State v. Justin Jackson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 9, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2018AP2450-CR Cir. Ct. No. 2016CF5564

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JUSTIN JACKSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DENNIS R. CIMPL, Judge. Reversed and cause remanded
with directions.

Before Blanchard, Dugan and Donald, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP2450-CR

¶1 PER CURIAM. Based on guilty pleas, Justin Jackson was convicted
of possession of a firearm by a felon and threatening a law enforcement officer. He
appeals the judgment of conviction and the order denying a motion for
postconviction relief. In his postconviction motion, Jackson contended that he
received ineffective assistance of counsel when his trial counsel failed to inform
him, before he decided to enter the pleas, that he had a potentially meritorious
motion to suppress evidence. Following a Machner hearing, the circuit court denied
the motion based on a determination that trial counsel did not perform deficiently in
failing to recommend that Jackson pursue a suppression motion.1 We agree with
Jackson that trial counsel provided ineffective assistance on the potential
suppression issue. Accordingly, we reverse the order denying postconviction relief,
and direct that the circuit court hold the suppression hearing that Jackson now seeks.

BACKGROUND

¶2 The criminal complaint charged that on December 8, 2016, in West
Allis, Jackson possessed a firearm after having been convicted of a felony, in
violation of WIS. STAT. § 941.29(1m)(a) (2017-18), and intentionally threatened to
cause bodily harm to a law enforcement officer, in violation of WIS. STAT.
§ 940.203(2).2 The complaint alleged in pertinent part that: Jackson was pulled
over in a traffic stop; he was placed under arrest on a warrant; and in a search of the
car police discovered a loaded pistol. Jackson did not move to suppress evidence
obtained as a result of the search of his vehicle.

1
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

2
No. 2018AP2450-CR

¶3 In April 2017, Jackson entered pleas of guilty to both counts and, at
the same hearing, was sentenced to concurrent sentences of two and one-half years
of initial confinement and two and one-half years of extended supervision, to be
served consecutively to a revocation sentence in a separate case.

¶4 In June 2018, Jackson filed a motion for postconviction relief.
Jackson alleged that his trial counsel had “rendered constitutionally ineffective
assistance by failing to file a suppression motion challenging the search of the car.”
The motion attached a report by an officer summarizing the stop, arrest, and search.
Jackson relied on the report as the factual basis to request a Machner hearing and a
suppression hearing. The State’s response also relied on the same police report for
relevant allegations of fact.

¶5 The circuit court held a Machner hearing in November 2018, at which
the two witnesses were trial counsel and Jackson. The parties and the circuit court
all appeared to rely entirely on the police report for relevant allegations of fact
regarding the stop, the arrest, and the search at the Machner hearing, and neither
side offered any evidence regarding those events that was different from or
additional to the allegations contained in the report. Notably, for reasons we discuss
below, the State has at no point disputed that, as the report reflects, Jackson was
arrested and secured in the back of a squad car before the car search began.

¶6 We now summarize pertinent portions of the police report in detail.

Police Report

¶7 According to the report, at 11:50 p.m. on a Thursday night the officer
pulled over a car, driven by Jackson, for traveling approximately forty miles per

3
No. 2018AP2450-CR

hour in a thirty miles per hour zone. After Jackson stopped his car, the officer saw
Jackson

reaching around inside the vehicle. It appeared to me from
behind the vehicle, with my patrol squad car spot light
illuminat[ing] … the rear of the vehicle that [Jackson] was
moving very directly towards the passenger side of the
vehicle as though concealing something and trying to
conceal his motions beneath my field of vision. I have made
thousands of traffic stops and observed movements from
driver[]s of numerous different types of vehicles for such
things [as] registrations and ID cards prior to my
approaching the vehicle. I am able to say that these
movements were different[;] there was a furtive nature to the
movements that made it appear that Jackson was attempting
to conceal something and conceal his motions by crouching
down and moving more quickly than normal.

I immediately drew my firearm and began to order
the driver to stop moving around and to show me his hands.

Jackson placed his hands outside the front driver’s side window. The officer asked
Jackson to step out of the car. Jackson responded “that he did not wish to step out
of the vehicle and said that he did not consent to a search of his vehicle.” The officer
then told Jackson that he “needed to step out of the vehicle because I was not sure
what he was reaching for just prior to my approaching the vehicle and making
commands.”

¶8 The officer further stated in the report that he opened the driver’s door
of the car, at which time

Jackson began to step out of the vehicle. As Jackson was
standing in the threshold of the front driver’s door I asked
him to step to the rear of the vehicle and [I] grabbed his arm
to escort him to the rear of the vehicle. Jackson said no and
I felt that he was displaying resistive tension in his arm
where I was holding on to it. I accessed my conductive
electrical weapon … and began to draw it as he finally began
to step to the rear of the vehicle. Jackson came to the rear of
the vehicle and consented to a search of his person.

4
No. 2018AP2450-CR

Jackson explained to the officer that his fiancé owned the car. The officer “asked
Jackson to sit on the curb” and then, after he apparently complied, the officer asked
Jackson if he was “on paper for anything.” Jackson responded that he was “on
parole.”

¶9 The officer further stated in the report that he obtained identification
information from Jackson and learned by running this information through the
police system that Jackson had an outstanding warrant. The officer arrested Jackson
on that warrant, and placed him in the rear of the squad car. Jackson said that “the
warrant was a mistake.” The officer explained to Jackson that the officer “would
double check the warrant [through] the computer and that [Jackson] needed to get
into the squad car.” The officer had to tell Jackson “numerous times to place his
feet inside the squad car before he would comply” sufficiently for the officer to
safely close the squad door. The officer confirmed the active warrant through
various data systems, and saw that Jackson was “on felony parole.”3

¶10 The officer further stated in the report that, with Jackson secured in
the squad car, the officer searched the car and found a loaded semiautomatic
handgun in the glove compartment. The officer reported that, “from the movements
[of Jackson] that I observed” immediately following the stop, “it was reasonable for
me to believe” that Jackson “was making furtive movements reaching towards” the
glove compartment immediately following the stop.

¶11 The police report addresses other events, which allegedly occurred
only after the search of the car began or after the search ended, and which do not

3
However, the report further reflects that, later, the officer asked a dispatch operator to
confirm the warrant and “learned that the warrant entry [that the officer] observed attached to the
name of Jackson was kept in the system through error.”

5
No. 2018AP2450-CR

have any bearing on the arguments presented by the parties in this appeal. For
context we note that the report alleges that the officer heard Jackson violently kick
the squad car and that Jackson threatened law enforcement. But, so far as is alleged
in the only report referenced by the parties, all of this alleged activity began after
the officer started searching the car.4

Machner Hearing

¶12 Jackson testified at the Machner hearing that he had no memory of
trial counsel discussing with him the possibility of filing a motion to suppress
evidence. He further testified that, if trial counsel had told him that she could file a
potentially successful suppression motion, then he would have pursued that option,
and also that he entered guilty pleas only because he believed that he did not have
any other “choice but to take the [plea] deal” offered by the prosecution.

¶13 Trial counsel testified that she concluded while representing Jackson
that he did not have a potentially successful motion to challenge the search of the
car for the following reasons, and that she discussed her reasoning with Jackson
before he decided to enter guilty pleas. First, under the doctrine of inevitable
discovery, the discovery of the gun fit an exception to warrant requirement because
the car would have inevitably been towed and lawfully searched by police. Second,
Arizona v. Gant, 556 U.S. 332 (2009), could not apply to support a suppression
motion here, because, in the words of trial counsel, “the officer thought that there
was a valid warrant [for Jackson] at the time that the search was conducted and [the

4
The State makes no argument that trial counsel could have provided deficient
performance in failing to identify a potential winning suppression argument as to only one of the
counts of conviction (felon in possession or threatening a law enforcement officer) and not the
other.

6
No. 2018AP2450-CR

officer] was operating on” the belief that he could validly arrest Jackson on a
warrant.5 Third, WIS. STAT. § 302.113(7r) permits law enforcement to search any
property under the control of a person on extended supervision based on a
reasonable belief that he or she has engaged in criminal activity or violated a
condition of supervision, and the furtive movements allegedly observed by the
officer might have triggered § 302.113(7r) because the officer knew that Jackson
was on extended supervision.6

Circuit Court Ruling

¶14 The circuit court concluded that trial counsel in her testimony
“correctly analyzed” the law to conclude that Jackson “would not prevail on a
motion to suppress.” The court suggested that it believed that trial counsel had
reasonably counseled Jackson by relying on all three of the points she made in her

5
As we address in more detail below in responding to an argument by the State, this is a
non sequitur. The test in Arizona v. Gant, 556 U.S. 332 (2009), is not concerned with the validity
of an arrest of a vehicle occupant. Gant holds that police may search a vehicle incident to a recent
occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger
compartment at the time of the search or if the vehicle contains evidence of the offense resulting in
the arrest. Id. at 343. Trial counsel attempted to explain her reasoning on this topic as being related
to the search incident to arrest doctrine, which is in fact one focus in Gant, but she did not provide
any recognizable interpretation of Gant as potentially related to the alleged facts here.

While on the topic of Gant, we note for context that our supreme court has adopted “the
reasoning in Gant as the proper reading of Article 1, Section 11 of the Wisconsin Constitution
(protecting against unreasonable searches and seizures),” so that under both the state and federal
constitutions the vehicular search incident to arrest rule permits a search “only if the person arrested
is unsecured and within reaching distance of the passenger compartment at the time of the search,”
and when it is “‘reasonable to believe evidence relevant to the crime of arrest might be found in the
vehicle.’” See State v. Dearborn, 2010 WI 84, ¶27, 327 Wis. 2d 252, 786 N.W.2d 97 (citation
omitted).
6
At one point in her testimony, trial counsel asserted a qualification to her answer on the
topic of WIS. STAT. § 302.113(7r). She testified to the understanding that § 302.113(7r) “by itself”
did not give the officer here authority to search the car. However, she did not explain what she
meant by this.

7
No. 2018AP2450-CR

testimony at the Machner hearing and denied the postconviction motion on that
basis.

DISCUSSION

¶15 Jackson argues the trial counsel was ineffective for failing to
challenge the warrantless search of his car and that he is entitled to a suppression
hearing. We agree that Jackson has shown that trial counsel provided ineffective
assistance and that as a consequence Jackson’s case must be remanded for a
suppression hearing.

¶16 The pertinent ineffective assistance of counsel standards are well
established:

“Under the Sixth and Fourteenth Amendments to the
United States Constitution, a criminal defendant is
guaranteed the right to effective assistance of counsel.” The
same right is guaranteed under Article I, Section 7 of the
Wisconsin Constitution. Whether a defendant was denied
effective assistance of counsel is a mixed question of law and
fact. The factual circumstances of the case and trial
counsel’s conduct and strategy are findings of fact, which
will not be overturned unless clearly erroneous; whether
counsel’s conduct constitutes ineffective assistance is a
question of law, which we review de novo. To demonstrate
that counsel’s assistance was ineffective, the defendant must
establish that counsel’s performance was deficient and that
the deficient performance was prejudicial. If the defendant
fails to satisfy either prong, we need not consider the other.

State v. Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93 (citations
omitted).

¶17 Also firmly established are the following pertinent Fourth
Amendment standards:

The Fourth Amendment protects against
“unreasonable searches and seizures” by the government.

8
No. 2018AP2450-CR

Seizures conducted without a warrant are unreasonable
unless they fall within a recognized exception to the warrant
requirement. The State bears the burden to prove that one of
the exceptions to the warrant requirement applies.

State v. Abbott, 2020 WI App 25, ¶12, 392 Wis. 2d 232, 944 N.W.2d 8 (citations
omitted). “Unless an exception applies, a search without a warrant is per se
unreasonable.” State v. Smiter, 2011 WI App 15, ¶10, 331 Wis. 2d 431, 793
N.W.2d 920 (citing Katz v. United States, 389 U.S. 347, 357 (1967)). As is evident
from the background summary above, the State does not contend that the officer had
a warrant to search the car when he was pulled over for allegedly speeding.

¶18 Consistent with the standards we have just quoted, we now address in
turn deficient performance and prejudice before ending on remedies.

I. DEFICIENT PERFORMANCE

¶19 The deficient performance that Jackson must prove is addressed under
the following pertinent standards:

Whether trial counsel performed deficiently is a
question of law we review de novo. To establish that
counsel’s performance was deficient, the defendant must
show that it fell below “an objective standard of
reasonableness.” In general, there is a strong presumption
that trial counsel’s conduct “falls within the wide range of
reasonable professional assistance.”

Breitzman, 378 Wis. 2d 431, ¶38 (citations omitted).

¶20 Jackson contends that trial counsel performed deficiently because she
relied on misunderstandings of the law in counseling him about his likely prospects
at a suppression hearing. The State argues that trial counsel’s performance was not
deficient because she gave him advice that was, in one particular part, correct and
that in any case her counsel on the potential suppression motion issue did not fall

9
No. 2018AP2450-CR

below “an objective standard of reasonableness” under the deficiency standards
referenced above. We conclude that trial counsel failed to provide correct advice
and that this was deficient performance.

¶21 On appeal, the State expressly disavows two potential grounds to
justify the car search referenced by trial counsel in her Machner hearing testimony
and by the circuit court in denying the postconviction motion: the search incident
to arrest doctrine and the inevitable discovery doctrine. In fact, on the search
incident to arrest topic, the State’s brief on appeal fails even to mention Gant or
allude in any way to the holding of that case that police may search a vehicle incident
to a recent occupant’s arrest only when the arrestee is unsecured and within reaching
distance of the passenger compartment at the time of the search or the vehicle
contains evidence of the offense resulting in the arrest.7 See Gant, 556 U.S. at 343.

¶22 The State’s only developed argument is based on the protective search
exception to the Fourth Amendment. That is, the State argues that trial counsel did
not perform deficiently because she correctly told Jackson that the State would be
able to show at a suppression hearing that the officer had reasonable suspicion based
on specific and articulable facts that Jackson was dangerous and might gain
immediate control of a weapon, justifying a protective search under a recognized
Fourth Amendment exception. See State v. Johnson, 2007 WI 32, ¶24, 299 Wis. 2d
675, 729 N.W.2d 182 (police may conduct a protective search of the passenger
compartment of a vehicle during a traffic stop if the officer reasonably believes that

7
The State here does not argue that the offense providing the basis for arrest here (a
warrant based on unpaid court fees) supplied the basis for the officer to believe that the car
contained relevant evidence justifying a warrantless vehicle search under Gant. Trial counsel took
the position in her Machner hearing testimony that she could only “speculat[e]” about whether the
officer might have found evidence of failure to pay a court fee in the car.

10
No. 2018AP2450-CR

the suspect is dangerous and may gain immediate control of weapons in the
passenger compartment); citing Michigan v. Long, 463 U.S. 1032, 1049 (1983)
(applying the principles of Terry v. Ohio, 392 U.S. 1 (1968), to the validity of
protective searches executed during a roadside stop).8

¶23 This court has had the opportunity to summarize the applicable
standards as follows:

Whether a law-enforcement officer may “conduct a
protective search” of a car is “decide[d] on a case-by-case
basis, evaluating the totality of the circumstances, whether
an officer had reasonable suspicion to justify a protective
search in a particular case.” State v. Buchanan, 2011 WI
49, ¶9, 334 Wis. 2d 379, … 799 N.W.2d 775 … (quotation
marks and quoted source omitted). “[R]easonable
suspicion” is a “commonsense” concept that implicates
“factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians,
act.” Ornelas v. United States, 517 U.S. 690, 695 (1996)
(quotation marks and quoted sources omitted). Thus, there
must be a balance between danger and privacy, and when
law-enforcement officers make a traffic stop, the danger is
significant. See Buchanan, [334 Wis. 2d 379, ¶18] (“As we
have frequently noted, traffic stops are dangerous for law
enforcement, and permitting a limited search is a reasonable
way to balance the competing interests involved.”); State v.
Denk, 2008 WI 130, ¶36, 315 Wis. 2d 5, 19, 758 N.W.2d
775 … (“Warrantless searches are presumed to be
unconstitutional. Our jurisprudence has established several
exceptions to this constitutional rule, based on a balance
between the intrusion on the individual’s Fourth
Amendment interests and the government’s promotion of its
legitimate interests.”) (internal citation omitted).

8
We question whether trial counsel clearly testified at the Machner hearing that she
understood and conveyed to Jackson that the protective search doctrine was a basis for denial of a
potential motion to suppress. However, Jackson does not make this point. For purposes of
resolving this appeal we assume without deciding that trial counsel’s performance was not deficient
for the sole reason that she failed to identify this as an issue while representing Jackson; that is, we
assume that in her testimony she did identify the protective search doctrine as a basis to sustain the
search and that she provided that advice to Jackson before he entered his pleas of guilty.

11
No. 2018AP2450-CR

State v. Sutton, 2012 WI App 7, ¶7, 338 Wis. 2d 338, 808 N.W.2d 411 (2011).

¶24 The problem with the State’s argument is that the need to strike a
“balance” described in Sutton between “danger” and “privacy” plainly could not
apply here for a simple reason. On the facts assumed by the parties and the circuit
court, Jackson was under arrest and sitting in the back of the squad car before the
search began. Therefore he could not return to the car to gain control of any weapon
that might be there. “[T]he sole justification [for] a protective search under Terry
[v. Ohio, 392 U.S. 1 (1968),] is the protection of the police officers and others
nearby.” Johnson, 299 Wis. 2d 675, ¶37 n.13. It cannot be argued that the search
of the car here was necessary to protect anyone under the assumed facts.

¶25 We made a similar point in Sutton itself. There, the protective search
rationale applied in part because, at the time of the search, the driver of a vehicle
who had been stopped for a traffic violation had not been arrested and therefore
could “freely” obtain a weapon from the van. Sutton, 338 Wis. 2d 338, ¶¶2, 8. Put
differently, under the reasoning of Sutton, the significant potential dangers that
generally exist for law enforcement when they conduct traffic stops based on
occupants possibly accessing weapons in vehicles, which is emphasized in cases
such as Buchanan, evaporates when all occupants are unable to access the vehicle.

¶26 This was essentially the same point we made in State v. Williams,
2010 WI App 39, ¶23, 323 Wis. 2d 460, 781 N.W.2d 495 (“Williams 2010” to
distinguish a separate case with the same name referenced below). As we noted in
Sutton, in Williams 2010 we determined that a warrantless search of a vehicle was
justified by officer safety because there was a distinct possibility that Williams
would return to the vehicle. See Sutton, 338 Wis. 2d 338, ¶8. In contrast to Sutton
and Williams 2010, the facts on this topic here resemble those in Gant, in which the

12
No. 2018AP2450-CR

driver’s car was searched without a warrant or consent after he had been arrested,
handcuffed, and locked in the back of a patrol car. See Gant, 556 U.S. at 335.

¶27 The State cites to plainly inapplicable case law, such as the Long case
itself, which generally extended the rationale of Terry to protective searches during
automobile stops. See Long, 463 U.S. at 1046. Under such precedent as Long,
police have authority to search a vehicle passenger compartment when they have
reasonable suspicion that an individual is “dangerous” and might return to the
vehicle to “gain immediate control of weapons.” See id. at 1049. Gant confirms
that Long, while still good law for that proposition, does not apply when the vehicle
occupant is under arrest and cannot access the vehicle. See Gant, 556 U.S. at 346-
47 (distinguishing Long).9

¶28 In some situations, application of these rules may be difficult because
there is ambiguity about whether a recent vehicle occupant could have regained
access to the vehicle to obtain a weapon. But not so on the facts assumed by the
parties here. After a routine stop for speeding 10 miles over the limit, the only
occupant of the vehicle was arrested and securely detained based on what the officer
then reasonably believed was a valid outstanding warrant. Stated in terms of the
legal test, under the totality of the circumstances, the officer here could not have had

9
The facts of Michigan v. Long, 463 U.S. 1032 (1983), readily illustrate the difference
between the situations in which recent vehicle occupants have the ability to return to the vehicle
and possibly access a weapon at the time of the search and those in which they lack that ability.
After Long was pulled over, he met officers at the rear of his vehicle. See id. at 1035-36. Officers
observed a large knife through the open front passenger door of his vehicle. Id. Long was not
under arrest at the time of the search. Id. In explaining its rationale, the court in Long explained
that, “[j]ust as” in Terry, in which “a Terry suspect on the street may, despite being under the brief
control of a police officer, reach into his clothing and retrieve a weapon, so might a Terry suspect
in Long’s position break away from police control and retrieve a weapon from his automobile.”
Id. at 1051.

13
No. 2018AP2450-CR

reasonable suspicion that the arrested and squad-car-detained Jackson may have
been able to gain immediate control of a weapon from the car. Thus the officer
could not have been justified in carrying out a protective search to ensure officer
safety.

¶29 This defeats the only argument clearly advanced by the State on
appeal. While discussing facts pertinent to its protective search argument, the State
makes a passing reference to WIS. STAT. § 302.113(7r).10 If the State intends to
make an argument based on § 302.113(7r) it is undeveloped and we do not address
it further. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App.
1992).

¶30 Both sides give considerable attention to Johnson, in which our
supreme court held that the behavior of the occupant of a stopped vehicle, which
police testified was a signal to them of the possibly dangerous concealment of a
weapon or contraband, was not sufficient to justify a protective search. See
Johnson, 299 Wis. 2d 675, ¶¶2-7, 34-47. The police in Johnson could not lawfully
conduct a protective search of a stopped car because they lacked “‘specific and
articulable facts which, taken together with rational inferences from those facts,
10
WISCONSIN STAT. § 302.113(7r) is located within the chapter addressing prisons, in the
section addressing “[r]elease to extended supervision for felony offenders not serving life
sentences,” and states in its entirety:

A person released under this section, his or her residence,
and any property under his or her control may be searched by a
law enforcement officer at any time during his or her period of
supervision if the officer reasonably suspects that the person is
committing, is about to commit, or has committed a crime or a
violation of a condition of release to extended supervision. Any
search conducted pursuant to this subsection shall be conducted in
a reasonable manner and may not be arbitrary, capricious, or
harassing. A law enforcement officer who conducts a search
pursuant to this subsection shall, as soon as practicable after the
search, notify the department.

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No. 2018AP2450-CR

reasonably warrant that intrusion.’” Id., ¶21 (quoting Terry, 392 U.S. at 21).
However, we have explained why the State’s argument based on the protective
search exception has no starting point, and therefore all of this argument by the
parties is irrelevant.

¶31 Summing up on the deficiency issue, Jackson has shown that his trial
counsel was deficient in failing to provide him with a correct understanding of his
opportunity, based on the assumed facts, to potentially prevail at a suppression
hearing, relying on an argument that the State is not able to show that the warrantless
search of the car was permitted under any recognized exception to the Fourth
Amendment.11

II. PREJUDICE

¶32 The prejudice that Jackson must prove to establish ineffective
assistance is addressed under the following standards:

Whether any deficient performance was prejudicial
is also a question of law we review de novo. To establish
that deficient performance was prejudicial, the defendant
must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.”

Breitzman, 378 Wis. 2d 431, ¶39 (citations omitted).

11
In a brief, pro forma argument, the State asserts, “[a]t the very least, counsel reasonably
thought that a suppression motion would have been denied,” and “[e]ven if [she] was incorrect,”
her thinking “was reasonable.” We reject as undeveloped the apparent suggestion that either the
pertinent law was unsettled or that trial counsel was, through no fault of her own, deprived of
information that would have allowed her to give correct advice. We rely on law that was well
settled at the time and there is no suggestion that counsel did not have the police report on which
our analysis rests.

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No. 2018AP2450-CR

¶33 The State effectively concedes that, if trial counsel was deficient in
failing to correctly analyze the potential suppression issue, then Jackson was
prejudiced in failing to have the opportunity for a suppression hearing. The State
argues only that a suppression motion would necessarily have been “meritless” on
the assumed facts for reasons that we have rejected.

III. REMEDIES REQUIRED BY THIS APPEAL

¶34 Jackson requests that we reverse the order denying the postconviction
motion and remand with directions that the circuit court hold a suppression hearing.
We grant those requests.

¶35 The State does not pose any objection to a suppression hearing that
we have not rejected. In particular, it does not raise any procedural or other
objection to a suppression hearing in the event that we reject its arguments regarding
ineffective assistance of trial counsel on the suppression issue. Accordingly, we
remand for a suppression hearing and all ordinary proceedings to resolve the case
that would follow a suppression hearing.

¶36 We emphasize again that, following the parties and the circuit court
at the time of the Machner hearing, all of our discussion in this opinion has been
based on the only allegations of fact in the record, namely, those contained in the
police report attached to Jackson’s postconviction motion. It will be for the circuit
court at the suppression hearing to determine the range and types of evidence to be
permitted and to resolve all arguments advanced by either side.

¶37 Whether suppression is required, and if so precisely what evidence
must be suppressed, are issues that need to be litigated in the circuit court based on
the evidence presented by the parties or agreed to by stipulation. Trial counsel

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No. 2018AP2450-CR

should have filed a suppression motion and, consistent with the legal principles that
we apply above, the circuit court should have ordered a hearing on that motion. We
also express no opinion about appropriate further remedies to follow in the event
that evidence is suppressed following a suppression hearing, because that would be
premature.

CONCLUSION

¶38 For all of these reasons, we reverse the order denying the
postconviction motion and remand with directions that the circuit court proceed to
a suppression hearing.

By the Court.—Judgment and order reversed and cause remanded
with directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

17