Wisconsin Supreme Court accepts cases on harmless error and search and seizure challenges

March 26, 2012 – The Wisconsin Supreme Court accepted two new cases. One asks if the trial court properly employed the harmless error doctrine in denying a defendant’s plea withdrawal motion without a hearing. The other asks if a defendant’s constitutional right to be free from unreasonable searches and seizures was violated when police seized his vehicle and covertly installed a sophisticated real-time GPS tracking device.

Was harmless error doctrine improperly applied when defendant was misinformed by counsel?

In State v. Taylor, the District IV Court of Appeals asks the Supreme Court to resolve a potential conflict between the holdings in State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 716 N.W.2d 906 and State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64.

Gerald Taylor was charged with one count of uttering a forgery, as a repeat offender. Uttering a forgery is a Class H felony, punishable by up to three years of initial confinement and three years of extended supervision. The repeater allegation increases the potential initial confinement to five years.

Taylor pled no contest to the charge, in exchange for the state's recommendation of probation. At the plea hearing, the trial court misinformed the defendant that the maximum sentence was six years rather than eight. The court ultimately sentenced the defendant to three years of initial confinement and three years of extended supervision. The defendant filed a post-conviction motion seeking plea withdrawal and requested an evidentiary hearing.

Taylor argued he was entitled to plea withdrawal because the trial court misinformed him about the maximum sentence he faced with a repeater allegation. The circuit court denied the motion without an evidentiary hearing, concluding, as the state contends, that because the actual sentence imposed did not exceed the erroneous maximum, any error was harmless.

Taylor appealed, pointing out the potential conflict between Brown and Cross.

District IV says that following either Brown or Cross here could arguably lead to different results. It notes that as in Brown, this defendant was told he faced a lesser punishment than the law actually provided, but the sentence that was imposed did not exceed the amount of time the trial court had erroneously informed the defendant he was facing.

In contrast, District IV says the Cross court’s discussion seems to suggest that the due process concerns implicated whenever a defendant has erroneously been informed that the penalty is less than the actual maximum might require a hearing to determine whether the defendant was aware of the actual penalty he faced.

District IV says assuming the harmless error doctrine can properly be applied to a plea withdrawal motion before holding an evidentiary hearing, the question then becomes whether the failure to advise the defendant about a charged penalty enhancer constitutes a Bangert violation and, if so, whether that error becomes harmless if the trial court does not actually impose an enhanced sentence.

Did police violate search and seizure rights by covertly installing GPS?

State v. Brereton examines whether a defendant’s constitutional right to be free from unreasonable searches and seizures was violated when police seized his vehicle and covertly installed a sophisticated real-time GPS tracking device.

There were a string of burglaries in the border areas of Rock and Walworth counties in the fall of 2007. On Oct. 5, 2007, the police stopped a Pontiac that had reportedly been seen in the area around the time of some of the burglaries. The police later admitted that the reason for the stop was a pretext because police had decided to place a GPS monitoring device on the vehicle.

During the stop the police discovered that the two individuals in the car (one of whom was James G. Brereton) both had revoked drivers’ license and that the license plates on the car actually had been issued for a different vehicle. The police transported Brereton and the other occupant away from the vehicle for a time, and surreptitiously towed the vehicle to a police impound lot.

After the vehicle had been moved, the police applied for a warrant to place a GPS unit in the vehicle.

Based on an affidavit signed by a detective, Walworth County Circuit Court Judge James L. Carlson granted the application and issued a warrant/order authorizing the Walworth County Sheriff’s Department “to place an electronic tracking device” on the Pontiac and to enter and re-enter the vehicle or any building containing the vehicle to install, use, or maintain the device or to monitor the location and movement of the target vehicle.

The warrant/order further authorized the sheriff’s department “to obtain and use keys to operate and move the vehicle for the required time to a concealed location and . . . to open the engine compartments and trunk areas of the vehicles to install the devices.”

The police entered the interior of the vehicle in order to activate the hood release lever and placed the advanced GPS-tracking device inside the engine compartment. After the vehicle was returned to its original location, the police brought back the two occupants, who were not advised that the vehicle had ever been moved or the tracking device installed.

Four days after the device had been attached to the Pontiac, the police determined that the Pontiac had been near the site of a reported burglary. They later stopped the vehicle and arrested the occupants, including Brereton, on suspicion of engaging in burglary and found evidence from a home that had been burgled.

Brereton moved to suppress the evidence obtained as a result of the use of the GPS tracking device. The circuit court denied the motion. Brereton subsequently pled guilty to five counts of burglary and later appealed.

The Court of Appeals concluded that the warrant had been validly issued and that the police had probable cause to believe that the Pontiac was evidence of a crime or contained evidence of a crime when police seized and “searched” it.

Brereton asserts that the police acted unreasonably in executing the warrant because the device they used exceeded the scope of the warrant application and the warrant itself. Brereton emphasizes that the court’s order stated in several places that it was based upon the detective's affidavit, which described a GPS device that did not provide real-time data. real-time data. realreal-time data.