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    Wisconsin Lawyer
    March 01, 2000

    Wisconsin Lawyer March 2000: Supreme Court Digest

    Supreme Court Digest


    by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

    Note: Each case summarized in the Supreme Court Digest includes its new public domain citation.


    Criminal Procedure

    Guilty Pleas - Sex Offender Registration Notification - Withdrawal of Guilty/No Contest Pleas Prior to Sentencing - Proof Burdens

    State v. Bollig, 2000 WI 6 (filed 4 Feb. 2000)

    This case involves numerous issues relating to guilty pleas and the withdrawal of guilty pleas prior to sentencing. First, the supreme court considered whether, at the time the defendant entered his no contest plea to a charge of attempted sexual assault, the judge was required to inform him that he would be required to register as a convicted sex offender under Wis. Stat. section 301.45. In a unanimous opinion authored by Justice Bradley, the court concluded that sex offender registration is not punitive because the underlying intent is public protection and safety. Because the duty to register is not punishment, it is not a direct consequence of the defendant's plea but only a collateral consequence. Therefore the defendant did not have a due process right to be informed thereof prior to entering his plea.

    The court next considered whether the defendant should have been allowed to withdraw his plea before sentencing on his claim that he was unaware of the sex offender registration requirement at the time he entered his plea. Prior to sentencing, the circuit court is to apply the "fair and just reason" standard in evaluating a motion to withdraw the plea. The state conceded that if the defendant was not aware of his requirement to register as a convicted sex offender, he presented a fair and just reason for his plea withdrawal.

    However, there is still the issue of whether the prosecution would be substantially prejudiced by the withdrawal. In this regard the court first considered the allocation of the proof burden regarding prejudice and concluded that once the defendant presents a fair and just reason for withdrawing his or her plea, the burden shifts to the state to show substantial prejudice so as to defeat the plea withdrawal. The court then concluded that, in this case, that burden was met because the attempted sexual assault to which the defendant entered his plea was committed when the victim was only 4.5 years old and the litigation regarding plea withdrawal occurred almost two years later. The circuit court was concerned about the effect on the child's memory that would occur as the result of the passage of this much time. The supreme court concluded that the circuit judge properly found that the state would suffer substantial prejudice if the defendant were permitted to withdraw his plea. Said the court, it was reasonable to consider the impact a plea withdrawal would have on the child victim who was the state's key witness. Accordingly, the trial court did not err in denying the motion to withdraw the plea.

    Finally, the court considered whether the defendant was aware of the elements of the offense to which he entered his plea so as to render the plea knowing and intelligent. At the plea hearing the court gave an incomplete recitation of the elements of the crime. Therefore, the defendant satisfied his burden of showing that the court did not comply with its statutory duty to inform him of the elements of the crime. The burden then shifted to the state to demonstrate by clear and convincing evidence that the plea was nevertheless entered knowingly, voluntarily, and intelligently. The state may use the entire record to demonstrate the defendant's knowledge of the nature of his or her offense.

    In this case the guilty plea questionnaire that the defendant signed and later acknowledged in open court contained a complete recitation of the elements of attempted sexual assault. Further, there was evidence that the missing element had been the subject of a pretrial hearing at which the defendant was present. On these bases the court concluded that despite the circuit judge's failure to advise the defendant of one of the essential elements of the crime at the plea hearing, the state had demonstrated by clear and convincing evidence that the defendant was nevertheless aware of the nature of his offense.

    Search and Seizure - Curtilage

    State v. Martwick, 2000 WI 5 (filed 19 Jan. 2000)

    The defendant was convicted of manufacturing marijuana. The court of appeals reversed the conviction on the ground that police had illegally entered and seized evidence from the curtilage of the defendant's home. The supreme court, in an opinion written by Justice Crooks, reversed the court of appeals.

    The court first addressed the proper standard of review. It held that curtilage issues present questions of "constitutional fact" that mix evidentiary/historical facts with the "ultimate issue" of constitutionality. Different standards of review apply to each set of facts. Appellate courts defer to the trial court's finding of historical facts; they are not set aside unless clearly erroneous. But the questions of constitutional fact (for example, where does the curtilage extend?) are determined independently upon appeal.

    In concluding that the marijuana plants in question were observed outside the defendant's curtilage, the supreme court examined various factors. First, the court looked at the plants' proximity to the house and how the land was used. Although the distance between the two was "not vast," the court noted that the property was not used as a farm. Hence, the curtilage did not automatically extend to several nearby ginseng sheds. Second, the defendant had not erected any fence or other enclosure to ensure a privacy expectation in the spot in question. Although he had mowed the "weeds" around his house, the plants in question did not fall within that area. Nor did the thickly wooded area - a product of natural forestation - create an expectation of privacy. Third, the record failed to disclose that the area was used for "intimate activity associated with the 'sanctity of a man's home and the privacies of life'" (for example, it was not in or near a "garden"). Fourth, the defendant did not exercise "dominion over his woods, so as to make the woods an intimate part of his home."

    Justice Prosser concurred, responding to several points urged by the dissenters. Chief Justice Abrahamson, joined by Justices Bablitch and Bradley, dissented. They emphasized that the police search and seizure occurred about 20 feet from the defendant's home and that the record did not support the majority's determinations of fact.


    Criminal Procedure

    Search and Seizure - Search Warrants - Probable Cause - No-knock Entries - Police Good Faith Reliance on Wisconsin Supreme Court Ruling Later Rejected by U.S. Supreme Court

    State v. Ward, 2000 WI 3 (filed 19 Jan. 2000)

    In State v. Stevens, 181 Wis. 2d 410, 511 N.W.2d 591 (1994), and State v. Richards, 201 Wis. 2d 845, 549 N.W.2d 218 (1996), the Wisconsin Supreme Court authorized police executing a search warrant for evidence of felonious drug activity to make a no-knock entry. Relying on this rule, the police executed a drug warrant at the defendant's residence and seized evidence of controlled substance violations. Three months after the search of the defendant's home, the U.S. Supreme Court issued an opinion rejecting the conclusion of the Wisconsin Supreme Court that the Fourth Amendment permits a per se exception to the "knock and announce" rule when officers execute a search warrant in a felony drug investigation. See Richards v. Wisconsin, 520 U.S. 385 (1997).

    On these facts the Wisconsin Supreme Court framed the issue as being whether the evidence should be suppressed because officers executed an unlawful no-knock entry into the defendant's residence in violation of the knock and announce rule. For purposes of this case, the court assumed without deciding that the exclusionary rule is the proper remedy for a violation of the rule of announcement. It then concluded, in a majority opinion authored by Justice Bablitch, that the evidence should be admitted because the police officers acted in good faith reliance on law that was controlling at the time of the search. The court emphasized that although the officers did not comply with the rule of announcement, this was not due to negligence, a mistake of law, or willful or malicious conduct by the officers. Rather, they relied upon a rule set forth as a matter of judicial discretion by the Wisconsin Supreme Court in the Stevens and Richards decisions. Under these circumstances the majority concluded that it would be inappropriate to apply the exclusionary rule under either the Fourth Amendment to the United States Constitution or Article I, section 11 of the Wisconsin Constitution.

    The court also considered whether the warrant to search was supported by probable cause. The novel issue presented by this case was whether the judge who issues a warrant can supply facts based upon the judge's own experience to supplement the affidavit that is submitted to obtain the warrant, and then make inferences from the facts supplied by the judge to establish probable cause. Police sought a search warrant for the defendant's home and, in addition to other evidence tending to show that drugs were in the home, the judge added that in his experience, when the police have established that there is a drug dealer who is dealing large amounts of drugs, there is a high probability that those drugs are being dealt out of the defendant's place of residence.

    The supreme court concluded that whether there is probable cause to believe that evidence is located within a particular place is to be determined by examining the "totality of the circumstances." The court agreed with the defendant that the probable cause determination must be based upon what a reasonable magistrate can infer from the information presented by the police. The issuing magistrate ordinarily considers only the facts set forth in supporting affidavits accompanying the warrant application. A magistrate issuing a warrant must be neutral and independent and must act in a neutral and detached manner. The subjective experiences of the magistrate are not part of the probable cause determination. The supreme court went on to consider only the facts presented to the magistrate by the police and concluded that they demonstrated the probable cause necessary for the search of the defendant's residence.

    Chief Justice Abrahamson filed a dissenting opinion that was joined in its entirety by Justice Bradley and in part by Justice Prosser. Justice Prosser filed a dissenting opinion that was joined by the Chief Justice and Justice Bradley.

    Search Warrants - No-knock Entry - Police Good Faith Reliance on Rule Adopted by Wisconsin Supreme Court that Subsequently is Changed by U.S. Supreme Court

    State v. Orta and State v. Ruiz, 2000 WI 4 (filed 19 Jan. 2000)

    The issue in these consolidated cases was whether evidence that is seized pursuant to a rule expounded by the Wisconsin Supreme Court must be suppressed when that rule subsequently is determined by the U.S. Supreme Court to be unreasonable under the Fourth Amendment. The issue arose when police executed a search warrant without first knocking and announcing their presence at a time when decisions of the Wisconsin Supreme Court permitted no-knock entries whenever the police were executing search warrants to uncover evidence of felonious drug activity. That was the type of warrant involved in these cases. Subsequent to the search, the U.S. Supreme Court concluded that it was unreasonable under the Fourth Amendment to allow a per se exception to the "knock and announce" rule in drug cases.

    The issue as framed is identical to that considered by the supreme court in State v. Ward, 2000 WI 3, which is summarized above. Pursuant to the reasoning set forth in Ward, a majority of the supreme court, in a decision authored by Justice Bablitch, concluded that the evidence seized in these cases was admissible.

    Justice Prosser filed a concurring opinion that was joined in part by Chief Justice Abrahamson and Justice Bradley. Chief Justice Abrahamson filed a dissenting opinion that was joined by Justice Bradley.

    Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.


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