Under the Fourth Amendment of the United States Constitution, criminal defendants are protected from unconstitutional searches and seizures. This means that police cannot enter the home of an individual or search a place like a vehicle without probable cause to do so and a warrant, unless certain circumstances apply. A recent case before the Wisconsin Supreme Court considers whether exigent circumstances justifying entering an individual’s home exist when a police officers claims to be in “hot pursuit” of an individual who is believed to have committed crimes.
When dealing with drug crimes, one of the tools that law enforcement has in their tool box is the ability to seize assets related to a drug crime and to seek a declaration that such assets have been “forfeited” to the state. This involves a judicial process of getting a court to declare that the assets are sufficiently related to the drug activity that they can be forfeited. Forfeiture can help to reduce drug manufacturing or trafficking by seizing the infrastructure and assets necessary to support such operations. A recent case before the Western District of Wisconsin allowed the forfeiture of property after the discovery of a marijuana grow operation.
When individuals are involved in criminal activity, the assets related to that criminal activity can often be seized by law enforcement involved in the investigation of the crime. This can include things such as vehicles used to commit a crime, homes or other locations used to stage a crime, and even the money that is collected as a result of the criminal activity. The seizure of these types of items and property is known as civil forfeiture.
In Cruz-Hernandez v. Fund of $271,080, the Cruz-Hernandez brothers were identified as potential participants in a drug trafficking scheme after a home invasion was reported at the house where they lived. When police arrived at the house, they found a handgun and a small amount of marijuana inside the premises. A drug dog also alerted them to potential drugs inside a vehicle that was parked outside the house. After police obtained a warrant to search the vehicle, they found $271,080 in cash inside but no drugs. Since no drugs were found, the police did not bring charges against the Cruz-Hernandez brothers. However, they did institute a civil forfeiture action to seize the large amount of cash that was discovered. They alleged that the money clearly had been used or would be used to facilitate drug trafficking.
When investigating claims of marijuana cultivation or production, police officers typically rely on a wide variety of sources of information to determine whether they have probable cause to execute a search warrant on a certain property or person. Some of those sources are considered inherently more reliable than others. For instance, an eyewitness who reports observing an incident is generally considered to be more reliable than an individual who reports overhearing a conversation possibly related to the incident. Likewise, known informants with a consistent history of assisting the police are given more weight in a probable cause determination than anonymous informants with little to risk in supplying faulty information. A recent case before the Wisconsin Court of Appeal looks at when, if ever, anonymous tips may reasonably provide probable cause for a search warrant to be executed.
In State v. Linde, Mr. Linde’s home was searched on suspicion of manufacturing of THC and cultivation of marijuana plants. In 2010, Mr. Linde was arrested for growing marijuana plants and possessing paraphernalia at a cabin he owned in Oconto County, Wisconsin. In 2011, almost a year later, police received an anonymous call that Mr. Linde was again growing marijuana at his residence in Forest County, Wisconsin. The caller did not leave identifying information and stated only that during a recent trip to the residence, he had observed marijuana plants growing there.
When an individual is convicted of a criminal offense, the next step in the criminal process is for the judge to determine the appropriate sentence for the defendant. In considering sentencing, a judge will look at the United States Sentencing Guidelines, as well as a presentence report. The Sentencing Guidelines provide base offense levels for different criminal offenses, which translate into sentencing ranges for judges to consider. These base offense levels can then be adjusted upward or downward, based on aggravating factors (such as use of a weapon) or mitigating factors (such as assistance with investigation of other crimes). The Sentencing Guidelines are reviewed on occasion by the United States Sentencing Commission, and adjustments may be made based on policy determinations. Since these adjustments cannot be timed perfectly with every ongoing criminal case, there are inevitably defendants who are sentenced under guidelines that are amended while a criminal proceeding is ongoing. In these circumstances, can amendments be applied retroactively to reduce a defendant’s sentence? A recent case in the Seventh Circuit Court of Appeals considered this question.
Wisconsin law criminalizes not only the use and possession of marijuana and related drugs, but also the intent to distribute drugs to others. Under Wisconsin Statute 961.41(1m)(h)(1), a defendant may be guilty of the crime of possession of THC with the intent to deliver if the state can show that (1) the defendant had THC in his possession; (2) the substance actually was THC; (3) the defendant knew that the substance was THC; and (4) the defendant intended to deliver the THC to another person. However, the actual facts necessary to support such a conviction can vary and are often a source of disagreement between state prosecutors and criminal defendants. A recent case in the Wisconsin Court of Appeals provides an example of “sufficient” evidence to sustain a conviction under the statute.
In State of Wisconsin v. Heart, the defendant, Germaine Heart, was observed by an undercover officer as a woman pulled up to his vehicle in a Walgreens parking lot, entered the backseat of his vehicle, appeared to take something from Heart, and then exited the vehicle. As she was leaving, the undercover officer noted that she was carrying a plastic bag. He immediately requested a marked police car to investigate Heart. Upon arriving at the scene, Officer Johnson of the Milwaukee Police observed that Heart was using a metallic object, which turned out to be a scale. He was fidgeting around the car and appeared to be moving a green substance that looked like marijuana. When he noticed Officer Johnson, he attempted to exit the car and run away, but he was stopped. Upon a further investigation of the car, the officers found marijuana in the vehicle, a silver scale, multiple cell phones and baggies, and a significant amount of cash. All of this evidence was presented to the jury at trial, and Heart was convicted.
Under the Fourth Amendment to the United States Constitution, individuals stopped in periodic traffic stops cannot be subjected to overly invasive searches of their vehicles, or prolonged periods of being detained, without police officers having justification for doing so. When a suspicious vehicle or individual in a traffic stop leads to subsequent searches and eventual arrests, one of the most common claims by defendants at trial is that the evidence that the police uncovered should be suppressed because it was obtained without reasonable suspicion or probable cause. A recent case in the Seventh Circuit Court of Appeals looks at the specific question of what is required under the Constitution in order to justify holding a defendant for a prolonged period of time to conduct a dog sniff and search.
Convictions for drug possession and drug trafficking often arise as a result of the search and seizure of an individual’s person or property for drugs. However, these types of searches may only occur where a police officer or investigator has “probable cause” to support the search. This is because the United States Constitution provides protection against unwarranted search and seizure. A recent case in the Wisconsin Court of Appeals illustrates the limits on prosecuting individuals for drug crimes where a search and seizure is deemed unconstitutional.
In State of Wisconsin v. Demario Derrick Foster, an unpublished opinion, Foster was arrested on multiple counts of drug offenses. At trial, he moved to suppress evidence obtained from a search of his person, arguing that the police officers lacked probable cause to arrest him.
This January, the Wisconsin Court of Appeals dismissed as defective an appeal for misdemeanor marijuana possession. The case demonstrates that the state still takes marijuana prosecution seriously despite the national trend towards legalization.
Jerry D. Butler was charged with disorderly conduct after an altercation with his neighbors on February 26, 2013 in Milwaukee. After Butler exposed a handgun during the argument, the neighbor called the police. According to the police, Butler gave them permission to search his car, where they found a gun and marijuana. Butler was arrested and charged with disorderly conduct. He was also given a citation for possession of marijuana.
In certain extraordinary situations, a court will expunge, or seal, an individual’s criminal record. In United States v. Johnson, a Wisconsin man pleaded guilty to possession of cocaine with intent to distribute the drug in violation of 21 U.S.C. §§ 841. Due to a number of factors, including the man’s willingness to accept responsibility for his actions, his lack of a criminal history, and the man’s post-offense rehabilitation, the convicted man was ultimately sentenced to time served followed by five years of supervised release. The man completed his sentence in April 2014.
In 2015, the convicted man filed a motion for the expungement of his federal criminal record in the Eastern District of Wisconsin. Typically, an expungement proceeding occurs when an individual who was convicted of an earlier crime asks a court to seal the records associated with his or her criminal proceeding. In response to the man’s motion, the U.S. government filed a brief in opposition. Despite his expungement request, the convicted man failed to reply to the government’s opposition filing.