*1 in error. State, Defendant error, Plaintiff Conrad, v. Argued February 6, June No. State 50. 1974. 1974. Decided 252.) (Also reported in 218 N. W. 2d *6 plaintiff by For in error there a Robert brief Shervey Cameron, Weisel, 0. Weisel and & all Rice of argument Lake, by and oral Robert O. Weisel. argued by the defendant in error the For cause was attorney Robert Martinson, D. assistant general, with attorney on the Warren, whom brief was Robert W. general. argues J. Conrad he appeal, on this as
Heffernan, hearing did at trial at the suppress the motion on evidence, finding body that the of Marie should be body excluded because the buried under the rock pile expectation in the “reasonable privacy.” Thus, it is reasoned situation in the instant one case is is afforded of the fourth amendment Constitution of the United States and the identical provision of Wisconsin Constitution. reasoning arguably derived from Katz v. United (1967), 347, Sup.
States 389 88 U. S. 507, 19 Ed. Ct. L. 2d Katz Terry 576. The rationale was restated in v. Ohio 9, 1, U. S. 2d 1868, L. Ed. 889: recently have held “We that ‘the Fourth Amendment
protects people, places,’ . . . and wherever an in- dividual ‘expectation harbor a reasonable privacy,’ id., at ... he is entitled be free from unreason- governmental able intrusion.” A case decided upon court also relied the test of Katz-Terry. In Ball v. State (1973), 57 2d Wis. illegal 2d N. W. we held search of warrantless garbage burglary had been can which from a loot placed. said, de- within We “that the trash barrel was expectation privacy it fendant’s and the search of was (P. 664) unlawful.”
In the case before us it that whoever cannot doubted body buried pile Marie’s under the rock did so in expectation buried, that would remain It was hidden. expectation arguendo, privacy. reasonable body argues that, Conrad those if a is concealed under circumstances, only a search could be undertaken showing probable warrant after cause. *7 correct, i.e.,
If is the Conrad that evidence within was ambit of the Constitution’s a warrantless protection, search, except in applicable here, circumstances per body’s unreasonable se and the the dis- evidence of covery gleaned by exploitation and the evidence of the original by subsequent the search issuance of a warrant suppressed. must be (the expectation privacy)
The doctrine reasonable upon in which Conrad relies is the contradistinction to upon “open reliance the state’s doctrine fields” which permits a warrantless search under somе circumstances. “open by
The fields” doctrine was first stated Supreme Court Hester v. United States United States 59, 44 S. 898. U. L. Ed. Therein Justice Holmes Mr. said: special protection by “. . . the accorded Fourth people houses, Amendment to in their ‘persons, papers, effects,’ and is not open extended to the fields. The distinction between latter and the house is as old as 223, 225, common law. Bl. Comm. 226.” Case The Hester originated agent’s in a revenue stake- out of the home father. Hester’s Hester seen was from yards handing a distance of 50 to 100 person a bottle to a thought bootleg whiskey. who was customer for alarm, jug Hester took went to car, therefrom, his took a by through carried the fields. Both the bottle ran by jug were thrown carried Hester customer enough open broke, into field. Both but each containеd an liquid boot- liquid it determined that the so could be by whiskey. leg examined The broken were containers agents they dropped. revenue had where been Supreme even that, Court held United States though trespass, the evidence was not ob- was a although by illegal court, tained an search or seizure. The whiskey pointing “abandoned,” out that rested holding protectional that the its on the fact umbrella “open the fourth amendment does not cover fields.” upon Blackstone The reliance of Mr. Justice Holmes pages criticized are concerned has been because cited burglary with the common-law distinction between out-buildings. dwelling and a theft Be that from distant the rule of Hester accepted may, as it been defini- has as a tive statement of constitutional law since date. questiоn- precedential underpinnings fact its are way clarity expressed in no able vitiates therein, nor does weaken the court’s declaration applied appropriate gleaning standard to be evidence open the examination of fields. from Hester Unless has been altered States United Supreme Court, give court, which can even greater constitutional than the United States *8 Supreme Hester remains au- upon, Court would insist thoritative. though Hester,
Under even the sheriff in this case com- outrageous trespass, corpse mitted an the evidence of the although body the was admissible was in the buried soil pile. “open under a rock predi- fields” doctrine is theory protection cated on the that the of the fourth houses, is “persons, amendment to papers, and effects.” theory, that the fourth Under amendment no affords protection to evidence either on or in ground, the unless
625 particular question intimately the area related is so concept protected to a area that it can come the within curtilage. “open doctrine, Under the fields” the that evidence fact simply is immaterial. concealed or hidden is area is protection not within If the of the fourth amendment. body the where found con- field the have was does protection, sheriff, stitutional the fact rather the observing might than the evidence that have been plain dug view, body the into earth to find the com- and trespass doing protection. mitted a in so does not confer In United States v. Brown (5th 1973), 2d Cir. 473 Fed. “open the 952, applied fields” doctrine was to admit evi- only digging dence that the B. I. F. obtаined under coop open a chicken in an field. Care v. United States
In (10th 1956), Cir. 2d Fed. denied, certiorari 932, U. S. “open L. the applied fields” to Ed. doctrine permit relating the introduction of evidence to dis- covery aof still which cave was concealed in a about yards holding from the emphasized house. The curtilage that was protected, that the against of the fourth amendment unreasonable search and apply open does not seizure an field. place curtilage “Whether is searched within including facts, proximity be determined from the its dwelling, or annexation its inclusion within general surrounding dwelling, enclosure and economy use its enjoyment adjunct as an to the domestic family.”
Inferentially, “open defendant concedes that if the acceptable fields” doctrine remains an law, search and seizure did not violate the constitution and properly evidence was admitted. urges
Defendant that Katz v. supra, United States, “open death knell sounded doctrine, fields” *9 silentio, sub Hester. overruled, such do not that We see Katz. language given sweep a can to the broad Katz eavesdropping telephone a conver- involved on tap phone apparently sation —a wire on a that booth was argued government case, an In isolated structure. that right that no there was violation aof constitutional physical no intrusion any because was device into argument reasoning rejected the booth. This was on the Silverman United States v. U. S. trespass L. Ed. 2d that technical property question under law was irrelevant protection position fourth amendment alsо —a supra. Hester, In Katz, trespass stated however, rejected. definitively doctrine was The court held that: listening “The electronically Government’s activities recording petitioner’s to and violated the the words privacy upon which he justifiably using while relied telephone within and booth constituted ‘search seizure’ and meaning (Em- of the Fourth Amendment.” phasis supplied.) (P. 353) What Katz emphasized right person is the of a —the phone caller from the booth —to be secure un- from an reasonable search interception and seizure, of his Katz spells very conversation. out the not novel idea that clearly person, protected by the constitution, afforded is protection be, constitution wherever he is afforded even if there is no tech- trespass nical in a property common-law sense. Once conceded, majority as the of the United States Supreme has, Court notwithstanding, Mr. Justice Black that a “thing” verbal communication subject is a the Katz seizure, ruling was inevitable. person Where the he uttered was when the “seized” statement is irrelevant person’s protected. utterance True, as Katz clear, right makes he could waive evincing an keep private* election not to his utterances election —an clearly calling not made when from a telephone closed language: booth. Hence the
627 .“. . the protects people, Fourth Amendment not places. person knowingly exposes public, What a even in Amendment subject his own home or not a Fourth office, is Katz, page 351. protection.” importance
The of Katz spreads is not that it umbrella booth, of the telephone fourth amendment to a but that possibility place foretold the that, even in a traditionally thought protected by to be an area protection fourth amendment, in would not be afforded subjective absence aof intent to exercise a reasonable expectation privacy. concept protected The of a area A remains. home curtilage is such an area, and so surrounding home; (fn. Katz p. 351), but as noted in 9, Supreme suggested United States Court has “never concept can serve aas talismanic solution every problem.” Fourth Amendment concurring
The opinion of Mr. Justice Hablan in terpreted majority Katz (p. 361) merely holding as telephone that a temporarily booth private was “a place momentary occupants’ expectations whose of freedom recognized from intrusion are as reasonable.” Mr. Justice telephone-booth contrasts situation with a Harlan open conversation in the where there be would no ex pectation privacy. proposition For this upon he relied Hester, supra, and holding cited challenged whose was not majority in the opinion. majority simply distin guished the situation in Katz from that Hester and effect, “open found, fields” doctrine was factually applicable. not of Hester viability not was holding of Katz. weakened 1968, In Supreme the United States Court decided Terry v. Ohio (1968), 1, Sup. U. 1868, S. Ct. referring Ed. 2d language L. to the of Mr. concurring in Katz, stated: Justice Harlan, recently “We have held that ‘the Fourth Amendment protects people, places’ not .. . wherever an in- ‘exрectation dividual harbor reasonable privacy’ govern- he free from unreasonable ... is entitled en- Unquestionably petitioner mental . . was intrusion. . he Fourth as titled to the walked Amendment (P. 9) the street in Cleveland.” down Katz, however, conclu- It that mandated that Among accepted sion. That was law. the six old and Carroll v. United proposition for that cases cited States 280, 69 Ed. 267 U. L. S. years twenty a case decided more than earlier.
Terry proposition also stands for the that: Where *11 person is, there the the fourth also is amend- totally the That consideration irrelevant to ment. is subjectively displayed question of a desire to whether open evidence in an about the conceal- conceal field casts ment the of the fourth amendment. constitutional shield Terry Katz nor overrule Hester. The
Neither state- protects persons ment that fourth amendment and not places position in reinforces Justice Holmes Mr. Hester that a against place per protected not is se an open unreasonable search and seizure. An field remains beyond protection. the ambit of the fourth amendment’s may be A search made without a warrant and with- cause, probable and that which out found will suppressed by the courts. noteworthy
It is that Mr. Justice White, who differed in Katz majority only the extent with to that he would permit wiretapping by president attorney gen agreed security cases, eral in national with the Katz Hester Coolidge rationale, v. cited his concurrence to Hampshire (1971), New Sup. 403 U. 443, 513, S. Ct. 564, years 2d 2022, L. Ed. almost four counsel after argues put that its doctrine was Katz. to rest Cady Dombrowski v. 450,
In U. S. 37 L. Ed. 2d the United Su States referred to Hester preme Court as а authority viable open validate field an search.
It is that Hester clear, therefore, lives, and allows search warrant, without a even in the instant though, as case, trespass. there was a effect of Katz
What then is the replace not to if “open of Hester? As applied fields” doctrine other courts, appears it curtilage abe modification by Wattenburg rule. This is illustrated v. United States (1968), 388 -Katz case. 853, post Fed. 2d
In Wattenburg, trees, Christmas some of which were allegedly government cut on a forest preserve, were adjacent” stacked with “immediately other cut trees lodge Wattenburg where the defendant A lived. search was made govern- without a valid warrant. argued ment the search was free of the restraints fourth amendment place it because took in an “open acknоwledged field.” The court “open field” rule of Hester and stated: ‘open .“. . the uniformly field’ doctrine has been
recognized applied under where, facts of particular case, held the search and seizure had open occurred an field.” (Emphasis supplied.) (P. 856) quote court approval went on to applica with *12 tion of the Hester doctrine Care, supra, in and other Federal cases where the searches were at dis conducted tances of 100 feet to a half a mile from the residence. Those situations the court contrasted the to facts before it, “immediately where the adjacent” trees were the to dwelling.
It held that place the search took curtilage within the defined, supra, supra. Care, as in that, court held as a search within the curtilage, illеgal it was in the absence aof warrant probable based on cause. This was holding Wattenburg. the of As in dicta, opinion the of this writer useful and instructive the dicta, court in Wattenburg added that a appropriate more test was: “ upon an intrusion hether constitutes search] [W] [the in private preserve even the seeks to as
what an area . . . public.” resident the adjacent home, to Ms is accessible (P.857) (Emphasis supplied.) curtilage held
On test also search a violation of the fourth amendment. be explained appears Katz, as it that
Hence, on explication or modification based Wattenburg, is an curtilage concepts It is present-day of the ancient test. curtilage test, a limitation it. strict also Under subjective expectation privacy element of a reasonable legal effect, presumption in was, There was omitted. curtilage protected. all within principle was well stated Pitt when William Cyder speaking in the House of Commons 1763 on the asserting every castle, Tax. house is While man’s his he said: poorest cottage “The may man defiance his bid may may may all forces of the It roof crown. be frail —its through may shake —the wind blow it—the storm King England enter —the rain enter —but cannot enter! —all his force dares not the threshold cross (Quoted 2,000 of the ruined tenement!” in McNamara, Legal Quotations, 515) p.
Famous subjective appears Under the it test, that one now who places “papers curtilage and effects” within the in an open public against protected area to the will not be spell search and seizure unless the circumstances out subjective еxpectation privacy despite and reasonable semipublic curtilage. nature area within language
Despite heroically of Katz that asserts “protects that the fourth amendment people, places,” interpreted fact is that the Katz rule as in Watten- burg must, apparently, future, applied as in the gives person to the less than the rule. earlier represents upon It an encroachment pro- the umbrella of that heretofore “papers tection was afforded to *13 curtilage. effects” within It shifts the burden inferentially proof accused, to who must now show, subjective at a least, expectation and reasonable privacy curtilage public. if Here- is accessible tofore, government, if it wished to the curti- search obliged lage, rely “plain on view” or waiver doctrine, proof. doctrines on it had which the burden of Wattenburg
Katz scope represent limitation of the of the protection constitutional of the Katz individual. degree makes sense, person that, is, where a protected is his castle, governmental to be from intru- It sion. in making was clear Katz that person phone momentarily call had elected, at least under circum- stances where it was reasonable to elect, so to make phone place privacy booth a person for his his It place “King England conversations. awas where the by cannot enter” trespass by either surreptitious a or physically bug. intrusive electronic Katz, applied if in urged all in cases manner defendant case, liberty; personal does not further Only it Wattenburg constrains it. if progeny and its are interpreted to be a “plain restriction on the doc- view” arguably greater trine can it be asserted that is offered. Under Wattenburg, it is conceivable that “plain what is view” protected will nonetheless be be- placed cause it was there with a expectation reasonable privacy. hand, On the Wattenburg other test is subjective placing one, “thing” and the of a where will plain be revealed view is evidence that there was expectation privacy. no import
The clear aof series of California dis cases cussing People Katz is the same. v. Edwards Rptr. 2d Cal. Cal. 2d Pac. involved the warrantless search of trash cans located two or three porch the back It defendant. held from feet the cans constitutionally were protected becаuse *14 the privacy and expectation of there a reasonable was plain without marijuana not visible [no view] “was (P. 1104) Edwards receptacle.” ‘rummaging’ in the that in distinguished fact it on the Hester and cited dwelling. the whiskey from at a distance the was Hester Cal. Bradley 80, 81 People 1 Cal. 3d v. In Supreme Court 129, 2d the California Rptr. 457, 460 Pac. marijuana of search seizure upheld a warrantless backyard. again the There plants in the defendant’s doc “open approval the Hester fields” court cited with only its oc not the doctrine but and criticized trine, saying misapplication, it “does not afford a casional illegal involving every claim of an case a to solution (P. 84) and seizure.” search “open Bradley in found that court The California appropriate before it. test was not to field” facts marijuana plants pointed that within It out were they could door, of defendant’s back where feet delivery by They were persons. be tradesmen seen opaque part material and “at an least covered sight” (P. anyone plants plain 85) in were who Hester) (by approached. The a citation to situation was “open specifically doctrine contrasted to fields” set forth herein. Justice TOBRINER dissented on factual basis
Mr. “plain ap- not a view” unless the viewer marijuana and, proached plants, one foot of the to within protected the householder was a reasonable hence, privacy yard. expectation of within Mr. his enclosed out, pointed this case dealt not Justice Tobriner yard adjacent “open fields,” “the but with a with Only plants plain private if the in residenсe.” were view curtilage public area person of the he feel did justified. have been the seizure would court, Ball A case of v. State (1973), recent pointed 2d 2d N. W. out Wis. Hester. viability highlighted limited rule of It of Katz scope progeny. “expectation and its privacy” only pointed pertinent test out adjacent determining “whether search and seizure sup- constitutionally protected.” (Emphasis house is plied.) (P. 661) recognized fourth It adjacent amendment afforded to the to the house area placing garbage allegedly where the in a stolen articles *15 just can to the the the defend- rear of house demonstrated expectation privacy, ant’s reasonable of and contrasted objects “public the to instances where in facts were (P. 662) view.” v. State opinion court,
A pеr curiam Watkins of 514, an 449, 2d 208 2d held that (1973), Wis. N. W. storage could officer conduct search of a common apartment (clearly room an house within the curti lage) violating the without fourth amend defendant’s rights. ment This court that in such room said common expecta to all accessible the defendant “could harbor no (P. 514) Again Watkins demonstrates privacy.” tion of the extension of the Katz permits that upon inroads curtilage protection subjective the of the unless is a expectation of a privacy. demonstration reasonable respect “open The law in in Wisconsin field” away curtilage searches in areas from the un- remains changed. required No is police warrant for a search, and ground officers search such areas above the below by the undeterred fourth amendmеnt.1 by While no amendment, afforded the fourth an intrusion such as was made in the instant case would constitute a by trespass punishable Certainly digging law. such random property performed by another’s as Sheriff Anderson should not approved, disapproval trespass be but the of a and sanctions for it aspects must come from other of the fourth amendment than the exclusionary rule. Bivens v. See Six Unknown Federal Narcotics Agents 388, U. S. 29 L. 2d Ed. for a discussion of other remedies. changed been curtilage, the law has respect
In the right privacy except Katz where waiver there is demonstrated Where has been demonstrated. no search there can be expectation privacy, reasonable prob- upon curtilage except upon issued warrant in the body revealed had the been Hence, able cause. the excava- adjacent immediately house —in search body dog would pens evidence tion under —the plain in Only the evidence suppressed. were have to subjective curtilage sight there some or were within necessity a warrant showing for of waiver would the fourth extent, protection of that To be obviated. curtilage respect within amendment to searches reduced. has been finding of therefore, evidence of hold,
We open approxi- body fields of Marie Conrad in mately properly admitted 450 feet the house from evidence. into hair-splitting protracted distinc-
This discussion of the truth of Mr. Justice tions demonstrates Rehnquist’s Dombrowski, supra, p. “this branch statement *16 something than a web.” The of the is less seamless law Supreme Court made the law of search hаs United States incomprehensible seizure almost as as the and law obscenity. supreme The decisions of the court, of courts, possible and of court lower federal have made legerdemain deluge legal a which be exercised either a court wishes to sustain a search or to whenever reject it. theory any preference.
There to fit is almost Rules every can be tailored to fit reasonableness almost varia- reasoning. tion requires illegally rule that
The seized evidence by has, labyrinthine qualifica- excluded virtue of the be suspect, itself exceptions, tions and become not because possess merit, éfficacy not but it does because its is doubtful. exclusionary rationale of the rule is twofold:
tutional was seized.” or dence to be used sanction, apрrove (March, 1974). “ undesirable or unlawful [1] judicial process by . . . to deter unlawful or police Santarelli, conduct, and notwithstanding and be party not 61 Fed. Eules Decisions 273 police [2] having to constitutional violations to insure some conduct in undesirable the manner in judicial process allowing or unconsti- integrity which evi- it Only prosecution if commenced, however, is and brought case possible to court is even invoke judicial only exclusionary rule, sanction of the and then to the arguably benefit of those who found would be guilty were the evidence admitted. apply person sanction cannot if who is illegal
subject of an search is innocent, either deemed be- cause no found, if, evidence police is aas matter of policy, prosecute. the decision is not An “undesirable” person by who is hassled are searches seizures that “leaning harassing purpose calculated for the on” or protection by him is afforded no exclusionary rule. Police prevented. misconduct hassling Police can by continue unaffected the strictures of the fourth amend- guiltless person ment. subject A grossly who is the of a illegal intrusive and can search be afforded no relief exclusionary rule. Thus, penalty that is assessed the invocation of exclusionary rule is not an assurance that there will police misconduct, be no merely it is an assurance that society penalized by will inability its to use relevant punish evidence to against crimes society committed the state. judges
Courts and should not sanction violations of the integrity judicial constitution. The process must *17 be inviolate and from upon transgressions free reliance against every judge the constitution which taken the has uphold, good purpose by oath to but is this enhanced exclusionary ? by
While it is clear that the constitution the fifth amendment self-incriminating forbids the use of evi- dence, specific terms, and does so in no such sanction is upon by mandated courts fourth amendment. exclusionary judge-made rule is a one in further- ance of conduct that courts have considered to in the public suppress interest and to conduct that is not. Certainly integrity of trial courts as for searchers seriously the truth compromised is they required if are by appellate having court genesis, rules their not in constitution, grant in superintending but powers of suppress guilt to relevant evidence permit of guilty escape punitive to aspects rehabilitative оur criminal law—unless is the clear assurance exclusionary accomplishing rule is purpose its prevent transgressions future of the fourth amend- impose discipline ment and to past for offenses. In the instant case had the search Sheriff Ander- son revealed corpse, prosecution no would not have brought. Assuming arguendo been that the victim sheriff’s “hunch” innocent, is he would find out- his buildings over, dug knocked holes at random near his fields, home his heavy and the machinery marks land, on prosecution his but since no brought, had been would he be remediless.
In the instant case we conclude that the search was impermissible under the fourth amendment. Yet a wrong, trespass, a clear was committed, remedy but no any value has been right established courts wrong. this We need shed no plight tears over the case, defendant but our preoccupation with illegally exclusion obtained highly evidence that probative guilt has blinded legislatures courts and wrongs be done those clearly who are innocent. exclusionary protect rule does not privacy. their Its
637 though purpose, noble, simply when not effectuated is only against can apply society made be to for the benefit arguably guilty.2 the question open To exclusionary however, is, rule likely a Pandora’s box of Those who are substitutes. by police likely hassled persons are conduct least grievances. to resort to the courts for To en- redress any police force control exclu- over conduct, absent sionary may require rule, extensive and ad- undesirable police ministrative controls over conduct and that of an public prevent police against elected officer. To incursions private rights, tribu- establishment administrative either nals within or without enforcement law suggested. structures have penalties been Criminal against police illegal officers who conduct is searches proposed another alternative.
To exclusionary conclude this as court does that rule is a weak reed indeed to enforce the fourth amend suggest specific replacement ment is not to At for it. stage legal history exclusionary our when the given statutory rule has sanctions, repeal been its change obligation legislature. is an addition, of the In upon the rule is course, by Mapp mandated all states v. (1961), Ohio 367 U. 643, S. Ed. L. Accordingly, 2d 1081. this court not is now free to over Hoyer v. State Wis. 193 N. W. concurring opinion majority’s misunderstands concеrn exclusionary about the rule. problem application exclusionary is that rule fails protection against to assure the unlawful search and seizure that promise is the of the fourth amendment. The real world is the world of the courtroom alone. The rights people privacy protected of innocent by judicial are not inculpatory exclusion evidence when there is no such evidence prosecution brought. and no privacy is Yet violations of con- by exclusionary rule, tinue unchecked only which can be a against prosecution the state in against sanction arguably guilty. highlights The instant impotency case of the exclusion- ary prevent illegal trespasses rule to privacy. invasions of society price paid clear, however,
89. It is exclusionary amendment the invocation of a fourth searches, illegal high prevented rule is indeed. If the rule discourage clearly them, would or even there tended to justification rule, be a for the but substantial *19 quid pro quo society for no evidence that receives this against charges guilty. the of the dismissal (Using Wigmore Dean in 1922 Evidence foresaw by Illegal Seizure, and 8 Obtained Search A. B. A. Journal Boyd 479) exclusionary path the of down which rule Sup. (1886), 616, 524, 29 v. United States 116 U. 6 Ct. S. v. 746, (1914), L. and Weeks United States U. S. Ed. He 652, lead 383, 34 Ed. would us. 341, L. (P. 484) said : exempli- of “The doctrine v. United also Weeks States Anglo-American judiciary peculiar fies a trait of our type justice. the mechanical of and unnatural way justice natural to do here would be to enforce splendid directly, healthy principle and the Fourth Amendment by sending i. e., high-handed, for over- warrant, zealous marshal had searched who without a imposing thirty-day contempt imprisonment for his proceeding and Constitution, then to affirm the sentence proposed convicted criminal. But the in- direct and unnatural method is as follows: “ you ‘Titus, guilty conducting have been found you lottery; Flavius, confessedly have violated the consti- ought crime, imprisonment tution. Titus to suffer for contempt. you and Flavius for But no! let We shall go punish both free. directly, We shall not but Flavius by reversing do so shall way Titus’ conviction. This is our teaching people like Flavius to and of of behave, teaching people like behave, incidentally Titus to securing respect way for the uphold- Constitution. Our
ing the Constitution is not to strike at the man who it, somebody let breaks but to off else who broke some- ” thing else.’ day, doubt, emerge “Some no we shall quaint from this enforcing method of prеsent, law. At init we see many quarters. only It judiciary will be abandoned as the powers, appropriate conception rises into a more of its justice.” and a less mechanical idea of exclusionary practice The effect of the was succinctly People stated Cardozo v. Defore go Y. “The N. N. criminal E. Ought that free because the constable has blundered.” remedy? Once is concluded as do that evidence we discovery body properly be- of Marie Conrad’s question jury, remains, fore evidence jury’s in the sufficient to sustain the verdict of murder degree? The first brief concedes circum- defendant’s guilt disputes evidence of the stantial defendant’s only body-discovery evidence. history
The record reveals a of marital discord and incipient violent altercations. Thеre was evidence of an affair to see with Carol Wallace. the last Conrad was departure discrepant alive, Marie her and his accounts of *20 and her whereabouts to the inference that he was lead attempting to dissemble. Marie met the her death as being high-powered rifle, hunting result of shot with a possess. a kind of rifle that known Conrad was to Under evidence, jury the could conclude that this state of Con- intentionally rad had killed his wife Marie. only argues, however, and it
Defendant is almost his argument, the that facts demonstrate that not he could body placed pile have Marie’s under the rock because August he left on when Wisconsin there were piles body the on farm and when the two rock dis- was piles the rock been covered had consolidated into one grave. pile There over Marie’s was evidence that on August deputy separate sheriff two 19th saw rock property. assumption piles on the made de- the incorporated fendant is that whoever the one rocks into pile the body. committed murder Thus, and buried the according theory to the Conrad, body of the placed was August only pile two months
under the rock after 19th, discovery. Dr. theory, In before its contrast body in the Olson, the that the testified had been coroner, grave three maximum for a minimum months and a of testimony disputed the of not and six months. This was jury jury it. The could conclude was entitled to believe body July 26th the in the earth at least that had been perhaps undisputed that earlier. It is Conrad was and the evi- on the farm at that time. Under this view of jury dence, believe, the was whether which entitled pile one rock two immаterial. The evi- to sustain the verdict. dence was sufficient By Judgment the and order affirmed. Court. — (concurring). agree I the evidence J. Wilkie, finding body properly of Marie Conrad was disagree However, majority’s I dicta admitted.. with criticizing exclusionary rule. exclusionary essence,
In mani- rule is one demonstrating degree we festations of civilization society. developing have achieved in our democratic Ours government laws, men, said, is a often exclusionary positive we have a demonstration willingness government profit of our will not contempt while it breaks the law thus breeds for law. Mr. Justice said his dissent in Olmstead Brandéis v. United States: government govern- In laws, “. . . existence of imperilled Our Government ment will be if it fails observe the law scrupulously. potent, is the the omni- good present people by ill, teacher. For оr for it teaches the whole example. contagious. its Crime is If *21 contempt lawbreaker, Government becomes breeds law; every it invites man to
for
become a law unto him-
1
anarchy.”
; it invites
self
recently
years ago,
As
as five
Mr. Chief Justice
2
speaking
Terry
for the court in
v. Ohio said:
Warren,
1
438, 486,
(1928),
Sup.
564,
48
277 U. S.
Ct.
641
function— n
. The rule
“.
.
also
another
serves
vital
imperative
judicial
integrity.’
‘the
Elkins
United
v.
States,
206,
(1960).
364
222
U. S.
under
Courts which sit
our Constitution
party
cannot
not
made
and will
rights
lawless
of the
invasions
constitutional
of citizens
by permitting
governmental
unhindered
use
the fruits
of such invasions.”
justification
rule,
essential
exclusionary
for the
which
was fashioned
Supreme
the United
Court
States
early
Boyd
as
States,3
as 1886 in
v.
more
United
fully
very
in 1914 in Weeks v. United States4 was
recently
justices
dissenting
stated
three
in the case
Calandra,5
of United States
majority
v.
wherein a
Supreme
exclusionary
United States
Court held
rule in search
grand
apply
seizure
does not
cases
jury proceedings.
vigorously
dissenting
justices,
defending
exclusionary rule,
observed:
exclusionary
“.
.. The
rule,
perfect,
if not
accom-
plished
goals
enabling
twin
judiciary
to avoid
partnership
the taint
official
lawlessness and
assuring
people
potential victims of unlawful
—all
government
profit
government
conduct —that
its
would
from
minimizing
behavior,
lawless
thus
seriously undermining
risk of
popular
govern-
trust
6
ment.”
Supreme
Our
adopted
Wisconsin
Court
the exclusion-
ary
respect
rule with
proceedings
Wisconsin criminal
Hoyer
in 1923 in
Hoyer
v. State.7 In
the court, in dis-
cussing
I,
11,
art.
sec.
of the Wisconsin Constitution —the
constitutional
counterpart
identical
of the United States
Constitution’s fourth amendment —stated:
11,
I,
Const.,
“Sec.
art.
supra,
pledge
Wis.
is a
of the
govеrnment
faith of the state
people
that the
state,
3 (1886),
4 (1914),
616, Sup.
524,
116 U. S.
6
Ct.
in their papers, effects and security has unreasonable vanished and the guarantees color search and seizure. This by pledge that violated the state is acting state, it of under when officers state-given unlaw- authority, of search and seize fully. pledge provision 8 The of this and of sec. bail; [Prosecutions; self-incrimination; jeopardy; second corpus.] habeas are each violated of when use is made by its such evidence officers. one of its own of one courts other proper That of result —that conviction is, really guilty of an is be thus reached offense — neither an for excuse nor a condonation use of state that which is so result its own violation of its own fundamental . . .” charter. personnel government enforcement Law federal and operated here in ex Wisconsin have under clusionary century. rule for over half a There has been collapse no either federal or local law Wisconsin machinery. majority enforcement admits that difficulty is all the with known to the ex alternatives clusionary Although there are operat rule. difficulties in ing only rule, exclusionary under that is 8 required Hoyer our Wisconsin case of and fact as majority given statutory sanctions,” states “has been by Mapp but is also mandated v. Ohio.1 commentator, discussing
A recent exclusionary rule, said: rights anything “. . . If constitutional are to be more pious than pronouncements, then somе measurable conse- quence must be attached to their violation. It would be guarantee against
intolerable if the unreasonable search practical and seizure could be violated without conse- quence. procedure by of imperative It practical likewise to have a alleged which courts can review violations rights constitutional meaning articulate the 8 Supra, footnote 7.
9 E.g., sec. 971.31 Stats. 10 (1961), 367 U. S. Ed. L. 2d 1081. exclusionary rights. advantage rule— those entirely effect—-is apart any deterrent from direct gives it provides judicial review, for an occasion *23 guarantees. By credibility demon- to the constitutional strating the violation of constitutional consequences to society will attach serious exclusionary rights, magnifies educative force the moral and invokes integrate long some of the fourth amendment of term this law. Over system norms ideals into the value agencies.” law enforcement behavior of E. I Chief Justice am authorized state Mr. joins part concurrence in that Habold Hallows exclusionary criticizing disagrees the dicta which with rule. (dissenting). I think the search C. J. Hallows, pro-
illegal. The location on the defendant’s farm was meaning “open not an field” within the tected and was accept proposition I that a that doctrine. cannot dig person’s property suspicion up on can with sheriff looking evidence of crime. bulldozer, backhoe or for majority disapproving opinion, while what apparently did, sheriff considers reasonable disagree I the constitution. also with search under criticizing exclusionary respect rule and in dicta concurring agree opinion of Mr. Justice with Wilkie. Studying Exclusionary Oaks, Seizure, Rule in Search U. Chi. L. Eev. 756.