I recently happened upon a case involving a local police officer that raised my eyebrows.  It certainly seemed newsworthy, particularly considering what  often poses for news around here.  However, there was never any mention of it in any of the local news outlets.  The circumstances also made the basis for criminal charges, though it does not appear any such action was ever taken.  Since the La Crosse Tribune, WKBT, WXOW, and WIZM either did not report or missed this story, I thought I would put it out there for you, or it "never happed" (WIZM's slogan is, "If you don't want to hear about here, don't let it happen.").  But first, let me make some observations:

We should all have the utmost respect for the police.  They put themselves in harm's way to keep the peace and protect us and our property.  However, occasionally an officer behaves in a way unworthy of our respect, which tarnishes the badge for all police.  When such a thing occurs, equal treatment in the law is critical.  Favoritism in the law is repugnant to our sense of justice and fair play.     

When you think about it, one of the major roles of a police officer is "professional witness."  They are out in the field making observations that support their arrests.  When the charging document, called a Criminal Complaint, is issued, it frequently is bolstered by the arresting officer's own incident report, which then serves as the "factual basis" for the charges.  The factual basis must establish "probable cause" for the charges in the Complaint, or the charges must be dismissed.  A formal "complainant", usually a county deputy, will often make a statement in the Complaint vouching for the credibility of the officer making the report.  Ultimately, unless a prosecutor has a credible witness to go to trial with, he/she has no case.  Police make GREAT witnesses for the prosecution, because jurors' may have a psychological indebtedness to them for all they do for us.  Police MUST be honest for the system to work. Now, on to the story:

In December 2012, I was informed by a La Crosse County Assistant District Attorney that James Hackett, a principal prosecution witness for one of the cases I was defending, had "resigned" his position as a patrolman for the La Crosse Police Department.  I was told the resignation stemmed from lying to the police during an investigation.  Incredibly, the ADA stated that Hackett was still going to be used as a witness in the cases that had been charged before his resignation. 

I assumed I would be able to  learn further details from the local newspaper.  That never happened.  So, I drafted an open records request and was given the reports relative to the incident.  You can read the full reports below.

According to the reports, Hackett's then live-in girlfriend was intentionally locked out of Hackett's residence during a   party hosted by Hackett.  Apparently, she was very intoxicated and causing trouble, so one of the guests locked her out.  She was wearing a skirt and had no shoes on.  A neighbor eventually called the police due to the commotion she was making outside.  It was after Midnight.

When Hackett's fellow officers arrived, they found Hackett's pistol, a ".380", and a holster laying in his yard.  The girlfriend said she was standing outside the front door holding the handgun up and yelling to get back in the house.  She claimed she got the gun out of his car glove box using the key she kept on her person.  She said the gun was always kept there.  She claimed she had been drinking "UV Blue" vodka at the house, and that Hackett had provided it to her.  She was NOT of legal age to drink.

This is my opinion only, but my reading of the reports is that Hackett fed the police a total cock-and-bull story to cover his rear.  First, Hackett told the police that he never furnished alcohol to his underage girlfriend.  When he was confronted with a text message he sent to the girlfriend stating he had purchased UV Blue vodka for her, he told them he bought it but was holding the vodka until her mother arrived (Wisconsin allows underage consumption of alcohol if a parent is present and agrees).  He told them that her mother was supposed to meet him for the first time that night.  His girlfriend had no knowledge of this.  She was surprised Hackett said that, because her mother lived in Pennsylvania.  The police later spoke with her father, who confirmed that they live in Pennsylvania and no plans to meet Hackett that night in Wisconsin.

Hackett also told the police that his girlfriend had been out somewhere else and returned home intoxicated.  He was unable to explain why she would be gone in the first place, because her mother was supposedly scheduled to come over to meet him.  He said when the girlfriend arrived, he told her she had to leave.  She left and came back.  He said he eventually had to lock her out when she refused to leave.  Perhaps worrying that he might be seen as encouraging drunk driving (with his own car at that), he explained that he thought her mother had picked her up.  Lies beget lies.

It gets worse:  Hackett also told the police that the first time he knew his girl friend had his handgun was when the police arrived and showed it to him in the yard.  However, the police questioned him about a text message he wrote prior to their arrival which said, "where is the .380".   Nonetheless, Hackett maintained that he was not looking for the gun prior to their arrival. 

With regard to how his pistol ended up on the front lawn, Hackett told the police that his girlfriend must have taken it from the upstairs of his residence without his knowledge.  He said he was sure it was stored under his bed.  He also told the police that the couple had an argument two weeks prior.  During that episode, she got his gun out.  While she did not threaten him or her, he "contacted her wearing a bullet resistant vest. "  That time the gun had been left out on his desk.  I guess he didn't learn any lesson from that episode.
 
Hackett was allowed to resign from the police force.  Despite strong evidence that he furnished alcohol to the girlfriend, his repeated lies to cover up for furnishing the alcohol, not to mention gross negligence in the safekeeping of his gun, he was not arrested, cited or charged with anything.  Keep in mind, lying to the police is "Resisting or Obstructing", a Class A Misdemeanor punishable by 9 months jail and/or a $10,000.00 fine.  Wis. Stat.  946.41.  Not only that, he was referred to as the "victim" in the reports. 

His girlfriend was arrested on charges of Disorderly Conduct with a Weapon. Wis. Stat.  947.01(1) & 939.63.   A subsequent report stated she should be arrested for bail jumping because she repeatedly texted Hackett that very day, after just being released with a "no-contact" on her bond.  However, according to CCAP, an underage alcohol citation is the only charge issued to her.  CCAP further notes that the citation was transferred to City court.  The ultimate disposition is unknown.

These police reports had to have been looked over by a prosecuting attorney to determine whether--and what--charges should have resulted from these events.  Now, I'm just spit-balling here, but it seems that this outcome may have been quite different for the average citizen.

Former La Crosse Police Department Lieutenant, Brian Thompson, DID NOT appear in court on August 30th to face charges.  Instead, he appeared by his attorney.  I was there in court on another case.  From the discussion with Judge Elliot Levine, Thomson's attorney, and the prosecuting attorney, Assistant Attorney General Jeff Gabrysiak (Wisconsin DOJ), several things were clear:  (1) every La Crosse prosecutor and every La Crosse County judge, including Levine, has a conflict of interest and won't be directly involved in the case; (2) after more than two weeks from his arrest, no charges have been filed against Thomson--and none are immediatley pending; and (3) according to Gabrysiak and Thomson's attorney, discussions were continuing between the attorneys which may be "in the best interests" of  both the State of Wisconsin and the defendant.   

Judge Levine openly voiced concern about the fact that no case number had even been assigned to Thomson's court case, adding that this made things more difficult procedurally, even from the standpoint of assigning a new judge.  Thomson is scheduled to appear in the intake court in the La Crosse County Circuit Court on October 2, 2013.   Just who will be judge, or whether a judge will even be assigned, is at that point, totally unclear.  Does all this seem unusual to you?  It out to.  TRUST ME, this is not at all how most cases proceed through the courts.  However, this is also a rare case where a policeman is actually arrested.   

My take on this (my opinion only, and perhaps no secret):  This is an enormous public embarrassment for the City of La Crosse; law enforcement generally (including the La Crosse PD and the Wisconsin DOJ) ; and, of course, Brian Thomson.  The discussions may include David Thomson never appearing in court again on these charges, let alone pleading guilty to a felony.  Could the discussions include Thomson revealing information about other officers?  No idea. What will come to pass is pure speculation, because--YOU GUESSED IT--the details of the allegations against Officer Brian Thomson have not even been revealed.  There is no Criminal Complaint on file.  Moreover, not one so-called media outlet in La Crosse has been able to give any specific details regarding the arrest of the 15-year veteran of the La Crosse Police Department.   After more than two weeks, the details of the case have stayed between police and attorneys. 

At this point, the outcome of this case is, obviously, unknown.  However, it is not surprising that many are becoming pretty cynical about "the system" is when it comes to police officers who get in trouble.  I’ll be perfectly honest with you, I am becoming a little cynical about that too.  This is definitely not the only La Crosse Police Department personnel--or family member--to become involved in an investigation lately.  Does that surprise you?  It very well might!  Because while I have learned of and investigated these other cases, to my dismay, WKBT, WXOW, the La Crosse Tribune and WIZM radio, collectively "the news" in our area, have written/spoken nothing (NADA!) about them.  In my opinion, these agencies rely WAY TOO heavily on the police or the courts to feed the news.  There seems to be little actual investigation being done.   You might want to stay tuned to this Blog to see how some others connected with the police--others never talked about in the so-called press--have had their own legal situations dealt with.  You may be surprised--even pissed off!     

The La Crosse County Circuit Court has deemed September "Juror Appreciation" month.  I want to extend my own personal thanks to La Crosse County jurors, since I am most likely the private attorney with the most time spent in jury trials lately. 

According to the La Crosse Tribune, quoting the La Crosse County Clerk of Court. "2,832 people were summoned to serve on 36 jury trials last year in La Crosse County".  The Koula trial (double homicide), La Crosse's 'Trial of the Century', occupied 18 days, making it the longest trial in La Crosse County history.  I was a member of the defense team, along with attorneys Jim Koby and Keith Belzer.  I had another trial prior to Koula which resulted in Not Guilty on all charges.  I have had several trials since Koula, including a three-day trial wherein my client faced 75 years prison and was found Not Guilty of all charges except a  Misdemeanor Disorderly Conduct, which I told the jurors he was guilty of.  There was also an OWI 4th Felony that was dismissed outright after a mistrial, an OWI 3rd that was amended to a mere Reckless Driving half-way through the trial, and a Not Guilty verdict on a .22 BAC charge.  These are just the ones that went to trial.  

Indeed, we at Dyer Law Firm, LLC have much to thank La Crosse County jurors for.  The time we spent in trial will only translate into better results for our current clients, and those to come.  Before you hire another attorney for your case, ask him/her when the last time they won a jury trial was.

The rulings are rolling out in DWI cases in Minnesota where motions for suppression are being raised in light of the recent Supreme Court of the United States ("SCOTUS") ruling in Missouri vs. McNeely.  The outcomes of these rulings are quite polar, as demonstrated by the two examples below. 

In the first example, an Anoka County case, the defendant's motion is granted, and test evidence is suppressed.  In that case, the positions and reasoning of the defendant seem almost wholesale adopted by the court.  In the second, a Hennepin County case, the motion is denied.  In that case, and the defendant's arguments in favor of suppression are set up and knocked down one by one. 

No doubt these and many other cases will be appealed by the respective parties.  There are many, many more such rulings to follow.  Thankfully, there should be some clarity coming from the Supreme Court of Minnesota.  The Court agreed to expedite Brooks v. Minnesota, No. 12-478 (Order filed April 22, 2013).  Brooks and two other  Minnesota cases (two of which were urine tests) were remanded back to the State of Minnesota by the SCOTUS in light of the ruling in McNeely.  Oral arguments are set to commence on September 11, 2013.  A decision should follow in a couple months.

Three bills have been drafted and proposed to further toughen Wisconsin's repeat OWI penalties.   All three bills are sponsored by Republican Rep. Jim Ott (R) of Mequon.  Ott vociferously advocated the measures at a  hearing before the Wisconsin Assembly's Judiciary Committee last week.

A criminal first-offense for BAC's over .15 is being  pushed.  Also, one of Ott's bills would make all third and fourth-offense OWI convictions felonies.  (Currently, only a fourth offense OWI/PAC committed within 5 years of a prior OWI is a felony).  Another bill would increase the penalty for injuring someone in an OWI accident, raising the minimum jail sentence from 30 days to six months.  The third measure requires at least a 10-year prison sentence for anyone who kills another person while OWI.  The current law has no minimum prison sentence for such cases.

In what some might consider a pretty gutsy move, State Senator Jennifer Shilling (D) spoke out against the measures on the radio (WIZM) this morning, touting the additional millions of dollars in costs projected in order to prosecute and incarcerate the offenders.  I say "gutsy", because OWI is generally a hot button issue for judge's and politicians.   

I will be watching the developments closely.  One thing is for sure, no legislator is proposing (or likely  ever would propose) more lenient OWI sentences.  This is not the first time Ott has proposed additional penalties for OWI offenders.  It is only a matter of time before the penalties increase again. 

I have been defending Minnesota DWI cases since first being admitted to practice in Minnesota in early 2001.  Though I have always had my law office located in Wisconsin (La Crosse, 2000-2008, and Onalaska 2008-present), I have been representing clients in South-Eastern Minnesota since 2001.   I have insisted on keeping on top of all the developments in Minnesota DWI and criminal law, to ensure my Minnesota clients get a state-of-the art defense.  In fact, I was the only attorney in our area to become a member of the Source Code Coalition, which was a group of Minnesota DWI attorneys who pooled their resources and fought to keep he flawed Intoxilyzer 5000 breath testing machine out of Minnesota courts.

Keeping on top of Minnesota DWI law requires attendance at the Annual Minnesota DWI Defense seminar in the Twin Cities area.  This year's seminar, held on June 14th, was especially exciting, due to the recent case, Missouri v. McNeely.  In McNeely, the Supreme Court of the United States ruled that warrantless, non-consensual OWI/DWI/DUI blood draws are unconstitutional.

The speakers on the topic of McNeely were Chuck Ramsay, Jeffrey Ring, and Jeff Sheridan.  These preeminent attorneys have spent their gifted careers representing DWI defendants in the Minnesota District Courts.  They were each very excited that the Supreme Court of the United States has finally declared unconstitutional the practice of forcing OWI/DWI/DUI suspects to submit to blood draws without first getting a warrant based on probable cause.  In fact, Jeffrey Ring described McNeely as the most important case in the area of DWI defense during his long career.   That is is really saying something,

Minnesota requires arrested DWI suspects to submit to a breath, blood, or urine test.  Refusal to test is a crime in itself, often more serious than the DWI they were arrested for.  Almost all DWI suspects are read an Implied Consent advisory that tells them that it is a crime to refuse testing.  In other words, there is no such thing as consent to the test.  There is a strong argument that, like the blood test in McNeely, breath tests and urine tests will also be deemed to require a warrant.   Despite the McNeely ruling,  law enforcement is not getting warrants prior to requiring submission to their tests.  That means any BAC test is subject to challenge. 

All competent DWI defense attorneys are challenging these tests at the trial court level.  Attorney Jeff Sheridan already has a case postured to lead the challenge in the Minnesota courts of appeal.  I will be doing my part, and I will be watching carefully to ensure my client's rights are preserved, and that McNeely is enforced.  If you have been charged with DWI in any county in South-Eastern Minnesota, including Houston County, Winona County, Fillmore County, Olmstead County, and Wabasha County, feel free to contact me for free information.           

In Part 1 of this series, I showed how Wisconsin has declared to juries that its chosen, or "approved", BAC testing devices use "scientifically sound method[s] of measuring the alcohol concentration of an individual".  This declaration relieves its prosecutors from having to actually prove that fact to jurors.  This article explores the how Wisconsin went even further to hobble OWI defendants at trial, tilting the playing field even more in favor of its OWI prosecutors.  

Wisconsin Jury Instruction 2663 states, "If you are satisfied beyond a reasonable doubt that there was .08 (breath) 
(blood) at the time the test was taken, you may find from that fact alone that the defendant was under the influence of an intoxicant or operating with a prohibited blood alcohol content at the time of the alleged operating, but you are not required to do so . . ."  This instruction allows prosecutors to tell jurors, "I don't have to PROVE the defendant was actually impaired or .08 at the time of driving.  If you, the jurors, believe the test demonstrates a BAC or .08 or greater AT THE TIME OF TEST, then 'the law' says you can also find he/she was impaired or .08 AT THE TIME OF DRIVING."  It must be nice to play make believe and have the full force of the Wisconsin statutes to uphold the illusion.  

Why is this so unfair?  First, the test result "is admissible", so long as it was taken within 3 hours of the driving.  This means, essentially, that no matter what the issues with the test--i.e. eight breath samples to get a good test--the test is admissible.  Why?  The Wisconsin statutes say so.  This means the Judge at an OWI trial can't exclude a test taken within 3 hours of driving unless the test  is so devoid of trustworthiness as to lack relevance altogether.  


The other reason it's unfair is that the test result could be markedly higher than it was at the time of driving, because of the delay in full absorption of ethanol into the blood.  The Wisconsin Jury Instructions state that the prosecution has the burden to prove each element of the offense of OWI or PAC.  One of the two elements for OWI is that the driver was impaired at the time of driving.  One of the two elements of PAC is that the driver had a BAC of .08 at the time of driving.  But the same Jury Instructions say that impairment or BAC of .08 can be viewed as proven by a test of .08 or greater taken as long as 3 hours after driving.  A BAC test taken any time later is almost certainly not the same as BAC at the time of driving.  

 So does the prosecution have to prove impairment or BAC at the time of driving or not?  Apparently not.  Is the jury allowed to pretend that BAC at the time of driving is the same as the time of test?  Yes.  In fact, they are strongly encouraged to do so if this jury instruction is allowed.

Fortunately, an experienced OWI attorney can often keep Wisconsin Jury Instruction 2663 out of the trial by the introduction of BAC "curve" evidence--i.e., evidence that BAC was below the legal limit at the time of driving, but rose above the legal limit after the driving.  This type of defense will definitely help level the playing field.  

End.   

885.235 (1g) states: In any action or proceeding in which it is material to prove that a person was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration while operating or driving a motor vehicle  . . .  evidence of the amount of alcohol in the person's blood at the time in question, as shown by chemical analysis of a sample of the person's blood or urine or evidence of the amount of alcohol in the person's breath, is admissible on the issue of whether he or she was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration if the sample was taken within 3 hours after the event to be proved. The chemical analysis shall be given effect as follows without requiring any expert testimony as to its effect:
 * * *
(c) The fact that the analysis shows that the person had an alcohol concentration of 0.08 or more is prima facie evidence that he or she was under the influence of an intoxicant and is prima facie evidence that he or she had an alcohol concentration of 0.08 or more.

Being an OWI prosecutor is one of the easiest jobs a lawyer can have.  I ought to know, because in addition to a private law practice, I also prosecuted OWI, traffic, and other municipal ordinance violations for several years.  

One reason the job is so easy is the systematic biasing of the citizenry.  Unlike most crimes, there is abundant advertisement against drunk driving on TV and and radio.  There are campaigns such as, "Buzzed driving is drunk driving".  There are statistics thrown around based on the misleading  term "alcohol-related".  There is intense media focus on the senseless deaths caused by drunk driving.  

To be sure, no one is a fan of impaired driving.  However, when someone is accused of any offense, whether it be homicide or OWI/PAC, the process of determining guilt or innocence must be fair, for the sake of us all.  This two-part series will reveal just a couple of ways that Wisconsin law has stacked the deck against persons charged with OWI/PAC.  

Creating bias against OWI/PAC defendants is not the only way the playing field has been skewed:  Wisconsin law stacks the deck in favor of prosecutors, giving them pass on the admission of highly-disputed evidence.  Other provisions instruct judges and jurors that they can find against OWI/PAC defendants based on scientifically-flawed presumptions.  Don't believe me?  Continue reading this two-part series.  In this segment, I focus on how the law has given prosecutors a pass in admitting BAC evidence from breath-testing devices. 

The law in Wisconsin instructs jurors that any BAC testing device approved for use in this state uses a "scientifically sound method of measuring the alcohol concentration of an individual".  (See the standard jury instruction below.)  For breath testing cases, this means that prosecutors don't even have to prove that the "guilt or innocence box" is scientifically sound.  The statutes says it is, and so it is.  Well, the State can say whatever it wants, but that does not make it correct, literally or morally.       

In an OWI/PAC trial I defended last week, the device at issue was the EC/IR II breath testing machine.  That's the only breath-testing device approved for evidentiary testing in Wisconsin.  An important issue was whether the test result was inflated by mouth alcohol.  (The device is supposed to measure BAC in deep lung breath, not alcohol reintroduced (belched) into the esophagus or mouth.)  To begin, the EC/IR II is a device that is (1) tested and maintained by a law enforcement agency, a division of the Wisconsin Highway Patrol; (2) kept at the police stations; and (3) almost always operated by the arresting officer who is seeking a conviction.  Not exactly a formula for objectivity.  

At an OWI/PAC trial, the State's witnesses will vehemently assert that there is nothing to worry about regarding mouth-alcohol contamination, because, supposedly, the EC/IR II has a devise to detect when mouth alcohol is present.  The fact is, the State's witnesses are unable to point to a single study, independent or otherwise, indicating  that mouth-alcohol detection reliably works.  Moreover, despite having this infallible mouth-alcohol detector, the State's witnesses concede that the machine operator must stare at the subject for at least 20 minutes to ensure he/she is not doing something (belching, regurgitating, vomiting) that could reintroduce alcohol to the esophagus or mouth.  If the mouth-alcohol detector works every time, why spend thousands of man hours looking for burps?!  

The State has people who travel to the various police stations to conduct mandated 120-day "accuracy checks" and "calibration" of the machines.  These are the people who typically testify as experts at the trial.  They will quickly agree that they never perform any tests to determine whether the mouth-alcohol detector actually works, and they know of no other study demonstrating the same.  Further, the State will not allow anyone else to a have access to one of the machines to do testing to determine the reliability of mouth-alcohol detection.

Wisconsin law requires judges in OWI/PAC trials to admit any breath test administered on the EC/IR II within 3 hours of driving, not matter how unusual that particular test may look (i.e, seven breath samples to get a result).  The Judge is also required to instruct the jurors that the test is based upon sound scientific principles.  Of course, the prosecutors hammer that point over, and over:  "The State of Wisconsin says this thing is scientific and admissible.  What more do you need?  Convict!"  (So, please, don't expect me to prove it.  And, ignore all the evidence the defendant is showing you to suggest otherwise.)  

Thankfully, some juries remain open minded.  In my trial last week, the jury refused to be sold on these tactics.  They rejected a .22 test, and for good reasons.  Many will not challenge their breath test result because they know the deck is stacked.  If the State of Wisconsin wants to use breath testing for OWI/PAC cases, it should prove that it is reliable. 

1. Wis JI—Criminal 230, 232 (When an approved testing device is involved, the jury is instructed that "[t]he law recognizes that the testing device used in this case uses a scientifically sound method of measuring the alcohol concentration of an individual. The State is not required to prove the underlying scientific reliability of the method used by the testing device. However, the State is required to establish that the testing device was in proper working order and that it was correctly operated by a qualified person.

According to the La Crosse Tribune, Attorneys for accused double-homicide defendant, Jeffrey Lepsch, are moving for dismissal or, in the alternative, suppression of video-recorded surveillance evidence reportedly depicting Lepsch inside the crime scene at May's Photo between 1:53 and 2:58 p.m. on the date of the gruesome murders.  Apparently, missing is surveillance footage after 3:30 p.m.  This footage is critical to Lepsch because a witness reportedly saw another person in the store behind the counter between 4:15 to 4:30 p.m.  His attorneys argue this deprives Lepsch of Due Process.  District Attorney Tim Gruenke opposes and is preparing a response to the motion.  Legally, the term for losing, or destroying, evidence is termed 'spoliation.'

This is not the only recent case of the La Crosse Police Department failing to preserve digital evidence.  In a recent high-profile case defended by this attorney (client agrees to my describing these events), the La Crosse Police Department failed to preserve a supposed interview of a confidential informant ("CI") who allegedly blamed my client for being involved in an armed robbery pulled off by the so-called "Get Money Boys".  Not only that, the police temporarily lost the defendant's recorded statement and admitted losing the recorded statement of a co-defendant.  Furthermore, of the several police vehicles that responded to the crime scene with their video cameras running, not one had the audio component on to record the conversations with the victims at the scene.  The microphone can be easily turned on by the officer.

Charged with Armed Robbery, my client ended up pleading no contest to two misdemeanors relative to the alleged home invasion, getting probation and a short term on electronic monitoring.  The Assistant District Attorney ("ADA") prosecuting that case blamed the very good plea deal on the destruction of the recorded CI interview.  In my opinion, the outcome of that case was justified by the overt lack of evidence against my client.   Nonetheless, I agree with the ADA that the situation created not just an embarrassing situation for the police and DA's office, but also an opportunity for suppression and/or dismissal, or at least, a very good opportunity to create doubt during a jury trial. 

The fact is, over the last several years, I and my colleagues have experienced numerous occasions of the La Crosse Police Department, the Onalaska Police Department, and other agencies, overtly failing to preserve video and/or audio-recorded evidence.  It usually happens because police officers fail to take the simple steps necessary to capture or preserve the evidence, including, failing to activate the video in the squad car, turning on the video but not the microphone, failing to point the camera in the direction of the event, or failing to properly download the audio/video files.  When the video cameras do work, it often seems very selective.  When they want the camera to work, it usually works.  

The La Crosse and Onalaska Police Departments have spent a ton of money to equip the patrol cars and officers with the equipment they need to record these events.  To be sure, this can be a very important way to protect the police.  In fact, the policies and procedures adopted by the La Crosse and Onalaska Police Departments have specific provisions requiring the officers to maintain and use the equipment to capture and preserve all pertinent audio-video evidence.  These provisions makes the officer personally responsible for doing so.  In short, there is no excuse for failing to capture and preserve this evidence, but it happens ALL THE TIME.   

Seeing is believing.   Video can be the most effective evidence in a case.  Indeed, I have tried cases almost solely based on the failure of police to capture or preserve audio-video evidence they maintain is harmful to my clients, including field sobriety tests and admissions supposedly made by defendants.  Why should the police be allowed to convict someone based on evidence they could have easily--and were supposed to--record, but failed to for no good reason?   Of course, when questioned about it at trial, the offending officer conveniently says, "'Mr. Defendant' is lucky I didn't record it, because you would see that it is exactly the way I say it was. "  No officer should be able to get away with that. 

As an OWI/criminal defense attorney, I just want to see what really happened and/or was said, for better or worse.  So, La Crosse and Onalaska police (and others): Shape up!   

The Supreme Court of Wisconsin has agreed to review  State v. Nicolas Subdiaz-Osorio, 2010AP3016-CR 
wherein the defendant was captured by police using cell phone location information they obtained without a warrant from his cell phone service provider. 

The Fourth Amendment to the United States Constitution and Article 1, section 11 of the Wisconsin Constitution generally prohibit warrantless searches and seizures by the government.  However, the courts have held that warrants are required only for situations where the person has a 'legitimate' or 'reasonable' 'expectation of privacy' in the thing or place searched (Katz v. U.S.).  Complicating matters, the courts have developed a litany of exceptions to the warrant requirement.

The question of whether a person has such an expectation of privacy has been examined in cases ranging from conversations in a phone booth, to searches of ice fishing shanties, to police rummaging through trash cans left at the curbside.  In the case of cell phone records, the State of Wisconsin will likely argue that a person has no legitimate expectation of privacy to the their cell phone location information, which is information they (usually) unwittingly provide to their cell phone company without the government being involved.  This is exactly what the United States has already argued in similar cases on the subject, for example, In re Applications of the United States of America for Historical Cell-Site Data.  The Sixth Circuit, in U.S. v. Skinner, ruled last year that there is no legitimate expectation of privacy to cell phone location information.   

No matter how the federal courts come out on this issue, the Supreme Court of Wisconsin is empowered to interpret the Wisconsin Constitution in a manner the affords more protection to the citizens of Wisconsin, and it should do in this case.  This conduct is intrusive.  As one federal judge has pointed out, "A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts."

There are certainly competing interests at stake.  We all want criminals apprehended (unless you are one).  However, what are we willing to hand over to the government in exchange for our security?  What good is security if we have no freedom?  If I were King, the government would have to have to convince a judge that there is probable cause of criminal behavior before having access to this kind of information.  But since I am not, I will be watching this case closely.  Stay tuned.