close.” The court felt that Kolk’s stop fell
on the opposite side of that “close” line.
As an alternate basis for the pat-down, the State argued that Kolk
voluntarily consented, which lead to the discovery of the drugs. To
examine this issue the court highlighted the distinction between State
v. (Lawrence) Williams, (consent held valid) 202 WI 94, 646 N.W.2d 834
to State v. Jones, (consent held invalid) 2005 WI App 26, 693 N.W.2d
104. The court explained that in (Lawrence) Williams the officer by
his words and actions, created a situation in which a reasonable person
would believe that he or she was free to leave, whereas in Jones, the
defendant’s detention continued after the business of the traffic stop
was concluded. The court found that Kolk’s case was more aligned with
the facts of Jones. In conclusion, the court held that “it would be a
legal fiction to conclude that Kolk was not detained when the officer
asked for consent to search him and his vehicle. The traffic stop had
ended, but Kolk’s detention had not; and given the lack of reliable
information supporting further detention, the stop and its attendant
searches were unlawful.”
Date: 11/22/06
Case No: 2005AP3087
Issue: Miranda; Waiver
Holding: An officer’s response to Hambly that his arrest was related to three cocaine sales to an informant was not the functional equivalent of interrogation. Despite invoking his Miranda rights, Hambly waived his right to counsel because he initiated further conversation and the waiver was knowingly and intelligently made.
Summary:
Hambly was convicted of delivery of cocaine. On appeal he sought
to suppress his statements to the police by arguing that his request
for counsel was not honored and that he was subjected to the functional
equivalent of an interrogation.
Officers approached Hambly and asked him to come to the police station
to talk about several drug transactions that he was involved in.
Hambly replied that he did not want to talk to the officers. An
officer arrested Hambly, handcuffed him, and escorted him to the squad
car. As they approached the squad, Hambly said he wanted to talk
to an attorney.
While sitting in the vehicle, Hambly told the officer that he did not
know why he was under arrest. The officer responded that they
believed he sold cocaine to an informant on three occasions.
Hambly then said he wanted to talk to the detective to find out what
his options were. Hambly was read his Miranda
rights and signed a waiver form. He subsequently made
incriminating statements during an interview with an officer.
Hambly moved to suppress because his incriminating statement was made
in response to police interrogation, in custody, and after invoking his
right to counsel. He argued that the officer’s statement that
Hambly was under arrest because they believed he sold cocaine to an
informant was the functional equivalent of interrogation. To
answer this question, the court applied a five-part test from State v. Bond. 2000 WI App 118, 614 N.W.2d 552. In Bond
the court determined: 1) the officer’s words were not “normally
attendant to arrest and custody,” 2) the officer had “specific
knowledge” such that he should have known his words were reasonably
likely to elicit an incriminating response, 3) an impartial observer
would perceive the officer’s intent to be to elicit a response, 4) the
officer’s words were provocative and “anything but offhand,” 5) the
officer spoke directly to the defendant.
The court distinguished Hambly’s situation from Bond
and held that the officer’s explanation that Hambly’s arrest was
related to three cocaine sales to an informant was not the functional
equivalent of interrogation.
The court then addressed Hambly’s contention that upon his request for
an attorney, all interrogation should have immediately ceased.
The court noted that the right to counsel can be waived and applied a
two-part test the U.S. Supreme Court established in Oregon v. Bradshaw.
462 U.S. 1039, 1045 (1983). First, it considered whether the
accused initiated further dialogue in a way “evincing a willingness and
a desire for a generalized discussion about the investigation.”
Second, it determined whether, under the totality of the
circumstances, subsequent events demonstrate a knowing and intelligent
waiver of the right to have counsel present during questioning.
The appellate court agreed with the district court that Hambly
initiated the conversation after he had invoked his right to
counsel. It then held that he knowingly and intelligently waived
his right to counsel.
In conclusion, the court first held that Hambly’s inculpatory statement
did not stem from the functional equivalent of interrogation.
Secondly, Hambly waived his right to counsel because he initiated
further conversation and the waiver was knowingly and intelligently
made.
Date: 08/02/06
Case No: 2005AP2767
Issue: Issue Preclusion; Administrative Hearings; Probable Cause to Arrest
Holding: Issue preclusion did not apply because the issue of probable cause to arrest was not actually litigated during the judicial review of an administrative hearing.
Summary:
Nytsch was arrested for operating a motor vehicle while intoxicated and
for operating a motor vehicle with a prohibited alcohol
concentration. The arresting officer provided Nytsch with a
Notice of Intent to Suspend his driving privileges for six months.
Nytsch requested and received an administrative suspension
hearing. Section 343.305(8)(b) sets fourth the issues the DOT
hearing examiner may address at the administrative hearing. One
issue is whether probable cause existed for the arrest. The DOT
examiner found probable cause and suspended Nytsch’s driving
privileges.
Nytsch sought judicial review of the administrative suspension. The City of Sheboygan Assistant City Attorney was assigned to represent the interests of the DOT at the judicial review hearing. However, when the review court asked about the status of the judicial review the city attorney stated, “Well, obviously we are not a party to the administrative suspension, so I don’t have any information on what happened.” Nytsch requested the court resolve the issues in his favor and to vacate the administrative suspension. The judicial review court vacated the administrative suspension because the City presented no evidence on the issues set forth in § 343.305(8)(b)2.
Subsequently, Nytsch filed a motion to suppress evidence based on lack of probable cause to arrest. He argued that the doctrine of issue preclusion prevented litigating the issue of probable cause because that issue had already been considered and decided in both the administrative suspension and the judicial review hearing. Issue preclusion is designed to limit the relitigation of issues that have been contested in a previous action by the same or different parties.
The assistant city attorney responded that Nytsch’s request for judicial review did not raise the issue of probable cause but only highlighted his family issues. The trial court granted Nytsch’s motion so he could drive a little longer and dismissed the case.
On review, the appellate court noted that for issue preclusion to apply an issue must have been litigated in a previous action and be necessary to the judgment. The court concluded that the question of whether the arresting officer had probable cause to arrest Nytsch was not actually litigated during the judicial review hearing. It noted that no testimony was taken or evidence introduced during the hearing. Because the question of probable cause to arrest was not actually litigated, the City is not precluded from litigating that issue on the merits. The appellate court held that the circuit court erred in granting Nytsch’s motion to suppress and in dismissing the case. Accordingly, it reversed and remanded the case.
Date: 06/22/06
Case No: 2005AP658-CR
Issue: Homicide by Negligent use of a Vehicle
Holding: The court of appeals concluded that the State presented sufficient evidence for the jury to find the defendant guilty of homicide by negligent use of a vehicle.
Summary:
Schutte was driving her car, with three passengers,
on a rural, two-lane highway that was icy and slippery in places.
On a curve in the highway, Schutte’s car crossed the centerline and
collided with another vehicle, killing all three passengers. As a
result, she was charged with three counts of homicide by negligent
operation of a vehicle under Wis. Stat. § 940.10(1). Schutte
provided several different accounts of what she was doing just before
the collision. In some, she claimed that she was changing a
compact disc; in others, she claimed that she had leaned down to pick
up a French fry. Additionally, there was evidence that Schutte
had smoked marijuana before the collision occurred. At the scene,
Schutte told a firefighter and officer that she had smoked marijuana
earlier in the day. She later told another officer and the
coroner that she had smoked marijuana that evening, admitting to one
that she had taken a few hits while driving. Schutte also
admitted taking twice as much as the recommended dose of cold syrup
containing codeine earlier in the day.
At trial, the defense presented a number of witnesses who testified to the snowy, slippery road conditions on the night of the collision. An accident reconstruction expert called by the defense opined that the collision occurred after Schutte lost control of her vehicle due to slippery conditions. Despite this evidence, a jury found Schutte guilty of all three counts as charged. Schutte appealed her convictions on a number of grounds.
Sufficiency of the Evidence
First, Schutte challenged the sufficiency of the
evidence presented by the State to convict her of homicide by negligent
operation of a vehicle under Wis. Stat. § 940.10(1). She
contended that sustaining her conviction would render Wis. Stat. §
940.10 a “strict liability” offense, authorizing felony punishment for
any driver who loses control of a vehicle resulting in a fatal
accident. Schutte argued that a “mechanistic view that crossing
of the center line constitutes criminal negligence would irrationally
extend felony liability to accidents that resulted from unexpected
health or mechanical emergencies.” Schutte asked the court to
“clarify the line between those circumstances where a fatal vehicle
accident, though unquestionably tragic, is a matter to be addressed in
the civil courts applying traditional negligence principles, and those
situations where a motorist’s conduct is sufficiently egregious to be
punished as criminal negligence.” She maintained that the collision was
an accident that did not involve the “particularly egregious
circumstances” for which prosecutions under Wis. Stat. § 940.10(1) are
reserved.
In rejecting Schutte’s challenge to the sufficiency
of the evidence, the court of appeals engaged in a lengthy discussion
of what the State is required to prove in order to establish a
violation of Wis. Stat. § 940.10(1). After closely
examining the applicable statute and relevant case law, the court
concluded that to sustain a conviction of § 940.10(1), the State must
satisfy jurors beyond a reasonable doubt that the defendant engaged in
conduct, which under all of the circumstances present, the defendant
should have realized created a substantial and unreasonable risk of
death or great bodily harm to another person. The court pointed
out that a defendant may avoid criminal liability if he or she can
establish that the risk of life-threatening consequences was not a
substantial one, or if it was, that the circumstances rendered the risk
not unreasonable. Here, the court held that the State met its
burden.
As the court acknowledged, a violation of a traffic
statute, standing alone, does not necessarily prove that a defendant
engaged in criminally negligent conduct. Therefore, in order to
convict Schutte of violating Wis. Stat. § 940.10, the State “needed to
establish something more than the mere fact of Schutte’s car crossing
the highway centerline.” Here, the “something more” was the
circumstances under which Schutte was driving her car. The State
summarized her conduct as: “Schutte drove too fast for conditions on an
obviously treacherous road during obviously dangerous weather
conditions, took her eyes off the road, drove with one hand while
eating or reaching for an object or passing an object around, and
crossed the centerline of the road at a high rate of speed.” In
light of these facts, the court held that the State produced sufficient
evidence to sustain the jury’s guilty verdict.
Improper Jury Instruction
Schutte next asked the appellate court to reverse
her conviction based upon an improper jury instruction. During
closing arguments, defense counsel told the jury that the State had to
prove which of Schutte’s alleged tasks while driving caused the
accident, i.e. reaching for a French fry, a CD, or passing some other
object. In response to the State’s objection, the trial court
advised the jury that defense counsel’s statement was an incorrect
statement of the law. It then instructed the jury, based on State
v. Johannes, 229 Wis. 2d 215, that “a jury generally does not have to
agree on the way a defendant participated in a crime but only must
agree that the defendant committed the crime.” The court
continued to quote the Johannes decision, eventually reading the
following statement: “[A]s we have previously stated, the criminally
negligent act in this case was when Johannes drove across the highway’s
centerline.” The defense took issue with this particular
statement, claiming that the instruction amounted to a judicial
endorsement of a finding of guilt based on the mere fact that Schutte’s
vehicle crossed the center line. The appellate court disagreed and held
that the curative instruction did not incorrectly state the law
regarding the State’s burden of proof and the proper application of the
unanimity requirement to the evidence adduced at trial.
The Marijuana Evidence
Finally, Schutte contended that the trial court
erred by allowing the State to present testimony regarding her use of
marijuana prior to the collision. She argued that the evidence
was not relevant but, even if it was, its probative value was
substantially outweighed by the danger of unfair prejudice.
Specifically, she argued that because the toxicology expert could not
tie the level of THC in Schutte’s blood to a specific level of
impairment it could not be said that the THC evidence made it
more probable that she was driving in a criminally negligent
fashion. Schutte suggested that admission of this evidence
invited jurors to speculate as to the impact of her marijuana use,
without the benefit of expert testimony to guide them. The court
of appeals disagreed. Although the toxicology expert could not
tie the THC to a specific level of impairment, the expert testified to
several effects that all directly relate to a person’s ability to
drive. According to the court, “Schutte’s marijuana use was part
and parcel of the circumstances under which Schutte was driving that
jurors were instructed to consider when determining whether her conduct
was criminally negligent.” The evidence was highly probative of
the central issue in the prosecution, and its probative value was not
substantially outweighed by the danger of unfair prejudice.” As such,
the trial court did not err in admitting the evidence.
Date: 05/02/06
Case No: 2005AP2560-CR
Issue: Collateral Attack; Right to Counsel
Holding: A defendant may collaterally attack a prior conviction in an enhanced sentence proceeding only on the ground that the defendant was denied the constitutional right to counsel. The defendant must make a prima facie showing that he/she was deprived of the right to counsel.
Summary:
Hammill appealed an OWI, fifth offense,
conviction. He argued: 1) the circuit court erroneously counted
for penalty enhancement purposes a prior Barron County OWI conviction
in which he was deprived his right to counsel; 2) his counsel was
ineffective by arguing the wrong legal standard regarding the
collateral attack of his Barron County conviction; and 3) the court
erroneously counted a Village of Cameron OWI conviction for penalty
enhancement purposes because the Village did not have subject matter
jurisdiction to convict him.
Barron County Conviction
The court noted that a defendant may collaterally
attack a prior conviction in an enhanced sentence proceeding only on
the ground that the defendant was denied the constitutional right to
counsel. State v. Hahn,
2001 WI 118, ¶25. To succeed, the defendant must bring forth
evidence to make a prima facie showing that the defendant was deprived
of the constitutional right to counsel. State v. Ernst,
2005 WI 107, ¶2. Hammill was unable to obtain a transcript of the
proceeding due to the destruction of the court reporter’s notes and did
not remember what occurred at that proceeding. Because Hammill
failed to make a prima facie showing, the court rejected this
collateral attack.
Ineffective Assistance of Counsel
The court noted that to establish a claim of
ineffective assistance of counsel, a defendant must show both that the
trial counsel’s performance was deficient and that the deficiency was
prejudicial. Strickland v. Washington,
466 U.S. 668, 697 (1984). Hammill argued that his counsel was
ineffective because it argued that his previous waiver of counsel was
insufficient under the standard of State v. Bangert, 131 Wis. 2d 246 (1986), rather than the “more exacting” standard of Pickens v. State,
96 Wis. 22d 549 (1980). The court rejected this claim because the
alleged error is unlikely to have changed the outcome. It noted that
the Pickens standard was argued at the postconviction stage and the previous court nonetheless found a valid waiver.
Village of Cameron Conviction
Hammill argued that the Village of Cameron lacked
subject matter jurisdiction to convict him. The State responded that
Hammill’s challenge is barred by State v. Hahn’s
bright-line rule that during an enhanced sentence proceeding, a prior
conviction may only be challenged based on a violation of the
constitutional right to counsel. 238 Wis. 2d 889. Hammill
replied that Hahn did not specifically address whether a
void judgment could be used to enhance a sentence. The court
disagreed and held that “Hahn is a broad, bright-line
rule.” Since Hammill’s challenge to the conviction was not based
on a denial of his right to counsel, it is barred by Hahn.
Case No: 2005AP1013-CR
Issue: Fourth Amendment Seach and Seizure
Holding: An initially valid stop turned into an illegal seizure due to the duration and nature of the encounter. Consequently, Luebeck's consent to search was invalid.
Summary:
The State appealed from a trial court order
suppressing drug evidence found during a consent search of Luebeck’s
vehicle. The court of appeals affirmed the suppression of the
evidence because Luebeck’s consent to search was invalid as the result
of an illegal seizure.
An officer stopped Luebeck for lane deviation.
The officer detected an odor of intoxicants and Luebeck admitted that
he came from a bar. The officer asked Luebeck and his passenger
for identification. Both had valid DLs and neither had any
outstanding warrants. The officer asked Luebeck to perform field
sobriety tests. Luebeck passed the field sobriety tests and blew a .02
in a preliminary breath test (PBT).
The officer told Luebeck that he was going to issue
him a warning for the lane deviation and then release him. The
officer requested Luebeck’s passenger take a PBT because the officer
preferred that someone with no alcohol or less alcohol drive the
vehicle. Luebeck did not object. Before approaching the
passenger, the officer asked for consent to search Luebeck. He
agreed and the search produced nothing. The officer asked to
search the vehicle and Luebeck responded, “Go ahead.” The search
produced a baggie of marijuana. Luebeck was arrested and charged
with one count of possession of marijuana.
The question presented on appeal was whether Luebeck was still seized within the meaning of the Fourth Amendment when he gave consent to search his vehicle.
The State argued that, under State v. Gaulrapp, one or two consent questions that do not unreasonably extend the traffic stop in scope or duration are permissible. Gaulrapp held that “When there is justification for a [Terry v. Ohio,
392 U.S. 1 (1968)] stop, it is the extension of a detention past the
point reasonably justified by the initial stop, not the nature of the
questions asked, that violates the Fourth Amendment.” Gaulrapp,
207 Wis. 2d at 609. The court expressly distinguished Gaulrapp,
from other cases that “involve prolonged detention after the officers
concluded or should have concluded that the justification for the
initial stop did not warrant further detention.” Gaulrapp,
207 Wis. 2d at 608. The court noted that unlike Gaulrapp,
“Luebeck was detained for over twenty minutes, his driver’s license was
held by police, no citation or warning for lane deviation had yet been
issued, he passed all of the field sobriety tests and his preliminary
breath test indicated a blood alcohol content below the legal limit,
yet he was being questioned about his passenger’s ability to drive in
his place.”
The court agreed with the trial court’s application of State v. Jones to the current case. Jones
held that “a search authorized by consent is wholly valid unless that
consent is given while an individual is illegally seized.” 278 Wis. 2d
774, ¶9. The court stated for purposes of Fourth Amendment
analysis, under Jones the court must apply an objective
test as to whether, under the totality of the circumstances, a
reasonable person would have believed that he or she was not free to
leave and the trial court correctly applied this standard.
The court of appeals held that under the totality of
the circumstances any reasonable person in Luebeck’s position would
have believed that he or she was not free to leave or terminate the
encounter with the police. Consequently, Luebeck’s consent to
search was invalid.
Date: 04/11/06
Case No: 2005AP1372-CR
Issue: Constitutionality of §940.25(1)(am), Causing Injury by Intoxicated Use of a Motor Vehicle (great bodily harm)
Holding: Wis. Stat. §940.25(1)(am) & (2)(a) do not violate Gardner's constitutional rights. The statutes do not violate due process, the Eigth Amendment, or create a "status offense."
Summary:
Gardner crashed his
motor vehicle into a tree and severely injured his passenger. He
told officers he must have fallen asleep at the wheel and consented to
a test of his blood. No alcohol was detected, but substantial
amounts of cocaine and the metabolites of cocaine were found.
Gardner appealed his conviction for injury by intoxicated use of a motor vehicle by claiming that §940.25(1)(am) & (2)(a)
are unconstitutional. He argued that the statutes violate due
process by creating presumptions of guilt and shifting the burden of
proving innocence to the defendant. He also asserted that it was
improper for the legislature to enact the statute without requiring the
State to prove a causal connection between the controlled substance in
the blood and the injury.
I. Presumption Argument
The court agreed with the State’s argument that the
statute does not create any presumptions; rather, the statute simply
defines a criminal offense and an affirmative defense to that
offense.
The court noted that §940.25(1)(am)
has two elements which the state must prove: 1) the defendant operated
a vehicle with “a detectable amount of a restricted controlled
substance in his or her blood”; and 2) the defendant’s operation of the
vehicle caused great bodily harm to the victim. Section 940.25(2)(a)
creates an affirmative defense that absolves the defendant of liability
if he or she can prove that great bodily harm would have occurred even
if he or she had been exercising due care and had not had a detectable
amount of a controlled substance in his or her blood.
II. Status Offense/Eighth Amendment
The court rejected Gardner’s contention that the
statutes create an impermissible “status offense.” See State v. Bruesewitz,
57 Wis. 2d 475, 479-80, 204 N.W. 2d 514 (1973) (Eighth Amendment
prohibits “making it a crime to be ‘addicted’ to narcotics . . .
Criminal liability [cannot] be based on the mere status of
addiction.”) The court held that Gardner’s claim of a “status
offense” does not apply as §940.25(1)(am) penalizes conduct (operating
with a restricted controlled substance in one’s blood and causing great
bodily harm), not status.
III. Causation
Gardner asserted it was improper for the legislature
to enact the statute without requiring the State to prove a causal
connection between the controlled substance in the blood and the
injury. He argued that some drugs stay in one’s system long after
their effects wear off.
The court responded that the legislature
criminalized a specific act – driving with any amount of a restricted
controlled substance in one’s blood, where the driving causes great
bodily injury to another human being. “Thus, the only causal
connection required is that the operation of the vehicle caused the
injury.” In support of its position, the court cited State v. Caibaiosai,
122 Wis. 2d 587, 594, 363 N.W. 2d 574 (1985). In that case, the
court held that homicide by intoxicated use of a vehicle does not
require a causal connection between the defendant’s intoxication and
the death, it requires only a causal connection between the operation
of a vehicle and the resulting injury. Id.
The Gardner court concluded that “the legislature’s
failure to require the State to prove a direct link between the
presence of a restricted controlled substance and the resulting injury
is not fatal to the legality of the statute.”
IV. Affirmative Defense
Finally, the court rejected Gardner’s contention that the affirmative defense § 940.25(2)(a)
improperly transfers the burden of proof from the State to the
defendant. The Court held that the statute does not shift the
burden to the defendant to prove he or she is innocent. Rather,
it requires a defendant to prove that despite the fact that the State
has satisfied the elements of the offense, he or she cannot be held
legally responsible under the statute.
Date: 02/01/06
Case No: 2005AP472-CR
Issue: Collateral Attack of Prior OWI, Constitutional Right to Counsel During Refusal Proceeding
Holding: Because an OWI refusal hearing is a civil proceeding, no constitutional right to counsel attaches.
Summary:
Krause was convicted of his fifth OWI offense in
March 2003. One of his prior OWI offenses was a September 2000
refusal based revocation for failing to submit to a chemical test under
the implied consent law. As part of a plea agreement, Krause was
convicted of the refusal and the OWI charge was dismissed.
The State and Krause agreed that a refusal
revocation qualifies as a prior offense for sentencing purposes.
However, Krause sought to collaterally attack the September 2000 OWI
offense because Krause’s court-appointed lawyer did not request a
refusal hearing. On appeal, Krause argued that if he had received
proper representation at the refusal hearing he would have known to
challenge the refusal to avoid having it count in future OWI
prosecutions. He asserted that the ineffective assistance of his
counsel was equivalent to no assistance at all and violated his Sixth
Amendment right to counsel. Under Wisconsin law, a defendant’s
ability to collaterally attack a prior conviction is limited to
circumstances where the defendant’s constitutional right to counsel was
violated. State v. Hahn, 2000 WI 118.
The court reasoned that to mount a collateral attack, Krause would have to establish that the Sixth Amendment right to counsel attaches in a civil proceeding. Krause had no constitutional right to counsel at the refusal hearing because it is civil, not criminal, in nature. The court held that Krause did not have a constitutional right to counsel upon which to base his collateral attack.
Date: 12/14/05
Case No: 2005AP573-CR
Issue: Protective Search of a Vehicle, Terry Stop
Holding:
In this non-OWI case, the court held that the record did not
support a sufficient specific and articulable basis for an objectively
reasonable belief that Johnson was armed and dangerous. Thus, the
protective search of Johnson's vehicle was unlawful. Johnson's
conviction for possession of cocaine with intent to deliver was
reversed and the cause remanded.
Summary:
During a traffic stop for an emissions suspension, two police
officers observed Johnson lean forward in the vehicle and testified
that it was consistent with efforts to try and conceal contraband or
weapons. Johnson produced paperwork indicating that the vehicle had
passed emissions. The officers searched Johnson and his passenger for
weapons for “officer safety.” The police then informed Johnson that
they were going to search his vehicle and Johnson did not object. The
officers found a baggie of marijuana under the driver’s seat. They
arrested Johnson, searched him, and found cocaine in his pocket.
Under Terry v. Ohio, 392 U.S. 1 (1968), a narrowly drawn authority exists to permit a reasonable search for weapons for the protection of the police officer. The reasonableness of a protective search for weapons is an objective standard based upon specific reasonable inferences which he [or she] is entitled to draw from the facts in light of his [or her] experience.
The U.S. Supreme Court in Michigan v. Long, 463 U.S. 1032, 1049 (1983), expanded the scope of a search for weapons during a Terry vehicle stop to include a search of the passenger compartment of the vehicle. (See also: State v. Moretto, 144 Wis. 2d 171, 182, 423 N.W.2d 841 (1988)).
The Johnson court focused on whether the totality of the
circumstances created a “reasonable suspicion” to justify a protective
search for weapons in Johnson's vehicle. It stated: “courts are to
decide on a case-by-case basis, evaluating the totality of the circumstances,
whether an officer had reasonable suspicion to effectuate a protective search
for weapons in a particular case.”
The court reasoned that the officers pulled Johnson over for a traffic violation rather than a crime. Johnson produced the proper emissions documentation. The officers had no prior contacts with Johnson that would suggest that he would be armed or dangerous. While it was dark out, the streetlights provided adequate illumination of the vehicle. The State did not argue that the location of the stop was a high crime area. Finally, Johnson made no other suspicious movements in the car and was otherwise cooperative and complied with the officers' directions. Thus, the facts did not support an objective basis for a reasonable suspicion that Johnson was armed.