Criminal Procedure
Confession Law – Miranda – “Per Se Custody” – Jail
State v. Halverson, 2019 WI App 66 (filed 13 Nov. 2019) (ordered published 18 Dec. 2019)
HOLDING: An “incarcerated person” is not “per se in custody for purposes of Miranda”; later controlling precedent effectively overruled prior cases to the contrary.
SUMMARY: While investigating a crime allegedly committed by the defendant, police officers learned that he was in a nearby county jail on a probation hold. An officer called the jail and spoke with the defendant. The defendant’s statements to the officer resulted in the filing of charges of criminal damage to property and theft. The defendant moved to suppress his statements on grounds that he had never been given his Miranda rights; hence, he did not validly waive them. The circuit court granted the suppression motion, relying on case law holding that incarcerated suspects are per se in custody for Miranda purposes.
The court of appeals reversed in an opinion authored by Judge Hruz. The circuit court had properly relied on state case law holding that incarcerated persons are per se in custody for Miranda purposes. Thus, police officers must obtain a valid waiver of incarcerated persons’ Miranda rights: if the rights are not read to a suspect, there can be no valid waiver.
The court of appeals held, however, that later decisions by the U.S. Supreme Court, especially Howes v. Fields, 565 U.S. 499 (2012), “effectively overruled [older case law supporting a] per se custody rule” (¶ 1). Normally, only the Wisconsin Supreme Court can “overrule, modify, or withdraw language” from prior cases, but there are situations, as here, when the court of appeals “must not follow” case law that as a matter of federal law conflicts with later controlling decisions of the U.S. Supreme Court (¶¶ 33-34). The older state cases rested on federal case law that the U.S. Supreme Court later held to be incorrect. The pertinent case law is discussed in some depth. The court of appeals also rejected the defendant’s “invitation” to ground the per se custody rule in the Wisconsin Constitution (¶ 47).
Finally, the record showed that the defendant was not in custody for Miranda purposes during the phone call with police. For example, he was “not forced to take the call” or “prevented from disconnecting it” (¶ 61). Moreover, he was “alone and unrestrained” during the call (¶ 60).
Search and Seizure – Tracking Dogs – Hot Pursuit
State v. Ionescu, 2019 WI App 68 (filed 13 Nov. 2019) (ordered published 18 Dec. 2019)
HOLDING:A police officer using a tracking dog was in “hot pursuit” when the officer made a warrantless entry into the curtilage of the defendant’s home.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
SUMMARY: A police officer responded to a report of a garage burglary in progress during the early morning hours. The homeowner told the officer that the suspect had fled across the homeowner’s yard. The officer used his certified tracking dog to follow the suspect’s scent. The trail of odors and footprints led to a motor home, where the defendant stayed with his mother. The defendant’s mother allowed police officers to enter the home, where they found the defendant and property taken from the burglary site. The circuit court denied the defendant’s motion to suppress evidence based on the officer’s and dog’s warrantless entry into the curtilage of the motor home.
The court of appeals affirmed in an opinion authored by Judge Gundrum. The officer and his dog were in “hot pursuit,” which authorized them to make a warrantless entry into the curtilage. The fact that police officers arrived 5-10 minutes after the homeowner placed the call and that it took 25-30 minutes to locate the defendant did not undermine the hot pursuit (see ¶ 11). Case law does not require that a police officer visually observe the fleeing suspect (see ¶ 13). There was “no evidence to suggest” that the officer and the dog “did not follow the footprints and scent as speedily as efficiency and effectiveness would allow” (¶ 15). The search was “continuous” and reasonable (¶ 16).
Real Property
Condemnation of Property for Transportation Use – Sufficiency of Jurisdictional Offer
Christus Lutheran Church of Appleton v. Wisconsin DOT, 2019 WI App 67 (filed 26 Nov. 2019) (ordered published 18 Dec. 2019)
HOLDING: The jurisdictional offer the Wisconsin Department of Transportation (DOT) made for property it condemned for transportation use was not sufficiently based on the appraisal and therefore was invalid.
SUMMARY: Wisconsin law requires that when a governmental entity wants to condemn property for transportation use, it must issue to the property owner a jurisdictional offer that is based on an appraisal. See Wis. Stat. § 32.05(2)(b), (3)(e). Christus Lutheran Church of Appleton challenged the validity of the jurisdictional offer the DOT made for its property. The DOT’s offer was approximately $270,000 more than the property value stated in an appraisal submitted by the DOT in support of the offer, and the offer also included items such as severance damages that were not included in the appraisal.
Although Christus Lutheran would benefit monetarily from the increased jurisdictional offer, it contended in this action brought pursuant to Wis. Stat. section 32.05(5) that the DOT could not condemn its property at this time because there was an insufficient nexus between the jurisdictional offer and the appraisal. The circuit court granted summary judgment to the DOT.
In an opinion authored by Judge Hruz, the court of appeals reversed the decision of the circuit court. It concluded that the jurisdictional offer in this case was not sufficiently based on the appraisal.
“The appraisal must value ‘all property proposed to be acquired,’ Wis. Stat. § 32.05(2)(a), and it must form a ‘fundamental ingredient’ or ‘supporting part’ of the jurisdictional offer, Otterstatter v. City of Watertown, 2017 WI App 76, ¶24, 378 Wis. 2d 697, 904 N.W.2d 396. In this case, the third-party appraisal concluded that no severance damages would occur as a result of the project, yet the DOT’s jurisdictional offer included a $159,574 line item for such damages. Given that just compensation for a taking includes applicable severance damages, see Wis. Stat. § 32.09(6)(e), the appraisal failed to satisfy subsec. (2)(a)’s ‘all property’ requirement. As a result, the jurisdictional offer’s line item for severance damages found no support in the appraisal, and the offer was invalid under subsecs. (2)(b) and (3)(e)” (¶ 2).
The severance damages referred to above are a compensable item of damages under the Wisconsin Statutes, specifically Wis. Stat. section 32.09(6)(c), which states that the owner is entitled to “damages resulting from actual severance of land including damages resulting from severance of improvements or fixtures and proximity damage to improvements remaining on condemnee’s land.” The problem in this case was that the appraisal concluded that no severance damages would occur. Despite this conclusion, the DOT added compensation for severance damages, but this added compensation was not supported by an appraisal. Therefore, the property owner would not know whether the jurisdictional offer was fair (see ¶ 26).
In situations such as this, absent a negotiated agreement with the property owner, “if the DOT, based solely upon its independent review of an appraisal, believes additional statutory items of just compensation warrant inclusion in the jurisdictional offer, it must obtain a new appraisal that substantiates that belief and provides an opinion as to the value of those interests” (¶ 32).
