State v. Kallie M. Gajewski, 2020AP7-CR, District 3, 8/2/22 (not recommended for publication); case activity (including briefs)
Police arrested Gajewski in the curtilage of her home without a warrant and exigent circumstances. While this makes the arrest unlawful, the evidence obtained from the arrest is not subject to suppression because police had probable cause to arrest her.
While investigating a suspected OWI, police went onto Gajewski’s property without a warrant. She was inside her home, but on seeing
Continue Reading Warrantless arrest on porch unlawful, but probable cause to arrest means no suppression
Latest from On Point
Defense win: Odor of marijuana didn’t provide probable cause to arrest
State v. Quaheem O. Moore, 2021AP938-CR, District 4, 7/28/22 (not recommended for publication); case activity (including briefs)
Police searched Moore for speeding and after detecting the odor of what the officer believed to be marijuana searched Moore. (¶¶2-9). Distinguishing State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999), the court of appeals affirms the circuit court’s suppression order, holding that the odor of marijuana, by itself or coupled with other information, did not provide
Continue Reading Defense win: Odor of marijuana didn’t provide probable cause to arrest
Challenge to telephonic search warrant procedure fails
State v. Donald A. Whitaker, 2022AP204-CR, District 2, 7/27/22 (one-judge decision; ineligible for publication); case activity (including briefs)
A telephonic warrant may be valid even if the court did not arrange for an electronic or written recording of the officer’s telephone call to be made.
The procedures for obtaining a telephonic search warrant are set forth in § 968.12(2) and (3). Under subsection (2), “[a] search warrant may be based upon sworn complaint or affidavit, or testimony
Continue Reading Challenge to telephonic search warrant procedure fails
Circuit court’s failure to specify ch. 51 dangerousness standard was harmless error
Barron County v. K.L., 2021AP133, District 3, 8/9/22 (one-judge decision; ineligible for publication); case activity
Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277, held that “going forward circuit courts in recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based.” Deciding an issue addressed in the dissenting opinion in Sheboygan County v. M.W., 2022
Continue Reading Circuit court’s failure to specify ch. 51 dangerousness standard was harmless error
Failure to raise defense of lack of personal jurisdiction in TPR case waived the issue
Portage County DHHS v. A.K., 2022AP30, District 4, 8/11/22 (one-judge decision; ineligible for publication); case activity
A parent’s failure to raise the issue of the circuit court’s personal jurisdiction as a defense during the TPR proceeding means the issue was waived.
The attorney representing A.K. in a pending CHIPS proceeding accepted service on A.K.’s behalf of a petition to terminate A.K.’s parental rights to the child. A new lawyer was appointed to represent A.K. in the TPR proceeding,
Continue Reading Failure to raise defense of lack of personal jurisdiction in TPR case waived the issue
Officer had Reasonable Suspicion to Extend Traffic Stop
State v. Michael Justin Schwersinske, Jr., 2022AP162-CR, District 2, 8/10/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Schwersinske concedes the lawfulness of the initial stop of the car he was driving for crossing the centerline of Highway 151. But he argues, unsuccessfully, that the officer didn’t have reasonable suspicion to extend the stop to have Schwersinske do field sobriety tests.
¶17 Here, the officer stopped Schwersinske at a time of night in which impaired driving is
Continue Reading Officer had Reasonable Suspicion to Extend Traffic Stop
Court of Appeals rejects equal protection challenge to burden of proving TPR petition
State v. S.S.M., 2022AP524 & 2022AP525, District 1, 8/2/22 (one-judge decision; ineligible for publication); case activity
Under § 48.415(intro.), termination of parental rights to children subject to the Indian Child Welfare Act (ICWA) requires, in addition to proof of one or more grounds for termination under subs. (1) to (10), proof of “active efforts,” as defined in § 48.028(4)(e)2., to prevent the breakup of the family as well as the unsuccess of those efforts. S.S.M., whose
Continue Reading Court of Appeals rejects equal protection challenge to burden of proving TPR petition
Police had probable cause to arrest for OWI
State v. Andrew Austin Keenan-Becht, 2022AP73-CR, District 2, 8/3/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Under the long-standing test for probable cause, Keenan-Becht’s arrest was lawful.
¶12 Probable cause existed under the totality of the circumstances here based on Keenan-Becht’s admission to drinking, the odor of alcohol emanating from his body, his red and watery eyes, speeding, the time of day (around bar time), and the observation of four clues on the HGN
Continue Reading Police had probable cause to arrest for OWI
Defendant’s rights to discovery, confrontation not violated
State v. Kevin Lee Wilke, 2020AP1068-CR, District 3, 8/2/22 (one-judge decision; ineligible for publication); case activity (including briefs)
The court of appeals rejects Wilke’s arguments for a new trial and his challenge to the sufficiency of the evidence.
Wilke, who was pro se at trial and on appeal, first argues the state violated his right to discovery under § 971.23. Wilke has arguably forfeited this claim, but the court ignores that and concludes the record shows the
Continue Reading Defendant’s rights to discovery, confrontation not violated
July 2022 publication list
On July 27, 2022, the court of appeals ordered the publication of the following criminal law related decisions:
State v. Gerald P. Mitchell, 2022 WI App 31 (on remand from SCOTUS, finding exigency for warrantless blood draw).
DeLorean Bryson v. Kevin Carr, 2022 WI App 34 (addressing limits on DOC’s power to take money from inmate accounts for court obligations)
State v. Sergio Moises Ochoa, 2022 WI App 35 (affirming circuit court’s exclusion of certain self
Continue Reading July 2022 publication list
COA affirms recommitment, finds sufficient evidence and compliance with D.J.W.
Manitowoc County v. J.M.K., 2022AP122, 7/27/22, District 2, (1-judge opinion; ineligible for publication); case activity
J.M.K. is currently diagnosed with schizoaffective disorder. He has been committed several times since 2015. Right now he is doing well. He lives in a supervised apartment but holds a job, participates in community activities, and works out at the YMCA. The county monitors his medication compliance because in the past when he has stopped taking them he deteriorated rapidly.
The circuit court
Continue Reading COA affirms recommitment, finds sufficient evidence and compliance with D.J.W.
Reversal rates for court of appeals judges
SCOWstats just reviewed 70 Wisconsin Supreme Court decisions over the past 2 years to determine which court of appeals judge was reversed most often and least often. And the winners are . . . SCOW reversed Judges Dugan, Donald and Kessler (and District 1 in general) most often. It reversed Judge Davis least often.
Continue Reading Reversal rates for court of appeals judges
Defense win! TPR reversed due to insufficient notice of grounds for termination
Brown County v. J.V., 2022AP532, 7/28/22, District 3 (1-judge opinion, ineligible for publication); case activity
In a modified CHIPS dispositional order, the circuit court stated that it was suspending Jennifer’s visitation rights to her son, subject to her completing certain conditions. The court did not orally warn her that her parental rights could be terminated if her visitation rights weren’t reinstated within 1 year. Nor did the written order indicate that her rights could be terminated based on
Continue Reading Defense win! TPR reversed due to insufficient notice of grounds for termination
Counsel performed deficiently, failed to object to GAL’s closing argument at TPR trial
Chippewa County Dep’t of Health and Human Servs. v. J.W.., 2021AP1986, 7/19/22, District 3, (1-judge opinion, ineligible for publication); case activity
“Janine” raised an insufficient evidence claim and several ineffective assistance of counsel claims in her appeal from an order terminating her parental right to her son. This post focuses on two of the IAC claims. Counsel failed to object to (1) portions of the county social worker’s testimony, and (2) new information that the GAL introduced during
Continue Reading Counsel performed deficiently, failed to object to GAL’s closing argument at TPR trial
Circuit court applied all “best interests” factors, TPR affirmed
State v. S.G., 2022AP585-587, 7/19/22, District 1 (1-judge opinion, ineligible for publication); case activity
S.G. argued that the circuit court failed to address 2 of the 6 “best interest” factors in §48.426(3) when it terminated her parental rights to her 3 sons. According to the court of appeals, the record proves otherwise.
S.G. says the circuit court failed to consider (1) the ages of her children as required by §48.426(3)(b) and (2) whether they had substantial relationships with
Continue Reading Circuit court applied all “best interests” factors, TPR affirmed
Challenges to termination of parental rights rejected
State v. L.T.H., 2022AP56 & 2022AP57, District 1, 7/19/22 (one-judge decision; ineligible for publication); case activity
L.T.H. challenges the circuit court’s refusal to terminate her grounds trial from that of the father of one of her children, its decision to allow evidence of her own experience with the child welfare system when she was a child, its refusal to allow her to testify at the dispositional hearing, and its decision to terminate her parental rights. The court of
Continue Reading Challenges to termination of parental rights rejected