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.