State v. Hess

State of Wisconsin, Plaintiff-Respondent-Petitioner, Defendant-Appellant. Michael R. Hess, Supreme Court No. 2008AP2231-CR. argument Oral March July

—Decided 82WI (Also 568.) reported in 785 N.W.2d plaintiff-respondent-petitioner the cause For the attorney argued by O'Neil, assistant Aaron R. was Hollen, general, J.B. Van on the briefs was whom with attorney general. by defendant-appellant a there was brief

For the argument George Tauscheck, Milwaukee, and oral M. George by M. Tauscheck. presented PROSSER, J. 1. T. The issue DAVID good-faith exception the to

in this exclusionary is whether the case permits use rule the of evidence obtained by in an his execution of a law enforcement officer beginning from the be- arrest was void warrant or law. The State had no basis fact cause the warrant suppression from a of evidence warrant contends that judicial solely not a of error would as result issued exclusionary purposes rule. further of the the good-faith exception to that the We conclude apply rule not to a situation the does (1) justify an arrest facts existed that would which: no (2) by warrant; issued without a the civil arrest warrant (a) judge not initio1 it did a circuit comply was void ah because any authorizing court to issue the with statute (b) supported or it an oath warrant; was (3) issued the warrant with- affirmation; the court scrutiny of verification the facts out benefit judge procedure acted as to ensure magistrate. and neutral detached on its face. here was defective The warrant reasonably fault Nonetheless, cannot attribute we executed warrant. the law officer who enforcement suppressing as a result of Thus, evidence obtained necessary pre- unauthorized, defective warrant Law beginning." Black's "[f]rom Ab initio is defined as (8th 2004). Dictionary ed. integrity judicial process. Consequently, serve the appeals, we affirm decision of the court of State v. App Hess, 105, 600, 2009 WI 320 Wis. 2d 770 N.W.2d 769.

I. BACKGROUND AND PROCEDURAL HISTORY defendant, 4. In mid-2005 Hess, Michael R. County operating was arrested Walworth for a motor intoxicant, vehicle under the of an influence violation 346.63(1)(a) (2007-08).2 § of Wis. Stat. Hess was re $1,000 leased bond, on a cash which included various including requirements "appear conditions he that on possess all court dates" "not or consume alcohol." subsequently pled guilty ¶ 5. Hess to the felony January offense—a on court —and (PSI). presentence investigation ordered a The order Department (Department) stated: "The of Corrections presentence investigation prepare shall a conduct a report investigation." on based this It set also March sentencing adjusted 2007, as the date. The court Hess's signature $10,000 bond to a bond with conditions of original to release similar those in the bond. February 8, 2007, 6. On author, the PSI a De- partment agent, of Corrections sent letter to the explained agent circuit court. The letter that the had meeting February contacted Hess to schedule for appeared meeting. agent Hess at the The then reviewed questionnaire noticing a portions that she had sent to Hess, that incomplete. why

of it were When asked he had completed questionnaire, responded Hess incorrectly it listed the offense as his fifth OWL The agent lobby then asked Hess return to the to com-

2All subsequent to the references Wisconsin Statutes are to the 2007-08 version unless otherwise indicated. the interview after which the questionnaire,

píete left, the agent presumed Hess then which begin. would ill. feeling Hess was was because Hess after unable to contact The was agent with Hess's mother message left a meeting. this She day. the agent p.m. Hess to contact asking he left a with although message respond, Hess did not the agent. about complaining agent's supervisor him Hess and directed contacted agent's supervisor The on 6. He February the interview to return to complete to contact also was unable agent did not comply. concluded her letter Thus, agent attorney. Hess's following paragraph: the court with the date, Mr. Hess has not noted that to It should be agent's super- agent [the or attempted to contact this Therefore, situation and Mr. due to the current visor]. above, agent outlined this cooperate, to as Hess' failure foresee, time, this Pre-Sentence not at does as completed Court will be by ordered Investigation requested that Mr. respectfully it is However, requested. allow the custody, which would placed in Hess be completed. Should the to be Investigation Pre-Sentence notify office please our request, this Court concur with of such. added.)

(Emphasis 14, 2007, Judge Circuit John February 8. On Civil." This warrant "Bench Warrant Race issued a officer" to "[a]rrest law enforcement "any directed named because person the above to the sheriff deliver Agent assigned with the failed to: Meet .. person:. this The war- Investigation." Pre-Sentence his complete upon released Hess could be rant specified Interview Investigation the Presentence of "Completion assigned." Agent with the Deputy

¶ 9. On March 7, 2007, Gilbert Maas County Department the Walworth Sheriffs went to understanding address, Hess's that he "had a criminal felony arrest warrant for Michael Hess." When he Deputy arrived, Maas encountered Hess's father at the front door.After a brief conversation with father, Hess's Deputy spoke Maas with Hess himself and advised him appear that he had an arrest warrant for failure to walking squad court. As the two men were to the car, Deputy coming Maas smelled the odor intoxicants placed from Hess. He arrest, Hess under handcuffed pat-down placed him, did a search, and Hess in the back squad car. Following procedure, Deputy normal Maas requested dispatch center to check if Hess was on any dispatch conditions of bond. He was advised center that Hess was on bond for a sixth offense drunk driving with a minor in the vehicle and that one of the possess conditions of his bond was that he not Deputy transported consume alcohol. Maas then Hess to Lakeland Medical Center to obtain a blood draw. charged felony 11. Hess was thereafter with bail jumping, § violating violation of Wis. Stat. 946.49, for requirement possess the bond that he or consume suppress alcohol. He in any turn filed a motion evidence obtained as a result of the civil warrant. This Deputy included regarding Maas's observations Hess's sobriety argued on March 7. Hess that the civil bench warrant was invalid because it failed to conform to the requirements for a civil bench warrant Wis. Stat. ch. (1) Specifically, argued 818. he none of the enumer- may ated situations which an arrest be made was (2) present; and the court was not furnished with an prior issuing argued affidavit to the warrant. He as suppressed March 7 must be on obtained all evidence arrest. illegal of an the fruit Carlson court, pre- James Judge The circuit 12.

¶ to suppress. on the motion hearing held siding, because hearing at the testimony to take declined court It an issue of law. of the warrant the legality it deemed that the warrant was motion, reasoning denied the then (1) to inherent power the court's either valid under (2) statutory the court's general or warrants; issue The circuit court also § 757.01. Wis. Stat. under powers valid, if the warrant were that even stated exception under the good-faith admissible was evidence rule. to trial, at which jury to a The case proceeded 13.

¶ on his observations regarding Mass testified Deputy The court with- Hess guilty. found jury 7. The March three years probation. Hess on and placed held sentence appealed. Hess and remanded reversed appeals The court of 14.

¶ Hess, 2d 320 Wis. the evidence. suppressing after warrant, validity analyzed The court 3. ¶ to authority court lacked that the circuit observing criminal this was a because bench warrant issue a civil 818). then ch. The court Id., Stat. (citing Wis. case. ¶ to issue authority lacked the the court noted that 968.09(1) § Stat. under Wis. bench warrant criminal in court and was fail to appear did not Hess because meet with to implied requirement express under no that the Id., the court said Finally, the PSI writer. for contempt a warrant to issue authority had no court with cooperate Hess did not order the court because that, Id., The court concluded PSI writer. only pursuant be issued may warrants because Id., (citing invalid. was statute, the arrest warrant (1870)). Lathers, 436, 438 26 Wis. Wagner applicability ¶ 15. The court next examined the exclusionary primary rule. The court noted that the purpose police of the rule was to deter unlawful conduct judicial preserving integrity. while also Hess, 320 (citing Terry ¶ 600, Ohio, Wis. 2d 16 v. 1, (1968)). Kriegbaum, 12-13 It cited 229, State 194Wis. (1927), proposition 232, 215 896 N.W. for the that the exclusionary prohibits pursuant rule evidence obtained by judge legal authority to a warrant issued with no to Hess, issue such ¶¶ a warrant. 320 600, Wis. 2d 17-18. appeals ¶ 16. The court of next turned to the good-faith exception to the rule. It rea good-faith exception, soned that the as set out in United (1984), Leon, States v. Eason, 468 U.S. 897 and State v. 98, "allow[s] 245 WI Wis. 2d N.W.2d the admission of evidence when law enforcement offic they supposed ers did what were to .. . but someone made an accidental clerical or technical error or the judge concluding erred in that the law enforcement's application requirements fulfilled the for a warrant." rejected Hess, Wis. 2d 21. The court argument good-faith exception applies State's that the judicial, reasoning where the error is that the court in merely this case did not make an error, but acted Id., outside the law. purpose 17. The court declared that the

good-faith exception simply police is not to deter mis- preserve judicial id., ¶ integrity, conduct, 23, but also to meaning judicial that courts must ensure "that our process approve party does not sanction, and be Finally, id., ¶ constitutional violations," the court jurisdictions examined cases several different good exception apply conclude that "the faith does not judge by issuing when acts outside the law a warrant authority he or she had no Id., whatsoever to issue." (6th Scott, 515 512, States v. 260 F.3d Cir. 26; United ¶ Renton, 316, 117 P.3d 323 2001); Bosteder v. City of (S.D. (Wash. 513, 2005); Wilson, 618 N.W.2d 520 State 2000). review, this court for petitioned 18. State

¶ we granted. which

II. OF STANDARD REVIEW in We review a motion to two suppress steps. 19. ¶ 52, 2001 241 2d 621 Matejka, State v. WI Wis. ¶ First, findings 891. the circuit court's uphold N.W.2d we fact unless are erroneous. Id. they clearly of historical constitutional Second, apply prin we independently sufficiency to those facts. Id. The constitutional ciples and the of the good-faith of a warrant application law, rule exclusionary to the are issues exception 216 Meyer, we review de novo. See State v. which Eason, (1998); 729, 744, 2d Wis. N.W.2d 2d 9. Wis.

III. DISCUSSION The State the arrest warrant concedes result, State's evidence of Hess's was invalid. As of alcohol —the evidence consumption possession ob- jumping used to convict Hess of bail felony —was Amendment to the tained in violation of the Fourth I, § Article 11 of the States Constitution United Thus, the issue in this case is Wisconsin Constitution. appropriate, exclusion of that evidence whether the court use of the evidence on permit whether should enforcement obtained the evidence grounds law in reliance on an arrest warrant acting good-faith while that was void. resolving begin by issue, In this we examin-

ing statutory require- and constitutional warrant ments and the deficiencies of the in warrant at issue development this case. We then consider the historical good-faith exception rule and its parallel developments the federal courts as well as the Finally, apply principles in Wisconsin. we these appropriate remedy determine whether exclusion is an under the unusual facts of this case. Requirements

A. Warrant Wisconsin ¶ 22. The warrant in this case suffered from two (1) primary defects: the circuit court did not have statutory authority to issue a warrant for failure to (2) investigator; meet with a PSI the warrant was supported by an oath or affirmation. Statutory Authority 1. Lack of ¶ 23. The defendant contends and the State con- cedes that the arrest warrant was issued without au- thority. appropriate

¶ 24. Under circumstances, a circuit (1) statutory authority court has to issue a civil bench (2) (3) warrant, tempt a criminal warrant, bench a con illustrate, warrant. To had the circuit court comply requests ordered Hess to with the of the PSI cooperation writer or made his bond, a condition of might court contempt have ordered the defendant arrested for

(Wis. 785.04(1)) 785.03(1)(b), §§ Stat. or is (Wis. 968.09(1)) § sued a criminal bench warrant Stat. up after Hess failed to follow with the PSI writer. Had appear Hess failed before the court on a matter, civil appropriate a civil bench warrant would have been 818). (Chapter case, however, the facts of this Under by supported any warrant cannot be of these various purported The court issued what to be a statutes. civil bench warrant a criminal case on the basis of Hess's comply gave. failure to with an order the court never governed by ¶ 25. Civil arrests are Wis. Stat. ch. only action, 818. In a civil arrests are to be made "as 818.01(1). § prescribed by chapter." this Stat. Wis. eight statute then lists circumstances under which a may pursuant defendant be arrested to a bench civil § procedures warrant. Wis. Stat. 818.02. The under the chapter, require turn, that an "order for the arrest of the defendant must be obtained from the court." Wis. § may Stat. 818.03. The court issue such an order appear it shall "where that a cause of action affidavit exists, and that it is one of those mentioned in s. added). § (emphasis 818.02." Stat. 818.04 To ex- Wis. "ft]he warrant, ecute affidavit, bond and order of shall arrest be delivered to the sheriff." Wis. Stat. added). § (emphasis 818.07 Nothing suggests any in the record authorizing

the circumstances a civil bench warrant § provided under 818.02 existed. No affidavit was any demonstrating circuit court the existence of consequently circumstances, ac- those no affidavit companied to the the order for arrest delivered sheriff. Equally important, pending the matter before the court criminal, Therefore, was not civil. the court was with- authority a bench out to issue civil warrant. may the arrest 27. The court issue a warrant for judge that there is

of a defendant when a determines probable has cause to believe that a criminal offense been committed and that the accused has committed it. § cooperate Stat. 968.04. Hess's failure to with the

Wis. agent preparing addition, in a PSI was not a crime. In 968.09(1), § may under Wis. Stat. a court issue a crimi- appear nal arrest warrant when a witness fails to before required the court as "or violates a term of the Here, defendant's. .. bond." Hess had not failed to appear for a court date. Nor had he a term violated meeting agent bond, his because with the PSI was not a Therefore, condition of his bond. court the circuit was authority without to issue an arrest warrant under 968.09(1). § Finally, permits

¶ 28. Wis. Stat. ch. 785 a circuit imprisonment court to order contempt as a remedial sanction for contempt of court. Such is defined relevant part presence "[m]isconduct as intentional in the of the "[d]isobedience, court" or resistance or obstruction of authority, process or order of a court." Wis. Stat. 785.01(1)(a)-(b). § nothing There is in the record to suggest that Hess satisfied either definition of con tempt particular, comply In of court. he did not fail to explicit an Therefore, with order of the court. the arrest warrant was authorized under ch. 785. authority ¶ 29. Because the circuit court had no appropriate to issue did, the warrant it exclusion anis remedy for evidence obtained as result a of that war- Kriegbaum rant. This court held in that where a magistrate authority lacked warrant, to issue a search conducted and evidence seized resulted Kriegbaum, constitutional violation. 194 Wis. at 232. In Kriegbaum, justice peace of the issued a warrant authorizing person a search of the defendant, but justices peace the statutes authorized to issue only "particular place." warrants to search a house or facts, Id. From these the court held: "A search made pursuant by justice peace to warrant issued a legislature granted power whom the had not the issue such a warrant is an unreasonable search and in rights." violation of the defendant's constitutional Id. appeals applied prin- ¶ 30. The court of has ciple Kriegbaum in articulated in several In cases. these suppressed cases, the court held that evidence must be pursuant by when it was obtained to a warrant issued a court commissioner not authorized to issue search Loney, warrants. State v. 256, 258-60, 110 Wis. 2d 328 (Ct. App. 1982); N.W.2d 872 Grawien, State v. 123 (Ct. 1985).3 App. 428, 431, Wis. 2d 367 N.W.2d 816 together Kriegbaum, support cases, These with appropriate remedy conclusion that exclusion is an by by where evidence was obtained a warrant issued a magistrate authority who lacked the to issue the war- rant. principle

¶ 31. This basic is reinforced State v. Popenhagen, 55, 2008 601, WI 309 Wis. 2d 749 N.W.2d Popenhagen, pursu 611. In the state obtained evidence subpoenas satisfy statutory ant to that did not requirement showing probable ¶¶ of a Id., cause.

3 State v. Grawien was decided after the United States Supreme Court had adopted good-faith exception to the Grawien, exclusionary State v. rule. 123 2dWis. 367 N.W.2d (Ct. 1985). App. Appeals Wisconsin Court of refused to apply good-faith exception, yet which had adopted been Wisconsin, reasoning doing so would existing overrule Id. at 432. precedent. Wisconsin Collins,

In State v. appeals applied good- court of exception faith to the rule before this court Collins, it. State v. adopted 320, 329-30, 2dWis. 363 N.W.2d (Ct. 1984). Collins does not contradict App. the basic Kriegbaum, from State v. principle 194 Wis. 215 N.W. 896 (1927), specifically because the court noted that "the defect the warrant did not stem from being by person its issued other than a properly empowered Id. at 327. magistrate." neutral necessary suppression because the was

13. held that We procured by in evidence was the state means which by procedures ¶ Id., set out statute. 97. violation by subpoena Allowing com- a not documents obtained statutory probable requirement plying cause with the statutory safeguards meaningless. Id., make the would suppression By an ¶ token, held that of the same we incriminating procured use of those same statement necessary fully protect persons from documents was comply Id., the statute. the state's failure to with subpoenas Popenhagen, in this Like the warrant statutory require- not conform to the basic case did ments.4 cases lead us to conclude that because 32. These not authorize a warrant under these

the statutes did ab initio. In such a circumstances, the warrant was void remedy. appropriate The State situation, exclusion is an the use of the evidence here than is no more entitled to placed custody enforcement Hess in it would be had law where a warrant without a warrant circumstances required. The had no basis in fact or law was warrant therefore, issued; from the moment it was and was void subject pursuant seized to Hess's arrest is evidence exclusionary rule. to the

2. Lack of Oath or Affirmation

¶ 33. Both the United States and Wisconsin Con- provide issue, stitutions that "no Warrants shall but employed a different concurring opinion A somewhat analysis "A court cannot be denied the and concluded: circuit of power remedy undisputed an obvious and misuse its judicial authority by attorney." Popenhagen, the district State (Prosser, J., WI 55, 309 Wis. 2d 749 N.W.2d 611 concurring). cause,

upon probable supported by Oath or affirma . . . IV; tion U.S. Const. amend. Wis. Const. art. §11. We have declined to consider this requirement have technicality, upheld mere but its basic substantive importance, stating: form,

An substance, oath is a of matter and it anis component essential of the Fourth Amendment and legal proceedings. purpose an oath affirma- upon tion is to impress swearing individual an appropriate obligation sense to tell truth. An oath or to support affirmation warrant re- search investigator minds both the seeking the search warrant issuing and the magistrate importance it of the and solemnity process involved. An oath or affirma- protects target tion impermis- the of the search from by sible creating liability perjury state action for or swearing false process for those who abuse the warrant by giving false or An fraudulent information. oath preserves of integrity process the the search warrant protects constitutionally and thus guaranteed fun- right people persons, damental of to be secure in their houses, papers, against effects unreasonable searches and seizures. 124, 530, v. Tye, 19,

State 2001 WI 248 Wis. 2d 636 ¶ (footnotes omitted). 473 N.W.2d 34. When a warrant fails to with the comply ¶ constitutional oath or affirmation we have requirement, it Id., considered to be "invalid when issued." 23. In ¶ the warrant no Tye "facially was defective because sworn attached," affidavit was although the court held and the affidavit, sworn, if true and parties stipulated probable Id., would have cause the search. provided for 5, 7. We deficiency contrasted warrant's with a ¶¶ case where the was in the number of the error street Nicholson, to be 174 premises searched. State v. Wis. 2d (Ct. 1993). 542, 544, Nicholson, In App. N.W.2d irregularity was a "technical however, only this error defendant," allow- rights the substantial affecting when issued. Tye, to be valid the warrant itself ing 2d Wis. ¶ accompa- was not Here, the arrest warrant unsworn. The absence affidavit, sworn or

nied an 818.07. §§ 818.04 and Wis. Stat. an affidavit violated violated the state sworn affidavit The absence of as evidence obtained and rendered federal constitutions Tye, 248 Wis. 2d inadmissible. of the warrant a result "to induce necessary affirmation is 3. An oath or the magistrate" in the mind of an honest belief State, 383, 386 cause exists. Kraus v. 226 Wis. probable Baltes, v. (1937) 545, 552, 198 State 183 Wis. (citing (1924) no evidence because (suppressing N.W. 282 warrant)). existed to testimony support sworn cause probable or affirmation and 36. The oath as well to arrest warrants equally apply requirements U.S., Giordenello as search warrants. (1958). or affidavit complaint The sworn

485-86 to make an magistrate necessary judge to allow the existence of regarding informed determination Id. at 486. The test for sufficiency cause. probable it can "sup- or affidavit is whether complaint a sworn mag- of a disinterested judgment port independent Warden, Pen., State Whiteley Wyo. v. istrate." (1971). 560, 565 oath or accompanied by an affidavit 37. Without consti- failed to meet a basic

affirmation, the warrant Tye, ab initio. See tutional and was void requirement affidavit any 2d 13. The absence 248 Wis. the sheriffs depart- both the court and put should have ment a problem. on notice of Exclusionary Exception B. The Rule and Good-Faith Although exclusionary we hold that the rule applies because the warrant was void when issued, the good-faith exception State asks us to extend the to the exclusionary rule Wisconsin to render evidence ad- pursuant missible when it is seized to a warrant issued statutory authority. without To determine whether good-faith exception appro- such an extension of the priate, begin by examining we the historical back- ground exclusionary rule in the federal courts apply principles and in Wisconsin. thenWe these to the situation in which a circuit court issues a warrant statutory authority unsupported by without and an oath or affirmation. Exclusionary

1. The Federal Rule origin ¶ 39. The of the Fourth Amendment exclu- sionary Supreme rule can be traced Court's States, decision v.Weeks United in which the Court objection timely considered a defendant's to the war- rantless seizure of evidence from his residence. Weeksv. (1914). United import States, U.S. 387-88 explained, put of the Fourth Amendment, it was "to courts... under limitations and restraints as to the power [their] authority." exercise of Id. at 391-92. It concluded that unlawful seizures "should find no judgments sanction in the of the courts which are charged support at all times with the of the Constitu- Accordingly, tion." Id. at 392. the Court held that the by refusing papers trial court erred the return of the by allowing them to be used at trial. Id. at 398. Initially, ¶ 40. rule created in applied only Weeks to federal officers and federal courts. acknowledged In Colorado, the Court that the Wolf applied protections to the Amendment are Fourth through of Four- the Process Clause the states Due exclu- Amendment, it declined to extend the teenth but grounds sionary the the on that rule was rule to states by by required the or virtue not the text of Constitution legislation. 338 U.S. 27-28 Colorado, of v.Wolf (1949). judicial Rather, was matter of exclusion "a imposing implication." at Instead the exclu- Id. justice, sionary the administration of the rule on states' pursue to other methods Court chose to allow the states equally might to effective solutions the consti- that be problem. tutional Id. at 31. years the re- later, however, Court 41. Twelve holding that Wolf, this view and overruled

considered in "all obtained searches and seizures evidence the is . . . inadmissible violation of Constitution (1961). Mapp Ohio, To state v. U.S. court." hold, did, Amendment as as Fourth Wolf consequences applied impose for to the states does reality grant right be but in would "to violations enjoyment." privilege Id. at In its withhold response to criticism that rule results letting guilty go free, an the Court reaffirmed holding earlier from Elkins United States: imperative another consideration —the "[T]here is free, judicial must, if he integrity." goes The criminal Nothing destroy law him free. can but it is the that sets than government quickly more its failure observe laws, worse, disregard charter its own its of its existence. own

Mapp, (quoting States, omitted). at Elkins v. 367 U.S. United (internal (1960)) 206, 222 citations emphasize applying Court went on to only logical exclusionary rule to the states "is not very good prior it also cases, dictate of but makes sense. no There is war between the and Constitution common Mapp, sense." U.S. at purposes

¶ 42. The Court elaborated on the and exclusionary functions of the rule in the context of police "stop Terry officer and frisk" seizures in v. Ohio. Terry excluding In the Court held that evidence seized in violation of the Fourth Amendment seeks to deter police serving unlawful conduct while another "vital judicial imperative integrity.'" Terry, function —'the of 222). (citing Elkins, atU.S. 12-13 364 U.S. at ultimately police Court concluded the officer's Terry proper actions in were under the Fourth Amend- "[cjourts emphasized ment, but sit which under party our Constitution cannot and will not be made to rights lawless of invasions the citi- constitutional of Terry, zens." at years Supreme later, 43. Sixteen the Court provide good-faith the

modified rule to exception police good when a officer relies in faith on a facially valid warrant that was issued neutral and magistrate. Leon, detached 468 U.S. at 905. Crucial to analysis balancing the Court's was the interests preserving probative criminal evidence in trials removing any incentive for official misconduct or con- stitutional violations. Id. at 900-01. tempered good-faith exception 44. The Court the

by identifying good four circumstances which the faith unconstitutionally reliance of an officer will not save (1) facially obtained evidence: where the is valid affidavit knowingly upon recklessly based or false made state- (2) issuing judge magistrate "wholly ments; where the (3) judicial role;" abandoned his where the affidavit was magistrate to insufficient allow to make a determi- (4) probable cause; nation of where the officer objective good faith because cannot demonstrate lacking supporting in indicia the warrant "so affidavit probable in its official belief cause as render entirely Id. at 923. unreasonable." existence Leon, Court has continued 45. Since good-faith exception. reexamine boundaries good-faith extended In Illinois Krull Court pursuant exception to a state to allow evidence seized Krull, Illinois v. statute later deemed unconstitutional. (1987) (relying 340, Leon, on 468 U.S. at 480 349 U.S. proposition the function 920-21, for the deterrence police rule not be furthered where the of the would reasonable). objectively Court reliance The officer's was exclusionary apply to rule clerical later declined to by employees where enforcement's errors court law Evans, 1, v. 514 Arizona U.S. behavior was reasonable. (1995). recently, the Court considered 15-16 Most by police personnel clerical error should whether a scope exclusionary exempted be from the of the likewise Herring 135, States, rule. 129 S. Ct. v. United (2009). Although rejected categori- a 695, the Court 703 exception Evans, in to it held that cal similar the one police Herring in exclusion conduct did warrant negligence it "was the result isolated attenu- because of Id. ated from the arrest." at 698. Exclusionary

2. in Wisconsin The Rule exclusionary Wisconsin, In rule dates that, back this held for Bill of when court "the Rights be of as embodied constitutions to substance may tinsel," not rest on rather than mere a conviction unlawfully Hoyer State, 180 seized evidence. Wis. (1923). Although N.W. the court acknowl- 89 contrary edged that other states conclu- had reached logic,justice, sions, it found "no reason in inor . . . fair play" why justice court of should the use allow through plain evidence obtained violation of the constitution. Id. at court instead elected to precedent, follow at federal which that time considered analogous compelled the unlawful seizure of evidence self-incrimination under Fifth Amendment. Id. at guarantee security 415-16. The constitutional against unreasonable search and seizure cannot be discarded in favor of a conviction obtained guarantee. violation of that same Id. at 417. "Such a cynical obligations indifference to the state's should not judicial policy." he Id. subsequent

¶ 47. In cases, the court continued to Supreme follow the United States Court in the devel- opment application rule: Echo- ing Supreme language Elkins, Court's the court underlying identified two rationales the rule: deter- police rence of unlawful conduct and assurance of judicial integrity. State, 616, 635, Conrad v. 63 Wis. 2d (1974). recognized N.W.2d In Conrad we purposes reality: both have their limits in deterrence persons charged cannot be achieved where are never judicial integrity may process tried, and the of be compromised when relevant evidence is excluded from truth-finding process. Imperfect though the remedy might Id. the recognized important

be, the court the principles underlying development the rule's and con- "[cjourts judges cluded that should not sanction violations of the constitution." Id.5

5 judges not "Courts and should sanction of the violations judicial integrity constitution. The of the process must be against inviolate and free from upon transgressions reliance the every judge constitution which has uphold." taken the oath to State, (1974). Conrad v. 635-36, 616, 63 Wis. 2d 218 252 N.W.2d

547 Brady the asked In court was to 48. State v. Supreme Hoyer light of the Court's deci in reconsider Brady, 453, 2d Wis. sion Leon. State v. (1986). validity challenged Brady of the a N.W.2d 151 by judge in issued a material witness arrest warrant statutory arguably proceeding, without au Doe John thority. The did not Id. at 449-50. court address authority judge warrant, issue the the had whether authority, judge concluding if the had that even lacking probable it void was warrant was because adopt at The court declined to cause. Id. good-faith exception because circumstances limiting the four situations case fell within one of lacking in in Leon: the warrant was so indicia identified question "good probable cause faith" was implicated. Id. 454. Justice Abrahamson noted in at a concurrence: appl[ies] only clear Leon ... to cases

It is not whether authority a war- magistrate in which has issue probable but there lack of cause or a technical rant was or to as this in which the error... cases such one authority magistrate has no whatsoever to issue the warrant. (Abrahamson, concurring). Accordingly, J.,

Id. at 455 good-faith exception day. left the for another the court recognize this decision of court to first exception good-faith in the did so limited context in controlling law enforcement relied on law at the which although subsequently search, time of law was Ward, 2000 WI 2d overruled. State v. Wis. properly Ward, 517. In law had 604 N.W.2d enforcement containing entry relied on a warrant no-knock authori pursuant zation, court in to the rule articulated this Stevens, 410, 424-25, 2d State 181 Wis. N.W.2d

548 (1994), Richards, 591 and State v. Wis. 2d (1996). Ward, N.W.2d 218 231 Wis. 2d at 743. The Supreme opinion reject- United States ing Court issued an exception our to the rule of announcement three months after the search of Ward's home occurred. (1997). Wisconsin, Richards v. Be- police reasonably cause the good officers involved and in upon faith relied the rule as it existed when the adopted warrant was issued executed, and the court Supreme reasoning United States Court's in Illinois v. recognized exception Krull and a limited to the exclu- sionary Ward, ¶¶ rule. 231 Wis. 2d 51-52. following year,

¶ 50. The Eason, in the court adopted good-faith exception articulated in Leon. provided The search warrant Eason authorization entry, for a no-knock authorization that this court unjustified by determined to be the attached affidavit. Eason, ¶ carefully 245 Wis. 2d 206, 1. The court re- ultimately viewed the Court's Leon, rationale in and good exception applies concluded "the faith where the objectively, police shown, State has officers reasonably upon by indepen- relied a warrant issued an magistrate." ¶ dent Id.,

¶ 51. The court made clear that Eason did not mark the end of the in Wisconsin, rule noting: Hoyer "We would no more overrule than we Mapp could overrule Id., v. Ohio." 57. The court also good-faith exception apply, that, held for the the state process obtaining must show that the search (1) significant investigation; warrant included: (2) government attorney police review officer knowledgeable probable trained cause re- quirements. Noting probable Id., that the cause case," id., determination was "a close 1, and that the by upon a "issued a search warrant relied officers magistrate," the court concluded neutral detached permit exception applied good-faith the use that the id., ¶ evidence, long decided, the state ¶ Eason was 52. Not after exception good-faith in extend the court to asked this Tye, lacking a sworn affidavit. of affidavits the context to extend the 530, 24. The court declined 2d 248 Wis. good-faith exclusionary holding: exception "The far, this supports applies no oath or affirmation rule when magistrate plainly that a warrant; 'it is evident search issuing judge a warrant.'" Id. no business had (1983) (quoting Gates, 213, 264 v. Illinois (White, concurring)). Despite that the the conclusion J., require- probable cause satisfied warrant would have properly sworn, the court been ments had the affidavit ¶¶ Id., 5, 7. was inadmissible. held that the evidence Exclusionary Application Rule and Good-Faith of the Exception exclusionary of the historical overview 53. Our good exception how this faith demonstrates

rule and application development has followed the court exclusionary good-faith exception articu- rule and Supreme Court.6 Unfortu- the United States lated nately, neat fit with the facts of this case are not a

6 Eason, 206, 98, 2d 245 Wis. 629 See State v. 2001 WI Leon, 468 U.S. 897 (following United States v. N.W.2d 625 exclusionary (1984), recognizing good-faith exception to the 723, Ward, 2d rule); 231 Wis. State 2000 WI exception from Illinois v. (applying good-faith N.W.2d 517 (1987) Krull, enforcement reliance on U.S. to law issued); State v. at the time the warrant was laws existence Amendment, traditional framework under the Fourth exclusionary good-faith exception. rule, or the Supreme good- Court has never addressed whether the exception pursuant can save faith evidence seized to a judge authority warrant had no to issue. Applying principles the traditional good-faith exception, rule and the we decline to extend good-faith exception the to the facts of this case.

¶ 54. Both federal and Wisconsin case law con- cerning exclusionary good-faith excep- the rule and the presumption by tion start from the of a warrant issued magistrate." Leon, "a and neutral detached 468 U.S. at ¶ Eason, Gates, 900; 206, 2; 245 Wis. 2d see also 462 Evans, Krull, 240; 11; 340, U.S. at 514 U.S. at 480 U.S. (1987). 348 Most of the case law this area addresses upon by search warrants issued affidavit enforce- law focusing judge ment, the of the discussion or magistrate's process role in this on whether she abdi- process serving cated her role stamp the as a rubber Gates, for law enforcement. 462 at See U.S. 239 warrant). (discussing magistrate's issuing role in (1986) 443, 454, Brady, (relying 130 2d 388 N.W.2d 151 on Wis. Leon, 923, categories being the identified in 468 U.S. at as Conrad, scope good-faith exception); outside the 63 States, (citing 206, 2d 222 Wis. at 635 Elkins v. United 364 U.S. (1960), State, judicial for importance integrity); Hoyer v. (1923) 407, 415-16, (following 180 Wis. 193 N.W.2d 89 Bram v. (1897) U.S., States, 168 U.S. 532 and Weeks v. United 232 U.S. (1914)). 383, represents only 387-88 Eason case in which Supreme deviated from the this court United States Court's jurisprudence by imposing requirements upon two additional unlawfully the state in order to admit evidence obtained. J., Popenhagen, (Roggensack, 309 Wis. 2d dissent ing). expanded good-faith exception We have never nor limited the rule in the absence United States Supreme precedent, Court and we decline to do so here. held that the "detached and neutral 55. We have necessary "interpose

magistrate" requirement is judicial impartial judgment of a officer between the police citizen and and the and also between the citizen may prosecutor, an individual be secure from so that improper Walberg improper or an arrest." an search (1976).In State, 448, 455, 2d 243 N.W.2d190 this 73 Wis. opportunity instance, the court did not have the to act as magistrate, a detached and neutral because there was no prosecutor police In action to evaluate. most situa necessary tions, a affidavit is for a court to act as sworn magistrate issuing an a detached and neutral when (prob Giordenello, See 357 U.S. at 485 arrest warrant. requirements apply affirmation able cause and oath or warrants); Tye, (noting 248 Wis. 2d arrest importance "historical of the oath or affirmation as the magistrate upon basis rant"). which a neutral issues a war for This is true even warrants issued in civil cases. (1992) (Fourth County,

See Soldal v. Cook context). protections apply in the Amendment civil required ¶ In the court 56. Eason additional evi- obtaining process dence of a serious careful for a permitting good-faith excep- search warrant before argue tion to be invoked. The State does that the requirements met; have it Eason been instead asks us inapplicable to find them under the circumstances. points ¶ 57. The dissent out that the additional requirements apply do not Eason bench warrants police ¶ Dissent, issued without acknowledge 94. We involvement. requirements good- that the for the Eason exception faith were crafted for search warrants and may applicable espe- arrest, to all for not be warrants cially agency in situations where a law enforcement is picture. not in the require that bench warrants It is true do not

police However, warrants, involvement. civil bench like require case, the one issued this an affidavit demon strating requisite action, existence cause of person may and a not be arrested as a remedial sanction contempt hearing. for without notice and Wis. Stat. 785.04(1)(b). 785.03(1)(a), §§ statutoiy 818.03, These requirements put judge position are intended to in a magistrate to act as a detached and neutral with the proper placed sufficiently him in facts before a manner satisfy requirements. reliable to the constitutional judge may ¶ 59. A issue an arrest warrant for appear may summarily imprison failure to or a defen- punitive contempt dant as a sanction for the "actual presence of the court" without sworn affidavit. Wis. §§ judge may 968.09, Stat. A 785.03. do this constitu- tionally judge personal knowledge because the has justifying the facts the arrest. See United States (6th 1978) (discussing Evans, 574 F.2d Cir. personal knowledge exception to the oath or affirma- requirement). tion requirements Thus, the Eason do not neces-

sarily applying good-faith exception control when they implicate warrants, bench but relevant consider- judge A ations. cannot act as a detached and neutral magistrate being presented sufficient, without with principle why reliable facts. This basic we take the requirement seriously. Tye, oath or affirmation so See (describing impor- 2dWis. the "historical upon tance of the oath or affirmation as the basis which warrant"). magistrate a neutral Here, issues a there was significant investigation by government no or review a attorney. judge input acted without verified objective apparently impulse feedback. He acted on being properly presented without the facts to him. resulting circumstances, warrant, Under these by initio, cannot be saved law which was void ab good-faith. enforcement good-faith exception gener

¶ 61. on the Case law ally proceeds from a warrant that was valid when lacking probable issued, in but later determined to be e.g., Eason, See, Leon, 903; cause. 468 U.S. at already in 206, noted, Wis. 2d 55. As we have this case the was void ab initio. It had no basis in warrant reached the fact or law. Other courts have conclusion good part faith on the of law enforcement has no bearing a where warrant is void ab initio. See United (E.D. Neering, Supp. States v. 194 F. 2d 626-28 2002) (suppression pursuant Mich. of evidence to a magistrate's warrant was void ab initio because the appointment properly completed); Wilson, had not been (good-faith exception apply at 618 N.W.2d 515 does not by judge juris where warrant was issued who had no circuit); judicial Scott, diction in that United States v. (6th 2001) (good-faith exception 260 F.3d Cir. cannot cure a violation constitutional because the war initio). judge rant issued a retired was void ab holdings Brady Tye ¶ 62. Our in further importance, preliminary matter, underscore the as a meeting requirements the constitutional of oath or probable Brady, affirmation and cause. 2d 130 Wis. at Tye, 454; 248 Wis. 2d 24. When court issues a complete warrant one of absence of these basic requirements, rely constitutional the state cannot on good executing faith of the officer to overcome judicial question mistake. We have no reason to judge, judge Tye, intentions of the circuit like the but issuing he "had no business a warrant" under these circumstances. Id. some warrants judicial integrity of goal that "[t]he court of concluded appeals

clarification. The authority whatso any a warrant without issuing act of to attempt not a act and the 'judicial' do so .. . is ever to Hess, contrary judicial integrity." is clothe it as such judi of purpose preserving 2d 30. The 320 Wis. to the directly purpose is often tied integrity cial Leon, 468 U.S. at 921 conduct. police unlawful deterring Janis, 428 U.S. 458 v. (citing n.22 United States (1976)). a when judicial integrity implicated But n.35 that does not with comply a warrant issues judge by and is not supported statutory requirements In this or affirmation. oath constitutionally required Leon, the Supreme at all. In case, there was no affidavit circumstances, when that unusual "[a]bsent Court held because violation has occurred Fourth Amendment by a warrant issued reasonably relied on have police ultimately found neutral but magistrate a detached and is not defective, of the courts integrity 'the to be Gates, Leon, n.22 (quoting 468 U.S. at 921 implicated.'" (White, J., concurring)) (emphasis U.S. at 259 n.14 462 added). court the circuit we to hold that Even were re magistrate" and neutral Leon's "detached fulfilled "unusual circum case those presents this quirement, initiated was The constitutional violation stances." authority issued a warrant without when the court reliance on that so, good-faith the officer's do evidence.7 resulting cannot save warrant that the Supreme dissent postulates 64. The Janis, judicial integrity Court abandoned concern in terms this same courts have articulated Other police noting jurisdiction, "[a]ctions that court's done in jurisdiction, even when to create officer cannot be used 2000). (S.D. Wilson, 618 N.W.2d good faith." State Yet, even dissent's Janis refers to from quote the "[p]rimary meaning of'judicial Id. at integrity.'" added). n. 35 (emphasis The dissent overlooks the language leading up to the Janis "To the quote: extent recent cases state that deterrence is the prime purpose of the exclusionary rule, and 'judicial relevant, albeit subordinate factor, we hold is a integrity' in this case judicial considerations of do integrity not require exclusion of the evidence." Id. (emphasis added). This language cannot reasonably be read to abandon judicial integrity restrict the exclusionary rule solely to deterrence of law enforcement officers. The Court's statement in Leon that judicial integrity is not implicated when police rely in good faith on a warrant, "absent unusual circumstances," preserves ju dicial integrity as a secondary consideration when ap Leon, plying rule. 468 U.S. at 921 n.22 Gates, (quoting 462 U.S. at 259 n.14 (White, J., concur ring)). 65. We do not read recent

¶ cases such as Herring and Evans as withdrawing the language from Janis Leon suggesting judicial is a integrity secondary consideration that may come to the fore in unusual cases. These cases simply refused to exclude evidence based on judicial integrity in the specific facts of those cases. None of the recent cases cited by the dissent involved a warrant that was void ab initio se per because the judge lacked statutory authority to issue it. Nor do they involve a fundamental defect like the complete absence of a constitutionally required sworn affidavit, which renders the warrant "invalid when issued." Tye, 530, Wis. 2d 66. The consideration of judicial integrity must take into account the nature of the defects in the warrant. The defects in the warrant here were not judgment: irregularities or errors technical agent cooperate with the failure to defendant's a preparing It did not violate not a crime. a PSI was a condition of his not violate order, and it did court a arrested without not have been He could bond. a crime. did not commit the defendant because warrant 968.07(1)(d); Lange, § 2009 WI State v. Stat. See Wis. ("Awarrant N.W.2d551 2d 317 Wis. by- supported except not when arrest lawful less probable cause."). civil that The bench warrant comply it did ab initio because issued was void court authorizing any court to issue statute with it was a face because defective on its It was warrant. supported It was not in a criminal case. civil warrant constitutionally required This or affirmation. oath no affida there was because have been obvious should agency made a or officer all. law enforcement vit at No support investigation no significant affidavit; an attorney government officer scrutinized informed probable short, the warrant cause. In for the warrant and it was unauthorized initio because void ab was every respect. nearly defective why easy clerk's a ¶ to understand it is 67. While system computer the from to remove a warrant failure system, judicial integrity of our the does not threaten 4-5, a issued Evans, at warrant see Arizona authority complete statutory of absence in the without requirement or affirma- of oath the constitutional basic by questions. the As stated raises more serious tion presupposed was that the warrant Circuit, "Leon Sixth proper judge by magistrate in the clothed or issued legal a authority it left 'un- Indeed, Leon noted .. . requirements a war- for valid . .. the various touched " (internal quotes and Scott, F.3d at 515 rant.' omitted). constitutional fundamental When citations issuing for a warrant are statutory requirements the completely absent, cannot good-faith exception save the obtained evidence. resulting unconstitutionally

IV CONCLUSION conclude that the good-faith exception We ¶ the rule does to a situation apply (1) which: no facts existed that would an arrest justify (2) warrant; a by without the civil arrest warrant issued (a) void ab initio a circuit it judge was did not because comply with statute the court any authorizing to issue (b) it warrant; was not an oath supported (3) affirmation; and the court issued warrant with- out benefit of verification of the facts or scrutiny procedure to ensure that judge acted as detached and neutral magistrate. 69. The here warrant was defective on its

¶ face. Nonetheless, we cannot attribute reasonably fault the law enforcement officer who executed the warrant. Thus, evidence as suppressing obtained a result of the unauthorized, defective warrant necessary to pre- of the judicial serve integrity process. Consequently, affirm the we decision the court of appeals.

theBy Court. —The decision of the court of appeals is affirmed. J., 70. N. PATRICK CROOKS, did not partici-

pate. ZIEGLER, ANNETTE KINGSLAND J.

(concurring). I join opinion's majority conclusion that the evidence here must be see majority suppressed, 32, but op., my conclusion is based on the fact that void ab initio. This warrant this warrant se was per was se void ab initio because the circuit court absolutely per lacked the authority warrant, to issue this regardless (PSI) presentence investigation author's request.

558 issued what the circuit court id., is, That 7. See purported case in a criminal warrant to a civil bench be the court informed the PSI author basis that on the stay complete PSI interview. a failed to Hess that previously ordered court had never However, the circuit participate interview, and no statute or in to Hess participate authority requires in to a defendant other emphasize separately to I interview. write such an complete of author lack case, the circuit court's in this ity is circumstances under these this warrant to issue authority magistrate's issue lack of to the most akin Kriegbaum, 229, 194 Wis. in v. State warrant search (1927), the court commissioners' 232, 215 N.W.896 authority in v. State the search warrants to issue lack of (Ct. App. Loney, N.W.2d872 2d 328 110 Wis. 1982), 430-31, Grawien, 2d 123 Wis. v. and State (Ct. 1985). App. cases, the In those 816 367 N.W.2d on remedy based the evidence obtained to exclude was per ab initio. See se void that were the warrants Loney, 260; Kriegbaum, 2d at 110 Wis. 232; atWis. Grawien, at 433. 123 Wis. 2d application agree I with continue regard exception rule good to the faith Leon, ing v. in United States warrants the defective (1984) (search by prob unsupported warrant U.S. 897 cause), 2d Eason, 2001 WI 98, 245 Wis. and State able (affidavit support of submitted 206, 629 N.W.2d authorizing justify no-knock did not search warrant entry). per ab initio warrant se void While always per

always is not defective, a defective warrant I somewhere. must be drawn initio. The line se ab void the warrant one, as this which in a case such draw it per just ab initio. it is se void rather, defective, but is not a warrant to save intended not have been "Leon could Neering, 194 F. per States v. invalid." United that was se (E.D. 2002) Supp. (citing 2d 620, 627 Mich. United (6th 2001)). Scott, States 260 F.3d Cir. foregoing respectfully ¶ I 74. For the reason, con- cur. (dissenting). GABLEMAN, 75. MICHAEL J. J. I

part majority departs with the because it from the Supreme prin United States ciples governing Court's well-articulated resulting

exclusion of evidence from majority First, unlawful begins and searches seizures. presumption with a of exclusion and looks for an exception presumption to that in contravention of the pronouncements Supreme of the United States Court. justifies application Second, it its grounds judicial integrity purpose rule on the —a long Supreme since discarded the United States ignoring singular animating purpose Court—while police Finally, of exclusion: deterrence of misconduct. majority leaves confusion as to whether when requirements applicable the Eason are to the issuance of bench warrants.

¶ 76. I follow the dictates of the United States Supreme begin presumption Court: I with a of admis- sibility remedy and then address whether the of exclu- appropriate. Herring sion States, v. United (2009). 129 S. Ct. 700-01 I conclude that exclusion is unwarranted this case because it will not police application serve to deter misconduct and its here justify cannot the "substantial social costs" exclusion imposes. Id.

I. THE EXCLUSION EXCEPTION ago, year Supreme 77. One States United opinion summarizing Court issued a landmark clarifying prior regarding its case law exclusion of resulting and seizures. from unlawful searches evidence explained, Exclusion, the is an "extreme sanc- Court only applied as a Id. at that should be "last resort." tion" [] "[IJmportant principles applica- constrain exclusionary explained. Id. rule," the Court tion of the necessary right, nor is it a conse- Exclusion is not quence Amendment violation. Id. The of Fourth apply only remedy it accom- of exclusion should where only goal plishes deterrence, and of the if the benefits outweigh the substantial social costs of deterrence significantly, upon the toll the truth- exclusion—most objectives underlying seeking the and law enforcement justice system. at criminal Id. 700-01. Supreme made The States Court has 79. United police at that exclusion is aimed deterrence

clear judicial at The misconduct, not misconduct.1 Id. 701. unlikely judicial employees explained "were Court that try Amendment," that subvert Fourth and to the involving exclusionary application of the rule in cases judicial it would made no sense because misconduct deterring significant the errors. Id. no effect have the further, that 80. The court went and stated only involving exclusionary appropriate rule in cases is patently that was unconstitu- "intentional conduct Souter, the Breyer, joined by dissented on Justice Justice Herring involved the search at issue in grounds unlawful error, error result appropriate when the police exclusion Herring Amendment police's. violation is the ing in a Fourth States, (2009) United S. Ct. 710-11 Su J., explained He that United States (Breyer, dissenting). exclusionary premised precedent "was preme Court on the rule errors," and judicial police errors and a distinction between on latter, not the exclusionary designed rule to deter the was the former. Id. at arising "nonrecurring

tional." Id. at 702. Errors from negligence" and attenuated "far from are removed the [the Court] adopt core concerns that led rule in place." the first Id. Supreme United States Court then application operative for

summarized rule of the exclusionary rule: trigger rule, exclusionary

To police conduct must be sufficiently meaningfully deliberate that can exclusion it, sufficiently culpable deter that such deterrence price system. paid justice is worth As laid out cases, in our rule deter serves to deliberate, reckless, grossly conduct, negligent or in systemic some recurring or negligence. circumstances Id. Supreme

¶ 82. The United States Court's decision Herring widely establishing has been seen as broad principles dramatically application narrow exclusionary e.g., See, Weaver, rule. Russell L. Irrelevancy the Fourth Amendment in the Roberts of (2010) (recog- Court, 85 Chi.-Kent L. Rev. 203-04 nizing language "signals Herring that the broad a application dramatic the restriction in of the exclusion- ary "represents significant recasting rule," and a of exclusionary theory"). modern rule says majority develop- ¶ 83. What the about these major- ments? Not much. much Instead, Not at all. expanded the ity good-faith states: "We have never the exception exclusionary nor limited the rule in the Supreme precedent, absence of United States Court and Majority op., we decline to do here." so n.6. If 53 the majority looking Supreme is for United States Court precedent regarding good-faith excep- the exclusion and respectfully suggest tion, I that it take a look at closer Supreme pronouncements. the most recent Court

562 majority about the troubling thing The most the of ignores development it completely is that opinion majority spends the example, in this area.2 For the law years this court's decision 83 discussing two paragraphs v. 194 215 N.W. 896 Kriegbaum, in State Wis. ago (1927) (see 29-30), and a mere two majority op., ¶¶ Herring, where it states cab referencing sentences (see ma holding of its summary and fact-specific ined 45). that the agree logic Commentators jority op., ¶ See Herring ignore. is hard to language sweeping United States: Vitiello, Herring Mapp's Michael (2010) Overruling?, L.J. 10 Nev. "Artless" ("While can decision, few readers a narrow arguably eroding general logic, effectively sweeping miss its exclusionary Amendment's the Fourth application rule.").3 that. Somehow, just does majority wrong from the start- begins majority 85. The "exclu- an suggests the nomenclature While ing point. rule, to the exception" rule" and a sionary "good-faith It exactly opposite. today as it stands law jurispru- the recent say a stretch to would not be Court makes Supreme of the United States dence rule, evidence unlawfully obtained admission in limited circum- exclusionary exception an authorizes id. stances. See Smith, United States: Herring v. Robert W generally See Rule, Mercer L. Exclusionary

The Continued Erosion of (2010) (discussing the evolution Rev. a much more pseudo-right straightforward

rule from situations). in certain factual applying narrow rule 3 or Not to Josephson, To Exclude Matthew Allan See also Herring v. Exclusionary Rule The Future Exclude: After of (2009) (discussing 175, 176 States, Creighton L. Rev. 43 United ignore). Herring's logic is hard to the fact that 563 THE II. PURPOSE OF EXCLUSION majority justifies applying remedy of here exclusion on the grounds "judicial integrity." But Majority op., 63-67. time and time again, ¶¶ United States Court has Supreme reiterated exclu- sion only unnecessary is not but it inappropriate unless knowing will serve to deter constitutional violations by police:

(cid:127) exclusionary designed is police "[T]he rule to deter punish

misconduct rather than to errors magistrates." Leon, judges United States v. 468 (1984). 897, U.S. 916 (cid:127) sup- "[E]vidence obtained from a search be should

pressed only if said it can be that the enforce- law officer knowledge, may ment had properly be charged with knowledge, that the search uncon- was Leon, stitutional under the Fourth Amendment." Peltier, (quoting 468 U.S. at 919 United States v. 422 (1975)) added). 531, (emphasis 542 U.S. (cid:127) objectively "[W]here officer's conduct is reason-

able, 'excluding the evidence will not further exclusionary ends of the any appreciable rule in Powell, way.'" Id. at (quoting 919-20 Stone v. 428 (1976) 465, (White, J., U.S. 539-40 dissenting)) added). (emphasis (cid:127) "[A]pplication exclusionary properly rule has

been restricted to those which situations in its purpose effectively remedial is advanced." Illinois v. Krull, (1987) added). 480 U.S. (emphasis (cid:127) 'the "Where rule does not result deterrence, then,

appreciable clearly, use... its Evans, unwarranted.'" Arizona 514 U.S. (1995) (quoting Janis, United States v. (1976)) added). (emphasis " (cid:127) produced '[M]arginal or nonexistent benefits objectively in reason evidence obtained

suppressing subsequently on a invalidated search able reliance costs of ex justify cannot the substantial warrant " 922) Leon, 468 U.S. at (quoting Id. at 12 clusion.' added). (emphasis

(cid:127) only where its exclusionary applicable is] rule "[The outweigh its 'substantial social

deterrence benefits Scott, v. 524 U.S. Pa. Bd. Prob. & Parole costs.'" 907) (1998) Leon, 357, 468 U.S. at (quoting 363 added).4 (emphasis seized in violation of a Accordingly, evidence searches to be free from unreasonable right

defendant's if the were police should not be excluded and seizures their reasonable belief objectively acting Leon, See 468 did not violate the constitution.5 conduct (no in objectively act police 897 exclusion when U.S. 4 recognized principles: the same This court has remedy, right, exclusionary judicially not a created rule is application its remedial is restricted to cases where and its just objectives That means that because will best be served. does not mean the Amendment violation has occurred Fourth Rather, exclusionary applies. last resort. The rule exclusion is the efficacy on its application rule should focus Moreover, deterring violations. mar- future Fourth Amendment exclusion; justify enough the benefits of ginal deterrence is outweigh the deterrence must costs. 252, Dearborn, 84, 35, 2d 327 Wis. 786 N.W.2d v. 2010 WI State (internal Ward, removed); also State v. 2000 WI citations see 97 ("Application 2d 604 N.W.2d 231 Wis. its to those areas where [exclusionary] 'has been restricted rule served.'") efficaciously thought most objectives remedial are (1974)). Calandra, 338, 414 U.S. (quoting United States v. exception" to the exclusion "good termed the faith This is (1995). Evans, 1, 14 As noted ary rule. See Arizona

reasonable reliance on a search warrant later deemed (no Krull, invalid); 480 U.S. 340 exclusion when police act in objectively reasonable reliance on binding law unconstitutional). later deemed 88. The exclusionary rule applies, then, only (1) when there is: police conduct that the police knew or should have known was in violation of the Fourth (for Amendment simplicity's sake, "police misconduct"); (2) and sufficient capability of that deterring conduct6 worth the substantial societal cost of exclusion. Herring, S. Ct. at 702. Furthermore, the police conduct cannot be merely negligent, but must be "de- liberate, reckless, or grossly negligent" or of a part pattern of or "recurring systemic negligence." Id. 89. The majority rejects these rules from the United States Supreme Court and "judi- embraces the cial integrity" purpose for exclusion —a purpose long- since abandoned by our highest Court. See majority op., above, a more appropriate phraseology under current doctrine might be the "exclusionary exception" good to the faith rule. 6 The United Supreme States Court categorically has re jected (or the notion exclusionary that the rule was meant can) even judges: deter proponents To the extent rely that of exclusion on its behavioral judges magistrates effects on areas, and in these their reliance is misplaced. First, designed police rule is to deter punish misconduct rather than to judges magis- the errors of Second, trates. suggesting there exists judges no evidence that magistrates ignore are inclined to or subvert the Fourth Amend- among ment or requires that lawlessness application these actors Third, of the extreme sanction of important, exclusion. and most basis,

we none, discern no and are believing offered for pursuant exclusion of evidence seized to a warrant will have a significant issuing judge deterrent effect on magistrate. or Leon, (1984) (citation United 897, 916 omitted). States Court has Supreme explained 3. The United States as follows: "judicial integrity" integrity" in the meaning "judicial primary The evidentiary rules is that the courts must context of In encourage violations of Constitution. commit area, however, the evidence is Fourth Amendment accurate, complete and the violation is unquestionably The presented is to the court. by the time the evidence question must be on the whether focus therefore encourages violations of of the evidence admission rights. As the Court has noted Fourth Amendment cases, essentially the as the inquiry this same recent would serve a deterrent inquiry into whether exclusion in this analysis showing that exclusion purpose. deterrent effect and is un- case has no demonstrated shows, by significant effect likely any have such evidence is reasoning, the admission of the same Amend- unlikely encourage of the Fourth to violations ment. added) (citations

Janis, at 458 n.35 (emphasis omitted). cases did discuss Thus, exclusion early while

¶ exclu- secondary as a "judicial integrity" purpose Fourth Amendment rule, for judicial integrity sionary under has been subsumed effectively violations at 456 misconduct.7 See id. main goal deterring police has received integrity why judicial n.34. This explains 7 now, Knapp, v. 2005 agreed. court had See State Until this (noting that 127, 79-81, 86, 899 285 Wis. 2d 700 N.W.2d WI ¶¶ judicial preventing judicial integrity refers preserving officers' being by law enforcement process from subverted Eason, 44, actions); 245 2001 WI State v. unconstitutional (noting rule 625 that the Wis. 2d 629 N.W.2d judiciary by ensuring "the would judicial integrity protects by relying police misconduct give imprimatur refuse to its misconduct"). through evidence obtained upon Notably, little treatment in the case law. in the five Supreme addressing United States Court cases (Massachusetts good-faith exception since Leon Sheppard, (1984); Krull, 468 U.S. 981 480 U.S. 340 (1987); (1995); Evans, 514 U.S. 1 Ramirez, Groh v. (2004); Herring, (2009)), U.S. 551 129 S. Ct. 695 judicial integrity;8 one of them even mentions each solely focuses on whether exclusion would deter the police giving conduct rise to the constitutional viola majority legal tion. The now breathes new life into a theory put long ago.9 to rest

III. THE REQUIREMENTS EASON appropriate I 91. write further to address the applying requirements ness of the additional of Eason to bench warrants. court, Eason, This in State v. adopted requirements during two additional the search application process, making necessary warrant them any suppression order to shield seized evidence from if the search warrant is later deemed invalid. 2001 WI ¶ 74, 245 2d 206, Wis. 629 N.W.2d625. The State must process obtaining "show that used in the search majority concludes that "these simply cases refused to exclude judicial evidence based on integrity on specific facts of those Majority cases." op., They 65. Not so. never even applied judicial integrity majority test. The point can to no United Supreme States Court involving good case faith exception Leon, judicial that even integrity mentions since years ago.

9 Despite resting its holding "judicial on integrity," the majority does not tell us what only this means. It states that "judicial integrity implicated is judge when a issues a warrant not comply does statutory requirements with and without the constitutionally required oath Majority or affirmation." op., ¶ and a re- investigation included a significant

warrant knowledge- officer trained and either a police view cause and reason- in the of requirements probable able government a knowledgeable able suspicion, added). Such we safeguards, Id. attorney." (emphasis 11 of the held, by Article Section required were Id.10 Wisconsin Constitution. are wholly inappropri- 92. These requirements warrants, normally which

ate in the context of bench any police investigation. need involve criminal, available in 93. Bench warrants are § See Stat. 968.09 civil, and Wis. contempt proceedings. (2007-08)11 (bench in criminal cases for de- warrants fail to or violate appear fendants or witnesses who (bench in civil cases bond); Wis. Stat. ch. 818 warrants fail to or fines and pay judgments for defendants who something required); other defendants from whom (bench 818.01(2) for sub- parties § Wis. Stat. warrants 785). under None ject contempt chapter to proceedings for the apply of the proceedings requires police (court warrant on its may § warrant. See 968.09 issue (court warrant own); may upon request ch. 818 issue (court issue may § Wis. Stat. 785.03 warrant plaintiffs); own). or on its aggrieved parties upon request Eason court's addi reasoning requiring for these meager. Seeming charitably tional measures can be described as right, but a forget exclusion is not a constitutional the Eason court nonetheless these judicial remedy, asserted that safeguards required by the procedural additional were Wiscon Eason, support, 2d 63. For sin Constitution. 245 Wis. entirely on a law review appears court to have rested almost id. Because these See requirements persuasive. article it found suggested by professor "not onerous or unreason [] a law were Id. able," they mandates. became constitutional are subsequent All references to the Wisconsin Statutes otherwise indicated. to the 2007-08 version unless applying require- ¶ this, 94. Because of the Eason ments to bench warrants makes no sense. are How "significant investigation" officers to ensure a has taken place preceding the issuance of a bench warrant police had no role in? And sort of what review arresting should the officer in this case have under- acting taken before on what he understood awas valid majority suggests arrest warrant? The first that the requirements necessary Eason are not in situations police seeking where are not involved a bench war- majority op., implies ¶ rant, see but later that some investigation or review could have saved the evidence in majority op., ¶ this case exclusion, from see 60. IV CONCLUSION Applying proper legal principles here is straightforward. starting Instead of with exclusion and attempting recognized exception, to fit this case into a I Supreme follow the dictates of the United States Court begin presumption admissibility with remedy appro- then address whether the of exclusion is priate. question police 96. The threshold is whether the

engaged grossly negligent in deliberate, reckless, or recurring conduct, or whether these facts evince a systemic negligence. Herring, 129 S. Ct. at 702. As the majority implicitly recognizes, this case reflects no police objectively all; misconduct at the officer acted in reasonable reliance on a warrant he had no reason to Therefore, know was invalid. exclusion is unwarranted purpose because it will not serve its intended of deter- ring police application misconduct, and its here cannot justify imposes. the "substantial social costs" exclusion Id. at 700-01. hand, on the other is en- majority, analytical

meshed in an outdated framework. The Court has that its Supreme recognized United States It to exclusion was too broad. has since early approach recast rule as a drastic remedy limited circumstances where exclusion justified only misconduct. See id. at 700-02. deter flagrant police will Because the fails to majority appreciate apply Court, instructions of the Supreme clear United States I dissent. respectfully I am authorized to state Justice

PATIENCE DRAKE ROGGENSACK this dissent. joins

Case Details

Case Name: State v. Hess

Court Name: Wisconsin Supreme Court

Date Published: Jul 15, 2010

Citation: 785 N.W.2d 568

Docket Number: 2008AP2231-CR

Court Abbreviation: Wis.