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    Wisconsin Lawyer
    July 16, 2021

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Procedure

    Search and Seizure – Consent Searches – Computers

    State v. Jereczek, 2021 WI App 30 (filed 6 April 2021) (ordered published 26 May 2021)

    HOLDING: The search of the defendant’s family computer exceeded the scope of consent that the defendant had given to the police.

    SUMMARY: Defendant Jereczek’s son was a suspect in a sexual assault investigation, and police officers believed that the family computer the son used might have had pornography on it related to the assault. Police officers met with Jereczek, who gave a desktop computer to them for forensic analysis with the instruction that the police department limit its analysis to the son’s user account. Police department employees discovered images appearing to be child pornography when they began their forensic review of the computer’s hard drive – specifically, of its recycle bin, which is a shared container on the hard drive into which any user on a multiuser operating system is able to place discarded files. A computer forensic crime analyst who worked with the police department explained that he began his search in the computer’s recycle bin container, at which time he discovered that it contained child pornography that had been deleted from two user accounts – one of which belonged to the defendant and the other to his son. Based on these findings, police officers obtained a warrant to search the entire hard drive.

    Jereczek was charged with possession of child pornography. He filed a motion to suppress the images discovered during the initial forensic analysis and during the warrant search, asserting that the scope of the initial search exceeded the consent Jereczek had given because it included the review of files outside the son’s user account. The circuit court denied the motion.

    In an opinion authored by Judge Hruz, the court of appeals reversed. It concluded that the forensic analyst “plainly violated the scope of Jereczek’s consent, which gave police authority to search only his son’s user account. Despite this clear limitation, [the analyst] began his search of the computer in the recycle bin, a location where he knew he was likely to find – and did find – not just files deleted from the son’s user account, but the deleted files of the computer’s other users as well. Indeed, further investigative efforts were necessary to determine precisely from which account each item of child pornography in the recycle bin had come. A search of the shared recycle bin container was therefore not a search of ‘the son’s account,’ and it exceeded the scope of the consent that Jereczek had given law enforcement” (¶ 21).

    “[T]he terms of the search’s authorization in this case were simple – police could search the son’s user account, but no more” (¶ 28). “The State’s assertion that it is entitled to search anywhere that the son’s user data could be stored is … not objectively reasonable” (¶ 24).

    Search and Seizure – Traffic Stops – Extension of Stop to Ask Question Unrelated to Mission of Stop

    State v. Crone, 2021 WI App 29 (filed 20 April 2021) (ordered published 26 May 2021)

    HOLDING: An officer’s request to look at pill bottles in the defendant’s purse at the end of a traffic stop did not unreasonably extend the stop under the totality of the circumstances.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    SUMMARY: An officer stopped the defendant for speeding. While the defendant was searching through her purse looking for proof of insurance, the officer spotted two pill bottles in the purse in plain view as he was standing next to the defendant’s vehicle. After confirming that the defendant had a valid operator’s license, the officer returned to the defendant’s vehicle and gave back the license. As he did so, the officer asked the defendant if he could see the two pill bottles. The defendant agreed. The officer identified some of the pills as gabapentin and ibuprofen; however, he could not identify two other types of pills. The defendant admitted that she did not have prescriptions for those pills and the officer seized them. Some were later determined to be lorazepam, which is a controlled substance.

    In the prosecution that followed for possession of a controlled substance, the defendant moved to suppress the controlled-substance evidence, arguing that the officer unlawfully extended the traffic stop, thereby violating her Fourth Amendment rights. The circuit court denied the motion, and the defendant pleaded no contest. In a majority opinion authored by Judge Hruz, the court of appeals affirmed.

    The state conceded on appeal that the officer did not have reasonable suspicion to lawfully expand the traffic stop and inquire into whether the defendant legally possessed the contents of the two pill bottles. “Consequently, the lawfulness of the stop turns on whether it lasted longer than was necessary to reasonably effectuate its original purpose” (¶ 11). See State v. Wright, 2019 WI 45, 386 Wis. 2d 495, 926 N.W.2d 157.

    Cases from both the U.S. Supreme Court and the Wisconsin Supreme Court “establish that the tolerable duration of a traffic stop is determined by its mission – to address the traffic violation that warranted the stop and attend to related safety concerns. A traffic stop’s mission includes: (1) addressing the traffic violation that warranted the stop; (2) conducting ordinary inquiries incident to the stop; and (3) taking negligibly burdensome precautions to ensure officer safety. When those tasks are completed, or reasonably should have been completed, the lawful authority for a traffic stop ends” (¶ 12) (internal citations and quotations omitted). However, in Wright,the court concluded that a single question about whether the defendant had a permit to carry a concealed weapon did not measurably extend the duration of the stop. Though the question took some amount of time to ask, the court viewed the question as de minimis and almost incapable of measurement.

    In the present case, the majority concluded that Deputy Poplin’s very brief, continued detention of the defendant to ask if he could look at the two pill bottles she possessed was reasonable under the Fourth Amendment (see ¶ 15) The court acknowledged that the officer’s request was unrelated to the original mission of the traffic stop (addressing a speeding violation) and was unrelated to officer safety.

    “Still, Poplin’s question regarding the two pill bottles did not violate Crone’s Fourth Amendment rights under the totality of the circumstances here. His simple request for Crone’s consent to see the pill bottles did not unreasonably extend the traffic stop beyond the amount of time required to complete the stop’s mission. In particular, and on this record, his request occurred either contemporaneously with him returning Crone’s license or immediately thereafter. Under either scenario, Poplin did not unreasonably extend the stop by merely asking the question” (¶ 16).

    The court further concluded that the consent to search that followed the officer’s request was, under the totality of the circumstances present in this case, freely and voluntarily given (see ¶ 29).

    The majority emphasized one final point in this decision. Said the court: “We disagree with the notion underlying [defendant] Crone’s arguments that Poplin’s request for consent violated her Fourth Amendment rights merely because the inquiry occurred at the very end of (or immediately after) the stop, rather than ‘during’ it…. [A]lthough the time it takes to ask a question is measurable, the fact that an inquiry is made does not, in and of itself, create the type of unreasonable burden to make an extension of a traffic stop unlawful for Fourth Amendment purposes. That notion is true whether the question occurs in the ‘middle’ of a stop versus at the very end of one. Under the circumstances of this case, we perceive no valid reason why the reasonableness of such a question turns on when it was asked during a lawful encounter. Notwithstanding, we strongly caution that delays between the proper ending of a traffic stop and when an officer poses an unrelated, investigatory question need not be long at all before the stop’s extension becomes unreasonable and, thus, unlawful” (¶ 28).

    Judge Stark filed a concurring opinion.

    Search and Seizure – School Searches – Non-Students

    State v. Vang, 2021 WI App 28 (filed 27 April 2021) (ordered published 26 May 2021)

    HOLDING: High school employees’ search of the defendant’s car was proper under the reasonableness standard governing school searches.

    SUMMARY: Police officers questioned Vang after school employees found weapons in his car at a high school. Vang was not a student. Vang pleaded guilty to a variety of charges. He appealed the denial of his motion to suppress evidence seized from his car.

    The court of appeals affirmed in an opinion authored by Judge Seidl. The search of Vang’s car met the reasonableness standard set forth in New Jersey v. T.L.O., 469 U.S. 325 (1985); it was not governed by the probable cause standard. Moreover, the search itself was conducted by school employees, not police officers.

    The case presented an issue of first impression, namely, “whether the less stringent ‘reasonableness, under all the circumstances’ standard set forth in T.L.O. applies to the search of a non-student’s vehicle located on school grounds” (¶ 14).
    Examining case law, the court held “that the duty of school officials to keep students safe applies equally to threats posed by students and non-students” (¶ 21). As applied to the facts, evasive actions by non-students who were picking up a student justified concerns that “Vang’s car might contain something that may present a safety concern” (¶ 30).

    Right to Counsel – Statements – Ineffective Assistance of Counsel

    State v. Arrington, 2021 WI App 32 (filed 6 April 2021) (ordered published 26 May 2021)

    HOLDINGS: Reversible error occurred when the circuit court admitted statements that violated the defendant’s Sixth Amendment right to counsel, and defense counsel’s failure to object at trial was ineffective assistance of counsel.

    SUMMARY: A jury convicted the defendant of first-degree intentional homicide and related offenses. The defendant shot and killed the victim but claimed he had acted in self-defense. While awaiting trial he was held in the county jail, where he was befriended by another inmate (the informant), who had agreed to provide information to police officers. At trial, the informant testified – without objection – about a statement the defendant made in the jail, which the informant had recorded for use as evidence.

    In an opinion authored by Judge Seidl, the court of appeals reversed and remanded for a new trial. First, the state violated the defendant’s Sixth Amendment right to counsel by introducing the statement he made to the informant. The right to counsel had attached when the defendant was formally charged and appeared with counsel at an initial appearance. The informant was “acting as an agent of the State” during his conversations with the defendant (¶ 32). Police officers provided the informant with a small recording device and planned the questioning. It was clear that the informant sought consideration in exchange for his service. “What occurred here was the intentional, surreptitious creation of an opportunity to confront [the defendant] without counsel present” (¶ 36).

    Second, the defendant’s trial counsel provided ineffective assistance of counsel, also in violation of his Sixth Amendment rights. Counsel was deficient when he failed to file a motion to suppress the statements made to the informant and again when he failed to object to the evidence at trial (see ¶ 41). These failures were sufficiently prejudicial to warrant a new trial. The unlawfully recorded statements effectively blunted any impeaching attack against the informant and nullified the claim of self-defense (see ¶ 46). The remaining evidence was circumstantial, leaving a reasonable probability that but for trial counsel’s miscues the result would have been different (see ¶ 48).

    Declaratory Judgments

    Elements of Declaratory-Judgment Claim – Requirement of Legally Protectable Interest

    Wisconsin Mfrs. & Commerce v. Evers, 2021 WI App 35 (filed 5 April 2021) (ordered published 26 May 2021)

    HOLDING: The trade association plaintiffs failed to show that their member businesses have a legally protectable interest that could justify the declaratory relief they sought.

    SUMMARY: Three trade associations commenced this declaratory-judgment action seeking to enjoin the planned release of certain records by the Wisconsin Department of Health Services in response to public-record requests. The complaint alleged that the requested records comprise a list of the names of “all Wisconsin businesses with over twenty-five employees that have had at least two employees test positive for COVID-19 or that have had close case contacts that were investigated by contact tracers” and the numbers of such employees at each business (¶ 1). The complaint alleged that the information contained in the list is derived from confidential medical records that cannot be disclosed under Wis. Stat. section 146.82. The complaint further alleged that if any of the associations’ member businesses are on the list, its release would violate the privacy interests of the member businesses’ employees, harm the member businesses’ reputations, and result in the unlawful expenditure of the member businesses’ state tax payments related to the compilation and planned release of the list.

    The circuit court denied the defendant’s motion to dismiss and granted the associations’ motion for a temporary injunction. In an interlocutory appeal, the court of appeals reversed the circuit court in an opinion authored by Judge Kloppenburg.

    The court first concluded that the associations’ complaint failed to state a claim upon which relief can be granted because the statutes on which the associations rely to support their declaratory-judgment action do not give legal recognition to the interest they assert (a requirement for declaratory judgment) (see ¶ 8). Those statutes are Wis. Stat. sections 146.82 and 146.84 – the patient health-care records confidentiality law (see ¶ 15). Under these statutes, only “an individual” may sue to enjoin a violation thereof. See Wis. Stat. § 146.84(1)(c). The associations conceded that none of them is “an individual.”

    Nonetheless, they argued that their member businesses have the right to sue for damages under Wis. Stat. section 146.84(1)(b) and (bm) based on purported violations of the rights of the member businesses’ employees to the confidentiality of the employees’ health-care records (see ¶ 20). Rejecting this argument, the appellate court explained that “Wis. Stat. § 146.82 and 146.83 protect the rights of health care patients, as individual patients. The Associations fail to explain how the Associations, as particular entities, could pursue a declaratory judgment on behalf of their member businesses in these circumstances without effective nullifying all of the limiting language referenced in these statutes” (¶ 22). In sum, the court concluded that the associations’ complaint failed to state a justiciable claim upon which declaratory relief can be granted (see ¶ 33).

    The court further concluded that the associations failed to show that their member businesses, on behalf of whom the associations asserted their claims, have a legally protectable interest as required to support this declaratory-judgment action because it is implausible that, based on the complaint’s allegations, the planned release of the requested records will cause harm to a purported legally protected interest (see ¶ 8). The state is not planning to include on the list the names of any employees of any businesses; it only plans to release the information described above in the first paragraph of this case analysis.

    Said the court: “[I]t is far from plausible that the release of the list could permit the identification of the patient under the circumstances alleged in the complaint so as to render the release a violation of a legally protectable interest. Accordingly, we conclude that the Associations’ allegations do not plausibly suggest a violation of applicable law” (¶ 39) (internal quotations omitted).

    Lastly, the court concluded that the associations “cannot overcome the general prohibition in Wis. Stat. § 19.356 against a court challenge to the planned release of public records by a governmental authority” (¶ 2).


    Covered Vehicles – Omnibus Statute – Prejudgment Interest

    Thom v. 1st Auto & Cas. Ins. Co., 2021 WI App 33 (filed 22 April 2021) (ordered published 26 May 2021)

    HOLDINGS: 1) Wis. Stat. section 632.32(3) did not supersede a motor vehicle insurance policy’s limits because the vehicle at issue was not “a motor vehicle described in the [insurer’s] policy.” 2) The circuit court properly ordered the insurer to pay prejudgment interest.

    SUMMARY: While working with his uncle on a farm, a 13-year-old boy was instructed by the uncle to drive a Chevrolet Tahoe to his grandparents’ home to get a piece of equipment. The Tahoe was covered under an insurance policy issued to the boy’s aunt, who owned it. While the boy was driving the Tahoe, it collided with the plaintiff’s vehicle, causing her catastrophic injuries. The plaintiff brought this action against multiple defendants and insurance companies. This appeal involved a direct action against the boy’s parents and their motor vehicle policy with Rural Mutual, which covered “any auto” driven by a “family member.” The circuit court ruled that the policy limits of $300,000 capped Rural’s liability and that Rural owed the plaintiff prejudgment interest.

    The court of appeals affirmed in an opinion authored by Judge Graham. “The question in this case is whether the $300,000 per-accident limit of liability provision in the Rural policy is superseded by Wis. Stat. § 632.32(3), commonly referred to as the omnibus statute. More specifically, the parties dispute whether the omnibus statute requires Rural to provide three separate limits of liability, one for each insured, based on the interpretation given to the omnibus statute by Wisconsin courts” (¶ 8).

    The opinion provides a comprehensive overview of the omnibus statute and the case law construing it. “Stated plainly, under the omnibus statute, any person who is not a ‘named insured’ but who uses or is legally responsible for the use of a motor vehicle described in a motor vehicle policy is covered ‘in the same manner and under the same provisions’ as the named insured” (¶ 17). Under “certain circumstances, the omnibus statute requires an insurance company to extend separate limits of liability to each insured involved in an accident despite policy language to the contrary” (¶ 20).

    The court, however, rejected the contention that the Tahoe was a covered vehicle within the meaning of the Rural policy (see ¶ 36). It also rejected the plaintiff’s argument that the Rural policy tripled the liability limits because the boy and his parents were covered. “Because we conclude that the Chevy at issue is not a ‘motor vehicle described in the policy,’ the omnibus statute does not apply and cannot be used to override this limit. Therefore, although we reach this conclusion for a different reason than the circuit court, the circuit court correctly determined that Rural’s maximum liability under the policy is $300,000” (¶ 43).

    The court of appeals also held that the plaintiff was entitled to prejudgment interest on the amount, as determined by the circuit court. Applying the leading case of Kontowicz v. American Standard Insurance Co., 2006 WI 48, 290 Wis. 2d 302, 714 N.W.2d 105, clarified on denial of reconsideration, 2006 WI 90, 293 Wis. 2d 262, 718 N.W.2d 111, the court of appeals focused on whether the claimant had provided written notice of liability and the sum certain claimed (see ¶ 57).

    Motor Vehicle Law

    OWI – Counting Prior Offenses – Prior License Revocation for Refusal to Submit to Blood Test

    State v. Forrett, 2021 WI App 31 (filed 28 April 2021) (ordered published 26 May 2021)

    HOLDING: A prior driver’s license revocation for refusing to submit to a blood test cannot be used to enhance the penalty in a later prosecution for operating while intoxicated (OWI).

    SUMMARY: Defendant Forrett was convicted of OWI as a seventh offense. A prior driver’s license revocation for refusing to submit to a warrantless blood test in 1996 bumped up the current crime from a sixth offense to a seventh offense. After sentencing, the defendant brought a postconviction motion challenging the use of the 1996 revocation to enhance the penalty for the current crime, contending that the resultant increase in the penalty was unconstitutional under Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), and State v. Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120.

    The circuit court denied the motion. It held that while the state cannot directly punish a person criminally for refusing to provide a blood sample, a prior refusal may increase the criminal penalty for a subsequent OWI. In an opinion authored by Chief Judge Neubauer, the court of appeals reversed.

    In Birchfield, the U.S. Supreme Court held that a refusal to submit to a blood test without a warrant can be the basis for a civil penalty – license revocation – but it cannot be the basis for a separate criminal charge and penalties (see ¶ 10). In Dalton, the Wisconsin Supreme Court held that a defendant’s sentence for OWI cannot be increased “for the sole reason that he refused to submit to a blood test” in that particular prosecution (¶ 12).

    Applying Birchfield and Dalton, the court of appeals in the present case concluded that “an increased penalty for the warrantless blood draw refusal revocation is an increased penalty – regardless whether it takes place in the same proceeding or a later proceeding, it impermissibly burdens or penalizes a defendant’s Fourth Amendment right to be free from an unreasonable warrantless search. Thus, revocations for warrantless blood draws, as set forth in Wis. Stat. §§ 343.307(1)(f) and 343.305(10), cannot be included in the escalating penalty structure of Wis. Stat. § 346.65(2)(am). Here, because Forrett’s sentence of eleven years exceeds the statutory maximum for 6th offense OWI, we reverse and remand for further sentencing proceedings commuting Forrett’s conviction to a 6th offense OWI and resentencing accordingly” (¶ 19).


    Spoliation – Sanctions – Pierringer Release – Indemnification

    Mueller v. Bull’s Eye Sport Shop LLC, 2021 WI App 34 (filed 29 April 2021) (ordered published 26 May 2021)

    HOLDINGS: Based on a finding of intentional spoliation, the circuit court properly imposed a sanction in the form of an adverse-inference instruction rather than dismissing the claims; a Pierringer release did not operate to dismiss claims against the defendant based on the spoliation.

    SUMMARY: Tyler was injured when his weapon discharged while he was hunting. The weapon, an AR-15, was owned by his brother Jordan, who bought it from Bull’s Eye Sport Shop, which also assembled the weapon. While on notice that Tyler might bring legal claims, Jordan had the gun “materially altered” by Bull’s Eye, which also resulted in a piece going missing.

    Tyler sued Bull’s Eye for alleged negligence in the gun’s original assembly, and Tyler and Bull’s Eye also brought negligence claims against Jordan. Bull’s Eye brought a motion requesting sanctions against Jordan for spoliation involving the gun. Tyler and Jordan later entered into a Pierringer release, which resulted in Jordan’s dismissal from the action. Later, the circuit court found that Jordan had intentionally “spoliated” the gun but also ruled that the appropriate sanction was an adverse-inference instruction, not a dismissal of claims against Bull’s Eye. Bull’s Eye appealed.

    The court of appeals affirmed in an opinion authored by Judge Fitzpatrick. The first issue involved the spoliation claim. The court held that the adverse-inference instruction was an appropriate sanction. Case law recognizes a variety of possible sanctions, including exclusion of evidence and monetary penalties as well as adverse-inference instructions and the dismissal of claims. Dismissal sanctions are only appropriate when the spoliator has engaged in “egregious conduct” (¶ 32). The record did not support an explicit or implicit finding of egregiousness by the circuit court.

    Moreover, case law does not require that “the sanction must always restore the party injured by the spoliation to his or her purported pre-spoliation position regarding that evidence and punish the spoliator” (¶ 38). No evidence showed that Tyler, the injured plaintiff, was involved in the spoliation his brother engaged in.

    Second, the Pierringer release [see Pierringer v. Hoger, 21 Wis. 2d 182, 124 N.W.2d 106 (1963)] entered into between Tyler and Jordan did not operate in a way that nullified Tyler’s claims against Bull’s Eye based on Jordan’s spoliation: “Jordan does not have an indemnity obligation to Bull’s Eye based on his intentional spoliation of evidence” (¶ 44). The opinion reviews the principles of equitable indemnification, which can result in shifting the entire loss from one party to another (see ¶ 49).

    Bull’s Eye’s contention was “irreconcilable with Wisconsin case law standards regarding the spoliation of evidence” for several reasons (¶ 54). First, it would require dismissal as the sanction for all intentional spoliations of evidence (see ¶ 56). Second, in some cases “the court would be required to shift all causal negligence from the non-spoliator party to the intentional spoliator and grant the concomitant dismissal. This would be true, according to Bull’s Eye’s argument, regardless of the importance (or lack of importance) of the spoliated evidence to the case or the relative weakness of the adverse effect on the non-spoliator” (¶ 58).

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