State v. Bill Yang

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.
May 12, 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. 2018AP2439-CR Cir. Ct. No. 2016CF504
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
BILL YANG,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Brown County:
JOHN ZAKOWSKI, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, 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).
¶1 PER CURIAM. Bill Yang appeals a judgment convicting him of
fifteen drug-related felonies, five counts of felony bail jumping, and two felony
No. 2018AP2439-CR
counts of possession of a firearm by a felon. Yang contends the circuit court erred
by denying his motions: (1) to suppress evidence law enforcement obtained from
an automobile dealership that serviced his car and also from a GPS locator after it
was maintained by law enforcement at the dealership; (2) to exclude on
Confrontation Clause grounds out-of-court statements made by a deceased
co-defendant; and (3) to have the judge recuse himself at sentencing on due
process grounds. We conclude the circuit court properly denied Yang’s
suppression motion; Yang forfeited the right to raise a Confrontation Clause claim
on appeal by entering no-contest pleas; and Yang has failed to develop a coherent
argument regarding judicial disqualification. Therefore, we affirm the judgment
of conviction.
BACKGROUND
¶2 The charges in this case arose from a months-long investigation of a
drug trafficking organization in Brown County that was distributing large amounts
of methamphetamine and marijuana, as well as smaller amounts of heroin,
cocaine, ecstasy, psilocybin, and prescription pills. Through a combination of
information from confidential informants, controlled drug buys, surveillance,
wiretaps and search warrants, the Brown County Drug Task Force obtained
substantial evidence that Yang was the leader of the drug trafficking operation.
Yang eventually pleaded no contest to twenty-two of fifty-one charges the State
brought against him in exchange for the dismissal of the rest of the charges.
Because the probable cause portion of the complaint was partially sealed to protect
confidential informants, we limit our discussion of the evidence to that which is
relevant to the three motions that are at issue on this appeal.
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No. 2018AP2439-CR
¶3 As to the suppression motion, a Brown County circuit court judge
signed an order on November 9, 2015, for the placement of a GPS tracking device
on a vehicle that Yang was known to drive. The warrant authorized the
performance of maintenance on the GPS unit in any “public place.”
¶4 On November 13, 2015, data from the GPS unit indicated that
Yang’s vehicle was located at the Gandrud Chevrolet car dealership. Based on
additional information from a “trap and trace” on Yang’s telephone, investigating
officers from the Brown County Drug Task Force determined that Yang had left
his vehicle at Gandrud for servicing while he himself was in a different location.
¶5 One of the task force officers contacted a Gandrud employee whom
he knew personally, who confirmed that Yang’s vehicle was there and currently
on a lift being inspected. The officer asked the employee to contact him when any
person returned to Gandrud to pay for the service to Yang’s vehicle and to have
the cashier set aside any money used to pay for the service. Shortly thereafter,
task force officers arrived at Gandrud and were granted access to a work bay
where Yang’s vehicle was still being serviced on the lift. One of the officers
performed maintenance on the GPS unit without adjusting the lift or otherwise
manipulating the vehicle.
¶6 Later that day, a Gandrud employee notified a task force officer that
service to the vehicle had been paid for with about $2000 in cash. Task force
officers then returned to Gandrud and were allowed to inspect the cash with which
Yang had paid in a secured room, outside the presence of any Gandrud employees.
The officers were able to identify $500 in recorded bills that had been used in a
controlled drug buy the day before.
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No. 2018AP2439-CR
¶7 Yang moved to suppress the currency and any evidence derived
from the GPS locator after maintenance had been performed on it at the car
dealership. He argued that the segregation and separation of the currency
constituted an impermissible joint endeavor between law enforcement and a
private party, while the officers’ entry into the service area at the car dealership to
maintain the GPS unit exceeded the scope of the GPS warrant, in addition to being
a joint endeavor. The circuit court rejected Yang’s arguments and denied the
suppression motion, as well as a subsequent motion for reconsideration.
¶8 Regarding the Confrontation Clause issue, Yang filed a motion in
limine seeking to exclude any testimony that could not be subjected to
cross-examination. Specifically, Yang argued that there should be no testimony or
reference at trial to any “conversations or interrogations pertaining to Jeffery
Tarkowski,” a co-defendant and confidential informant who had died while the
case against Yang was pending. The circuit court granted the motion with respect
to any testimonial statements Tarkowski had made to law enforcement that had not
been subjected to cross-examination, but it denied the motion with respect to any
statements Tarkowski had made to other co-conspirators during any
conspiracy-related activity.
¶9 Concerning recusal, Yang filed a motion seeking to “exclude”
Judge John Zakowski from the sentencing proceedings on due process grounds.
Yang claimed that a former local rule calling for the so-called “vertical
prosecution” of all criminal cases by a specific prosecutor in front of the same
judge conflicted with another local rule calling for the random assignment of cases
to judges, and violated his right to due process by exposing the judge to additional
facts about the defendant from related cases. The circuit court observed that the
vertical prosecution system has been accepted in various places across the country,
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No. 2018AP2439-CR
not to mention one-judge counties in Wisconsin, and it was subject to the right of
substitution—which Yang did not exercise here. The court concluded that the
system did not violate Yang’s due process rights because the court could have
considered the same information from companion cases under the standard
sentencing factors, regardless of whether it presided over those cases.
¶10 Yang now appeals. He again raises each of these three issues, which
we address in turn.
DISCUSSION
I. Suppression Motion
¶11 When reviewing a motion to suppress evidence, we will uphold the
circuit court’s findings of fact unless they are clearly erroneous. WIS. STAT.
§ 805.17(2) (2017-18);1 State v. Hindsley, 2000 WI App 130, ¶22, 237 Wis. 2d
358, 614 N.W.2d 48. However, we independently determine whether the facts
found by the circuit court satisfy applicable constitutional provisions. Hindsley,
237 Wis. 2d 358, ¶22.
¶12 The Fourth Amendment to the United States Constitution protects an
individual’s right to be free from unreasonable searches by government officials.
State v. Dearborn, 2010 WI 84, ¶14, 327 Wis. 2d 252, 786 N.W.2d 97. Fourth
Amendment protections also extend to actions undertaken by private individuals
or entities in a “joint endeavor” with law enforcement. State v. Payano-Roman,
2006 WI 47, ¶19, 290 Wis. 2d 380, 714 N.W.2d 548.
1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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No. 2018AP2439-CR
¶13 The test for determining whether an individual has the capacity, or
standing, to raise a Fourth Amendment issue “depends … upon whether the person
who claims the protection of the Amendment has a legitimate expectation of
privacy in the invaded place.” Minnesota v. Olson, 495 U.S. 91, 95 (1990)
(citation omitted). A legitimate expectation of privacy is one that “society is
prepared to recognize as ‘reasonable.’” Id. at 95-96 (citations omitted).
¶14 Yang first contends that task force officers improperly “initiated
several requests for information” from a Gandrud employee. Specifically, Yang
asserts the officers could not have learned that Yang’s vehicle was going to be on
a lift at the car dealership or that Yang himself was not at the dealership without
the assistance of an employee who disseminated “private” customer information,
in possible violation of company policy.
¶15 This contention is flawed in multiple respects. To begin, it ignores
the fact that the police were aware of both the vehicle’s location and Yang’s
location from the GPS unit and cell phone tracking prior to any contact with
Gandrud employees.2 Moreover, Yang provides no citation to legal authority in
support of the proposition that he has a protected privacy interest in the location of
a vehicle on a commercial property open to the public. Whether such information
2
Yang appears to argue for the first time on appeal that the police were not authorized to
track his cell phone location in real time. Any such argument is forfeited because Yang did not
raise it in his suppression motion in the circuit court. See Schonscheck v. Paccar, Inc., 2003 WI
App 79, ¶¶10-11, 261 Wis. 2d 769, 661 N.W.2d 476 (observing this court will not “blindside trial
courts with reversals based on theories which did not originate in their forum”).
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No. 2018AP2439-CR
could be disseminated in accordance with Gandrud company policy3 is not
dispositive of whether that information was constitutionally protected.
¶16 It is well established that Fourth Amendment protection does not
extend to “[w]hat a person knowingly exposes to the public.” Katz v. United
States, 389 U.S. 347, 351 (1967). Here, the circuit court made a factual finding
that “it is not uncommon for members of the public to be present in the service
area inspecting their vehicles that have been or are being serviced.” That finding
is not clearly erroneous. We further note that Yang had no control over how his
car would be positioned during servicing and had no right to exclude others from
the service area while his car was being serviced. We conclude that Yang had no
protectable privacy interest in information about the location or position of his
vehicle while it was at the car dealership. It follows that the Gandrud employee
did not violate Yang’s Fourth Amendment rights by conveying that information to
law enforcement.
¶17 Yang next argues that the maintenance a task force officer
performed on the GPS unit while Yang’s vehicle was on the lift exceeded the
scope of the GPS warrant, which limited such maintenance to being performed in
public places. However, the circuit court’s finding that the service area of the car
dealership was open to members of the public also defeats this argument.
3
Yang points to a section of the Gandrud Auto Group Employee Handbook entitled
“Information Safeguard Program,” which provides Gandrud “does not sell or share any of our
employee or customer information” with anyone other than specified partners. In context, it
appears this provision refers to customer data such as credit card information stored in the
company’s computer system, and would not encompass information about the location of a
customer’s car in a service bay open to the public. In any event, Yang did not present any
evidence that he was aware of the employee handbook or its provisions regarding customer
information prior to leaving his car at Gandrud for servicing, so the handbook is not relevant to
Yang’s expectation of privacy.
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No. 2018AP2439-CR
¶18 Finally, Yang challenges the segregation and examination of the
money he used to pay for the servicing of his vehicle. Once Yang passed the bills
over to Gandrud, however, any possible protectable privacy interest in those bills
transferred to Gandrud. In short, Yang has no standing to raise this issue. We
conclude the circuit court properly denied Yang’s suppression motion.
II. Confrontation Clause Motion
¶19 As a general rule, the entry of a valid no-contest plea forfeits “all
nonjurisdictional defects, including constitutional claims.”4 State v. Kelty, 2006
WI 101, ¶18 and n.11, 294 Wis. 2d 62, 716 N.W.2d 886. There is a statutory
exception to the guilty-plea rule that allows a defendant to appeal “[a]n order
denying a motion to suppress evidence or a motion challenging the admissibility
of a statement of a defendant.” See WIS. STAT. § 971.31(10).
¶20 Yang attempts to invoke WIS. STAT. § 971.31(10) to avoid the
application of the forfeiture rule to his Confrontation Clause claim. The statute is
inapplicable here, however, because the challenged statements were not made by
Yang and were not the subject of a suppression motion alleging that they had been
obtained in violation of Yang’s constitutional rights. Rather, they were the subject
of a ruling on the admissibility of testimony. We conclude that Yang forfeited the
right to challenge any such evidentiary decision when he pleaded no contest.
4
As noted in Kelty we have traditionally referred to this rule as the “guilty-plea waiver
rule.” That reference, however, does not fully accord with the current nomenclature, which limits
the use of the term “waiver” to the intentional relinquishment of a known right. State v. Kelty,
2006 WI 101, ¶18 and n.11, 294 Wis. 2d 62, 716 N.W.2d 886. We therefore use the more
accurate term “forfeiture.”
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No. 2018AP2439-CR
¶21 Moreover, even if Yang had not forfeited his Confrontation Clause
argument, we note that he has failed to develop it. In particular, Yang has not
identified what statements Tarkowski made to other co-conspirators that Yang
contends should have been excluded, much less explained how those particular
statements could be categorized as testimonial in nature. This court “cannot serve
as both advocate and judge.” State v. Pettit, 171 Wis. 2d 627, 646-47, 492
N.W.2d 633 (Ct. App. 1992). We will not scour the record to develop viable,
fact-supported legal theories on the appellant’s behalf. State v. Jackson, 229
Wis. 2d 328, 337, 600 N.W.2d 39 (Ct. App. 1999).
III. Recusal Motion
¶22 Yang has also failed to develop his final argument that
Judge Zakowski violated his due process rights by refusing to recuse himself at
sentencing. Due process affords a defendant the rights to be sentenced by an
impartial judge and based upon accurate information. See State v. Goodson, 2009
WI App 107, ¶8, 320 Wis. 2d 166, 771 N.W.2d 385 (discussing judicial bias);
State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1 (discussing
inaccurate sentencing information). However, Yang has made no specific
allegation that the judge in this case was either subjectively or objectively biased
against him. Nor has he alleged that any of the information upon which he was
sentenced was inaccurate.
¶23 Yang’s claim appears to be premised on the proposition that a
defendant has a due process right to be sentenced by a judge who has not presided
over related cases. However, he offers no supporting authority. As the State
points out, defendants in related cases are routinely sentenced by the same court,
especially in one-judge counties. We shall therefore not further address the issue.
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No. 2018AP2439-CR
See Pettit, 171 Wis. 2d at 646 (arguments unsupported by references to legal
authority will not be considered).
By the Court.—Judgment affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
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