STATE of Wisconsin, Plaintiff-Respondent, v. Gary Monroe SCULL, Defendant-Appellant-Petitioner.†
No. 2011AP2956-CR
Supreme Court of Wisconsin
March 5, 2015
Motion for reconsideration denied April 20, 2015.
2015 WI 22 | 862 N.W.2d 562
Oral argument October 2, 2014.
For the plaintiff-respondent, the cause was argued by Nancy A. Noet, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
An amicus curiae brief was filed by legal intern Nolan A. Jensen, Ellen Henak and Henak Law Office, S.C., Milwaukee; and Melinda A. Swartz and Law Office of Melinda Swartz LLC, Milwaukee, and intern Nolan A. Jenson behalf of the Wisconsin Association of Criminal Defense Lawyers.
An amicus curiae brief was filed by Kelli S. Thompson, state public defender, and Jefren E. Olsen, assistant state public defender, on behalf of the Wisconsin State Public Defender.
¶ 2. Scull contends that the warrant was invalid because it was based on information gained from a
¶ 3. Like the court of appeals, we resolve this case with a straight-forward application of our good faith jurisprudence governing police reliance on a warrant. It provides that the good faith exception to the exclusionary rule applies to evidence obtained in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate that is ultimately found to be defective. State v. Eason, 2001 WI 98, ¶ 3, 245 Wis. 2d 206, 629 N.W.2d 625. Reliance on a warrant is objectively reasonable when: the warrant was preceded by a substantial investigation, the affidavit supporting the warrant was reviewed by either a police officer trained and knowledgeable in the requirements of probable cause and reasonable suspicion, or a knowledgeable government attorney, and a reasonably well-trained officer would not have known that the search was illegal despite the magistrate‘s authorization. Id.
¶ 4. In this case we determine that the good faith exception to the exclusionary rule applies because the evidence Scull seeks to suppress was obtained in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate. Accordingly, we conclude that the evidence should not be suppressed and affirm the court of appeals.
¶ 5. For purposes of our review, the facts of this case are undisputed. A confidential informant told Officer Wiesmueller that an individual named Gary M. Scull was involved in the distribution of cocaine base within the City of Milwaukee. The informant further identified the defendant by providing an address where he thought Scull possibly resided. Indicating that he had personally witnessed Scull distributing the cocaine base throughout the City, the informant stated that Scull conducts narcotics trafficking from his vehicle, a 1990s Ford Bronco, license plate 792-NYG.
¶ 6. After receiving the information from the informant Officer Wiesmueller conducted a follow-up investigation. He discovered that an individual named Gary M. Scull, born March 28, 1981, was on probation at the time. The address on file for Scull matched the address provided by the informant. Officer Wiesmueller further confirmed with the Wisconsin Department of Transportation that a vehicle with the license plate number and description matching the information provided by the informant was registered to Scull.
¶ 7. Officer Wiesmueller asked Detective Ederesinghe to take his dog to Scull‘s address. Detective Ederesinghe and his dog, Voden, are a drug detection team certified in the detection of the odor of marijuana, cocaine, heroin, and methamphetamine. When Voden detects the presence of controlled substances he will “alert” by aggressively scratching at the object.
¶ 8. In response to Officer Weismueller‘s request, Detective Ederesinghe took Voden to Scull‘s house. As he approached, a woman exited the house with two
¶ 9. Based on Voden‘s alert and the information provided by the informant, Officer Wiesmueller sought a warrant to search Scull‘s home. The affidavit for the search warrant detailed Detective Ederesinghe‘s and Voden‘s training and explained how Voden “alerts” to the presence of a narcotic. It then stated that “within the past seventy two (72) hours, his canine, VODEN, made an ‘Alert’ on the front entry door to [Scull‘s residence]. Detective Christopher Ederesinghe states that the ‘Alert’ of VODEN is a positive indication that controlled substances are contained in said apartment unit.”
¶ 10. The affidavit further detailed how the information from the confidential informant resulted in the dog sniff. It explained that the confidential informant was in a position to identify cocaine because the confidential informant had previously been involved in cocaine trafficking and that the informant was reliable because the informant had provided information in the past that had been confirmed by subsequent searches and arrests. The affidavit stated that the confidential informant told Officer Wiesmueller that “Gary M. Scull, b/m, 04-28-1981” was “involved in the distribution of cocaine base within the City of Milwaukee,” which he had personally witnessed. The affidavit included the informant‘s description of Scull‘s vehicle and its license plate, and the address he provided for Scull.
¶ 12. An assistant district attorney reviewed and approved the affidavit for the search warrant. It was subsequently submitted to a circuit court commissioner. After reviewing the affidavit, the commissioner determined that the affidavit submitted by Officer Wiesmueller showed probable cause to believe that there were controlled substances in Scull‘s home. The commissioner granted the search warrant to search Scull‘s home for those substances. Upon executing the warrant, officers found 53.85 grams of crack cocaine, 102.41 grams of marijuana, and drug-trafficking paraphernalia including digital scales, a razor blade, and numerous clear plastic baggies of various sizes. Based on this evidence, the State charged Scull with possession with intent to deliver cocaine, possession with intent to deliver THC, and keeping a drug house.
¶ 13. Scull moved to suppress the evidence obtained from his home. Scull asserted that the warrant was unlawfully obtained. He contended that the grounds for the warrant were insufficient because the dog sniff of his home was a warrantless search and
¶ 14. The circuit court denied the motion. It recognized that there was no case directly addressing the use of a drug-sniffing dog at the entrance of a home. However, it agreed with the State that the cases addressing dog sniffs in other circumstances established that dog sniffs were not searches and that police are lawfully on an individual‘s property when approaching the front door of a residence by means of a walkway. Accordingly, it determined that the dog was brought to the door of the residence “in a valid manner, not in a manner that violated the Fourth Amendment.” After his motion was denied, Scull pled guilty to possession with intent to deliver more than forty grams of cocaine and to keeping a drug house.
¶ 15. Scull appealed.2 While his appeal was pending, the United States Supreme Court issued Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409 (2013), in which it determined that using a drug-sniffing dog on a homeowner‘s porch to investigate the contents of the home constitutes a search under the Fourth Amendment. Based on Jardines, the court of appeals determined that the police violated Scull‘s Fourth Amendment rights when they brought a drug-sniffing dog to his home without a search warrant. State v. Scull, 2014 WI App 17, ¶ 1, 352 Wis. 2d 733, 843 N.W.2d 859. Nevertheless, the court affirmed Scull‘s
II
¶ 16. We are asked to determine whether the evidence obtained through the execution of a search warrant on Scull‘s home must be suppressed. Generally, in reviewing motions to suppress, we apply a two-step standard of review. Eason, 245 Wis. 2d 206, ¶ 9. First, we review the circuit court‘s findings of fact, and uphold them unless they are clearly erroneous. Id. Second, we independently review the application of constitutional principles to those facts. Id.
¶ 17. In this case, however, the facts are undisputed. It is further undisputed that the dog sniff of Scull‘s house which served as part of the basis for the warrant violated Scull‘s Fourth Amendment right to be secure from unreasonable searches and seizures. Thus, we are left to address whether the exclusionary rule applies or whether the evidence from Scull‘s home is admissible under the good faith exception to the rule. The application of the good faith exception to the exclusionary rule is an issue of law which we review independently of the decisions rendered by the circuit court and court of appeals. State v. Hess, 2010 WI 82, ¶ 19, 327 Wis. 2d 524, 785 N.W.2d 568.
III
¶ 18. We begin our analysis by setting forth the constitutional right at issue, the Fourth Amendment to
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
¶ 19. The Supreme Court has declared that Fourth Amendment rights are “indispensable to the ‘full enjoyment of personal security, personal liberty and private property.’ ” Gouled v. United States, 255 U.S. 298, 304 (1921). Courts have long extolled the importance of the home, noting that the amendment was drafted in part to codify “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.” Payton v. New York, 445 U.S. 573, 601 (1980); Holt v. State, 17 Wis. 2d 468, 477, 117 N.W.2d 626 (1962) (“A home is
¶ 20. The Court first applied the exclusionary rule to protect against violations of Fourth Amendment rights in Weeks v. United States, 232 U.S. 383 (1914). Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment is generally inadmissible in court proceedings. Mapp v. Ohio, 367 U.S. 643, 655 (1961). The court has explained that “[t]he exclusionary rule operates as a judicially created remedy designed to safeguard against future violations of Fourth Amendment rights through the rule‘s general deterrent effect.” Arizona v. Evans, 514 U.S. 1, 10 (1995).
¶ 21. Wisconsin has adopted the exclusionary rule and applied it to exclude evidence obtained in violation of the Wisconsin Constitution as well. It was first applied in Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923). There, after declaring that the provisions of the Bill of Rights embodied in the constitutions are “of substance rather than mere tinsel,” the Wisconsin Supreme Court determined that the evidence obtained in an unlawful search and seizure should have been suppressed. Id. at 415.
¶ 22. This court has cited two rationales in support of its application of the exclusionary rule: assurance of judicial integrity and deterrence of unlawful police conduct. State v. Felix, 2012 WI 36, ¶ 39, 339 Wis. 2d 670, 811 N.W.2d 775; Hess, 327 Wis. 2d 524, ¶ 47; State v. Artic, 2010 WI 83, ¶ 65, 327 Wis. 2d 392, 786 N.W.2d 430; State v. Knapp, 2005 WI 127, ¶ 79, 285 Wis. 2d 86, 700 N.W.2d 899; State v. Noble, 2002 WI 64, ¶ 31, 253 Wis. 2d 206, 646 N.W.2d 38; Eason, 245 Wis. 2d 206, ¶ 31 n.10; State v. Ward, 2000 WI 3, ¶ 47, 231 Wis. 2d 723, 604 N.W.2d 517; State v. McMorris, 213 Wis. 2d 156, 177, 570 N.W.2d 384 (1997); State v. Whitrock, 161 Wis. 2d 960, 988, 468 N.W.2d 696 (1991); Conrad v. State, 63 Wis. 2d 616, 635, 218 N.W.2d 252 (1974). In furtherance of judicial integrity, we have explained that “[c]ourts and judges should not sanction violations of the constitution. The integrity of the judicial process must be inviolate and free from reliance upon transgressions against the constitution.” Conrad, 63 Wis. 2d at 635.4
¶ 23. “Unlawful police conduct is deterred when evidence recovered in unreasonable searches is not admissible in courts.” State v. Tompkins, 144 Wis. 2d 116, 133-34, 423 N.W.2d 823 (1988); State v. Gums, 69 Wis. 2d 513, 516-17, 230 N.W.2d 813 (1975). However, when police action was pursued in good faith “the deterrence rationale loses much of its force.” Gums, 69 Wis. 2d at 517 (quoting Michigan v. Tucker, 417 U.S. 433, 447 (1974)). Such is the case where officers act in reliance on clear and well-settled law that is subsequently changed, State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, and where officers act in objectively reasonable reliance on a subsequently invalidated search warrant, Eason, 245 Wis. 2d 206.
¶ 24. In this case, the parties frame the question regarding the application of the good faith exception as whether the officers could have acted in reliance on clear and well-settled law that was subsequently re-
¶ 25. We need not address this argument because a straight-forward application of our good faith jurisprudence governing police reliance on a warrant resolves our inquiry. Here, the officers ultimately obtained a warrant to search Scull‘s home and that warrant was issued by a detached and neutral commissioner. The commissioner‘s decision to grant the warrant was a reasonable application of the unsettled state of the law at the time the warrant issued.
¶ 26. Two Wisconsin cases had addressed the validity of a dog sniff. The first, State v. Miller, 2002 WI App 150, 256 Wis. 2d 80, 647 N.W.2d 348, addressed a warrantless dog sniff of a vehicle. In addressing the defendant‘s Fourth Amendment rights, the court observed that a dog sniff is much less intrusive than a typical search. Id., ¶ 6. Further, dog sniffs reveal only illegal conduct to which there is no legitimate privacy interest. Id., ¶ 9. Accordingly, the court concluded that the dog sniff of the vehicle did not constitute a search and thus there was no Fourth Amendment violation. Id., ¶ 10.
¶ 27. In the second case, State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748, this court likewise considered a dog sniff of a vehicle in a public place. We agreed with Miller‘s statements that there is no constitutionally protected interest in possessing contraband, and that a dog sniff is much less intrusive than activities that have been held to be searches. Id., ¶¶ 22-24. Accordingly, we determined that a dog sniff of a vehicle located in a public place was not a search for purposes of the Wisconsin Constitution. Id., ¶ 24.
¶ 28. Both Wisconsin cases are consistent with the United States Supreme Court precedent issued prior to Jardines. In Illinois v. Caballes, 543 U.S. 405 (2005), the Court assessed whether a dog sniff of a vehicle stopped for speeding violated the Fourth Amendment. The defendant had argued that the sniff was impermissible because the officers lacked reasonable suspicion to justify it. Id. at 407. The court was not persuaded. Like Miller and Arias, it focused on the fact that there is no protected privacy interest in having an illegal substance and the non-intrusive nature of a dog sniff. The court observed that “official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Id. at 408 (quoting United States v. Jacobsen, 466 U.S. 109, 123 (1984)). Therefore, it concluded that “[a] dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.” Id. at 409.
¶ 29. In United States v. Place, 462 U.S. 696, 707 (1983), the Court considered a dog sniff in the context of an individual‘s luggage. After an airline passenger‘s conduct aroused suspicion, the officers seized his luggage and subjected it to a “sniff test” by a trained narcotics detection dog. Id. at 699. The Court noted that although a person possesses a privacy interest in the contents of their personal luggage, a dog sniff does not require opening the luggage. Id. at 707. Thus, the
¶ 30. In sum, at the time the commissioner issued the warrant in this case, there was Wisconsin and United States Supreme Court precedent stating there is no search when a dog sniffs a vehicle. There was also precedent stating that there is no search when a dog sniffs luggage at an airport. However, it was unsettled whether the same analysis would apply to a dog sniff of a home.5 Given the precedent, the commissioner‘s decision to grant the warrant appears to be a reasonable application of the unsettled law at the time the warrant issued. Accordingly, we turn to our case law addressing the application of the good faith exception to evidence obtained in reliance on a warrant.
¶ 31. The seminal Wisconsin case on the application of the good faith exception to the exclusionary rule in circumstances involving a search warrant is Eason, 245 Wis. 2d 206. In that case a court commissioner issued a no-knock search warrant based on an affidavit submitted by police. Id., ¶ 4. When the officers executed the warrant they discovered narcotics at the defendant‘s home. Id., ¶ 5. At trial, however, the circuit court granted the defendant‘s motion to suppress the narcotics because it determined that the affidavit in support of the warrant failed to allege the requisite reasonable suspicion to justify the issuance of the no-knock search warrant. Id., ¶ 7.
¶ 33. Leon cautioned that the existence of a warrant does not necessarily mean that the good faith exception to the exclusionary rule will apply. Leon, 468 U.S. at 922. It will not apply where “a reasonably well trained officer would have known that the search was illegal despite the magistrate‘s authorization.” Id. at 922 n.23. An officer “cannot reasonably rely upon a warrant that was based upon a deliberately or recklessly false affidavit, or, a bare bones affidavit that she or he reasonably knows could not support probable cause or reasonable suspicion.” Eason, 245 Wis. 2d 206, ¶ 36 (citing Leon, 468 U.S. at 923). Further, “[t]he officer cannot reasonably rely upon a warrant ‘so facially deficient’ that she or he could not ‘reasonably presume it to be valid’ ” or “upon a warrant issued by a magistrate that ‘wholly abandoned his [or her] judicial role.’ ” Id. (quoting Leon, 468 U.S. at 923).
¶ 34. The Eason court observed that Leon is consistent with this court‘s prior statements that application of the exclusionary rule requires a weighing of the pertinent interests. Eason, 245 Wis. 2d 206, ¶ 43. It concluded that the good faith exception should apply to the situation where an officer acts in objec-
¶ 35. However, rather than adopting Leon outright, this court added to the test. It determined that
¶ 36. In applying this test to the facts of the case, the Eason court determined that the officers had conducted a significant investigation before seeking the warrant. Id., ¶ 70. The court explained that the officers had worked with a confidential informant, researched the suspects in police records, and researched utility records for the premises. Id. The Eason court also determined that the warrant application had been reviewed by a government attorney. Id., ¶ 71. To reach this conclusion, it relied on the fact that “[t]he warrant and affidavit reflect advanced legal training, beyond that given to a well-trained police officer.” Id.
¶ 37. The application section of Eason‘s analysis also reflects that the court considered whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate‘s authorization, which would render the officers’ reliance on the warrant unreasonable. Id., ¶ 66. The court observed
IV
¶ 38. Turning to the facts of this case, we follow the test laid out in Eason. First, we determine whether officers conducted a significant investigation prior to obtaining the warrant. Second, we assess whether the affidavit supporting the warrant was reviewed by either a police officer trained and knowledgeable in the requirements of probable cause and reasonable suspicion, or a knowledgeable government attorney. Lastly, we consider whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate‘s authorization, rendering the officers’ reliance on the warrant unreasonable.
¶ 39. In terms of the first factor, we determine that Officer Wiesmueller conducted a significant investigation before obtaining the warrant. It appears the investigation into Scull began when a confidential informant told Officer Wiesmueller that Scull was selling cocaine base. Officer Wiesmueller determined that the informant would be in a position to know that the substance Scull distributed was cocaine because the informant had been involved in cocaine trafficking
in the past. Further, he deemed the informant reliable because the informant had provided information in the past that had been confirmed by subsequent searches and arrests.
¶ 40. Upon investigating further, Officer Wiesmueller discovered that there was an individual named Scull, matching the informant‘s description, who was on probation at the time for robbery and recklessly endangering safety in Milwaukee County. From the Department of Corrections records, Officer Wiesmueller confirmed that the home address the informant had given him was Scull‘s address. Officer Wiesmueller also obtained records from the Wisconsin Department of Transportation from which he was able to confirm that a vehicle matching the description and license plate number provided by the informant was registered to Scull.
¶ 41. After verifying the information from the informant, Officer Wiesmueller had Detective Edersinghe take his drug-sniffing dog to Scull‘s address. The dog alerted to the presence of drugs at Scull‘s front door. With this information, combined with the information from the informant, Officer Wiesmueller sought a warrant. The multiple steps taken by Officer Wiesmueller to investigate the allegations of drug trafficking were reasonable at the time and sufficient to satisfy the investigation requirement for purposes of the good faith exception under Eason. Therefore, we conclude that the State met its burden of showing that a significant investigation was conducted prior to the warrant.
¶ 42. The State also met its burden with regard to the second factor, review of the affidavit by a knowledgeable government attorney. In this case, we need look only at the face of the affidavit for the search
¶ 43. Lastly, we turn to consider whether a reasonably well trained officer would have known that the search was illegal despite the magistrate‘s authorization, rendering the officers’ reliance on the search warrant unreasonable. As in Eason, it is not contended and we see nothing to suggest that the warrant in this case was so facially deficient that a reasonable, well-trained officer would not have relied upon it, that there were technical or other glaring deficiencies with the warrant, or that the affidavit was sketchy or bare-boned. Accordingly, we conclude that at the time the officers executed the warrant on Scull‘s home, a reasonable officer would not have known that a search was illegal despite the warrant.
¶ 44. From the record presented in this case it appears that the officers did everything they were required to do. With the assistance of a knowledgeable government attorney they obtained a warrant from a detached and neutral magistrate, which they relied on to search Scull‘s home. Suppressing evidence obtained in objectively reasonable reliance on that warrant
V
¶ 45. In sum, the good faith exception to the exclusionary rule applies to evidence obtained in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate that is ultimately found to be defective. Reliance on a warrant is objectively reasonable when: the warrant was preceded by a substantial investigation, the affidavit supporting the warrant was reviewed by either a police officer trained and knowledgeable in the requirements of probable cause and reasonable suspicion, or a knowledgeable government attorney, and a reasonably well-trained officer would not have known that the search was illegal despite the magistrate‘s authorization.
¶ 46. In this case we determine that the good faith exception to the exclusionary rule applies because the evidence Scull seeks to suppress was obtained in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate. Accordingly, we conclude that the evidence should not be suppressed and we affirm the court of appeals.
By the Court.—The decision of the court of appeals is affirmed.
¶ 47. PATIENCE DRAKE ROGGENSACK, J. (concurring). I join the majority opinion‘s conclusions
¶ 48. The exclusionary rule is a judicially created remedy that may be applied to certain violations, including those of the
¶ 49. As Fourth Amendment and Article I, Section 11 jurisprudence developed, the exclusionary rule has become subject to exceptions. Both the United States Supreme Court‘s and our own decisions have established good faith as an exception to the exclusionary rule that permits prosecution‘s use of evidence even though police have transgressed the
¶ 50. As the parameters of the good faith exception to the exclusionary rule have developed both in the Supreme Court‘s and in our jurisprudence, so too have the judicial expressions of the policies that underlie the exclusionary rule. For example, in its recent decision in Davis, the Supreme Court expended considerable effort explaining the policies that must be considered with regard to the exclusionary rule and what facts are necessary before exclusion of evidence is even an option for courts to consider.
¶ 51. Davis involved the search of the passenger compartment of Stella Owens’ vehicle, in which Willie Davis was a passenger, after both Owens and Davis were placed under arrest and secured. Davis, 131 S. Ct. at 2425-26. A gun was found in Davis’ jacket; Davis was a convicted felon. Id. The search occurred before the Court‘s decision in Arizona v. Gant, 556 U.S. 332 (2009), which Alabama agreed set out new concerns relative to the search of Davis’ jacket under the
¶ 52. The ultimate question presented in Davis was whether the good faith exception to the exclusion
¶ 53. Although the Court‘s conclusion settled an important area of Fourth Amendment law, what is equally interesting about Davis is the Court‘s detailed descriptions of the showing that is required before the exclusionary rule can be considered. For example, the Court reaffirmed its holding in Herring v. United States, 555 U.S. 135 (2009), that the exclusionary rule‘s sole purpose is to deter future Fourth Amendment violations by police. Davis, 131 S. Ct. at 2426 (citing Herring, 555 U.S. at 141).2
¶ 54. The Court explained, “[r]eal deterrent value is a necessary condition for exclusion, but it is not a sufficient one.... The analysis must also account for the substantial social costs generated by the rule.... For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.” Id. at 2427 (cited and quoted cases omitted). When the error that leads to a Fourth Amendment violation is not that of police but that of a magistrate or judge who issues the warrant, the exclusionary rule
¶ 55. Our decision in Eason discussed the development of the exclusionary rule. We began by reviewing Hoyer, which addressed the Fourth Amendment‘s requirements, and we also considered the exclusionary rule as developed within the parameters of
¶ 56. So how does the above discussion fit within my concern set out in the first paragraph of this concurrence? It provides the necessary foundation to understand that the lead opinion in Hess cannot be combined with certain narrations of the majority opinion herein to conclude that the protection of judicial
¶ 57. First, while protection of judicial integrity was mentioned in Supreme Court decisions and in our decisions that preceded Leon‘s 1984 decision on good faith, protection of judicial integrity is no longer part of the Supreme Court‘s analysis. In that regard, the Supreme Court has unequivocally held that before the exclusionary rule may be employed as a remedy for a Fourth Amendment violation two conditions are required: (1) police misconduct and (2) a reviewing court‘s conclusion that “the deterrence benefits of suppression [] outweigh its heavy costs.” Davis, 131 S. Ct. at 2427. Protection of judicial integrity is not part of the Supreme Court‘s Fourth Amendment analysis when the remedy sought is suppression of evidence. We came to the same conclusion in Eason as we addressed
¶ 58. Second, the protection of judicial integrity was spoken of only in regard to its connection to police misconduct. See Conrad v. State, 63 Wis. 2d 616, 635, 218 N.W.2d 252 (1974) (explaining that judicial integrity could be compromised if unlawful police conduct was sanctioned by the use of evidence obtained in violation of the Fourth Amendment); Elkins v. United States, 364 U.S. 206, 222–23 (1960) (explaining that “[i]f the Government becomes a law-breaker, it breeds contempt for law“).
¶ 59. Third, the lead opinion in Hess is the only Wisconsin Supreme Court decision, or United States Supreme Court decision, that I could locate that employs protection of judicial integrity as a stand-alone basis for employing the exclusionary rule. Justice Gableman tried to point out this concern, but the lead opinion in Hess did not heed his thoughtful dissent.
¶ 60. Fourth, because the majority opinion herein cites the lead opinion in Hess in a manner that could permit the reader to erroneously conclude that police misconduct is not a necessary predicate to the application of the exclusionary rule under both United States Supreme Court precedent and our own precedent, I have chosen to bring this issue forward. It is my hope that my colleagues both on the bench and at the bar will take heed of this trap for the unwary and recognize that the majority opinion is not setting a new standard that permits the exclusion of evidence without police misconduct. Accordingly, I respectfully concur.
¶ 62. ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join Justice Roggensack‘s concurrence because I believe that the “assurance of judicial integrity” is not a stand-alone basis for suppressing evidence under the exclusionary rule. Although the case at issue centers on the Fourth Amendment, I write to clarify that the exclusionary rule can apply to violations of constitutional provisions other than the Fourth Amendment.1 The exclusionary rule requires suppression of evidence that was obtained in violation of the Constitution, unless suppression would not deter police misconduct or the error in admitting the evidence was harmless beyond a reasonable doubt. United States v. Leon, 468 U.S. 897, 906, 916 (1984); Arizona v. Fulminante, 499 U.S. 279, 309–12 (1991); Chapman v. California, 386 U.S. 18, 21-22 (1967); State v. Armstrong, 223 Wis. 2d 331, 368, 588 N.W.2d 606 (1999).
¶ 63. Because this is a Fourth Amendment case, the majority opinion‘s discussion of the exclusionary rule focuses on that constitutional provision. Specifically, the majority opinion states that, “[t]he [United States Supreme Court] first applied the exclusionary rule to protect against violations of Fourth Amendment rights in Weeks v. United States, 232 U.S. 383 (1914). Under the exclusionary rule, evidence obtained
¶ 64. The Supreme Court created the exclusionary rule to deter constitutional violations, but did not limit the exclusionary rule to the Fourth Amendment right against unreasonable searches and seizures. The exclusionary rule, if warranted, results in the suppression of evidence so that it may not be introduced to prove a defendant‘s guilt in the prosecution‘s case-in-chief. See Leon, 468 U.S. at 906, 916. The exclusionary rule, for example, may apply to deter violations of the
¶ 65. The origins of the exclusionary rule further demonstrate that it was designed to apply to evidence
¶ 66. Furthermore, the exclusionary rule does not always require suppression of evidence, even if it was obtained through unconstitutional means. In fact, the exclusionary rule does not apply when suppression would not deter police misconduct. Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419, 2426-28 (2011);
¶ 67. Some potential confusion surrounding the exclusionary rule could stem from the fact that evidence may be properly excluded for a variety of reasons. But the mere fact that evidence is being excluded does not mean that it is excluded under the exclusionary rule. “There are judicially created exclusionary rules and legislatively created exclusionary rules. There are constitutional exclusionary rules and statutory exclusionary rules.” Sun Kin Chan v. State, 552 A.2d 1351, 1355 (Md. Ct. Spec. App. 1989). A careful reader will keep in mind that courts may inaccurately refer to “the exclusionary rule” when a constitutional violation is not the basis for exclusion. Cf. Oregon v. Elstad, 470 U.S. 298, 306-08 (1985) (explaining the differences between the “Fourth Amendment exclusionary rule” and the “Miranda10 exclusionary rule“). Because the
¶ 68. With the foregoing clarification, I join Justice Roggensack‘s concurrence, and I concur.
(same); United States v. Havens, 446 U.S. 620, 627-28 (1980) (holding that evidence obtained in violation of
Notes
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.Ordinarily, we interpret