Criminal Procedure
Searches – Dog Sniff on Curtilage – Good-Faith Actions
State v. Scull, 2014 WI App 17 (filed 28 Jan. 2014) (ordered published 26 Feb. 2014)
HOLDING: The good-faith exception to the exclusionary rule applied in a case in which police obtained a search warrant based in part on a dog sniff that, under a later-decided case, was unlawful under the Fourth Amendment.
SUMMARY: In 2010, acting on reliable information uncovered during a drug investigation, police officers took a trained drug-sniffing dog to the defendant’s house. The dog “alerted” near the front door of the house. The police department did not have a warrant at the time of the “sniff” but later obtained one based on the sniff as well as on other information. When executing the warrant, police officers seized drug-related evidence. The circuit court denied the defendant’s motion to dismiss.
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.
The court of appeals affirmed in an opinion written by Judge Brennan, which assayed the changed legal landscape. The U.S. Supreme Court held in Florida v. Jardines, 133 S. Ct. 1409 (2013), that a drug dog’s alert at the front door of a residence, as occurred here, constituted a warrantless search (trespass) of the defendant’s home, thus violating the Fourth Amendment (see ¶ 12). Jardines cut against myriad cases to the contrary. Moreover, the court of appeals held, the taint from the warrantless sniff-search at Scull’s doorstep in turn invalidated the search warrant later obtained by the police (see ¶ 13).
Nonetheless, the good-faith exception to the exclusionary rule saved the search in this case. The court of appeals recounted in some detail how “the process used in obtaining the search warrant included a significant investigation” (for example, the dog had proved its ability in 200 other cases, and the human informant had provided reliable information in the past) (¶¶ 18-20) (internal quotations and citation omitted). Most important, the police acted with an “objectively reasonable belief that their conduct did not violate the Fourth Amendment” based on pre-Jardines case law. Thus, the suppression of evidence would exact too high a cost on the judiciary’s truth-seeking function while not deterring any unlawful police conduct (see ¶ 22).
Judge Kessler dissented. She agreed that Jardines invalidated the search warrant but disagreed that the good-faith exception saved the evidence discovered during the search itself because the dog sniff was the linchpin of the probable-cause determination.
Interrogations – Minors – Voluntariness – Incomplete Recording
State v. Moore, 2014 WI App 19 (filed 14 Jan. 2014) (ordered published 26 Feb. 2014)
HOLDING: Statements made by a 15 year old during police interrogation were voluntary, and the unrecorded parts of the questioning did not contravene the statutes requiring the recording of juvenile interrogations.
SUMMARY: Moore was convicted of second-degree homicide based on his involvement in a shooting. Before trial, Moore moved to suppress statements he had made while being questioned on grounds that they were involuntary and that police officers had failed to comply with statutes requiring the recording of all statements made by juveniles when they are in police custody. Moore was 15 years old when interrogated, but some of his statements were not recorded, allegedly at his own request. The circuit court denied his motion.
The court of appeals affirmed in an opinion written by Judge Curley. First, Moore’s statements were voluntary, that is, police officers had not overborne his free will through coercive tactics. The court balanced Moore’s personal characteristics and behavior (for example, his young age, his crying during questioning, his limited intelligence) against the “police interrogation tactics.” The police officers had done “an exemplary job ensuring that Moore understood his rights” by encouraging Moore to “read along” with them and “restate some of the warnings in his own words” (¶ 36). The court also commented on the timing and duration of various interrogations and said that Wisconsin has no per se rule requiring notification of juveniles’ parents before police officers begin questioning (see ¶ 38).
Second, the police officers did not violate State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110,or Wis. Stat. section 938.195 or 938.31 by not recording part of Moore’s interrogation (see ¶ 42). Based on the interrogation transcript, Moore “refused to respond or cooperate” within the statutes’ meaning when he insisted that the recordings be stopped at one point (¶ 46). Police officers took “great care to ensure that Moore was affirmatively refusing to cooperate” and made a “contemporaneous” record of his unrecorded statement, as required by statute (¶¶ 47-48).
Judge Kessler concurred, writing separately to agree with the “outcome” of the case. She did not believe that Moore refused to respond or cooperate with the recording process but concluded that any error was harmless.
Confessions – Sixth Amendment Right to Counsel – Valid Miranda Waiver
State v. Delebreau, 2014 WI App 21 (filed 7 Jan. 2014) (ordered published 26 Feb. 2014)
HOLDING: Miranda warnings sufficed for a waiver of the defendant’s Sixth Amendment right to counsel; his appearance with counsel on pending charges did not presumptively invalidate later questioning.
SUMMARY: On April 14, while in custody on a probation hold, the defendant was charged with party to the crime of delivering heroin and appeared in court with a lawyer. Police officers met with the defendant on April 15 in response to his request, made before April 9, to speak with drug investigators. He waived his Miranda rights and gave a recorded and written statement. The circuit court denied the defendant’s motion to suppress the statements made on April 15, which the state then introduced against the defendant at trial. He was convicted of the heroin offense.
The court of appeals affirmed in an opinion written by Judge Hoover that plumbs the “muddy waters” of Forbush I (State v. Forbush, 2010 WI App 11, 323 Wis. 2d 258, 779 N.W.2d 476), Forbush II (State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 796 N.W.2d 741), State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680, and Montejo v. Louisiana, 556 U.S. 778 (2009).
The court of appeals held that Forbush I remains good law: “Montejo overruled Dagnall because Dagnall had relied solely on the Sixth Amendment” (¶ 14). Montejo held that “an accused’s representation by counsel at a preliminary court proceeding does not render presumptively invalid any subsequent waiver of the right to counsel at a police-initiated custodial interview” (¶ 6). Moreover, Montejo also held that a valid Miranda waiver can sufficiently waive the Sixth Amendment right to counsel; put differently, no additional warnings or process is required, only the Miranda protections (see ¶ 18).
Motor Vehicle Law
OWI – Ignition Interlocks
Village of Grafton v. Seatz, 2014 WI App 23 (filed 29 Jan. 2014) (ordered published 26 Feb. 2014)
HOLDING: The defendant was properly subjected to an ignition-interlock order in a new operating while intoxicated (OWI) case even though his prior OWI conviction was more than 10 years old.
SUMMARY: Wisconsin Statutes section 343.301(1g) requires a court to order an ignition-interlock device if a motorist has improperly refused to take a test for intoxication under Wis. Stat. section 343.305 (the implied-consent law), has an alcohol concentration of 0.15 or more at the time of an OWI violation, or commits an OWI violation and has one or more prior OWI convictions as defined by Wis. Stat. section 343.307(1). This case involved the last of these three
circumstances.
The defendant had a prior OWI from Michigan but that conviction was more than 10 years old. Thus the defendant was not considered to have a prior OWI for purposes of enhancing his present OWI to a criminal offense. See Wis. Stat. § 346.65(2)(am)2. Nevertheless, the municipal court in the first instance and the circuit court after a trial de novo both ordered the installation of an ignition-interlock device. The defendant appealed.
In a decision authored by Judge Reilly, the court of appeals affirmed. It concluded that although the defendant’s OWI in the present case was considered as a first offense because his prior OWI was more than 10 years old, he nevertheless was subject to an ignition-interlock order in the new case by virtue of the prior OWI.
Said the court, “[t]he ten-year look-back provision in Wis. Stat. § 346.65(2)(am)2. for purposes of determining whether to charge or penalize a repeat OWI offender civilly or criminally is independent of whether a person has one or more prior OWI convictions under Wis. Stat. § 343.307(1) and has no effect on orders for ignition interlock devices under Wis. Stat. § 343.301” (¶ 8).
Taxation
Real Estate Taxes – Challenge to Assessment
Northbrook Wis. LLC v. City of Niagara, 2014 WI App 22 (filed 14 Jan. 2014) (ordered published 26 Feb. 2014)
HOLDING: A taxpayer must object to a property tax assessment before the local board of review before filing an excessive-assessment claim; a narrow exception to this general rule did not apply in this case.
SUMMARY: Northbrook Wisconsin LLC appealed an order dismissing its complaint against the city of Niagara for assessing its property too highly. The circuit court concluded dismissal was warranted because Northbrook did not present an objection to the assessment to the city’s board of review before filing its excessive-assessment claim, as required by Wis. Stat. section 74.37(4)(a). Northbrook argued it was not required to file an objection before the board of review because the city never provided Northbrook with a notice of assessment pursuant to Wis. Stat. section 70.365. Northbrook also contended that due process precludes dismissal of its claim. In a decision authored by Judge Stark, the court of appeals affirmed.
Wisconsin Statutes section 74.37(4)(a) clearly and unambiguously requires a taxpayer to challenge an assessment at the board of review before filing an excessive-assessment claim, unless the taxing authority failed to give the taxpayer notice of the assessment when notice is required under Wis. Stat. section 70.365 (see ¶¶ 14-15). Section 70.365 requires a notice of assessment to be sent only when a property’s assessed value differs from the previous year’s assessment. In this case there was no change in the assessment, and thus the city was not required to send Northbrook a notice of assessment (see ¶ 18).
“Because a notice of assessment was not required, the narrow exception to the rule that a taxpayer must challenge an assessment before the Board of Review prior to filing an excessive assessment claim does not apply. Northbrook was therefore required to challenge the 2011 assessment before the Board of Review as a prerequisite to filing its excessive assessment claim. Because Northbrook failed to do so, the circuit court properly granted the City’s motion to dismiss” (¶ 19).
The appellate court also rejected the taxpayer’s due-process claim. The fundamental requirements of procedural due process are notice and an opportunity to be heard. Because the city failed to send a notice of assessment in 2011, Northbrook argued it did not receive notice of its property’s assessed value in time to present an objection to the board of review. Northbrook therefore contended it has been deprived of both notice and an opportunity to be heard.
The court of appeals disagreed. The court said that Northbrook should have known that its 2011 assessment would be unchanged from 2010 because it did not receive a notice of assessment (see ¶ 23). Moreover, if Northbrook were uncertain about the property’s assessed value, it should have checked the assessment roll, which must be made available in time for taxpayers to object to the board of review (see ¶ 24).
Real Estate Taxes – Overassessments – Remedy – Expert Witness Fees
3301 Bay Rd. LLC v. Town of Delavan, 2014 WI App 18 (filed 15 Jan. 2014) (ordered published 26 Feb. 2014)
HOLDING: The circuit court did not erroneously exercise its discretion when fashioning a remedy for overassessment of property taxes, but its decision to cap expert witness fees must be reexamined on remand.
SUMMARY: The town of Delavan overassessed more than 50 lakefront properties at the same time that it underassessed numerous “off-lake” properties in the Assembly Park neighborhood, thereby violating both Wis. Stat. section 70.32 and the constitutional tax-uniformity mandate. The lakefront property owners (the taxpayers) joined together and sued to recover their overpayments and further sought to rectify the uniformity violation by requesting that their properties be assessed at 45 percent below fair market value – the rate of underassessment of the “off-lake” properties.
The circuit court awarded the taxpayers refunds for the Wis. Stat. section 70.32 violation and gave them an additional three percent refund for the uniformity violation. It also capped their expert witness fees at $300 per case, rather than at $300 per plaintiff. The taxpayers appealed. In a decision authored by Judge Reilly, the court of appeals affirmed in part and reversed in part.
The circuit court has discretion to fashion a remedy for excessive assessments and uniformity-clause violations, and the appellate court reviews such decisions for an erroneous exercise of this discretion (see ¶ 6). In this case, the circuit court found that the uniformity-clause violation was caused by the town erroneously assessing parcels in the Assembly Park neighborhood at 45 percent below their fair market values.
The circuit court declined to adopt the taxpayers’ proposed remedy of reducing their properties’ assessments to 45 percent below their fair market values, noting the “unique” and “unprecedented” circumstances of the case. Instead, the circuit court based the taxpayers’ refunds on the amounts they would have paid in property taxes if the Assembly Park properties had been properly assessed.
The circuit court further determined that the taxpayers’ requested remedy would result in a “windfall reduction of their taxes way beyond what they suffered in the way of tax burden because of the underassessment in Assembly Park” (¶ 9). The court of appeals concluded that the circuit court did not erroneously exercise its discretion “in fashioning a fair remedy for the uniformity violation”
(¶ 10).
The taxpayers also argued that the circuit court erred in limiting the total amount they can collect for their expert witnesses to $300 per expert per case rather than allowing them to collect their actual out-of-pocket costs for the expert witnesses up to $300 per plaintiff. Wisconsin Statutes section 814.02(2) provides that statutory “costs may be allowed or not ..., in whole or in part, in the discretion of the court” to any party to a special proceeding. Expert witness fees are itemized as an allowable cost by Wis. Stat. section 814.04(2) to the extent that they do “not exceed[] $300 for each expert who testifies” (see ¶ 12).
The court of appeals held that in this case “the [t]axpayers may collect their expert witness fees in the same manner as they could collect expert witness fees had they filed separate actions, i.e., per property per tax year not to exceed the $300 cap and not to exceed the actual out-of-pocket expenses in the aggregate” (¶ 15). “Our holding also includes the limitation that the award of expert witness fees in this case is within the sound discretion of the circuit court per Wis. Stat. § 814.02(2)” (¶ 16).
