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    Wisconsin Lawyer
    March 04, 2010

    Supreme Court Digest

    This column summarizes selected published opinions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). 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 LawyerWisconsin Lawyer
    Vol. 83, No. 3, March 2010

    Criminal Procedure

    Search and Seizure – Cell Phone Picture Gallery – Incoming Calls on Defendant’s Cell Phone

    State v. Carroll, 2010 WI 8 (filed 3 Feb. 2010)

    The issue before the supreme court in this case was whether the evidentiary basis for a warrant to search the cell phone of the defendant, Carroll, was tainted such that suppression of the evidence, under either the Fourth Amendment to the U.S. Constitution or article I, section 11 of the Wisconsin Constitution, was required. The court laid out the relevant facts: “(1) [A]n officer who had observed Carroll speeding confronted Carroll outside of his vehicle and ordered him to drop an unknown object that he held in his hand; (2) upon retrieving that object, the officer recognized it as an open cell phone and observed on the display screen an image of Carroll smoking what appeared to be a marijuana blunt; (3) the officer kept the phone, scrolled through its image gallery, and saw other images depicting Carroll with illegal items; and (4) the officer answered an incoming call pretending to be Carroll, and during that conversation, the caller ordered illegal drugs. The police obtained a warrant to search the phone. With the warrant, the police obtained time-stamped digital images from Carroll’s cell phone. It is that evidence that Carroll seeks to suppress” (¶ 2).

    The circuit court granted the defendant’s motion to suppress. In a published decision, the court of appeals reversed that order. See 2008 WI App 161. In a majority decision authored by Justice Crooks, the supreme court affirmed the court of appeals.

    The supreme court concluded that the officer was justified in seizing the defendant’s cell phone. The defendant had led the police on a high-speed chase in a car the officers had been observing in connection with an armed robbery investigation, and he exited his car quickly while holding an unknown object. “Given that behavior, the officers would have been justified – based on the objective belief that Carroll could have been holding a weapon – in conducting a frisk or pat-down, which would have resulted in [the officer’s] legal possession of the cell phone. Hence, [the officer’s] order for Carroll to drop the object and his subsequent retrieval of it were reasonable actions, and accordingly, his initial seizure of the phone was justified” (¶ 23).

    The court said that after having legally seized the flip-style phone, the top of which was open, the officer was justified in viewing on the display screen an image of Carroll smoking a marijuana blunt because that image was in plain view (see ¶ 24). “That, taken in context with other facts known to [the officer] at the time, namely, that individuals involved in drug trafficking often personalize their phones with such images, provided sufficient probable cause to believe that the phone was an instrument of criminal activity and contained evidence linked to that activity. Under the circumstances, [the officer] had probable cause to seize the cell phone” (¶ 25). The officer’s continued possession of the phone while he sought a warrant to search it was permissible; exigent circumstances justified that possession because the defendant could have deleted images and data from the phone had it been promptly returned to him (see ¶ 32).

    Before obtaining the warrant, the officer browsed through the phone’s image gallery and observed pictures of the defendant with illegal items. The officer also answered an incoming call on the phone; in the ensuing conversation, the caller attempted to order illegal drugs. The court concluded that the officer “was not justified in opening and browsing through the cell phone image gallery at the time that he took such action. As such, the evidence that the officer gleaned from that conduct was tainted and could not form the basis for a search warrant. However, based on exigent circumstances, the officer was justified in answering the incoming call to Carroll’s phone during which the caller ordered illegal drugs” (¶ 3).

    The officer had probable cause to believe that the cell phone was a tool used in drug trafficking based on the plain view of the marijuana image and his knowledge that such images are typically found on drug traffickers’ phones (see ¶ 34). Further, “exigent circumstances justified [the officer’s] answering Carroll’s cell phone. The fleeting nature of a phone call is apparent; if it is not picked up, the opportunity to gather evidence is likely to be lost, as there is no guarantee – or likelihood – that the caller would leave a voice mail or otherwise preserve the evidence. Given these narrow circumstances, [the officer] had a reasonable belief that he was in danger of losing potential evidence if he ignored the call. Thus, the evidence obtained as a result of answering that phone call was untainted” (¶ 42).

    Lastly, having determined that the warrantless seizure and subsequent viewing of the image gallery on Carroll’s phone produced tainted evidence, the court turned its attention to the question of whether the resulting warrant was nonetheless valid. “We conclude … that the phone call [the officer] answered is an untainted independent source of evidence to support the search warrant, that the untainted evidence, which is combined … with the officer’s knowledge of drug traffickers and Carroll’s juvenile record [for a drug-related offense], provides sufficient probable cause to issue the warrant, and that as a result, the warrant is valid” (¶ 43).

    Chief Justice Abrahamson and Justice Prosser filed separate dissenting opinions.

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    Expert Opinions – Inadmissible Bases – Right to a Defense

    State v. Fischer, 2010 WI 6 (filed 2 Feb. 2010)

    Fischer was convicted of operating a vehicle while intoxicated. At trial he proffered expert testimony intended to show that when he was stopped by police, his blood-alcohol level was below the 0.08 legal threshold but that it later rose on the curve such that he was above the limit when police finally administered an intoxilyzer test at the police station. The circuit court excluded the opinion because the defense expert’s calculations depended in part on the outcome of Fischer’s preliminary breath test (PBT), which was inadmissible as evidence pursuant to Wis. Stat. section 343.303. In a published decision the court of appeals affirmed the conviction. See 2008 WI App 152.

    The supreme court affirmed in an opinion authored by Justice Crooks. Three issues were before the court: “(1) whether Wis. Stat. § 343.303 creates an absolute bar on the admission of PBT results in operating while intoxicated (OWI) prosecutions, even when used as the basis for an expert’s opinion offered under Wis. Stat. § 907.03; (2) if so, whether such an application of the statute violates a defendant’s constitutional right to present a defense; and (3) whether we will accept counsel’s invitation to revisit and reject the Wisconsin case law that establishes that ‘the reliability of the evidence is a weight and credibility issue for the fact finder’” (¶ 3).

    The supreme court held first that the trial judge properly exercised his discretion in excluding the expert opinion in this case, although the supreme court pointedly explained that “[t]he rule we adopt here is not a blanket rule against absorption curve opinion evidence but rather a rule prohibiting use of PBT results in the manner attempted here” (¶ 6). The issue forced the court to wrestle with section 343.303, which precludes the PBT evidence, and Wis. Stat. section 907.03, which permits expert opinions to be predicated on some types of inadmissible evidence.

    “Fortunately, in this case, the legislature’s policy decision regarding the absolute inadmissibility of the PBT results under these circumstances simply could not be clearer. Reading the statutes together to create an exception to Wis. Stat. § 907.03 by excluding expert evidence to the extent that it is based on prohibited PBT results comports with our obligation to give effect to the legislature’s intent. The alternative would likely nullify Wis. Stat. § 343.303 whenever a party attached the opinion or report of an expert to the PBT result it wished to get before the jury” (¶ 25).

    Second, the court held that exclusion of the defense expert’s testimony did not violate Fischer’s constitutional rights. The supreme court assumed that the proffered expert testimony complied with the rules of evidence, was necessary to the defense case, and carried sufficient probative value, but the court said that the state’s compelling interest in excluding PBT evidence outweighed these factors (see ¶ 32).

    Third, the supreme court declined the defense’s invitation to reconsider the threshold standard for admitting expert testimony in state courts, at least on this record. More precisely, it refused to join other states and the federal courts in employing some variation of the Daubert reliability standard, which is found in Federal Rule of Evidence 702. It also declined to follow the leads of the lower courts, which had mused about the reliability of the PBT itself. “Saying that PBT results are not admissible is not the same thing as saying they are not reliable. Wisconsin’s tradition of leaving the weight and credibility of the evidence to the trier of fact, which continues to be the law, cannot be squared with an analysis that excludes evidence on the basis of its lack of reliability” (¶ 34).

    Justice Ziegler, joined by Justice Roggensack and Justice Gableman, concurred. The concurring justices concluded “that as a matter of law PBT results are neither reliable nor admissible for the purpose of confirming or dispelling a defendant’s specific alcohol concentration in an OWI or PAC trial. In such a trial, an expert cannot reasonably rely on PBT results for that purpose, and thus, PBT results are not admissible to prove or disprove a specific level of alcohol concentration.... Finding an expert who wishes to rely on the PBT results to form an opinion does not transform the inadmissible and unreliable evidence into admissible evidence in an OWI or PAC trial, and such testimony would only confuse rather than assist the jury and would completely undermine the presumption afforded to proper chemical testing” (¶ 37).

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