COURT OF APPEALS

DECISION

DATED AND FILED

November 23, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP233 Cir. Ct. No. 2019CF12

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

IN RE THE FINDING OF CONTEMPT IN:

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

LAMONDO D. TURRUBIATES,

 DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Dunn County: 

ROD W. SMELTZER, Judge. Affirmed in part; reversed in part. 

¶1 STARK, P.J.1 Lamondo Turrubiates appeals from an order 

that: (1) compelled him to disclose his cell phone passcode to law enforcement; 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All 

references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP233

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and (2) found him in contempt and ordered him imprisoned as a remedial sanction 

after he refused to comply with the order to compel. Turrubiates argues that the 

order to compel violated his Fourth Amendment rights because at the time he was 

ordered to provide his cell phone passcode, police had not yet obtained a warrant 

to search his phone. Turrubiates also argues that the contempt order must be 

reversed because the circuit court failed to follow the mandatory statutory 

procedures for holding him in contempt and imposing a remedial sanction.

¶2 We reject Turrubiates’ argument regarding the order to compel

because the record shows that the State has now obtained a warrant to search his

cell phone. As such, the factual basis for Turrubiates’ only claim that the order to 

compel violated his Fourth Amendment rights no longer exists. Turrubiates’ 

Fourth Amendment argument therefore fails, and we affirm that portion of the 

circuit court’s order compelling Turrubiates to provide his passcode to police. We 

agree with Turrubiates, however, that the court failed to follow the mandatory 

statutory procedures for holding him in contempt and imposing a remedial 

sanction. Accordingly, we reverse that portion of the court’s order that held 

Turrubiates in contempt and ordered him imprisoned as a remedial sanction for his 

failure to provide the passcode.

BACKGROUND

¶3 On January 5, 2019, police interviewed Turrubiates about an alleged 

physical assault of his girlfriend, Hannah.2 Following the interview, police 

arrested Turrubiates and seized his cell phone as evidence. The State subsequently 

 

2

 Pursuant to the policy underlying WIS. STAT. RULE 809.86(4), we refer to the victim 

using a pseudonym.
No. 2020AP233

3

filed a criminal complaint charging Turrubiates with multiple offenses stemming 

from the alleged physical assault. The State later filed an amended criminal 

complaint with additional charges alleging that Turrubiates had sexually assaulted 

Hannah.

¶4 On February 13, 2019, the State moved the circuit court for an order 

compelling Turrubiates to disclose his cell phone passcode to law enforcement. It 

is undisputed that the State did not apply for or obtain a warrant to search 

Turrubiates’ cell phone before filing its motion to compel.

¶5 The circuit court held a combined preliminary hearing and hearing 

on the State’s motion to compel on May 24, 2019. During the hearing, 

Officer DeMarcus Zeroth of the City of Menomonie Police Department testified 

regarding Hannah’s allegations that Turrubiates had physically and sexually 

assaulted her. Zeroth also testified that when he interviewed Turrubiates about 

those allegations on January 5, Turrubiates asserted that he was actually the 

victim, and he showed Zeroth a video on his cell phone that he claimed supported 

his side of the story. According to Zeroth, the video showed Hannah nude in the 

back seat of a vehicle. Turrubiates was in the front seat recording her, and she 

“kept telling him to turn the recording off and ... kept trying to get past him to get 

to the phone.”

¶6 Turrubiates told Zeroth that he had “numerous videos” on his phone 

of Hannah “acting crazy.” Hannah, however, told Zeroth that Turrubiates would 

record her after “incidents happened ... to make her look crazy,” and that he had 

recorded her while she was nude after having sexually assaulted her. Zeroth 

testified that although he had seized Turrubiates’ phone at the time of his arrest, 
No. 2020AP233

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law enforcement had been unable to access the phone because it was passcode 

protected and Turrubiates had refused to provide the passcode.

¶7 Following Zeroth’s testimony, the circuit court granted bindover,

concluding there was “sufficient testimony and evidence” to believe that 

Turrubiates had committed a felony. The court then granted the State’s motion to 

compel, over Turrubiates’ objection. The court reasoned that Hannah alleged she 

had been sexually assaulted, and there was evidence that Turrubiates’ phone 

contained a video of a woman “sitting around nude in the middle of winter in a 

car” during the same time frame as the alleged assault. The court therefore stated 

the video “could be circumstantial evidence that’s tied to criminal behavior.”

¶8 The circuit court then ordered Turrubiates to provide his cell phone

passcode to law enforcement. After a brief recess, Turrubiates’ attorney informed 

the court that Turrubiates would not provide the passcode. The State then asked 

the court to hold Turrubiates in contempt and to impose a sanction of thirty days in 

jail. The court found Turrubiates in contempt, and as a sanction it ordered him to 

remain in jail until he agreed to provide his passcode. The court also ordered that 

if the State chose to have a forensic team in Madison attempt to unlock the phone, 

Turrubiates would be responsible for the cost of that attempt.

¶9 The circuit court subsequently entered a written order compelling 

Turrubiates to provide his cell phone passcode and holding him in contempt for 

failing to do so. Turrubiates timely filed a notice of intent to pursue 

postdisposition relief. Thereafter, on August 28, 2019, the State obtained a 

warrant to search Turrubiates’ cell phone. However, as of the time the parties 

filed their briefs in this appeal, the phone had not yet been searched. On 
No. 2020AP233

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September 30, 2019, the circuit court issued an order staying Turrubiates’ 

contempt sanction pending the disposition of this appeal.

DISCUSSION

I. Order compelling Turrubiates to provide his cell phone passcode

¶10 On appeal, Turrubiates first argues that the circuit court erred by 

compelling him to provide his cell phone passcode to police. He contends the 

court’s order was unlawful because under the Fourth Amendment, “a warrant is 

required to search a cell phone, even if the [phone’s owner] is under arrest.” See 

Riley v. California, 573 U.S. 373, 401 (2014) (holding that “a warrant is generally 

required before [a law enforcement search of a cell phone], even when a cell 

phone is seized incident to arrest”). Turrubiates therefore asserts that “[i]f police 

wish to search a cell phone without the owner’s consent, they must obtain a 

warrant.” He contends the court’s conclusion that his phone contained potentially 

relevant evidence “does not overcome the Fourth Amendment’s warrant 

requirement.” In his reply brief, Turrubiates similarly asserts that the court’s order 

to compel was “invalid” because “there was no warrant to search the phone.”

¶11 Turrubiates is correct that at the time the circuit court ordered him to 

provide his cell phone passcode, law enforcement had not yet obtained a warrant 

to search his phone. However, the record shows that police obtained a warrant to 

search the phone in August 2019. Turrubiates’ sole claim that the court erred by 

compelling him to provide his passcode was premised on the fact that police had 

not yet obtained a search warrant, as he argued that a warrantless search of his 

phone would violate the Fourth Amendment. Given that police have now obtained 

a search warrant, the central factual basis for Turrubiates’ argument no longer 

exists. Turrubiates’ argument that the order to compel was “invalid” because it 
No. 2020AP233

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would have permitted law enforcement to conduct an unconstitutional warrantless 

search of his phone therefore fails. As Turrubiates does not develop any other 

argument that the court erred by ordering him to disclose his passcode, we affirm 

that portion of the court’s order compelling him to do so.

3

II. Contempt order

¶12 Turrubiates next argues that the circuit court erred by holding him in 

contempt and imposing jail time as a remedial sanction for his refusal to comply 

with the order to provide his cell phone passcode. He contends the contempt order

must be reversed because the court failed to follow the mandatory statutory 

procedures for holding him in contempt and imposing a remedial sanction. We 

agree.

¶13 “Contempt of court” includes the intentional disobedience of a court 

order. WIS. STAT. § 785.01(1)(b). A court may impose either a punitive or a 

 

3

 As noted above, Turrubiates makes a single argument on appeal challenging the circuit 

court’s order compelling him to provide his cell phone passcode—i.e., that the order was invalid 

because police did not have a warrant to search his phone. Turrubiates does not develop any 

argument that he had a separate privacy interest in the passcode itself, distinct from his privacy 

interest in the contents of the phone, that was protected by the Fourth Amendment. Nor does he 

develop an argument that police were required to obtain a warrant in order to “seize” his passcode 

from him. Accordingly, we need not—and do not—address those issues. See Industrial Risk 

Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 

82 (we will not abandon our neutrality to develop arguments for a party).

We also observe that in the circuit court, the parties addressed whether an order 

compelling Turrubiates to provide his cell phone passcode would violate his Fifth Amendment 

right against self-incrimination. Turrubiates has not developed any argument regarding the Fifth 

Amendment on appeal, and, in fact, he affirmatively asserts that this court “need not reach” that 

issue. We therefore deem Turrubiates to have abandoned his argument that the order to compel

violated his Fifth Amendment right against self-incrimination. See A.O. Smith Corp. v. Allstate 

Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998) (an issue raised in the circuit

court, but not raised on appeal, is deemed abandoned).
No. 2020AP233

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remedial sanction for contempt of court. WIS. STAT. § 785.02. A punitive 

sanction is “a sanction imposed to punish a past contempt of court for the purpose 

of upholding the authority of the court.” Sec. 785.01(2). A remedial sanction is 

“a sanction imposed for the purpose of terminating a continuing contempt of 

court.” Sec. 785.01(3). The parties agree that the circuit court’s sanction in this 

case—i.e., that Turrubiates would remain in jail until he complied with the order 

to provide his cell phone passcode—was a remedial sanction.

¶14 Whether the circuit court followed the proper procedure in 

exercising its contempt power is a question of law that we review independently. 

Evans v. Luebke, 2003 WI App 207, ¶16, 267 Wis. 2d 596, 671 N.W.2d 304. The 

procedure for imposing a remedial sanction for contempt is set forth in WIS. STAT.

§ 785.03(1)(a), which states: “A person aggrieved by a contempt of court may 

seek imposition of a remedial sanction for the contempt by filing a motion for that 

purpose in the proceeding to which the contempt is related. The court, after notice 

and hearing, may impose a remedial sanction authorized by this chapter.”

¶15 Thus, before a court may impose a remedial sanction for contempt, 

an aggrieved party must file a motion seeking the imposition of a remedial 

sanction. Id.; see also Evans, 267 Wis. 2d 596, ¶23. The court must then provide 

notice and hold an evidentiary hearing on the aggrieved party’s motion “for due 

process purposes.” Evans, 267 Wis. 2d 596, ¶24 (citation omitted). The hearing 

must be “sufficient to permit the court to make specific findings regarding whether 

the alleged contemnor intentionally disobeyed its orders.” Id., ¶25.
No. 2020AP233

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¶16 In this case, the State never filed a motion seeking the imposition of 

a remedial sanction for Turrubiates’ failure to comply with the order to provide his 

cell phone passcode.4 Moreover, the circuit court failed to hold an evidentiary 

hearing before it found Turrubiates in contempt and imposed a remedial sanction.5 

In addition, as Turrubiates notes, the court did not apply the substantive contempt 

standard set forth in WIS. STAT. § 785.01(1)(b) by making a factual finding that he

had intentionally disobeyed a court order. Under these circumstances, we agree 

with Turrubiates that the court failed to follow the procedures required by WIS.

STAT. § 785.03(1)(a), and its contempt order must therefore be reversed. See 

Evans, 267 Wis. 2d 596, ¶3 (reversing a contempt order where the circuit court 

failed to hold an evidentiary hearing as required by § 785.03(1)(a)).

¶17 Citing Evans, the State argues that its motion to compel Turrubiates

to provide his cell phone passcode “was sufficient to satisfy the filing requirement 

under WIS. STAT. § 785.03.” In Evans, we concluded that an aggrieved party’s 

motions constituted motions for remedial sanctions under § 785.03(1)(a), even 

though they were not captioned as such, because they alleged that the contemnor 

had violated a court order and asked the court to impose various remedies for that 

contempt. Evans, 267 Wis. 2d 596, ¶23. Here, in contrast, the State’s motion to 

 

4

 Although the State orally requested during the May 24, 2019 hearing that the circuit 

court hold Turrubiates in contempt, the State did not file a written contempt motion seeking a 

remedial sanction. The State does not develop any argument on appeal that its oral request for 

contempt satisfied the requirement in WIS. STAT. § 785.03(1)(a) that an aggrieved party “seek 

imposition of a remedial sanction ... by filing a motion for that purpose in the proceeding to 

which the contempt is related.” Again, we will not abandon our neutrality to develop that 

argument on the State’s behalf. See Industrial Risk Insurers, 318 Wis. 2d 148, ¶25.

5

 An evidentiary hearing is not necessary when the parties stipulate on the record to facts 

that would support the necessary findings to impose a remedial sanction. See Evans v. Luebke, 

2003 WI App 207, ¶¶24-25, 267 Wis. 2d 596, 671 N.W.2d 304. However, no such stipulation 

occurred here.
No. 2020AP233

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compel requested only one thing—an order compelling Turrubiates to disclose his 

cell phone passcode. The motion did not allege that Turrubiates had violated a 

court order, nor did it ask the court to impose any sanction for such a violation. 

The State’s reliance on Evans is therefore misplaced.

¶18 The State also argues that the May 24, 2019 hearing—which 

functioned as both a preliminary hearing and a hearing on the State’s motion to 

compel—was sufficient to fulfill the evidentiary hearing requirement in WIS.

STAT. § 785.03(1)(a). We disagree. The evidence introduced during the May 24 

hearing was relevant to two issues: (1) whether probable cause existed to believe 

that Turrubiates had committed a felony, see WIS. STAT. § 970.03(1); and 

(2) whether grounds existed to compel Turrubiates to provide his cell phone 

passcode to police. A hearing under § 785.03(1)(a) addresses a separate and 

distinct issue—namely, whether an individual intentionally disobeyed a court 

order, such that a remedial sanction should be imposed. See Evans, 267 Wis. 2d 

596, ¶25. The evidence introduced during the combined hearing on May 24 did 

not pertain to that issue. As such, the May 24 hearing did not satisfy the hearing 

requirement under § 785.03(1)(a).

¶19 Finally, the State argues that because Turrubiates consented to the 

circuit court combining the preliminary hearing with the hearing on the motion to 

compel, he has waived any argument that the court erred by holding a combined 

hearing. This argument misses the mark. Turrubiates does not argue that the court 

erred by combining the preliminary hearing with the hearing on the motion to 

compel. In fact, he affirmatively asserts that he is not making that argument. 

Turrubiates instead argues that the court erred by failing to hold the evidentiary 

hearing required by WIS. STAT. § 785.03(1)(a). Turrubiates never consented to 
No. 2020AP233

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combining that evidentiary hearing with his preliminary hearing and the hearing

on the motion to compel. We therefore reject the State’s waiver argument.

CONCLUSION

¶20 In summary, we reject Turrubiates’ sole argument challenging the 

order compelling him to provide his cell phone passcode to police, as it is 

undisputed that police have now obtained a warrant to search his cell phone. We 

therefore affirm that portion of the circuit court’s order compelling Turrubiates to 

provide the passcode. However, because the court failed to follow the mandatory 

procedures set forth in WIS. STAT. § 785.03(1)(a), we reverse that portion of the 

court’s order holding Turrubiates in contempt and ordering him imprisoned as a 

remedial sanction.

By the Court.—Order affirmed in part; reversed in part.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)4.