Sheboygan County Circuit Judge Timothy Van Akkeren is back in the news.
Van Akkeren is the judge who made national headlines last September when he overturned a jury verdict against convicted child molestor MItchell Pask for felony child enticement. Van Akkeren ruled that, as a matter of law, the area that the pervert tried to lure the child to was not sufficiently "secluded" enough.
In the face of enormous public criticism and a threatened appeal, Van Akkeren took the highly unusual step of reversing himself and reinstating the guilty finding. Judge Van Akkeren ultimately sentenced Pask to eight years in prison.
Yesterday, the Wisconsin Court of Appeals overturned another one of Van Akkeren's decisions.
In March 0f 2007, four Sheboygan police officers were dispatched to a residence to investigate a report of a possible burglary in progress. When they arrived, they observed Aaron Applewhite getting into a taxi. While investigating Applewhite's claim that he had permission to be on the property, one officer noticed that Applewhite "kept putting his hands in his pants".
In response to a question from authorities, Applewhite ultimately admitted that he did have weapons on his person. He then voluntarily produced a switchblade and a retractable box cutter.
At that point, an officer performed a pat-down search to determine if Applewhite had any more weapons. The pat-down search immediately revealed that Applewhite had thirteen individually wrapped bags of marijuna in his pockets. Applewhite was then arrested.
In a truly bizarre piece of legal "reasoning", Judge Van Akkeren ruled that once Applewhite surrendered the two knives, police had no basis for believing that he "continued to be armed and dangerous". As such, Van Akkeren held that the protective pat-down search that revealed the drugs was unreasonable and that the evidence from the search must be suppressed.
In other words, Van Akkeren seems to believe that authorities had to take the word of the suspect that he has no more weapons on his person - and were not allowed to search him to verify the claim. To their credit, the State of Wisconsin Department of Justice and the Sheboygan DA's Office immediately appealed. Not surprisingly, the Court of Appeals was not impressed with Judge Van Akkeren's analysis.
Some cases present legal issues which are close - others (like this one) do not. Fortunately, the Court of Appeals got it right. Unfortunately, the case goes back to Sheboygan County Circuit Court where Judge Van Akkeren may well get another chance to turn Applewhite loose!
By the way, for those keeping score at home, Judge Van Akkeren is not up for re-election until April of 2013.
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