author: NETTESHEIM, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Keith A. Franszczak, Defendant-Appellant.

    Court of Appeals

      No. 01-1393-CR.

      Submitted on briefs March 7, 2002.

    Decided May 1, 2002.

    2002 WI App 141
    (Also reported in 647 N.W.2d 396.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Martin E. Kohler and Brian Kinstler of Kohler & Hart of Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Christopher G. Wren, assistant attorney general.
    Before Nettesheim, PJ., Brown and Anderson, JJ.

       Petition to review denied 7-26-02.

   NETTESHEIM, PJ.

¶ 1. A jury found Keith A. Franszczak guilty of burglary while armed with a dangerous weapon pursuant to Wis. Stat. § 943.10(2)(a) (1999-2000) and misconduct in public office pursuant to Wis. Stat. § 946.12(2). Franszczak appeals from the ensuing judgment of conviction and an order denying postconviction relief. Franszczak contends that the trial court erred by denying his request for a pretrial eviden-tiary hearing pursuant to Wis. Stat. § 165.79(1) at which Franszczak intended to question a state crime laboratory analyst about possible contamination of the evidence submitted to the analyst for testing. Relying on the pretrial privilege recited in the statute, the court rejected Franszczak's request for a hearing and quashed the subpoena that Franszczak had issued to the analyst. We uphold the trial court's ruling.

The Role of the State Crime Laboratory

¶ 2. Because the role of the state crime laboratory lies at the heart of this case, we first speak to this matter. The purpose of the state crime lab is to provide technical assistance to law enforcement. Wis. Stat. § 165.75(3)(a). The employees of the state crime lab may not undertake criminal investigations "except upon the request of a sheriff, coroner, medical examiner, district attorney, chief of police, warden or superintendent of any state prison, attorney general or governor." Id. at (3)(b).

¶ 3. Wisconsin Stat. § 165.79(1), entitled "Evidence privileged," is the particular statute at issue in this case. It reads:

(1) Evidence, information and analyses of evidence obtained from law enforcement officers by the laboratories is privileged and not available to persons other than law enforcement officers nor is the defendant entitled to an inspection of information and evidence submitted to the laboratories by the state or of a laboratory's findings, or to examine laboratory personnel as witnesses concerning the same, prior to trial, except to the extent that the same is used by the state at a preliminary hearing and except as provided in s. 971.23.
Upon request of a defendant in a felony action, approved by the presiding judge, the laboratories shall conduct analyses of evidence on behalf of the defendant. No prosecuting officer is entitled to an inspection of information and evidence submitted to the laboratories by the defendant, or of a laboratory's findings, or to examine laboratory personnel as witnesses concerning the same, prior to trial, except to the extent that the same is used by the accused at a preliminary hearing and except as provided in s. 971.23.
Employees who made examinations or analyses of evidence shall attend the criminal trial as witnesses, without subpoena, upon reasonable written notice from either party requesting the attendance.

Sec. 165.79(1).

¶ 4. In summary, Wis. Stat. § 165.79(1) works as follows. All evidence, information and analyses of evidence submitted to the crime lab by law enforcement is privileged and therefore is off limits to a defendant prior to trial. The same is true as to the analyses of such evidence by the crime lab. This privilege also bars any effort by a defendant to examine crime lab personnel as witnesses prior to trial. However, this privilege does not apply in two situations: (1) where the State has used the evidence at a preliminary hearing, and (2) where the evidence is otherwise subject to discovery or inspection pursuant to Wis. Stat. § 971.23.

¶ 5. With the approval of the trial court, a defendant in a felony case may also use the services of the crime lab. In that setting, the statute works in the reverse. The evidence submitted by the defendant, as well as the ensuing analyses by the crime lab, is off limits to the State, and the State may not examine the crime lab personnel as witnesses prior to trial. In addition, the "preliminary hearing" and "discovery" exceptions also apply.

¶ 6. In either setting, the statute provides that crime lab witnesses shall attend the trial without subpoena upon reasonable notice from the party requesting the attendance.

¶ 7. As noted, the statutory privilege set out in Wis. Stat. § 165.79(1) is subject to the discovery and inspection provisions of Wis. Stat. § 971.23. As relevant to this case, § 971.23(l)(e), (g) and (h), respectively, require the State to comply with a defendant's demand for disclosure of "any reports or statements of experts . . . that [the State] intends to offer in evidence at trial;" for inspection of "[a]ny physical evidence that [the State] intends to offer in evidence at the trial;" and for disclosure of "[a]ny exculpatory evidence." In addition, § 971.23(5) permits either party to seek an order directing the production of any physical evidence for scientific analysis under such conditions as the court deems proper.

¶ 8. The legislative decision to exempt the discovery and inspection provisions of Wis. Stat. § 971.23 from the privilege otherwise conferred by Wis. Stat. § 165.79(1) makes eminent sense. Were it otherwise, we would return to the old days of "trial by ambush" as to crime lab evidence. In addition, the exemption for exculpatory evidence assures that the constitutional due process right to such evidence decreed by Brady v. Maryland, 373 U.S. 83 (1963), and its progeny is honored.

Facts and Procedural History

¶ 9. Withour explanation of Wis. Stat. § 165.79(1) in place, we turn to the facts. On July 27,1995, the City of Brookfield Police Department received a report of a burglary from the president of Real Refrigeration, Richard Reinhart. Reinhart indicated that when he arrived at Real Refrigeration that morning, he discovered that someone had entered the building and had attempted to open a large office safe by prying off the pins on the right-hand side of the safe. Reinhart also indicated that someone had forcibly kicked in a locked office door.

¶ 10. The police obtained a video recording from a neighboring business that depicted an individual attempting to gain entrance to its building on the night of July 26 and the early morning hours of July 27. Officer Hal McNeill recognized Franszczak, a police officer with the Village of Butler Police Department, as the individual attempting to open the front of the neighboring business at 12:07 a.m. In the video, Franszczak is wearing his police uniform and a pair of "low-cut running type/athletic shoes," and his hands are bare. Franszczak appears again on the videotape at 12:43 a.m. in identical clothing but wearing a pair of leather gloves.

¶ 11. At trial, Franszczak testified that he had conducted an investigation of Real Refrigeration on the night in question and that he was the person seen on the videotape. Franszczak testified that he was on patrol when he noticed an open door at Real Refrigeration. He investigated the situation by entering through the door, held open by a piece of cardboard. According to Franszczak, he surveyed the interior of the building and then left, replacing the cardboard in the door with the assumption that an employee had intentionally left the door open so as not to be locked out. Franszczak denied that he attempted to break into the safe.

¶ 12. Franszczak testified that he returned to patrol, conducted a traffic stop and told Officer Jay Kreier about the door at Real Refrigeration. Franszc-zak returned to Real Refrigeration, entered the building, conducted a building check, found everything to be in order and left, securing the door behind him.

¶ 13. On July 28, 1995, McNeill, along with another officer, contacted Franszczak and advised him of his constitutional rights. Franszczak waived his rights and complied with McNeill's request that he turn over his uniform, footwear and knife that he was wearing on duty on July 26 and 27,1995. The items were submitted to the state crime lab for analysis in July 1995. This analysis indicated that metal fragments found on the clothing matched metal fragments discovered at the scene of the crime.

¶ 14. In a letter dated June 26, 1997, the State notified Franszczak that the crime lab had completed its analysis of the items and that the evidence was available for inspection by Franszczak at the Brookfield Police Department. This letter also enclosed a copy of the crime lab's testing report. After reviewing the report, Franszczak retained an expert to independently test the items. He then sought an order from the trial court authorizing such testing pursuant to Wis. Stat. § 971.23(5). The court granted the motion. Franszczak's expert tested the items and concluded that the police had contaminated the evidence when initially collecting it, and the crime lab had further contaminated the evidence during its testing process.

¶ 15. Based on these findings, Franszczak filed a pretrial motion to suppress the evidence and the crime lab's test results. In support, Franszczak contended that the contamination constituted a break in the chain of the evidence. The trial court scheduled a hearing on Franszczak's motion for December 3, 1997. Franszczak subpoenaed the crime lab analyst, Raymond Lenz, to this hearing, intending to question Lenz about his testing methods and results.

¶ 16. On the day before the hearing, the trial court received a letter from the State objecting to the Lenz subpoena. At the hearing, Franszczak was unable to proceed due to the unavailability of his expert so the matter was rescheduled for February 26, 1998. At the adjourned hearing, Franszczak's expert was present, but Lenz did not appear as a result of the attorney general's advice that Lenz did not have to honor Franszczak's subpoena due to the statutory privilege set forth in Wis. Stat. § 165.79(1). The court took the matter under advisement and requested the parties to file briefs on the issue of whether an evidentiary hearing was required and whether Lenz must honor the subpoena.

¶ 17. In a written decision, the trial court denied Franszczak's request for a pretrial evidentiary hearing. In support, the court noted: (1) that the State had not used the crime lab evidence at the preliminary examination, and (2) that the State otherwise refused to waive the privilege under Wis. Stat. § 165.79(1). The court also quashed Lenz's subpoena.

¶ 18. At the ensuing trial, the jury found Franszc-zak guilty of burglary while armed with a dangerous weapon and misconduct in public office. On May 3, 2001, the trial court denied Franszczak's motion for postconviction relief. Franszczak appeals.

Discussion

¶ 19. This case requires that we apply the provisions of Wis. Stat. § 165.79(1) to the facts. That exercise presents a question of law that we review de novo. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 364-65, 597 N.W.2d 687 (1999).

¶ 20. As we have explained, the privilege recited by Wis. Stat. § 165.79(1) has only two exceptions: (1) where the evidence is used by the State at a preliminary hearing, and (2) where the evidence is subject to the discovery and inspection provisions of Wis. Stat. § 971.23. Franszczak does not argue that the State used the crime lab evidence at the preliminary hearing, so that exception does not apply. Therefore, Franszczak rests his case on the "discovery and inspection" exception, and, in particular, on the exculpatory evidence provisions of § 971.23(l)(h). Because the evidence was exculpatory, Franszczak concludes that he was entitled to question Lenz at a pretrial evidentiary hearing.

¶ 21. The flaw in Franszczak's argument lies in his assumption that the evidence was exculpatory when it was in the possession of the crime lab. When the evidence was seized and submitted to the crime lab, the State did not know whether the crime lab testing would produce inculpatory, exculpatory, or inconclusive results. The State submitted the evidence for testing to resolve that very uncertainty. The ensuing testing established that the evidence was not exculpatory. Instead, it was highly inculpatory — the testing matched metal fragments on Franszczak's clothing with metal fragments from the scene of the burglary. So the State was under no obligation to disclose the evidence or the test results to Franszczak under the exculpatory evidence provisions of Wis. Stat. § 971.23(l)(h).

¶ 22. Moreover, the State's gratuitous disclosure of the crime lab report and tender of the evidence to Franszczak for his own testing rendered the application of Wis. Stat. § 165.79(1) moot. The law of exculpatory evidence requires the State to reveal evidence helpful to a defendant's cause. Section 165.79(1) defers to this law and Wis. Stat. § 971.23(l)(h) implements it. Here, although the State did not view the evidence as exculpatory and did not tender the evidence to Franszczak on that basis, the fact remains that the State turned the evidence over to Franszczak, giving him a full opportunity to explore any exculpatory aspects of it.

¶ 23. Another flaw in Franszczak's argument is his apparent belief that the evidence acquired exculpatory status under Wis. Stat. §§ 165.79(1) and 971.23(l)(h) because the subsequent testing by his expert concluded that the evidence had been contaminated by the police and by the crime lab. As we have already explained, the crime lab analysis did not even remotely suggest that the evidence was exculpatory. To the contrary, the evidence was inculpatory. The mere fact that Franszczak's expert was able to later put an exculpatory spin on the evidence did not entitle Fran-szczak to examine the crime lab analyst in a pretrial hearing. Simply put, Franszczak has the cart before the horse on this question. As we have noted, the purpose of § 165.79(1) had already been satisfied when Franszc-zak sought to retroactively invoke the procedures of the statute.

¶ 24. Instead of entitling Franszczak to a pretrial evidentiary hearing, the findings of Franszczak's expert offered him the opportunity to do battle with the State's expert at trial. And that was how the scene played out at the jury trial. Both sides presented their expert witnesses on the question of whether the evidence implicated or exonerated Franszczak. This "battle of the experts" was exactly what the law contemplates. Allegations of contamination go to the weight to be given particular evidence and not to its admissibility. State v. Buck, 210 Wis. 2d 115, 127-28, 565 N.W.2d 168 (Ct. App. 1997).

¶ 25. In summary, Franszczak got exactly what he was entitled to under the interplay between Wis. Stat. §§ 165.79(1) and 971.23. The privilege set out in § 165.79(1) did not bar Franszczak from obtaining the evidence he was entitled to under the discovery and inspection provisions of § 971.23. Franszczak received the physical evidence that the State intended to offer at trial pursuant to § 971.23(l)(g). He also received a copy of the crime lab report pursuant to § 971.23(l)(e). Finally, he was granted permission to submit the evidence for testing by his own expert pursuant to § 971.23(5). But Franszczak was not entitled to examine the crime lab analyst at an evidentiary hearing under § 165.79C1).

Conclusion

¶ 26. We uphold the trial court's denial of Franszczak's request for an evidentiary hearing under Wis. Stat. § 165.79(1). We affirm the judgment and postconviction order.

By the Court. — Judgment and order affirmed.

       All statutory references are to the 1999-2000 version unless otherwise noted.

       Franszczak committed the burglary while on duty as a police officer. Thus, he was also charged with misconduct while in public office.

       In addition, the head of any state agency may request an investigation by the state crime lab, but such request is limited to the field of responsibility vested in the particular agency. Wis. Stat. § 165.75(8)(b).

       In the official printed version of the statutes, Wis. Stat. § 165.79(1) is recited in a single paragraph. We have broken out the language into three paragraphs for ease of reading.

       Because we hold that the evidence was not exculpatory within the meaning of Wis. Stat. §§ 165.79 and 971.23(l)(h), we need not address the State's further argument that the admission of the state crime lab evidence was harmless error.


source: Caselaw Access Project

author: DYKMAN, J. DYKMAN, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Tina M. Miller, Defendant-Appellant.

    Court of Appeals

      No. 01-1993-CR.

      Submitted on briefs February 12, 2002.

      Decided May 2, 2002.

    2002 WI App 150
    (Also reported in 647 N.W.2d 348.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Tim Provis, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Erik C. Peterson, Iowa County District Attorney, Dodgeville.
    Before Vergeront, EJ., Dykman and Deininger, JJ.

       Petition to review denied 9-26-02.

       This case was converted from a one-judge appeal to a three-judge appeal pursuant to Wis. Stat. Rule 809.41(3) (1999-2000). All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

   DYKMAN, J.

¶ 1. Tina Miller appeals from a judgment convicting her of possessing a controlled substance. She contends that the police violated her right against unreasonable searches and seizures when they conducted a canine sniff on her car, entered it and searched her purse. Because controlling precedent requires us to conclude that the dog sniff was not a search, and because the dog's alert on Miller's vehicle provided the police with probable cause, we affirm.

BACKGROUND

¶ 2. The police executed a search warrant to search the ground floor of a duplex in Dodgeville. In the midst of the search, officers discovered some marijuana. The occupants of the house were handcuffed, placed in á squad car and taken from the scene. A police officer then told another officer, Thomas Forbes, to "check around the cars located in that area" with Cora, a dog trained in detecting the odor of contraband.

¶ 3. Forbes walked Cora around a number of cars that were parked on the street near the residence. Cora alerted on the driver's side door of a car parked across the street. Forbes walked Cora around the same car again and she alerted a second time on the driver's side door. The door was unlocked, so Forbes opened it and put Cora inside the car. When Cora alerted on a purse that was sitting on the driver's seat, Forbes took the purse, opened it, and found marijuana inside. Both the car and the purse belonged to Tina Miller, who was a guest at the residence. None of the officers knew to whom the car belonged before Forbes searched it.

¶ 4. The State charged Miller with possessing a controlled substance, contrary to Wis. Stat. §§ 961.41(3g)(e) and 961.14(4)(t). Miller moved to suppress the evidence found in her car, arguing that police unlawfully searched the car in violation of the state and federal constitutions. The circuit court denied the motion, and Miller pleaded no contest. Miller appeals.

DECISION

A. Canine Sniffs and Search and Seizure Law

¶ 5. The central dispute in this case is whether Forbes's use of a drug-sniffing dog to detect the presence of marijuana inside Miller's car violated her rights under the Fourth Amendment to the United States Constitution and article I, § 11 of the Wisconsin Constitution, which both protect the people's right against unreasonable searches and seizures. It is undisputed that the police did not have a warrant to search the car. The State also does not argue that the police had probable cause or even reasonable suspicion to believe that they would find evidence of a crime inside the car before they conducted the dog sniff. Instead, the State argues that the dog sniff of Miller's car was not a search and thus neither the Fourth Amendment nor art. I, § 11 are implicated. Whether police conduct constitutes a "search" within the meaning of the state and federal constitutions is a question of law, which we review de novo. See State v. Edgeberg, 188 Wis. 2d 339, 344-45, 524 N.W.2d 911 (Ct. App. 1994).

¶ 6. The Supreme Court first addressed whether the Fourth Amendment applies to canine sniffs in United States v. Place, 462 U.S. 696 (1983). In Place, federal agents subjected the defendant's luggage to a "sniff test" by a trained narcotics detection dog after seizing the luggage in an airport. Id. at 698-99. The Court held that Place's luggage had been unreasonably seized. Id. at 710. In dicta, however, the Court also stated that the canine sniff of Place's luggage did not constitute a search within the meaning of the Fourth Amendment. Id. at 707. Although it noted that "a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment," the Court concluded that was not disposi-tive in determining whether a search had occurred. Id. Rather, the Court focused on the fact that a dog sniff is "much less intrusive than a typical search." Id. Specifically, the Court reasoned:

[T]he sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

Id. The Court then concluded "that the particular course of investigation that the agents intended to pursue here — exposure of respondent's luggage, which was located in a public place, to a trained canine — did not constitute a 'search' within the meaning of the Fourth Amendment." Id.; see also United States v. Jacobsen, 466 U.S. 109, 123 (1984) (holding that a drug field test does not compromise any legitimate interest in privacy because it discloses only whether a particular substance is cocaine).

¶ 7. Although our supreme court has not addressed this issue, this court has once addressed the constitutional requirements with respect to dog sniffs and concluded that a dog sniff of a car located in a motel parking lot did not implicate the Fourth Amendment. See State v. Garcia, 195 Wis. 2d 68, 535 N.W.2d 124 (Ct. App. 1995). In doing so, we did not consider Place, but rather relied on two federal court of appeals cases concluding that a motel guest does not have an expectation of privacy in a parking place. See United States v. Diaz, 25 F.3d 392, 396 (6th Cir. 1994); United States v. Ludwig, 10 F.3d 1523, 1526 (10th Cir. 1993). We then concluded, "there is no legitimate expectation of privacy in the air space around a car that is parked in a motel parking lot." Garcia, 195 Wis. 2d at 75.

¶ 8. Miller does not discuss Place or Garcia but rather argues that a conclusion in her favor is dictated by City of Indianapolis v. Edmond, 531 U.S. 32 (2000). In Edmond, the City of Indianapolis had instituted vehicle checkpoints on highways with the purpose of finding illegal drugs. Id. at 34. After police stopped a vehicle, they would walk a drug-detecting dog around it. Id. at 35. The Court concluded that the checkpoint program violated the Fourth Amendment because it allowed police to seize vehicles without individualized suspicion and was only for the purpose of finding "ordinary criminal wrongdoing." Id. at 42, 48. Although the Court held that the program was unconstitutional, its holding had nothing to do with the use of drug-sniffing dogs, but resulted because vehicles were being stopped, i.e. "seized," without reasonable suspicion. The Court never explicitly reached the issue of using narcotics-detecting dogs. However, it cited to Place and noted that the "fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search." Id. at 40. Miller's car did not need to be stopped in order to conduct a dog sniff, so Edmond does not apply.

¶ 9. We therefore conclude that under the Supreme Court's interpretation of the Fourth Amendment, dog sniffs are not searches. Although Place's actual holding specifically addressed only sniffs of luggage in an airport, the logic of Place — that dog sniffs reveal only illegal conduct so they intrude on no legitimate privacy interest — would apply equally in any setting. Even if Place's holding does not extend to dog sniffs of homes or persons, we see no meaningful distinction in this context between dog sniffs of luggage in an airport and dog sniffs of unoccupied cars parked on a public street.

¶ 10. Because current law does not classify canine sniffs as searches within the meaning of the Fourth Amendment, Forbes was not required to have probable cause or reasonable suspicion before walking a dog around Miller's vehicle for the purpose of detecting drugs in the vehicle's interior.

B. Probable Cause to Search Miller's Vehicle

¶ 11. The only remaining issue is whether Forbes violated the Fourth Amendment when he opened the car door, let Cora inside, and opened and looked inside Miller's purse. There is no question that entering a person's car and searching items inside it constitutes a search. See Almeida-Sanchez v. United States, 413 U.S. 266, 269 (1973). However, because of the reduced expectation of privacy that individuals have in vehicles, a warrantless search of a vehicle is not necessarily unreasonable. See State v. Matejka, 2001 WI 5, ¶ 22, 241 Wis. 2d 52, 621 N.W.2d 891; State v. Pallone, 2000 WI 77, ¶ 59, 236 Wis. 2d 162, 613 N.W.2d 568. Rather, an automobile may be searched without a warrant so long as there is probable cause to believe that evidence of a crime will be found inside. Pallone, 2000 WI 77 at ¶¶ 58 to 60.

¶ 12. Whether a given set of facts provided probable cause to search a vehicle is a question of law that we review de novo. See id. at ¶ 27. Although Wisconsin courts have not addressed whether an alert from a drug-sniffing dog provides sufficient evidence of a crime to search a vehicle, the supreme court has held that the "unmistakable odor of marijuana" detected by a police officer coming from an automobile provides probable cause to search that automobile. State v. Secrist, 224 Wis. 2d 201, 210, 589 N.W.2d 387 (1999). Further, courts in other jurisdictions have uniformly held that a dog's alert on an object provides probable cause to search that object, provided that the dog is trained in narcotics detection and has demonstrated a sufficient level of reliability in detecting drugs in the past and the officer with the dog is familiar with how it reacted when it smelled contraband. See, e.g., United States v. Lingenfelter, 997 F.2d 632, 639 (9th Cir. 1993); Ludwig, 10 F.3d at 1527-28; United States v. Race, 529 F.2d 12, 14 (1st Cir. 1976); United States v. Neatherlin, 66 F. Supp. 2d 1157, 1160-61 (D. Mont. 1999); State v. Siluk, 567 So. 2d 26, 27 n.1, 28 (Fla. Dist. Ct. App. 1990); Commonwealth v. LaPlante, 622 N.E.2d 1357, 1361 n.10 (Mass. 1993); see also Secrist, 224 Wis. 2d at 211 n.8 (quoting 1 Wayne R. LaFave, Search and Seizure § 2.2(f), at 450 (3d ed. 1996), for the proposition that a trained dog's smelling of controlled substances can provide probable cause to search when dog has been shown to be reliable).

¶ 13. Forbes testified that Cora had been trained in narcotics detection, that he had conducted over one hundred drug sniffs with Cora and that he was familiar with how Cora would alert to him. He further testified that of the forty times that Cora alerted on a vehicle, "illegal contraband or substances" were found thirty-five times. Miller does not challenge the veracity of this testimony.

¶ 14. We conclude that under these facts, Forbes had probable cause to search Miller's vehicle. Although Cora did not have a 100% rate of accuracy, probable cause requires only that there is a "fair probability" that evidence of a crime will be found. State v. Hughes, 2000 WI 24, ¶ 21, 233 Wis. 2d 280, 607 N.W.2d 621. Cora's level of reliability was sufficient to authorize a search of the vehicle under this test.

¶ 15. Probable cause to search Miller's vehicle also included probable cause to search Miller's purse. See Wyoming v. Houghton, 526 U.S. 295, 302 (1999) (holding that officers may search packages and containers in a vehicle without individualized suspicion for each object when probable cause exists to search the vehicle). Further, that Forbes could not have known whether the purse belonged to the owner of the vehicle did not affect his authority to search it. See Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978). Accordingly, once the dog sniff indicated that Miller's vehicle contained a controlled substance, Forbes had probable cause to search both the car and the purse. The circuit court did not err in denying Miller's motion to suppress.

By the Court. — Judgment affirmed.

DYKMAN, J.

¶ 16. (concurring). United States v. Place, 462 U.S. 696 (1983), and State v. Garcia, 195 Wis. 2d 68, 535 N.W.2d 124 (Ct. App. 1995), require a conclusion that the police did not violate Miller's Fourth Amendment rights when they conducted a dog sniff on her car. I write separately, however, to explain why the federal rule should not be applied automatically when interpreting the Wisconsin Constitution.

¶ 17. Place's dicta that a dog sniff of luggage is not a search is based on the premise that a dog sniff infringes on no legitimate expectation of privacy because it "discloses only the presence or absence of narcotics, a contraband item." 462 U.S. at 707. This rationale has serious weaknesses. First, it assumes that the dog is accurate, and that the privacy interests of innocents will not be compromised. This is not the case, however, as was shown in Doe v. Renfrow, 475 F. Supp. 1012 (N.D. Ind. 1979), aff'd, in part, 631 F.2d 91 (7th Cir. 1980). In Doe, officials at a junior high school in Indiana became concerned that a drug problem existed among some of the students. Id. at 1016. The school superintendent decided to use drug-sniffing dogs to combat the problem. Id. The dogs were walked down the aisles in each classroom as the students sat in their desks. Id.

¶ 18. One of the dogs alerted on student Diane Doe. Id. at 1017. She was instructed to empty her pockets and her purse so that their contents could be checked for drugs. Id. No drugs were found. Id. Doe was then taken to the nurse's station. Id. She was asked if she had ever used marijuana and Doe replied that she had not. Id. She was then told to remove her clothing and officials conducted a strip search. Id. Still, no drugs or other illegal substances were found. Id. Doe demonstrates that, when no suspicion is required before a canine sniff is performed, there is a heightened risk that innocents will be subjected to unwarranted searches. See also United States v. Kelly, 128 F. Supp. 2d 1021, 1026-27 (S.D. Tex 2001) (holding that trained dog's alert on a person is sufficient to justify a strip search under certain circumstances).

¶ 19. Both Doe and Forbes's testimony in this case show that the accuracy of drug-sniffing dogs is far from perfect. Forbes testified that the dog who performed the sniff on Miller's car had incorrectly alerted five times out of a total of forty. Although thirty-five out of forty is a fairly high average, the five people who were wrongly implicated as being involved with illegal drugs likely think that it is not high enough. Because judges usually learn only about cases in which police find incriminating evidence, we may tend to forget that mistakes can intrude significantly on the legitimate expectation of privacy that innocent people have. It does little to acknowledge that wronged innocents may file a civil action for a Fourth Amendment violation, as under current jurisprudence, officials are often granted immunity from suit. In Doe's case, for instance, although the court found that the Fourth Amendment was violated, it concluded that school officials were not liable because they acted in good faith. Doe, 475 F. Supp. at 1028.

¶ 20. A second problem in concluding that dog sniffs are not searches is that it allows the police nearly absolute discretion in who and what they target. It permits law enforcement officers to randomly walk dogs down any street, approach any person, and sniff any package for any or no reason. See Kenneth R. Wallen-tine, Dogs Are a Prosecutor's Best Friend: Canine Search and Seizure Law, Prosecutor 31 (Sept./Oct. 1997) (encouraging law enforcement to use canine sniffs in public parks, parking lots, trains, roadblocks, storage units, rental lockers and with respect to mail packages because they provide "probable cause on a silver platter").

¶ 21. Such discretion has consequences for more than just the guilty. Many law-abiding individuals would feel uneasy at the prospect of their cars or homes being sniffed at any time, or being subject to random canine sniffs of their person in public places. See 1 Wayne R. LaFave, Search and Seizure § 2.1(e), at 315 (2d ed. 1986) ("If the issue is framed in terms of whether a totally unrestrained use of such dogs in a dragnet fashion would be tolerable in a free society, one's answer might likely be no."). Especially for members of minority groups, the risk that such techniques could be used selectively is also worrisome when there are no constitutional limitations, outside of a possible equal protection claim, on when a dog sniff may be used. See People v. Dunn, 564 N.E.2d 1054, 1058 (N.Y. 1990) ("To hold [that a canine sniff is not a search], we believe would raise the specter of the police roaming indiscriminately through the corridors of public housing projects with trained dogs in search of drugs."). Courts have a constitutional duty to ensure that individuals are not subjected to searches without reason. See Terry v. Ohio, 392 U.S. 1, 15 (1968) (stating that courts have a "responsibility to guard against police conduct which is over-bearing or harassing").

¶ 22. Like Place, our decision in Garcia is also grounded in the Fourth Amendment, but it uses a different rationale. Instead of following Place's logic that dog sniffs are not searches because they detect only illegal conduct, Garcia concluded that individuals have no legitimate expectation of privacy in the air space around their cars. Garcia, 195 Wis. 2d at 75.

¶ 23. The reasoning, if not the holding, of Garcia was recently rejected by the Supreme Court. In Kyllo v. United States, 533 U.S. 27 (2001), the Court considered whether the use of a thermal imaging device on a home constituted a "search" under the Fourth Amendment. The Government argued that it did not because the device detected "only heat radiating from the external surface of the house," or in other words, that there is no expectation of privacy in the air around one's house. Id. at 35. The Court disagreed, concluding that this was "a mechanical interpretation" of the Fourth Amendment and that it was the information the device revealed about activities within the home that was the proper focus. Id. After Kyllo, a view that police conduct is not a search simply because it extracts information from the air around a protected object, rather than directly invading the object, may no longer be viable.

¶ 24. Concerned that the unrestrained use of canine sniffs would lead to unreasonable intrusions on individuals' legitimate expectations of privacy, a number of state courts have decided not to follow the federal rule when interpreting their own state constitutions and instead have concluded that dog sniffs can be searches. See Pooley v. State, 705 P.2d 1293 (Alaska Ct. App. 1985); People v. Unruh, 713 P.2d 370 (Colo. 1986); People v. Cox, 739 N.E.2d 1066 (Ill. App. Ct. 2000); State v. Pellicci, 580 A.2d 710 (N.H. 1990); People v. Dunn, 564 N.E.2d 1054 (N.Y. 1990); Commonwealth v. Johnston, 530 A.2d 74, 79 (Fa. 1987) ("[I]t is our view that a free society will not remain free if police may use this, or any other crime detection device, at random and without reason."). For example the court in Pellicci stated:

Employing a trained canine to sniff a person's private vehicle in order to determine whether controlled substances are concealed inside is certainly a search.... The drug detection dog discerned something not otherwise apparent to the officers through their own senses, aided or unaided, and advised them of what the dog had discovered by means the officers could perceive. The very purpose of bringing the dog to the vehicle was to have it detect any contraband that might be hidden inside. The sniff, in short, was a prying by officers into the contents of Pellicci's possession, which, concealed as they were from public view, could not have been evident to the officers before the prying began.

580 A.2d at 716. New York's highest court similarly rejected Place's view that dog sniffs are not searches because they disclose only evidence of criminality: "Notwithstanding such a method's discriminate and nonin-trusive nature, it remains a way of detecting the contents of a private place. Thus, our analysis should more appropriately focus on whether there has been an intrusion into an area where an individual has a reasonable expectation of privacy." Dunn, 564 N.E.2d at 1057-58 (citations omitted).

¶ 25. These courts have generally followed Justice Blackmun's suggestion in his concurrence in Place, and held that dog sniffs can be searches, but because of their minimal intrusiveness, they are akin to a Terry stop, and thus require only reasonable suspicion before they can be conducted on a person or object in which a person possesses a privacy interest. But see Commonwealth v. Martin, 626 A.2d 556 (Pa. 1993) (holding that probable cause is required when a dog sniff is performed on a person). This conclusion is consistent with the leading treatise on search and seizure, which also suggested that courts find a middle ground between a full warrant requirement and no requirement at all. 1 Wayne R. LaFave, Search and Seizure § 2.2(f), at 461-64 (3d ed. 1996).

¶ 26. The application of art. I, § 11 to canine sniffs has not yet been decided, even by Garcia, which limited its consideration to the federal constitution. And I find persuasive the reasoning of the various commentators and out-of-state decisions that have rejected Place, and concluded that dog sniffs are searches under their state constitutions. Although the Wisconsin Supreme Court has generally held that our search and seizure law under art I., § 11 should conform to Supreme Court jurisprudence, e.g., State v. Guy, 172 Wis. 2d 86, 93, 492 N.W.2d 311 (1992), it is also true that we may interpret state constitutional provisions more expansively than does the Supreme Court with respect to their federal counterparts, State v. Hansford, 219 Wis. 2d 226, 242, 580 N.W.2d 171 (1998). Further, our supreme court has recently stated that it should not act "as [a] mere rubber stamp[ of the U.S. Supreme Court]" when interpreting art. I, § 11 and that it "is our responsibility to examine the State Constitution independently." State v. Ward, 2000 WI 3, ¶ 59, 231 Wis. 2d 723, 604 N.W.2d 517. Because our supreme court generally follows the Supreme Court's view of federal counterparts to the Wisconsin Constitution, this court is not free to ignore that jurisprudence. This case, however, would serve as a vehicle to provide Wisconsin residents with protection against random dog-sniff searches that the residents of Alaska, Colorado, Illinois, New Hampshire, New York and Pennsylvania enjoy.

       Forbes testified that Cora would indicate that contraband was located in a car by holding her breath and making a scratching motion.

       The warrant to search the residence is not part of the record. The State does not argue, however, that the warrant's scope extended to searching vehicles parked on the street.

       We did not consider the applicability of art. I, § 11 of the Wisconsin Constitution.

       At least one federal court has concluded that, despite United States v. Place, 462 U.S. 696 (1983), and United States v. Jacobsen, 466 U.S. 109 (1984), dog sniffs are searches when they are performed outside a home because there is a greater expectation of privacy in homes. See United States v. Thomas, 757 F.2d 1359, 1366-67 (2d Cir. 1985). Another district court concluded, without addressing Place, that a canine sniff of a person was a search. United States v. Kelly, 128 F. Supp. 2d 1021, 1023 (S.D. Tex 2001). But these conclusions are questionable given Place's broad rationale. Further, neither Place nor Jacobsen suggested that the object subject to search was an important or even relevant consideration in determining whether a dog sniff is a search.

        State v. Garcia, 195 Wis. 2d 68, 535 N.W.2d 124 (Ct. App. 1995), did not address this issue because it concluded that the defendant had given consent to search.

       This suggests that there may be a need to obtain additional evidence to support probable cause when the dog has not yet established a proven track record that it is reliable.

       At least one court has opined that the reason dogs may alert incorrectly is the high percentage of cash that contains sufficient quantities of cocaine to alert a dog. United States v. Six Hundred Thirty-Nine Thousand Five Hundred Fifty-Eight Dollars ($639,558) in U.S. Currency, 955 F.2d 712, 714 n.2 (D.C. Cir. 1992). The court stated that experts have concluded that anywhere from seventy to ninety-seven percent of all currency in the United States is contaminated by minute, but detectable, amounts of cocaine. Id. Obviously, no matter how well trained a dog is at detecting narcotics, this issue could still lead to inaccurate results.
      For other discussions on the accuracy of dog sniffs, see Robert C. Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog, 85 Ky. L.J. 405, 408-09 (1996-97), and Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of the Dog Scent Lineup, 42 Hastings L.J. 17 (1990).

       Although the majority opinion in Kyllo v. United States, 533 U.S. 27 (2001), did not discuss United States v. Place, 462 U.S. 696 (1983), some courts have concluded that Kyllo undermines the logic behind a conclusion that dog sniffs are not searches. See, e.g., People v. Haley, 41 P.3d 666, 671 n.2 (Colo. 2001). This view is buttressed by the dissent in Kyllo, which argued that the majority's reasoning was inconsistent with Place. Kyllo, 533 U.S. at 4748 (Stevens, J., dissenting). Although there may be some tension between the two decisions, the use of dog sniffs and thermal imaging devices can be distinguished in that thermal imaging devices reveal both less and more than a dog sniff. They reveal less in the sense that a thermal imaging device does not detect illegal activity directly, but only determines how much and where heat is emanating from a home. Thermal imaging devices reveal more because details learned through such devices may have nothing to do with illegal activity. An example provided by Justice Scalia in Kyllo was that a thermal imaging device could reveal "at which hour each night the lady of the house takes her daily sauna and bath." Id. at 38.

        See also United States v. Beale, 736 F.2d 1289, 1293 (9th Cir. 1984) (Pregerson, J., dissenting). Judge Pregerson wrote:
      When using dogs to ferret out contraband, the police are not simply walking around hoping to come across evidence of a crime. Instead, they are investigating. They are trying to find something. They are seeking evidence in hidden places. If this activity does not qualify as a "search" then I am not sure what does.


author: DYKMAN, J.

text:
    State of Wisconsin ex rel. Odis Purifoy, Petitioner-Appellant, v. Ron Malone, Deirdre A. Morgan, and David A. Schwarz, Respondents-Respondents.
    Court of Appeals

      No. 01-2042.

      Submitted on briefs December 7, 2001.

    Decided May 2, 2002.

    2002 WI App 151
    (Also reported in 648 N.W.2d 1.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of Odis Purifoy, pro se.

    On behalf of the respondents-respondents, the cause was submitted on the brief of James E. Doyle, attorney general arid Karla Z. Keckhaver, assistant attorney general.
    Before Vergeront, PJ., Dykman and Deininger, JJ.
   DYKMAN, J.

¶ 1. Odis Purifoy appeals pro se from an order dismissing his petition for a writ of habeas corpus. He argues that his grant of parole was rescinded in violation of Wis. Admin. Code § PAC 1.07(5)(c). The circuit court concluded that Purifoy's claim should be construed as a petition for certiorari review and that Purifoy had failed to file his petition within the forty-five-day deadline under Wis. Stat. § 893.735 (1999-2000). Accordingly, it dismissed his petition.

¶ 2. Although we agree that certiorari is the appropriate procedural device, we conclude that Purifoy's petition was timely, assuming that he received notice that he was not entitled to a hearing from Deirdre Morgan, the parole commission chairperson, on June 6, 2001. We further conclude that Morgan rescinded a grant of parole and not a "recommended grant" as Morgan contends. We remand to allow Purifoy to supplement the record with the June 6 letter from Morgan. Once this is done, the circuit court should order that Morgan provide Purifoy with a hearing, as required by Wis. Admin. Code § PAC 1.07(5)(c).

Background

¶ 3. The relevant facts are not disputed. Odis Purifoy is an inmate at the Oak Hill Correctional Institute (OCI). Jerry E. Smith, Jr., the chairperson for the State of Wisconsin Parole Commission, sent a document dated March 6, 2001, to Ron Malone, OCI's warden, regarding Purifoy's parole. The document had the subject heading "Recommended Parole Grant" and provided in part:

The eligibility for parole of the above-named prisoner [Purifoy] was considered by the Parole Commission and it was determined that the applicable conditions of the Wisconsin Statutes and Wisconsin Administrative Code have been satisfied.
IT IS ORDERED that the Warden/Superintendent of the institution to which the prisoner is assigned shall effect his or her release to parole supervision, or to detainer if any exists, on or after 11/19/01 in accordance with the Order of the Parole Commission, the laws of Wisconsin, the rules of the Department of Corrections, and the instructions of the parole agent.

Following this order was a list of conditions of supervision.

¶ 4. Soon after, Deirdre Morgan replaced Smith as the chairperson for the parole commission. In a document dated April 18, 2001, Morgan wrote:

The recommended grant dated 3/6/01 authorizing parole on or after 11/19/01 is now CANCELED. A review of this case makes the Inmate an unreasonable risk and he has NOT served sufficient time for an atrocious crime. This decision overrides any previous Commission decision. You have been deferred 12 months. Your [parole eligibility date] is established as today's date 04/18/02.

A copy of the decision "canceling" Purifoy's parole was sent to Purifoy.

¶ 5. After receiving the decision, Purifoy sent several letters to both David Schwarz, the administrator for the Division of Hearings and Appeals, and Morgan, requesting a hearing. When these requests were denied, Purifoy petitioned the circuit court for a writ of habeas corpus. The petition was dated June 24, 2001, but it was not filed in the circuit court until July 3, 2001. The circuit court concluded that habeas relief was unavailable but liberally construed the complaint as seeking certiorari review. The court noted, however, that Wis. Stat. § 893.735 requires that an action seeking certiorari review be brought within forty-five days after the cause of action accrues. The court concluded that Purifoy's cause of action accrued on April 18, 2001, when Morgan "canceled" his grant of pairóle. Because Purifoy had not filed the action until July 3, 2001, the court then dismissed the action under Wis. Stat. § 802.05(3)(b) as untimely. Purifoy appeals.

Opinion.

A. Writ Procedure

¶ 6. Purifoy sought habeas corpus relief before the circuit court. The circuit court concluded that Purifoy could not seek a writ of habeas corpus because habeas is generally not available to challenge parole decisions and because certiorari review provided an alternative adequate remedy. See State ex rel. Dowe v. Circuit Court for Waukesha County, 184 Wis. 2d 724, 729, 516 N.W.2d 714 (1994); State ex rel. Reddin v. Galster, 215 Wis. 2d 179, 183-84, 572 N.W.2d 505 (Ct. App. 1997); see also State ex rel. Hansen v. Circuit Court for Dane County, 181 Wis. 2d 993, 996 n.2, 513 N.W.2d 139 (Ct. App. 1994).

¶ 7. Relying on State ex rel. Szymanski v. Gamble, 2001 WI App 118, 244 Wis. 2d 272, 630 N.W.2d 570, Purifoy argues that habeas is the appropriate procedural mechanism. In Szymanski, the plaintiff filed a habeas corpus action after being denied parole. Id. at ¶ 5. He argued that he was entitled to be released on parole because the parole commission had found extraordinary circumstances warranting early release under Wis. Stat. § 304.06(lm). Id. In rejecting the State's argument that certiorari review was the proper remedy rather than habeas corpus, we stated: "Szymanski is not challenging the commission's denial of parole and he does not seek review of the commission's latest decision in that regard. Rather, Szymanski contends that he is illegally restrained because the commission has found extraordinary circumstances and waived the minimum service requirement pursuant to Wis. Stat. § 304.06(1m)." Id. at ¶ 7.

¶ 8. We agree with the respondents that certiorari review is the appropriate procedural device. See Coleman v. Percy, 96 Wis. 2d 578, 588, 292 N.W.2d 615 (1980); State v. Goulette, 65 Wis. 2d 207, 215, 222 N.W.2d 622 (1974). When Purifoy filed his petition, he was not asserting that he was then being illegally restrained. Rather, he was seeking review of Morgan's decisions rescinding his grant of parole effective on or after November 19, 2001, and refusing to grant him a hearing. The rationale of Szymanksi, therefore, does not apply. However, because we are required to liberally construe mislabeled pleadings, see bin-Rilla v. Israel, 113 Wis. 2d 514, 521, 335 N.W.2d 384 (1983), we will treat Purifoy's petition for habeas relief as one for certiorari, as did the circuit court.

B. Time Limit under Wis. Stat. § 893.735

¶ 9. Under Wis. Stat. § 893.735(2), an "action seeking a remedy available by certiorari made on behalf of a prisoner is barred unless commenced within 45 days after the cause of action accrues." An action is "commenced at the time that the prisoner files a petition seeking a writ of certiorari with the court." Section 893.735(3). There is no question that this requirement applies to Purifoy. See State ex rel. Frohwirth v. Wisconsin Parole Comm'n, 2000 WI App 139 ¶¶ 6-7, 237 Wis. 2d 627, 614 N.W.2d 541 (holding that § 893.735 applies to a certiorari petition seeking review of a parole denial unless the petitioner has been incarcerated outside Wisconsin within forty-five days of the denial). The respondents argue that Purifoy is seeking review of the commission's April 18, 2001 decision. Because Purifoy's petition was not filed with the circuit court until July 3, 2001, the respondents contend, Purifoy failed to meet the forty-five-day deadline. We disagree.

¶ 10. Purifoy was not required to bring his petition within forty-five days of April 18. Although Purifoy's petition challenges Morgan's right to rescind his parole grant, he also challenges the decision to deny him the hearing to which he believed he was entitled. Therefore, his cause of action did not accrue until he received notice that he would not receive a hearing. After Morgan rescinded his parole grant on April 18, Purifoy sent letters to both David Schwarz, the administrator of the Division of Hearings and Appeals, and Morgan, requesting that he receive a hearing. In letters dated May 18, 2001, and May 25, 2001, William Lund-strom, an assistant administrator of DHA, denied his request. It appears that Morgan responded to Purifoy in a letter dated June 6, also stating that Purifoy was not entitled to a hearing.

¶ 11. Assuming that June 6 is the date that Puri-foy was informed by Morgan that he would not receive a hearing, we conclude that this is when his cause of action accrued. It was Morgan who rescinded Purifoy's grant of parole and thus it was Morgan's ultimate responsibility to ensure that Purifoy received a hearing, if he was entitled to receive one. The regulation upon which Purifoy relied, Wis. Admin. Code § PAC 1.07(5)(c), states that when parole has been granted and later denied:

[T]he inmate shall be provided written notice of the reasons for the denial, disclosure of evidence against the inmate, the right to appear and be heard by an impartial hearing examiner from the division of hearings and appeals in the department of administration, the right to present witnesses and evidence and to confront and cross-examine witnesses against the inmate, the right to receive a written statement of the evidence relied upon and the right to be represented by counsel.

(Emphasis added.) Although the regulation is not explicit, the only reasonable inference is that it is the parole commission that provides written notice of reasons, the evidence against the inmate, and a hearing before an impartial examiner.

¶ 12. If June 6 was the date Purifoy's cause of action accrued, his forty-five-day deadline under Wis. Stat. § 893.735 did not expire until July 23. Purifoy's petition was filed with the circuit court well before this date, on July 3, and therefore is timely. We will therefore consider the merits.

C. Grant v. Recommended Grant

¶ 13. On a certiorari review of a decision of the parole commission, our scope of review is limited to whether: (1) it kept within its jurisdiction; (2) it acted according to law; (3) its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) the evidence was such that it might reasonably make the order or determination in question. Hansen, 181 Wis. 2d at 998-99.

¶ 14. Morgan argues that she was entitled to "cancel" Purifoy's parole and refuse to give him a hearing because the former chairperson, Jerry E. Smith, Jr., had given Purifoy only a "recommended" grant of parole rather than an actual grant. Under Wis. Admin. Code § PAC 1.07, parole recommendations may be rejected by the chairperson at any time; the only requirement is that "the chairperson shall inform the inmate that the recommendation has been rejected." Wis. Admin. Code § PAC 1.07(5)(a). However, "subsequent to the issuance of a grant of parole ... but prior to release of the inmate," the grant may be rescinded only if "circumstances require denial of the grant," and then the inmate must be provided with a hearing and other procedural guarantees. Wis. Admin. Code § PAC 1.07(5)(c). Therefore, the issue is whether the March 6 document is a grant or a recommended grant.

¶ 15. In support of her argument that the March 6 document was a recommended grant, Morgan relies on two facts: (1) the subject line of the document read "Recommended Parole Grant"; and (2) Smith did not sign the document and it did not bear the seal of the parole commission. With regard to the first fact, we disagree that the particular label given to a grant is dispositive. Rather, the regulations demonstrate persuasively that Smith had granted Purifoy parole on March 6.

¶ 16. Under Wis. Admin. Code § PAC 1.07(1), it is commissioners, not the chairperson, who make parole recommendations. They make such a recommendation to the chairperson, who may then reject that recommendation. But this is not what happened in Purifoy's case. Here, the decision of one chairperson was rescinded by a subsequent chairperson. Notably, the regulations provide no mechanism under which a chairperson may make a "recommendation" and subsequently "cancel" it. This is not surprising. The parole commission chairperson has "final parole granting authority." Wis. Stat. § 304.01. It therefore makes no sense to classify decisions of the chairperson regarding parole as "recommendations," as there is no one to whom the recommendation would be made, other than the chairperson.

¶ 17. The apparent illogic of a chairperson making a recommendation to him or herself was not addressed by Morgan. It was, however, noted by Purifoy, who wrote in his pro se brief: "Who pray tell... would Jerry E. Smith be making this recommendation to? Surely it makes absolutely no sense that he would be making it to himself!" We agree with Purifoy. No reasonable interpretation of the regulations provides for chairperson recommendations.

¶ 18. Morgan also fails to point to any statute or regulation that requires parole grants be signed by the chairperson or bear the commission's seal. Therefore, regardless whether including a signature and a seal is "the practice" of the parole commission, their absence does not invalidate the grant or make it less final.

¶ 19. Wisconsin Admin. Code § PAC 1.03(12) defines "parole grant" as "the action by the chairperson or designee ordering the release of an inmate to field supervision by the department of corrections on or after a specific date." The March 6 document falls squarely into that definition. Smith (the chairperson) ordered the release of Purifoy to parole supervision on or after November 19, 2001. The document includes conditions of supervision. We therefore conclude that Smith issued a parole grant, not a recommendation, to Purifoy on March 6. Morgan was not entitled to rescind this grant without complying with the requirements of Wis. Admin. Code § PAC 1.07(5)(c).

¶ 20. Under Wis. Admin. Code § PAC 1.07(5)(c), the parole commission may rescind a parole grant only if there are "circumstances" "subsequent to the issuance of the grant" that require the rescission. Further, Purifoy has the right to be provided with the reasons for the parole rescission and the evidence supporting that decision and a right to a hearing before DHA, to present evidence and witnesses and to be represented by counsel at the hearing. Wisconsin Admin. Code § PAC 1.07(5)(c). We therefore remand for that purpose.

By the Court. — Order reversed and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Because Purifoy is seeking review of Morgan's actions, we agree with the respondents that Ron Malone and David Schwarz were improperly named as defendants. On remand, Malone and Schwarz should be dismissed from the action.

       This letter, signed by Morgan, is included in the appendix to Purifoy's brief, but was not included in the circuit court record. Morgan, however, does not dispute its authenticity.

       Purifoy's letter-writing efforts could also be viewed as an attempt to exhaust his potential administrative remedies before seeking relief in the circuit court. It would hardly be equitable to deny relief to Purifoy for waiting to file an action under these circumstances when it is the goal of Wis. Stat. § 893.735 to "restrict frivolous lawsuits" and "to limit broadly prisoner litigation at taxpayer expense." State ex rel. Cramer v. Wisconsin Court of Appeals, 2000 WI 86, ¶ 40, 236 Wis. 2d 473, 613 N.W.2d 591. We need not decide, however, whether an attempt to seek an administrative remedy tolls the forty-five-day deadline because we conclude that Purifoy satisfied the requirements of the statute on other grounds.

       This conclusion is further supported by the May 25 letter from DHA, which stated: "[H]earing requests in these cases have been made directly by the Parole Commission rather than the inmate."

       Also assuming that June 6 is the date Purifoy received notice from Morgan that he was not entitled to a hearing, we need not consider when Purifoy placed his petition in the mailbox for the purpose of tolling the limit under State ex rel. Shimkus v. Sondalle, 2000 WI App 238, 239 Wis. 2d 327, 620 N.W.2d 409.

       Morgan does not argue that her interpretation of the PAC regulations is entitled to deference under Pfeiffer v. Board of Regents of the University of Wisconsin System, 110 Wis. 2d 146, 328 N.W.2d 279 (1983). Even if it were, we would nevertheless conclude that her interpretation was "inconsistent with the language of the regulation" and thus not controlling. Id. at 154-55.

       The document provided:
      CONDITIONS OF PAROLE SUPERVISION:
      ■ Programming as prescribed by agent.
      ■ Offender to complete alcohol and drug treatment.
      ■ Offender to complete domestic violence counseling.
      * Offender to have no contact with Jacqueline Purifoy.
      ■ Offender to obtain/maintain employment.
      ■ Offender may be placed on Electronic Monitoring System.
      ■ Offender to pay all restitution, court obligations, etc.

       We do not determine the "circumstances," as that term is used in Wis. Admin. Code § PAC 1.07(5)(c), which would permit a parole commission chairperson to rescind a grant of parole, or otherwise consider possible substantive limitations on a chairperson's parole rescission authority.


author: WEDEMEYER, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Eugene P. Opalewski, Defendant-Appellant.

    Court of Appeals

      No. 01-1864-CR.

      Submitted on briefs February 5, 2002.

      Decided May 7, 2002.

    2002 WI App 145
    (Also reported in 647 N.W.2d 331.)

      On behalf of the defendant-appellant, the cause was submitted on the brief of Lorinne J. Cunningham of Schmidt, Martz & Smith, Ltd., Milwaukee.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general and David J. Becker, assistant attorney general.
    Before Wedemeyer, PJ., Schudson and Curley, JJ.

       Petition to review denied 7-26-02.

   WEDEMEYER, PJ.

¶ 1. Eugene P Opalewski appeals from a judgment of conviction for first-degree sexual assault of a child and incest with a child, contrary to Wis. Stat. §§ 948.02(1) and 948.06(1) (1999-2000). Opalewski asserts three claims of error: (1) the trial court erroneously exercised its discretion by admitting evidence of prior acts of sexual assault; (2) improper questioning and final argument by the State exacerbated the error of admitting other acts evidence; and (3) the trial court inadequately instructed the jury on how to properly assess the other acts evidence. Because the trial court did not erroneously exercise its discretion in admitting the other acts evidence or in instructing the jury in regard to the other acts evidence, we affirm.

I. BACKGROUND

¶ 2. Opalewski was arrested and charged with first-degree sexual assault and incest with a child based on reports that between April and late August 1999, he had sexual contact with his five-year-old daughter while the two showered together. The sexual contact consisted of her touching Opalewski's penis as she washed parts of his body. The incident came to light as the result of telephone calls made to several social service agencies by Opalewski's forty-three-year-old daughter, Kim B. She relayed information that Opalewski was a convicted child molester and that he was taking showers with his minor daughter.

¶ 3. The State filed a pretrial motion seeking to introduce, among other matters, evidence of Opalewski's past sexual abuse of his two adult daughters and the children of a former live-in girlfriend. The State argued for the admission of the other acts evidence on three grounds: (1) proof of intent; (2) proof of motive; and (3) absence of mistake. Opalewski countered that the evidence was too remote in time and circumstance to be admissible as other acts evidence. In addition, Opalewski argued that if such evidence were admitted, it would relate only to the issue of intent; but, because the evidence was so dissimilar to the charged offenses, it could not be helpful to the jury on the element of intent. Instead, it was likely to inflame the jury.

¶ 4. After hearing arguments on the motion, the trial court ruled that the proposed evidence was admissible on the issues of intent, motive, and absence of mistake. It further indicated it would give a cautionary instruction on the proper consideration of such evidence. The jury convicted Opalewski of both charges. He now appeals.

II. ANALYSIS

¶ 5. Opalewski contends that the trial court erroneously exercised its discretion in admitting the other acts evidence for four reasons: (1) it failed to explicate in any detail the basis for admitting the evidence; (2) the admitted evidence was too remote in time and circumstance from the violations with which he was charged; (3) the probative value of admitting such evidence was substantially outweighed by the danger of unfair prejudice; and (4) the unfair prejudice visited upon him could not be cured by jury instructions. We shall address each issue in turn.

¶ 6. Opalewski first contends that because the trial court did not adequately set forth its reasoning, its decision constituted reversible error. While we agree that the trial court failed to adequately explain the basis for its ruling, we are not persuaded that reversal is required.

¶ 7. In evidentiary matters, a trial court's failure to set forth the basis for its ruling whether to admit or refuse to admit evidence constitutes an erroneous exercise of discretion. State v. Sullivan, 216 Wis. 2d 768, 781, 576 N.W.2d 30 “(1998). When such failure occurs, however, we are required to independently review the evidence to determine whether it supports the trial court's decision. State v. Alsteen, 108 Wis. 2d 723, 728, 324 N.W.2d 426 (1982). We shall now engage in that exercise.

¶ 8. In commencing our review of the record, we are guided by the dictates of Sullivan, 216 Wis. 2d at 772-73, which set forth a three-step analytical process to be applied in determining the admissibility of other acts evidence. This methodology seeks answers to the following three questions:

(1) Is the other acts evidence offered for an acceptable purpose under Wis. Stat. § 904.04(2), such as establishing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident?

(2) Is the other acts evidence relevant, considering the two facets of relevance set forth in Wis. Stat. § 904.01? The first consideration in assessing relevance is whether the other acts evidence relates to a fact or proposition that is of consequence to the determination of the action. See § 904.01. The second consideration in assessing relevance is whether the evidence has probative value; that is, whether the other acts evidence has a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence. Id.

(3) Is the probative value of the other acts evidence substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative, evidence? Wis. Stat. § 904.03.

¶ 9. In State v. Davidson, 2000 WI 91, ¶ 36, 236 Wis. 2d 537, 613 N.W.2d 606, our supreme court further explained that when, as here, the case involves the sexual assault of a child, "the greater latitude rule" for the admission of other acts evidence is to be applied at each stage of the Sullivan analysis.

¶ 10. Opalewski's claim of trial court error for admitting other acts evidence relates to four victims of his prior sexual advances: his two adult daughters (when they were adolescents), and the two children of his former live-in girlfriend. In the former, he was not prosecuted but, in the latter, he was prosecuted, was convicted, and served a prison term.

¶ 11. Opalewski's forty-three-year-old daughter, Kim B., testified that when she was between ten and fourteen years old, Opalewski assaulted her by repeatedly crawling into her bed while naked, and forcing her to masturbate him. The other adult daughter, forty-four-year-old Karen T., testified that, starting when she was ten years old, Opalewski forced her to perform oral sex at least once a week, for about four years.

¶ 12. Donna S., the former live-in girlfriend, testified about what happened to her two children, Amanda and James. She told the jury that in the early 1980's, Amanda, then age nine, and James, then age six, were sexually assaulted by Opalewski multiple times. She actually caught Opalewski in the act of assaulting James.

¶ 13. Testifying at trial in the instant case, Opal-ewski denied sexually assaulting Kim, but admitted assaulting Karen and expressed shame for his actions. He also admitted his sexual conduct with Amanda and James. He stated he pled guilty as a result, served a five-year prison term, and a subsequent period of parole.

¶ 14. Opalewski testified that he had showered with his minor daughter before this incident. He said that during these showers, he would wash her body. What distinguished this incident, however, was that it was the first time she washed his body. Opalewski stated she asked him if she could wash him. Her video testimony was to the contrary; she stated Opalewski requested that she wash his body. Opalewski stated that when she started to wash his penis with a bar of soap, he asked her to stop, and she did.

A. Similarity.

¶ 15. In presenting his challenge to the admission of the other acts evidence, Opalewski first contends that the other acts evidence was too dissimilar in circumstances to the crimes with which he is charged to be relevant. See Sullivan, 216 Wis. 2d at 786-87. More specifically, he argued that his five-year-old daughter was much younger than the victims in any of the prior incidents. The shower-washing incident with her was ambiguous in nature; whereas, the prior acts evidence constituted clear, egregious sexual assaults. Further, the prior acts were repetitive, and the incident with her was isolated. Opalewski's distinctions are unavailing.

¶ 16. "The required degree of similarity between the other act and the charged offense and the required number of similar other acts cannot be formulated as a general rule." Id. at 787. We reject Opalewski's contention that the acts are dissimilar.

¶ 17. At the time that the sex acts were initiated, the victims' ages ranged from five years for his daughter, to six through ten years for the other four victims. This is not so dissimilar as to render the evidence inadmissible. Moreover, it was sheer fortuity that the prior acts were repetitive, rather than singular, as in the instance of his five-year-old daughter. That is, the other acts were repetitive because Opalewski's conduct was not discovered after the first incident. In attempting to differentiate the nature of the current charges with the other acts evidence, Opalewski ignores the one common element contained in all of the incidents; that is, the pattern for their occurrence. In each instance, a child within a familial or quasi-familial setting was sexually assaulted. Cf. State v. Tabor, 191 Wis. 2d 482, 494-95, 529 N.W.2d 915 (Ct. App. 1995). In each instance, Opalewski's relationship with the child provided him with a protective shield from discovery of his unlawful acts.

¶ 18. An element of the offenses with which Opal-ewski was charged is "sexual conduct." "Sexual conduct" means:

[i]ntentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant.

Wis. Stat. § 948.01(5) (emphasis added). The other acts evidence demonstrated that the touching was intentional, the motive was sexual gratification and the act of having his minor daughter wash his penis was not a mistake, all factors of consequence in this case. Thus, these other acts are relevant in proving intent, motive, and absence of mistake.

B. Remoteness in Time.

¶ 19. Opalewski next claims that the other acts evidence was too remote in time to the alleged crime, and thus was irrelevant. He asserts that the alleged sexual assault on his daughter Kim, and the admitted sexual assaults upon Karen, occurred in the late 1960's and early 1970's, more than a quarter of a century ago, and the incidents involving Amanada and James occurred in 1983-84, more than fifteen years before the conduct in the instant case. Again, we are not persuaded.

¶ 20. Wisconsin appellate courts have yet to address the extent of remoteness presented in this case. Suffice it to say that remoteness in time does not necessarily render the proffered evidence irrelevant. It may do so, however, when the elapsed time is so great as to negate all rational or logical connections between the fact to he proven and the other acts evidence. State v. Mink, 146 Wis. 2d 1, 16, 429 N.W.2d 99 (Ct. App. 1988) (concluding that a span of twenty-two years did not render the other acts evidence irrelevant). "[T]he element of the remoteness in time 'must be balanced against the uniqueness of the prior act of which evidence is offered.'" Sanford v. State, 76 Wis. 2d 72, 81-82, 250 N.W.2d 348 (1977) (citation omitted). Stated otherwise, "[i]n considering time, we must take into account. .. not only the time that has passed, hut also the opportunities presented over that period for the defendant to repeat the acts." State v. Kuntz, 160 Wis. 2d 722, 747, 467 N.W.2d 531 (1991).

¶ 21. As noted earlier in this opinion, there is a similarity between the other acts evidence and the charges lodged against Opalewski in this case. All of the acts, both past and present, involved Opalewski taking advantage of minor children, with whom he shared a familial or quasi-familial relationship, for his own sexual gratification. This is a critical similarity. That he would have more than one opportunity to sexually molest minors in his family is unusual, but here, Opalewski engaged in such activities three times. We conclude that the record was sufficient for the trial court, in its discretion, to conclude that the other acts were not so remote to attenuate a rational or logical connection between the acts.

¶ 22. As pointed out by the State in its brief, the time factors in this case actually enhance, rather than detract from, the other acts' relevance and probative value. The other acts suggest a pattern of consistent activity that in its totality is significantly more probative than would be the constituent parts standing alone. Opalewski apparently took advantage of minor children, with whom he shared a familial relationship, every time he had the opportunity. The sexual activity which Opalewski directed toward his own daughters and the minor children of his live-in girlfriend, all in at least a quasi-familial setting, made the consequential facts, i.e. intent, motive, and absence of mistake, more probable than they would have been without that evidence. Therefore, they are relevant to a determination of intent, motive, or absence of mistake. This is particularly true given the testimony of his former girlfriend that he said "when it came to sex, man, woman or child, eight months to eighty years, nothing was off limits."

C. Prejudice.

¶ 23. Opalewski next claims that the probative value of the other acts evidence was substantially outweighed by the danger of unfair prejudice. Unfair prejudice arises either when the evidence admitted has a tendency to influence the outcome of the jury deliberations by the use of improper means, or when it arouses in the jury a sense of horror or desire to punish. Sullivan, 216 Wis. 2d at 789-90.

¶ 24. Opalewski argues that the State presented to the jury an impermissible inferential chain, i.e. the prior acts allowed the jury to infer that he wás a dangerous child molester which, in turn, allowed the jury to conclude that he was acting in conformity with his character during the shower incident.

¶ 25. The first basis for this assertion of error was the testimony of Opalewski's adult daughter, Kim. Significantly, the portion of Kim's testimony upon which Opalewski relies was not elicited by the State, but was provoked by the cross-examination of Opalewski's own counsel. Further, Kim's responses were not objected to as being non-responsive. If any prejudice resulted from this interrogatory foray, it was a self-inflicted wound and, therefore, not this court's responsibility to mend. See Ohler v. United States, 529 U.S. 753, 755 (2000) (holding that "a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted").

¶ 26. Second, Opalewski argues that the challenged evidence was unfairly prejudicial because it was more likely to produce hostility and revulsion than to help the jury determine his intent, motive, or absence of mistake. In particular, he complains that his former live-in girlfriend should not have been permitted to testify about the sexual assaults of her two children, Amanda and James. He contends the trial court should have excluded her statement describing Amanda's request: "[P]lease, don't let him tuck me in at night anymore. Please mom." Moreover, he argues the trial court should have excluded her testimony that she accidentally witnessed Opalewski molesting James. To properly assess the merits of this claim, we have set forth below pertinent parts of the testimony of Donna S., the former live-in girlfriend.

¶ 27. From a review of this testimony, we conclude there is nothing contained in this challenged portion, of the other acts evidence that could provoke "hostility or revulsion." The sexual contact with thedaughter Amanda was described, without detail, as "fondling" which "required her to do other things." As for James, no description was given of Opalewski's sexual contact with him. The manner in which Donna S. presented the other acts evidence relating to Amanda and James did not provoke hostility and revulsion; no unfair prejudice outweighed the probative value of the other acts evidence.

D. Prosecutor's Remarks.

¶ 28. Opalewski also claims that the prosecutor's remarks during the trial increased the prejudicial effect of the other acts evidence. The remarks of the prosecutor about which he complains are: (1) the questions put to Opalewski's adult daughters about the fact that he had not been prosecuted for his sexual contact with them; and (2) the closing argument suggesting that the jury should convict him to prevent him from committing further assaults upon his minor daughter. Because he waived his right to raise this issue on appeal, we reject his argument.

¶ 29. Opalewski failed to object to the testimony of his adult daughters that he was never prosecuted for the assaults on them. Moreover, no objection was lodged regarding the contents of the prosecutor's closing argument. Therefore, Opalewski is in no position to now complain that such questions or comments were considered by the triers of fact. He waived his right to raise this issue on appeal. See State v. Mayer, 220 Wis. 2d 419, 430, 583 N.W.2d 430 (Ct. App. 1998) ("We will not review a decision to admit evidence when the evidence was admitted without an objection to the trial court."); State v. Guzman, 2001 WI App 54, ¶ 25, 241 Wis. 2d 310, 624 N.W.2d 717 ("In order to preserve this objection [to the prosecutor's closing argument], [the defendant] was obligated to make a contemporaneous objection and move for a mistrial."). Thus, this claim of error fails.

E. Jury Instructions.

¶ 30. Lastly, Opalewski contends that the trial court erroneously exercised its discretion because the jury instructions it gave relating to other acts evidence were inadequate to prevent any unfair prejudice from occurring. He claims that no limits were placed on the admissibility of the other acts evidence. He further claims that confusion occurred because the jury was told both that the evidence that he had been convicted of other crimes could be used "solely" for determining the credibility of his testimony and also for evidence on the issue of intent, motive, and absence of mistake. We reject this claim of error.

¶ 31. First, the cautionary instruction given by the trial court was specifically limited to the purpose for which the evidence was properly received. "Normally, a cautioning instruction is sufficient to cure any adverse effect attendant with the admission of other acts evidence." State v. DeKeyser, 221 Wis. 2d 435, 452, 585 N.W.2d 668 (Ct. App. 1998). "Jurors are presumed to follow the court's instructions." State v. Adams, 221 Wis. 2d 1, 12, 584 N.W.2d 695 (Ct. App. 1998). Here, the cautionary instruction specifically informed the jurors that they were not to use the evidence that Opalewski may have committed sexual assaults in the past "to conclude that [he] has a certain character or a certain character trait and that [he] acted in conformity with that trait or character with respect to the offense charged in this case." Rather, the jury was told if it found that such conduct occurred, it could be considered "only on the issue of motive, intent, absence of mistake, or accident." Moreover, the prosecutor advised the jury of this requirement of specificity, by emphasizing, during closing argument, that the other acts evidence had been introduced "because it goes to the Defendant's state of mind [h]is motive, his intent, his purpose, and the absence of mistake or accident." There was not the slightest suggestion that the evidence was to be used as an indication of character.

¶ 32. Second, the record belies the assertion that the given instructions created confusion as to how evidence of past criminal convictions was to be used versus other acts evidence. Contrary to Opalewski's argument in his brief, the two instructions were not given at the same time or even serially. Five paragraphs separated the two instructions. Furthermore, we find no basis in the record to conclude that a reasonable jury could not discern the distinction between the two instructions and how they were to be applied. Consequently, the normal rule as set forth in DeKeyser applies.

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       During the cross-examination of Kim, the following exchange occurred:
      [Kim]: ... I had wanted to have a conversation with about it — with him about it, ask him to never do this again to another child.
      [Defense]: Were you aware at that time of these allegations, the things you heard or concerns that — that this Filipino community had raised with you?
      [Kim]: No, I don't think at that time I did.
      [Defense]: Did you —■
      [Kim]: I just, I'm aware of what — child molesters have a pattern, the recidivism rate. Their proclivity for doing so over and over again.
      [Defense]: This is what you've learned during your therapy?
      [Kim]: No, over the years reading books.
      [Defense]: And was that meeting productive?
      [Kim]: I hoped it would be.
      [Defense]: Was it.
      [Kim]: Obviously it wasn't or we wouldn't be here.

       Ms. S. provided the following testimony:
      Q ... How is it that you know Mr. Opalewski?
      A We used to be involved.
      Q And how — for how long of a period were you involved?
      A About five years.
      Q And during those five years, did you live in the same residence?
      A Yes, we did.

        Q And can you give us an idea of time frame, when was that that you were living with Mr. Opalewski?
      A From 1980 until 1985.
      Q Do you have any children, Ms. S.[]?
      A I have three.
      Q And can you tell us in 1980 to 1985, what were their ages? What are their names and what were their ages at that time.
      A My daughter, Amanda, she was born in 1971, so she would have been 9, 10.
      Q Okay. And do you have other children other than Amanda?
      A My son James was about six.
      Q What year was he born in?
      A '80 — not '80, ’74.
      Q And you have another child?
      A I have a younger daughter, she was born in '78.
      Q What's her name?
      A Joy.
      Q Joy? During the time that you were living with Mr. Opalewski, did it come to your attention that he had done something with respect to either of your children?
      A Yes, he had.
      Q And how did that come to your attention?
      A My children told me.

        Q And which children?
      A My daughter Amanda and my son James.
      Q And what — were the things that they told you sexual in nature?
      A Yes.
      Q Did he deny it?
      A Oh, definitely.
      Q And what happened then?
      A It became a little harder for him to deny when I walked into a room and caught him doing this to my son.
      Q To James?
      A Yes.
      Q Did you — did Mr. Opalewski ever admit to you that he had sexually abused you daughter, Amanda?
      A Yes.
      Q ... And was it your understanding that this happened with respect to Amanda one time or more than one time?
      A Many, many, many times. She came to me one night and asked, please, don't let him tuck me in at night anymore. Please, mom.

        Q And is it your understanding that it involved fondling?
      A Yes.
      Q And did it require her to do things to him?
      A Yes, it did.
      Q And with respect to James, did Mr. Opalewski ever admit to you sexually assaulting your son, James?
      A He couldn't avoid admitting it, I walked in on him.
      Q And did he ever admit to you that it happened on more than one occasion?
      A Eventually.
      Q ... He said in other countries this isn't wrong, what was he referring to when he said in other countries this isn't wrong.
      A In other countries it's not illegal to have sex with children.
      Q Do you recall any other statements that he made?
      Q ... Ms. S.[], any other statements by Mr. Opalewski that stand out in your mind.
      A He said when it came to sex, man, woman or child, 8 months to 80 years, nothing was off limits.

       In a pretrial motion, Opalewski's counsel argued that the evidence relating to the sexual assaults of Amanda and James should be presented by admitting the Judgment of Conviction and stipulating to the facts admitted by Opalewski at the plea hearing. He contends that this procedure would have dissipated "much of the prejudicial effect of this other acts evidence." The matter, however, was never really addressed by the trial court.


author: PETERSON, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Harold C. Mikkelson, Defendant-Respondent.
    Court of Appeals

      No. 01-2207.

      Submitted on briefs April 9, 2002.

    Decided May 7, 2002.

    2002 WI App 152
    (Also reported in 647 N.W.2d 421.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of James E. Doyle, attorney general, and William L. Gansner, assistant attorney general.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Michael Yovovich, assistant state public defender, Madison.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.
   PETERSON, J.

¶ 1. The State appeals an order granting Harold Mikkelson's motion to suppress evidence obtained from within his house. The State argues that: (1) the police had probable cause to arrest Mikkelson for his conduct outside the house and were justified to enter the house without a search warrant under the hot pursuit exception to the Fourth Amendment; and (2) the court's ruling violates State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998), by granting a privilege to assault a police officer whenever a defendant believes his or her arrest is illegal. We disagree and affirm the order.

BACKGROUND

¶ 2. On the night of August 4, 2000, Superior police officer Bonita Jo Johnson was patroling a neighborhood in Superior. She observed a male, later determined to be Mikkelson, at the rear of a residence moving between a car and a garage. Johnson thought the movements were suspicious. Johnson pulled her squad car into an alley and shined her light on the scene. She saw a figure duck down inside a different minivan parked in the driveway of the residence.

¶ 3. Johnson approached the van and asked Mikkelson for his name and an explanation for his actions. Mikkelson responded that he lived there and was doing nothing wrong. When Johnson asked what he was doing in the van, Mikkelson pushed her away and walked toward the house. Johnson ordered him to stop but Mikkelson kept walking. Johnson reached out to grab Mikkelson's arm and Mikkelson again pushed her away. Johnson then sprayed Mikkelson with chemical spray. While she radioed for backup, Mikkelson was let into the house by an older man.

¶ 4. Johnson knocked on the door, and the older man opened the door and identified himself as Mikkelson's father. He confirmed that his son lived there. Johnson told the father that she needed to speak with his son. The father told Johnson that he would get his son, then turned and shut the door. When no one returned, Johnson went to a side door where Mikkelson's mother answered. By this time backup had arrived.

¶ 5. According to Johnson, she received permission from the mother to enter the house. As Johnson stepped into the house, she could see the father motioning that Mikkelson was down in the basement. Both parents testified that they never gave permission to the officers to enter the home and that the father told them to leave because they did not have a warrant. A neighbor, who was observing from her window, testified that she did not see anything resembling consent by Mikkelson's parents.

. ¶ 6. After gaining entry into the home, several officers went into the basement and attempted to arrest Mikkelson. During the arrest, Mikkelson allegedly punched an officer. He was charged with a misdemeanor count of obstructing an officer for his actions outside the house, contrary to Wis. Stat. § 946.41(1) and a felony count of battery to a police officer, contrary to Wis. Stat. § 940.20(2), for his actions in the basement.

¶ 7. Mikkelson moved to suppress all evidence the police obtained inside the house. The State argued that Mikkelson's parents gave the officers consent to enter the house. In the alternative, the State argued that even if there was no consent, the court could not suppress the evidence in light of Hobson, which abrogated the previously recognized right to forcibly resist an unlawful arrest. Hobson, 218 Wis. 2d at 353.

¶ 8. At the suppression hearing, three police officers who had been at Mikkelson's home testified that they were given consent to enter the home. However, none of the officers testified about the events that took place in the basement during the arrest. The only testimony about those events came from Mikkelson's father and aunt, who had been present during the arrest, on cross-examination. Both testified that the officers used unreasonable force to subdue and arrest Mikkelson.

¶ 9. The circuit court found that the police did not receive consent from the parents to enter the house. The court also rejected the State's Hobson argument. As a result, the court suppressed the evidence of everything that happened in the house.

STANDARD OF REVIEW

¶ 10. In reviewing a circuit court's order granting or denying a motion to suppress evidence, the court's findings of evidentiary or historical fact will be upheld unless they are clearly erroneous. State v. Matejka, 2001 WI 5, ¶ 16, 241 Wis. 2d 52, 621 N.W.2d 891. However, whether the court's findings of fact pass statutory or constitutional muster is a question of law that this court reviews independently. Id.

DISCUSSION

¶ 11. On appeal, the State does not contest the circuit court's finding of no consent to enter the house. Nevertheless, the State argues that the circuit court erred because: (1) the police had probable cause to arrest Mikkelson for his conduct outside the house and were justified in entering the house because they were in hot pursuit; and (2) the court's ruling violates Hob-son by granting a privilege to assault a police officer whenever a defendant believes his or her arrest is illegal.

I. Pkobable Cause and Hot Pursuit

¶ 12. The State argues that the police had probable cause to arrest Mikkelson outside the house and that they were entitled to enter the house without a warrant in order to arrest Mikkelson because they were in hot pursuit.

¶ 13. Mikkelson argues that the State has waived its probable cause and hot pursuit arguments by not raising the issues at the suppression hearing. We agree.

¶ 14. "The waiver rule serves several important objectives. Raising issues at the [circuit] court level allows the ... court to correct or avoid the alleged error in the first place, eliminating the need for appeal." State v. Huebner, 2000 WT 59, ¶ 12, 235 Wis. 2d 486, 611 N.W.2d 727. "It also gives both parties and the ... judge notice of the issue and a fair opportunity to address the objection." Id. "Furthermore, the waiver rule encourages attorneys to diligently prepare for and conduct trials." Id. "Finally, the rule prevents attorneys from sandbagging errors, or failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal." Id. "For all of these reasons, the waiver rule is essential to the efficient and fair conduct of our adversary system of justice." Id.

¶ 15. By only arguing at the suppression hearing that Mikkelson's parents had given consent to enter the house, the State obviated any need for Mikkelson to present witnesses about probable cause and hot pursuit. Further, without being put on notice that the State was relying on more exceptions than just consent, the court did not have an opportunity to clarify the record regarding those exceptions. It would be unfair to the court and to Mikkelson to allow the State to rely exclusively on a different exception to the warrant requirement than what was argued at the suppression hearing. The waiver rule is applied equally to both a defendant and the State when they are the appellants. State v. Bollig, 222 Wis. 2d 558, 564, 587 N.W.2d 908 (Ct. App. 1998).

¶ 16. Further, the State has not filed a reply brief refuting Mikkelson's waiver argument. An argument asserted by a respondent on appeal and not disputed by the appellant in the reply brief is taken as admitted. Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994). Accordingly, we conclude that the State has failed to preserve for appeal its probable cause and hot pursuit arguments.

¶ 17. Even if we were to consider the State's argument, we would reject it. An arrest made in hot pursuit constitutes an exigent circumstance required for a warrantless entry. State v. Smith, 131 Wis. 2d 220, 229, 388 N.W.2d 601 (1986). Relying on United States v. Santana, 427 U.S. 38, 43 (1976), the State argues that the police were entitled to enter the house and arrest Mikkelson because they were in hot pursuit. Santana holds that a suspect may not defeat an arrest that has been set in motion in a public place by escaping to a private place. Id. However, in Welsh v. Wisconsin, 466 U.S. 740, 749-51 (1984), the Supreme Court limited Santana to the hot pursuit of fleeing felons. Also, the court in Payton v. New York, 445 U.S. 573 (1980), stated that Santana was limited to in-home arrests of felons when police have probable cause and exigent circumstances. The police were pursuing Mikkelson for obstructing an officer, a misdemeanor. See Wis. Stat. § 946.41. Therefore, Santana does not permit the warrantless entry into Mikkelson's house.

II. Illegal Arrest

¶ 18. The State argues that the circuit court's order suppressing all evidence from within the house violates Hobson by granting a privilege to assault a police officer whenever a defendant believes his or her arrest is illegal. In Hobson, 218 Wis. 2d at 381-82, our supreme court held that in the absence of unreasonable force by the police, the court was abrogating the common-law defense of forcibly resisting an unlawful arrest.

¶ 19. According to the State, there is no question that Mikkelson committed the crime of battery to a police officer and that Mikkelson's arrest was "peaceful until his own behavior required forcible action by the police." The State relies on an officer's testimony at the preliminary hearing to argue that the police used reasonable force to arrest Mikkelson. The officer testified that Mikkelson was extremely agitated, refused to calm down, and ripped his shirt off and challenged the officers to a fight. The officers then sprayed him with chemical spray, but Mikkelson continued to challenge the officers. The officers then tried to stop Mikkelson with a baton. Mikkelson lunged forward and struck one of the officers with his fist.

¶ 20. Mikkelson argues that the State is prohibited from using the preliminary hearing testimony on appeal. Mikkelson points out that the preliminary hearing was held before a different judge, and the State never introduced the officer's testimony at the suppression hearing. In fact, the State never introduced any testimony at the suppression hearing regarding what occurred in the basement. The only testimony concerning the events in the basement came from Mikkelson's father and aunt. Both testified that the police used unreasonable force.

¶ 21. We agree with Mikkelson. As indicated, the State's argument is entirely dependent on testimony that was not even presented to the circuit court at the suppression hearing. We are aware of no authority that permits an appellate court to overturn a suppression ruling based on evidence that was not part of the record at the suppression hearing.

¶ 22. Further, as stated earlier, the State has not filed a reply brief. Therefore, the State has conceded Mikkelson's argument. Accordingly, we conclude that the suppression order did not violate Hobson.

By the Court. — Order affirmed.

       Johnson testified that after Mikkelson pushed her away and resisted her efforts to stop him, she decided to arrest Mikkelson for obstructing an officer.

       The State's argument is premised on the existence of probable cause to arrest Mikkelson outside the house. However, in light of our holding, it is unnecessary to address whether probable cause existed. We decide cases on the narrowest grounds presented. State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989).