By Gretchen Schuldt

A judge who orally gave one disposition for a juvenile offender but issued a different disposition in writing must adhere to his oral order, the state Court of Appeals ruled Tuesday.

The ruling means that Brandon, if still on court-ordered supervision, does not have to wear an ankle bracelet unless the state specifically requests it and the judge agrees. 

District III Appellate Judge Gregory B. Gill Jr. did not rule on a key issue raised in the case: Is electronic monitoring something the court must order or can it be implemented by a juvenile justice worker as a "case management tool"?

Brandon is a pseudonym to protect the juvenile's identity, Gill said in his opinion.

Electronic monitoring of juveniles is widespread and controversial. Academics and advocates have expressed numerous concerns about the practice. As the University of California Berkeley School of Law’s Samuelson Law, Technology & Public Policy Clinic and the East Bay Community Law Center put it:

Although generally perceived as a less punitive alternative to incarceration, electronic monitoring can be overly burdensome: it often entails home confinement, invasive surveillance, and high fees. As the report demonstrates, programs can impose dozens of strict and inflexible rules on participants. Financial burdens imposed by electronic monitoring programs disproportionately hurt low-income families. Personal privacy violations are also a concern.

Brandon was on electronic monitoring because of a broken toilet tank cover and toilet paper dispenser.

He was arrested in August 2020 after Antigo police received a complaint about damage at a local laundromat. The toilet tank cover was smashed and a toilet paper dispenser was ripped of the wall, resulting in total damages of $150 to $400.

Surveillance footage showed Brandon walking into the restroom and leaving a short time later. The footage also showed the broken items on the floor a short time later.

Brandon, when questioned by police, said the he punched the toilet paper dispenser because it was not working, Gill wrote. He said the toilet was not flushing properly, so he lifted the tank lid, and it slipped.

He eventually admitted to one count of disorderly conduct; both his lawyer and the state recommended formal supervision. 

Langlade County Circuit Judge John B. Rhode explained during the disposition hearing that he could order electronic monitoring, among other things. Brandon was already on an ankle bracelet ordered during an earlier hearing, asked when he could have it removed. A juvenile justice worker said Brandon would have to show good behavior and then his treatment team would decide when to remove the monitoring. 

(Most of the records in the case are sealed because a juvenile was involved, so it cannot be determined how long Brandon was on electronic monitoring or when or if the monitoring ended before Tuesday's decision.)

Brandon's lawyer requested the ankle bracelet be removed.

"During argument, the State noted significant concerns about Brandon, including several hospitalizations for self-harming activities," Gill wrote. "The State further argued that Brandon was able to transition back to his home while being accountable to his supervision...through the use of electronic monitoring. With respect to the electronic monitoring, the State noted that it was not a punishment but, rather, a case management tool."

Gill did not address how electronic monitoring would prevent Brandon from hurting himself. 

Brandon's mother expressed concerns about his behavior and the juvenile justice worker said  Brandon did not come right home after school as his mother had instruction the week earlier and on another occasion, had left home without permission.

The worker "stated that Brandon was not confined by the electronic monitoring because he was able to go to school, appointments, and places with his mother."

The worker also said he "considered electronic monitoring a great management tool," Gill wrote.

"Conversely, Brandon’s counsel argued that electronic monitoring was not a case management tool but instead a 'sanction to be given by the Court,' ” Gill wrote.

Rhode put Brandon on supervision for a year and declined to order electronic monitoring. (Online court records indicate that Brandon's supervision may have lapsed last month.)

"All I will say to both sides if the [S]tate wants me to order it they can schedule further proceedings and we’ll take that up," Rhode said from the bench. "If the defense wants me to order that it stop they can schedule further proceedings and order that it stop or if they think it’s being used inappropriately."

When Rhode's written decision came down, however, it adopted the county's juvenile "rules of supervision," which includes a rule that states: “The youth shall participate in the electronic monitoring program as deemed appropriate by the assigned juvenile worker for any violation of supervision.” 

Brandon appealed, arguing first that the Rhode cannot delegate to the juvenile justice worker the authority for imposing electronic monitoring. He also argued that electronic monitoring was not an appropriate sanction because it was not included in the state statute establishing approved punishments.

"We need not address these issues because we conclude that the court's written order was inconsistent with its oral pronouncement," Gill wrote.

When oral and written pronouncements conflict, he said, the oral pronouncement rules.

By Gretchen Schuldt

A Fond du Lac County judge did not err when he ordered a mentally ill man with $113 in monthly disposable income to pay $5,486 in restitution for repairs to a stolen truck worth less than half that amount, the State Court of Appeals has ruled.

The 2-1 decision by the three-judge District II Court of Appeals panel upheld a ruling by Circuit Judge Robert J. Wirtz. Appellate Judge Shelley A. Grogan wrote the decision and was joined by Appellate Judge Lisa S. Neubauer. Appellate Judge Paul F. Reilly dissented.

"The only issues are whether the circuit court erroneously exercised its discretion in setting the amount of restitution or in finding (Alex Scott) Stone had the ability to pay," Grogan wrote. State law, she said, allows a judge to order restitution for "reasonable repair cost." Wirch did that, she said.

​Reilly took issue with that analysis but outlined another basis of disagreement in a footnote. 

"It is my belief, however, that imposing a restitution order against a mentally disabled young man who could not work, who was under a...Ch. 51 (mental health) commitment order placing him in a group home with a third party handling his meager finances, who had a spinal infection, who was prone to hearing 'voices' and 'seeing things,' and who had a total of $3.75 of daily disposable income is not conducive to a defendant’s rehabilitative needs," he wrote.

He acknowledged that Stone did not produce evidence that he had to use some of his $113 per month for transportation, medical costs, or other human needs and so did not meet his burden of proof that he did not have the ability to pay the restitution. 

Stone, who died while the appeal was pending, took the 1997 Chevy truck, which had 220,000 miles on it, from his friend Matt, who had taken it from the victim, identified in court records only as M.S., according to a brief filed in the case.

Stone damaged the truck and was arrested after an officer saw sparks coming from the passenger side wheel. Stone, who at first was found incompetent to stand trial, eventually was convicted of operating a motor vehicle without the owner's consent.

At the restitution hearing, M.S. did not present information about the value of the truck, but did offer an estimate to repair it: $5,486.37. Stone's lawyer presented Kelley's Blue Book information indicating that showed the truck, in very good condition, would be worth $2,394 in a private-party sale.

The following exchange took place during the hearing, according to a defense brief.

The state: If your – do you intend to repair the vehicle?

M.S.: I’m probably just going to replace it.

The state: Why is that?

M.S.: Well, I can’t just go out and replace a pickup truck for twenty-three hundred, if that’s what they’re talking about, you know.

The state: Would your preference be to repair the vehicle so that you can use it again, all things being equal?

M.S.: I think there was way too much damage done to it to warrant sticking that in that vehicle. I would want to replace it. I have nothing to use on my farm.

The state: Okay. And the reason you would not want to repair that vehicle is you think there’s too much damage to it?

M.S.: Well, unless I stick the five thousand dollars in it to get it done correctly. 

Wirch, ordered Stone to make $5,486.37 in restitution for the repairs. He also ordered restitution for post-arrest towing costs, raising the total amount owed to $6,008.60.

"The statute's plain language does not restrict the award to the actual value of the property even when the actual value may be less than the reasonable repair cost," Grogan wrote in confirming the restitution order. "Rather, the statute allows a circuit court to choose the 'reasonable repair' option in determining the restitution amount even if the repair cost exceeds the property's value."

Grogan also rejected Stone's argument that it was illogical to order repair costs because M.S. intended to replace the truck, not repair it.

"The victim’s testimony did not eliminate repairing the pick-up truck," Grogan wrote. "The victim still had the pick-up truck, and her last statement indicated that if she received the $5,000 in restitution, she could repair it."

Grogan and Neubauer also found that Stone had the ability to pay.

He testified that his monthly income was $773 and his monthly expenses were $600 for rent in a group home and food and $60 for his cell phone. That left $113 a month in extra income. Stone also testified that the only items he bought with his disposable income were soda and cigarettes, which he said were " 'not … really necessary,' " Grogan wrote.

Stone, who did not work due to his disability, also said he might pick up a part-time job at McDonald's or "something like that" in the future, she said.

"Although $113 may strike some as a small amount of disposable income, it was extra money for Stone after all his monthly bills were paid," Grogan wrote. "Accordingly, the circuit court’s decision on ability to pay was not an erroneous exercise of discretion."

Reilly, in his dissent, rejected the idea that a repair estimate is always a proper basis for restitution. 

M.S. testified, Reilly wrote, that she would replace the truck rather than repair it because the truck wasn't worth putting a repair investment of $5,486.37.
​
"The victim correctly recognizes that given the evidence produced at the restitution hearing, she should simply go out and buy a similar truck in 'good condition' at a price of $2,394...." he wrote. "By taking a piece of property worth $2,394 and increasing its value to over $5,000, the victim is made more than whole. The victim receives a windfall.

"We do not use restitution to punish a defendant, and we do not use restitution to enrich a victim," he said. "We use restitution to return the victim to the position he or she was in before being victimized."

By Gretchen Schuldt

A judge was correct in ordering a man to pay potentially tens of thousands of dollars in court surcharges for having child pornography images that were never included in criminal charges against him, the State Court of Appeals has ruled.

The District IV Court of Appeals panel, however, sent the case back to circuit court to determine whether all of the pictures involved were actually associated with the crime for which William C. MacDonald was convicted.

MacDonald pleaded guilty in Marquette County Circuit Court to one count of possessing child pornography. As part of the plea bargain, another nine counts, each based on an individual picture, were dismissed but read into the record.

Read-in charges, Appellate Judge Jennifer E. Nashold wrote for the three-judge panel, are agreed to by both the prosecution and defense. A judge can consider the read-in charges when imposing sentence, though they do not increase the maximum sentence the defendant faces. A judge can also order a defendant to make restitution for read-in charges. Finally, prosecutors cannot later bring formal charges for counts read in.

MacDonald's plea agreement said that "the State would be moving to dismiss and read in the rest of the charges...in addition to any uncharged image that was part of this investigation, so that the State will not be filing any additional charges for any other images, but we would be asking that they be read in as part of the sentencing in this matter."

Circuit Judge Bernard N. Bult sentenced MacDonald to four years in prison and three years of extended supervision. He also levied mandatory $500 surcharges for the photo that was the basis of the charge, nine photos for the counts that were read in at sentencing, and 90 additional images that did not serve as the basis for a charge. The total in surcharges was $50,000 for 100 images.

MacDonald, arguing that the surcharge should be limited to $500 for the one count on which he was convicted, requested in a post-trial motion that the surcharge be reduced, but another circuit judge, Mark T. Slate, refused. 

MacDonald appealed, but the appeal was put on hold while the state Supreme Court considered another case involving the child pornography surcharge. In that case, State v. Schmidt, the court ruled that the surcharge did apply to pictures included in read-in counts. 

MacDonald conceded the surcharge applied to the nine read-in counts, but continued to argue that the surcharge should not apply to counts that were not ever charged. The appeals panel disagreed.

"We conclude that Schmidt does not directly answer this question but that, consistent with its analysis, the surcharge applies to read-in images regardless of whether there is an accompanying charge, so long as those images are 'associated with the crime,' ” Nashold wrote.
State law, she said, does not limit read-in crimes to only those that were charged and dismissed.

Nashold was joined in the opinion by Appellate Judges Brian W. Blanchard and Michael R. Fitzpatrick.

In sentencing MacDonald, she said, Bult correctly noted that MacDonald's ability to pay the surcharge was not a factor. Bult imposed the surcharge on 100 images, though he believed there could be more pictures involved.

"Read-ins may be considered for restitution and sentencing purposes regardless of whether they are uncharged or charged and dismissed. Thus, we discern no basis in the statutes or case law for a sentencing court to treat uncharged and read-in images differently from charged and read-in images for purposes of applying the surcharge," Nashold wrote.  

The panel, however, remanded the case back to circuit court for a judge to determine whether the images that formed the basis of the surcharges actually were "associated" with the crime for which MacDonald was convicted.

State statute requires a judge to determine the "association" by a preponderance of evidence – a lower standard than that required for conviction – and without a jury. 

"Here, it does not appear that the sentencing court engaged in any fact-finding to determine the association, if any, between the 90 uncharged images and the image forming the basis of the count of conviction," Nashold wrote. 

By Gretchen Schuldt

​The Milwaukee County Sheriff's Department must turn over an old internal investigation file involving former Deputy Joel Streicher, who killed Milwaukee activist Ceasar Stinson after running a red light, the State Court of Appeals ruled Tuesday.

Stinson's "estate asserts that the public has a strong interest in 'knowing when law enforcement officers have a history of violating an individual’s constitutional rights, and how the department handled the investigation of this constitutional violation,' " District I Court of Appeals Judge M. Joseph Donald wrote. "We agree."

Donald was joined in his opinion by Appellate Judges Maxine A. White and William W. Brash III.

The ruling reversed a decision by Milwaukee County Circuit Judge David C. Swanson, who said  the records should not be released. Swanson, in balancing the public interest in disclosure against the public's interest in keeping the records confidential, said he  “doesn’t see a strong public interest in disclosure,” Donald wrote.

The appeals panel said the records need further redactions before they are released.

Streicher, in a Sheriff's Department SUV, ran a red light on Jan. 25, 2020, and hit the vehicle Stinson, 47, was driving. 

Streicher was charged that May with homicide by negligent operation of a vehicle, pleaded guilty and, in a sentencing widely derided in the community, ordered by Circuit Judge Michelle Havas to serve six months in jail with work-release privileges and two years' probation.

Havas later ordered Streicher to serve actual jail time after Stinson's widow, Chipo Samvura, complained that Streicher was serving his time at home with ankle bracelet.

A few days after Streicher killed Stinson, who worked as a lobbyist for Milwaukee Public Schools, WISN-TV reporter Nick Bohr sought Streicher’s disciplinary records from the Sheriff's Department. Sheriff's Captain Jason Hodel reviewed the records and decided they should be released. Hodel notified Streicher of the decision, and told Streicher that personal information, such as his home address and email, had been redacted.

Streicher and the Milwaukee Deputy Sheriffs' Association filed a lawsuit to block the release of the records. Afterwards, Samvura and Stinson's estate filed their own open records request and intervened in the TV station's case.

In his ruling, Swanson found that internal affairs files were not exempt from release under the Open Records Law. The court, however blocked the release of the file related to an internal investigation of an improper home search in which Streicher was involved.

​"The circuit court began by observing that the internal affairs investigation was 13 years old, 'quite dated at this point,' and focused on 'an improper search of a residence,' which took place after police had seized 44 pounds of marijuana from a car," Donald said. "The court indicated that it was concerned about the references in the file related to the prosecutor’s case planning and that disclosing the file might 'endanger individuals who were involved in [the drug] investigation either as targets or as informers or both.' Thus, the court found that 'the balancing test weighs in favor of an injunction.' ”

When the Stinson estate representative noted that names could be redacted from the report, Swanson said the names had been redacted from the file he reviewed, but it still was clear who was discussed. 

"The court stated that 'very significant' redactions would need to be made and 'they haven’t been made at this point,' ” Donald said. "The court also reiterated that its other concern was the references to the prosecutor’s case planning, which would also need to be redacted." 

In reversing Swanson, the appeals panel said the public had a strong interest in incidents where public officials were derelict in their duty.

"Thus, here, where the police improperly entered a person’s home in the course of their investigation, the public has a compelling interest in accessing the documents relevant to the misconduct and the extent to which it was investigated," Donald wrote. 

Further redactions are needed before the report is released, he wrote, but "this does not justify the denial of the release of the entire file."

"Streicher and MDSA point to the circuit court’s finding that Streicher’s role in the improper search was 'minor,' ” Donald wrote. "However, this should not be a shield by which the government can prevent disclosure....The public has a strong interest in being informed about its public officials and whether those officials have engaged in misconduct....These interests cannot be outweighed simply by the fact that an official played a minor role in an improper search." 

By Gretchen Schuldt

​An appeals court judge on Tuesday ordered a new hearing on whether a juvenile accused of shooting eight people at Mayfair mall in November should be waived into adult court.

The ruling by District I Court of Appeals Judge Timothy G. Dugan reversed Milwaukee County Circuit Judge Brittany Grayson's finding that the case  should remain in juvenile court.

The court record Grayson established "does not reflect that the court set forth a reasonable basis for its conclusions," Dugan wrote.

The juvenile, identified as Xander in Dugan's decision, was charged in a November delinquency petition with eight counts of first-degree reckless injury with use of a dangerous weapon and one count of possession of a dangerous weapon by a person under 18. 

The state Division of Division of Youth and Family Services recommended the boy, then 15, remain in juvenile court and Xander's psychologist also testified on his behalf.

Grayson found that the state did not show that services available through the juvenile system would not adequately protect Xander and the public, according to the Milwaukee Journal Sentinel.

The Mayfair shooting occurred while Xander was serving a sentence from an earlier incident, where he ran from a car pulled over by police. Officers later found cannabis in a backpack the boy threw away while fleeing. Xander had several violations of his community supervision, Dugan said.

Xander allegedly shot the Mayfair victims after he and a friend, Eric Garcia, got in an argument there with some people they knew. Xander allegedly shot three people from the group, four bystanders, and Garcia.

He was arrested a few days later with the gun in his possession, Dugan wrote. 

During a later investigation, "police discovered text messages between Xander, his parents, and his sister, in which they devised a plan to help Xander flee to Florida via airplane and stay with his adult sister," he wrote.

Grayson, during the waiver hearing, "admitted and then relied on hearsay statements from Xander contained in the psychologist’s testimony and, in effect, allowed Xander to present an alternative version of events that contradicted the facts set forth in the delinquency petition," he said.

The psychologist testified that Xander “came across as anxious” based on the information that Xander gave to the psychologist. The psychologist also said that Xander was suffering from post-traumatic stress disorder on the day of the shooting, a diagnosis based on Xander's statement that the people in the group had shot at him and a friend a month earlier.

"The psychologist testified that Xander told him that he 'felt threatened' that day at the mall and that Xander said that 'when he shot – his eyes – he closed his eyes and shot,'" Dugan wrote. "He then testified that 'what it tells me is that he – he was simply reacting…. [H]e wasn’t trying to – trying to hit someone…. [H]e was just reacting.'” 

That testimony directly contradicted eyewitness accounts submitted by the state. Those witnesses said Xander appeared to target the group and fired at one person in particular as she tried to flee.

Xander did not challenge the description of the alleged crimes as outlined in the delinquency petition, Dugan said.

​"Allowing a contradictory version of events through the testimony of the psychologist would be absurd," he said. 

Grayson also erred, Dugan said, when she "described the unique and dangerous nature of this shooting of eight people, including innocent bystanders, in a crowded mall but then merely stated that the juvenile court handles serious cases like this 'all the time' and stated that the public interest is best served by allowing this case to proceed in juvenile court without further explanation."

​"As the juvenile court recognized, it is a miracle that no one died and that there were not more people injured when Xander opened fire (or, as the State described, 'empt[ied] the entire clip') in a crowded public place..." he wrote. 

Grayson did not adequately explain why keeping the case in juvenile court was not contrary to the public's best interest, Dugan said. She also failed to state on the record how the juvenile code would protect the public, given the seriousness of the crime and Xander's record of failing to comply with the rules of his previous supervision.

By Gretchen Schuldt

​A Kenosha County judge overstepped when he ordered a shoplifter to give notice of her conviction to the management whenever she entered a place that sells goods to the public, a state Court of Appeals panel ruled this week.

"That condition is overly broad and also falls into the category of shaming, which the circuit court appeared to acknowledge at sentencing," the three-judge panel wrote in an unsigned decision, invalidating the condition ordered by Circuit Judge Bruce Schroeder.

"We are not persuaded that embarrassing or humiliating defendants with a state-imposed broad public notification requirement promotes their rehabilitation," the panel said.  The panel included Appellate Judges Lisa S. Neubauer,  Paul F. Reilly, and Jeffrey O. Davis.

Markea L. Brown, 28, pleaded guilty to felony shoplifting in connection with helping to steal $2,655 worth of items from a store at the Pleasant Prairie Outlet Mall.

Schroeder sentenced her to 15 months in prison followed by two years of extended supervision. He also ordered, as conditions of her supervision, that Brown have no contact with the mall and to make the notifications of her conviction.

Brown challenged both conditions on appeal; the panel upheld the first, but struck down the second.

Schroeder told Brown the notification requirement " is 'going to embarrass you, of course,' ” the panel said. "It continued, noting that society no longer puts people in the stocks 'to be embarrassed and humiliated … but [the court] feel[s] that embarrassment does have a valuable place in deterring criminality.' ” 

While Schroeder said he wanted to give merchants the opportunity to protect against theft,  "the State has provided no legal support for the imposition of a requirement that repeat offenders must self-identify as they go about day-to-day life to personally notify any and all individual potential victims of their criminal history," the panel said. "We do not see where such a requirement would start and stop."

Brown has a history of shoplifting, according to online court records.

Brown, if required to notify store management of her conviction, could be refused service, even by those selling essential goods, such as groceries, the panel said. 

"We understand that Brown has children, and as such the consequences of the condition could impact them as well," the panel said.

The condition would result "in an overly broad ban, with consequences...that are not reasonably related to rehabilitation or protection of society," the panel said.

"It is apparent that public shaming is the second condition’s primary effect; thus, we will require it vacated."

By Gretchen Schuldt

​Police did not need a warrant or probable cause to search a vehicle parked in an Appleton East High School parking lot that resulted in the discovery of two guns in the car, the state Court of Appeals ruled this week.

"The duty of school officials to keep students safe applies equally to threats posed by students or non-students," appellate Judge Mark A. Seidl wrote for the three-judge District III Court of Appeals panel. "We therefore conclude that standard applies equally to searches on school grounds of both students and non-students of the school where the search occurs."

Seidl was joined in his decision by appellate Judges Lisa K. Stark and Thomas M. Hruz.

The decision affirmed the conviction in Outagamie Circuit Court of Blong Vang, who was convicted of one count of conspiracy to commit child abuse – intentionally committing bodily harm. 

The incident started when two men were spotted in the commons area of the school by Jack Taschner, a school resource officer employed by the school and not by the police, according to the decision, Seidl said.

"The two individuals were wearing hats, which was in violation of the school dress code," Seidl wrote. "Taschner also thought their clothing indicated a gang affiliation."

The two – eventually identified as Travis and Daniel – told Taschner  that they were not students at the school.

"When Taschner contacted dispatch to check for warrants on the individuals, no information was returned on one of them, which led Taschner to believe one of them gave Taschner a false birthdate," Seidl wrote.

The two said they were driven to the school by their uncle to pick up a student named Lucy, "who was known by school officials to have a history of truancy, verbal altercations with other students, and physical fights," Seidl said.

The school's athletic director, Timothy Zachow, who by that time had joined the questioning, testified that one of the men told him they were there to beat up another student.

By Gretchen Schuldt

Police use of a jailhouse snitch after his target retained a lawyer amounted to an improper government interrogation, the State Court of Appeals ruled Tuesday.

"What occurred here was the intentional, surreptitious creation of an opportunity to confront (Richard Michael) Arrington without counsel present," Appeals Judge Mark A. Seidl wrote for the three-judge District III Court of Appeals panel.

In addition, Arrington's trial lawyer failed to provide effective counsel when he did not object to or try to suppress recordings of Arrington made by the informant, the panel said.

Seidl was joined in his opinion by Appeals Judges Lisa K. Stark and Thomas M.  Hruz.

Arrington was charged in 2016 in connection with the shooting death of Ricardo Gomez in Green Bay.

A witness, 17, testified that Arrington fired a gun after exchanging words with another man, Shorty. Shorty was standing near another Gomez and one of the bullets instead struck Gomez in the chest, killing him.

There was no dispute during the jury trial that Arrington fired shots toward the house where Gomez and Shorty stood, Seidl wrote. Arrington, though, argued he fired in self-defense and that he believed that Shorty was reaching for a gun to shoot him.

Another witness testified that it appeared "Shorty reached for his waist as though he was reaching for a weapon," according to a brief filed in the appeal. The 17-year-old said it looked like Shorty was reaching for something, according to the brief.

"Arrington also claimed that it looked as if Shorty accidentally shot Gomez..." Seidl wrote.

Arrington turned himself into police after learning they were looking for him.

Arrington was housed in the Brown County Jail with the informant, Miller. Miller already was working with Green Bay Police Detectives Michael Wanta and Bradley Linzmeier in an effort to get information from two other inmates about a different homicide not involving Arrington.

"Miller believed Arrington would tell him things about the pending charges against him," Seidl wrote. "Miller asked the detectives if he should record his conversations with Arrington, and the detectives told him that he could."

By Gretchen Schuldt

Sitting in a car parked in a hotel parking lot in a high-crime area does not provide enough probably cause for police to seize and search a vehicle, the State Court of Appeals has ruled.

The 2-1 decision by the District IV Court of Appeals panel turned in large part on whether the vehicle and its driver, Shondrell R. Evans, were legally seized by Town of Madison officers or whether Evans should have realized, with two squads mostly boxing him in and in the glare of police spotlights, that he was free to drive away.

And while Evans' attorney, Assistant State Public Defender Thomas B. Aquino, argued that Evans' race – he is African-American – likely made him more hesitant to back his car out between the squads, neither Appeals Judge JoAnne F. Kloppenburg, author of the majority opinion, nor Appeals Judge Michael R. Fitzpatrick, who dissented from a key finding, addressed the issue in a meaningful way.

The state, in its brief, did not even mention it.

The basics of the case are undisputed.

Town of Madison Police Officer Logan Brown, on patrol in March 2018, saw Evans and a woman leave a hotel about 2:30 a.m. Brown followed the two as they drove to the parking lot of a nearby apartment complex, park for about a minute, then return to the hotel parking lot.

Evans parked in a stall in the lot, next to a car parked on his passenger side. There was a concrete barrier in front of Evans' car. Evans and the women remained in Evans' car for several minutes.

Brown contacted Officer Andrew Hoffman, who was nearby. 

The two officers, in separate vehicles, approached Evans' car simultaneously. Brown parked a short distance away from Evans' vehicle, with the front of the squad facing the driver's side door of Evans' car. Hoffman also parked close to Evans' car. The squad was parked at about a 45-degree angle from the rear bumper of the passenger side of Evans' car. 

Both officers had their headlights and overhead spotlights trained on Evans' car. 

​Evans was not completely blocked in, according to the decision; he could have backed out and maneuvered around the squads to leave.

The officers got out of their cars and approached Evans' vehicle. They said they smelled marijuana.  The officers subsequently searched the car and found a gun. 

Evans was charged with felon in possession of a firearm. He argued in court that the seizure of the car was illegal and sought to suppress the gun, but Dane County Circuit Judge Susan Crawford denied the request. First, she said, Evans was not seized until the officers began questioning him. He could have, after all, backed out and left. She also said that even if Evans' car had been seized, it was reasonable for the officers to do that “based on the officer’s observations of the individuals coming and going at that hour from the hotel parking lot in a way that seemed unusual and not explainable in a high crime area.”

Evans eventually pleaded guilty and filed his appeal.

The appeals panel majority rejected both facets of Crawford's reasoning. The officers both seized Evans' vehicle and lacked the legal basis to do so, Kloppenburg said. She was joined in her opinion by Appeals Judge Brian W. Blanchard.

A seizure occurs when, in view of all the circumstances surrounding the incident, a reasonable person would conclude that he or she was not free to leave. Evans argued that the positioning of the squad cars, combined with the officers' use of squad lights, "constituted a sufficient show of authority that a reasonable person in his position would not have felt free to leave."

Aquino, in his brief, suggested that Evans might be especially hesitant to back out because of his race.