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Welcome to the Padway Law Criminal Law Blog, Wisconsin’s leading criminal law blog.  Brought to yoView Postu by Padway & Padway, Ltd.

Click on a tab above to see detailed information about each area of criminal law.  We are constantly updating the site so come back daily to find new information and legal updates.

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Wisconsin Supreme Court says police can pull you over even if you’re not breaking the law

We discussed the United States Supreme Court decision in Heien v. North Carolina, 135 S. Ct. 530 (2014) a few months ago.  In Heien, the Court reviewed whether the 4th Amendment to the United States Constitution prohibits traffic stops if the driver is not violating the law.  The Court held that officers can initiate a traffic stop against a completely innocent driver for conduct that does not violate the law, so long as the officer has an objectively reasonable basis for believing the driver’s conduct actually violated the law.

We wondered if the Wisconsin Supreme Court would adopt a higher standard for Wisconsin’s finest under the Wisconsin Constitution.  Unfortunately, the Wisconsin Supreme Court recently fell in lock-step with the United States Supreme Court and and adopted the same rule. State v. Houghton, 354 Wis. 2d 623, 848 N.W.2d 904 (“We hold that an officer’s reasonable suspicion that a motorist is violating or has violated a traffic law is sufficient for the officer to initiate a stop of the offending vehicle. We also adopt the Supreme Court’s holding in Heien that an officer’s objectively reasonable mistake of law may form the basis for a finding of reasonable suspicion.”).

Threatening Facebook posts are illegal. . .only if they are intended to be a threat

In Elonis v. United States, 575 U.S. ___ (2015), the Supreme Court held that in order to convict a defendant for making a threat on Facebook, the government must prove the defendant actually intended to make a threat.  This is distinguished from the government having to prove only that a reasonable person would view the post to be a threat.

After his wife left him, Anthony Elonis, used Facebook to post rap lyrics containing graphically violent language and imagery concerning his wife, co-workers, a kindergarten class, and state and federal law enforcement. The posts were often interspersed with disclaimers that the lyrics were “fictitious” and not intended to depict real persons, and with statements that Elonis was exercising his First Amendment rights.  Many who knew him saw his posts as threatening, including his boss, who fired him for threatening co-workers.  His wife sought and was granted a restraining order against him.

The government charged Elonis under 18 U. S. C. §875(c), which makes it a crime to transmit in interstate commerce “any communication containing any threat . . .to injure the person of another.”  At trial, the court told the jury that Elonis could be found guilty if a reasonable person would believe that his statements would be interpreted as a threat.  Elonis argued that the Government had to prove he actually intended to communicate a true threat.  However, the trial court refused to tell the jury that his conviction required “actual intent.”  The jury convicted Elonis under Section 875(c).

The Supreme Court reversed Elonis’ conviction, holding that the government must prove the defendant actually intended to make the threat; a guilty mind is “a necessary element in the indictment and proof of every crime.”  The Court found that the requirement of actual intent is necessary to protect innocent actors who engage in conduct that may be deemed threatening even though the innocent actor does not intend to actually make a threat.  The Court’s finding reinforced the general rule that a defendant must have scienter (knowledge that conduct constitutes a criminal act) to be convicted of a crime even if the applicable statute does not explicitly require scienter.

The Elonis opinion ensures that freedom of expression is protected in an era when people use social media both to create art and vent their frustration.  But the Elonis case should not be interpreted as a license to engage in threatening conduct.  It is not clear whether the jury would have convicted Elonis if the trial court had instructed them to determine whether Elonis actually intended to communicate a threat.

For now, the line is fuzzy regarding innocent Facebook conduct and conduct that violates the law.  We recommend that you post pictures of puppies and happy inspirational quotes until this all gets sorted out.

SCOTUS Prohibits Officers from Extending Traffic Stop to Search Vehicles–Curbs Racial Profiling

The Supreme Court of the United States just took a huge step toward curbing racial profiling when it issued a decision holding that police cannot extend a routine traffic stop to search a vehicle, absent reasonable suspicion. Rodriguez v. United States, 575 U.S. ___ (2015).  Illegal searches have traditionally had a disproportionate impact on non-white drivers.  Although searches conducted without reasonable suspicion have always been illegal under the Fourth Amendment on paper, courts across the country have gradually whittled away the protection of the Fourth Amendment by creating a number of exceptions.  One of the main exceptions courts have used to justify an illegal search is to determine that the search was a “de minimis” intrusion on the driver, or in other words, that the search was reasonable because it lasted only a few minutes.

The decision of the Supreme Court in Rodriguez held that a brief seven or eight minute detention is not a “de minimis” intrusion, providing a clear limit on what courts can rule is a “de minimis” intrusion.  The Rodriguez decision may help to curb racial profiling because it will reduce the number of illegal searches, much less the convictions that result from the illegal searches–both of which are known to disproportionately impact non-white drivers.

In Rodriguez v. United States, an officer stopped Dennys Rodriguez for driving on a highway shoulder in violation of Nebraska traffic law.  After the officer check Rodriguez’ driver’s license and issued him a warning, the officer asked Rodriguez for permission to search his vehicle.  Rodriguez refused to consent to the search, so the officer detained Rodriguez until a second officer arrived. When the second officer arrived, the first officer retrieved his dog and conducted the search.  The dog alerted the officer to methamphetamine and Rodriguez was arrested for possession of methamphetamine.  Only seven or eight minutes elapsed from the time the officer issued the written warning until the dog alerted the officer to the drugs.

Rodriguez was charged in federal court and sought to dismiss the case based on a Fourth Amendment violation of illegal search and seizure.  Rodriguez’ motion to suppress the evidence was denied on the basis that a seven or eight minute intrusion was “de minimis” and not enough to constitute an illegal search.  He pleaded guilty to federal drug charges and was sentenced to five years in prison.  However, the Supreme Court overturned his conviction on the basis that being detained for seven or eight minutes so that officers could search his vehicle, without reasonable suspicion, was not a “de minimus” intrusion on his privacy.

The Court reasoned that the purpose of a routine traffic stop is to address the traffic violation that warranted the stop, and the duration of the stop is limited to the steps necessary to address the traffic violation along with any attendant safety concerns. Beyond determining whether to issue a traffic ticket, an officer’s mission during a traffic stop typically includes checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.  Investigations beyond that connected with the traffic violation are allowed under the Fourth Amendment only if they do not go beyond the time reasonably required to complete the mission of the traffic stop.

The Court determined that a dog sniff is not fairly characterized as part of the officer’s traffic mission and goes beyond what the Fourth Amendment would tolerate as a “de minimis” extension of time.  The Court held:

A police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.” Rodriguez v. United States, 575 U.S. ___, No. 12-9972 at 1 (2015) (internal citations omitted).

We should note that if Rodriguez had consented to the search during the stop, he would not have been able to suppress the evidence and his conviction would not have been overturned.  In one of our previous posts, we recommended that you never, ever, consent to a search of your vehicle, regardless of what an officer tells you.  The Rodriguez case here is a perfect example of why you should always refuse a search.

Read the full decision here Rodriguez v. United States.

Wisconsin amends jurisdictional requirements for domestic abuse and harassment injunctions

Wisconsin recently enacted 2015 Wisconsin Act 4, a bill that extends subject matter jurisdiction for victims of domestic abuse who reside outside of Wisconsin and want to file domestic abuse related restraining orders and injunctions.  The bill expands victim’s rights by allowing Wisconsin Courts to issue restraining orders based on conduct that occurred outside of Wisconsin.

As a result, the bill protects victims of domestic abuse who do not live in Wisconsin from people who live in Wisconsin and may travel outside the State in order to harm the victim.  The bill also protects victims of domestic abuse who live in Wisconsin from people who do not live in Wisconsin and may travel to Wisconsin in order to harm the victim.

The bill becomes effective on April 10, 2015.

Police may trick you into giving permission to search your vehicle. Don’t give them permission.

In State v. Wagner, 2014AP842-CR (2015), a police officer pulled over David Wagner because he had multiple items hanging from his rear view mirror.  The officer saw Wagner moving around in a manner that led the officer to believe Wagner may have a weapon.  The officer asked Wagner to exit the vehicle, and Wagner complied.

After Wagner exited the vehicle, the officer told Wagner “I have permission to search this car. I’m also going to ask you what do you have on you that you shouldn’t have?” When Wagner responded “nothing,” the officer said, “so, you don’t mind if I search you, right?”  Believing that the officer had permission to search his vehicle regardless of his consent because the officer said “I have permission to search this car,” Wagner replied “go ahead.”

The officer conducted a search of the vehicle and found paraphernalia used to smoke marijuana.  Wagner was arrested and charged with possession of paraphernalia.

Wagner sought to suppress the evidence based on the theory that the search of his vehicle was illegal.  Wagner argued that the officer misstated the law and tricked Wagner into giving consent to search.  The question before the Court was whether the officer’s statement that he had permission to search Wagner’s vehicle led Wagner to believe that he could not object to a search and had to acquiesce to the officer’s authority?

The Court of Appeals held that Wagner voluntarily consented to the search, and was not merely “acquiescing to an unlawful assertion of police authority.”  Although the Court acknowledged that the officer misstated the law by claiming to have permission to search, the Court held that the Officer’s follow-up question “you don’t mind if I search” gave Wagner a ‘choice’.  The Court reasoned as follows:

“The officers were telling him that they had the right to search his car. What happened after that message was told to him in the form of a question:  ‘So you don’t mind if I search you, right?,’ which was, we agree, temporally tied to the message that the police had the authority to search the car. But, it was still in the form of a question. It did not convey the impression that he had no real choice in the matter. Quite the opposite. Wagner had to know that, despite the knowledge that the officers had the right to search his car, they were nonetheless asking him for permission to search his person. In that light, we are convinced that Wagner could have refused if he had wanted. State v. Wagner, 2014AP842-CR at ¶12.

The lesson from this case is simple:  Do not give an officer consent to search you, your vehicle or your home regardless of what they tell you.  If you deny permission to search, the officer may: (1) go away without conducting a search, (2) take the time to get a search warrant, or (3) conduct a search without a warrant.  Regardless of whether the officer goes ahead with the search, your continued denial of consent preserves your right to challenge the legality of the search in court and have your case dismissed.  However, if you give permission for the officer to conduct a search at any time, then you waive your right to challenge the legality of the search in court.

Bank robber caught because he stopped for coffee instead of fleeing the scene

A hapless robber was caught after stopping for coffee less than a mile from a New Jersey bank where he carried out the theft.

A man wearing a fedora approached a bank counter holding a gun and demanded money.  He walked out with $4,000 and jumped into a black SUV, but instead of fleeing the scene he decided to stop at a nearby Dunkin’ Donuts for a leisurely cup of coffee.  Police apprehended him at the coffee shop because he matched the description of the suspect.  In fact, he was wearing the same coat and fedora that he wore during the robbery.  Police searched the robber and found a fake BB gun along with the stolen money.

Coincidentally, the robber was wanted for a previous heist.  Authorities were on their way to his home to arrest him but were notified that they could turn around because he was picked up at the coffee shop.  Read the full story here.

Here is some free legal advice from the Padway Law:  Never, ever, rob a bank.  But if you do, immediately change your clothes and get as far away from the scene as possible.  Do not stop for coffee.

Police can legally stop a vehicle for violating laws that do not exist

A police officer can legally initiate a traffic stop based on a law that does not exist, as long as the officer’s mistaken belief that a law was broken was ‘objectively’ reasonable.  That might sound odd, but it’s what the Supreme Court of the United States decided in Heien v. North Carolina, 135 S. Ct. 530 (2014).
Under the 4th Amendment to the United States Constitution, the general rule is that a police officer must have reasonable suspicion to initiate a traffic stop.  In order to have reasonable suspicion, the officer must have specific and articulable facts to give the officer a suspicion that a crime is being committed.  If a police officer does not have reasonable suspicion to initiate a traffic stop and then later arrests a defendant for OWI, a drug offense, a firearms offense or any other type of crime, all of the evidence must be suppressed and the defendant’s case dismissed.  At least, that’s how it is supposed to work.
In Heien v. North Carolina, Sergeant Matt Darisse was following a vehicle and noticed that only one of the vehicle’s brake lights was working, so he pulled the driver over. While issuing a warning ticket for the broken brake light, Sergeant Darisse became suspicious of the actions of the two occupants and their answers to his questions. Heien, the car’s owner, gave Sergeant Darisse consent to search the vehicle. Sergeant Darisse found cocaine, and Heien was arrested and charged with attempted trafficking.
The problem with Seargeant Darisse’s stop was that North Carolina requires that a car be “equipped with a stop lamp.”  North Carolina Statutes requires only a single lamp.  Because Heien’s vehicle had a working stop lamp, Heien was not committing an offense and the officer had no objective basis to initiate the traffic stop.  The North Carolina Court of Appeals held that the justification for the stop was objectively unreasonable and stopping the car violated the 4th Amendment to the United States Constitution.
But not so fast.  The North Carolina Supreme Court reversed the North Carolina Court of Appeals and held that, even assuming no violation of state law had occurred, Sergeant Darisse’s mistaken understanding of the law was reasonable, and thus the stop was valid.  The Supreme Court sided with the State Supreme Court and held that Officers do not violate the 4th Amendment to the United States Constitution if they pull a driver over for an ‘objectively’ reasonable mistake of the law. Heien, 135 S. Ct. at 539-540.
Police officers were already allowed to pull a driver over based on a mistake of fact. See United States v. Miguel, 368 F.3d 1150 (9th Cir. 2004) (Validating stop when officer pulled over vehicle believing that the registration had expired when in fact registration was current).  Now, officers can initiate a traffic stop against a completely innocent driver for violating a law that does not exist.