Vol. 73, No. 3, March
2000
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.
Wisconsin Lawyer
