*1 State of Wisconsin, Plaintiff-Appellant,
v. Bill Paul Marquardt, Defendant-Respondent.
State of Wisconsin, Plaintiff-Respondent,
v. Bill P. Marquardt, Defendant-Appellant.
Supreme Court 2004AP958-CR, Nos. 2004AP1609-CR.
Oral argument September Decided November 2005 WI 157 (Also 878.) reported in 705 N.W.2d *6 For the State of Wisconsin cause was argued by Freimuth, James M. assistant attorney general, with A. whom on the briefs was Peggy Lautenschlager, attor- ney general.
For Bill Marquardt there were briefs by John SC, Brinckman and John Brinckman Crosse, La and Patricia A. Fitzgerald Patricia A. Law Fitzgerald Office, Mt. Horeb and oral argument by Patricia A. and John M. Fitzgerald Brinckman. BRADLEY, 1. ANN WALSH The J. court of certified this
appeals consolidated criminal in appeal involving two circuit court defendant, cases the same Marquardt. appeals In case, Bill Paul one the State an County Chippewa suppress- order of the Circuit Court ing evidence obtained search cabin denying order the State's motion for reconsid- suppression eration of the order. In case, the other Marquardt appeals an order of the Eau Claire denying post-commitment Circuit Court his motion for challenge relief which he had renewed an earlier the same search.1 appeals following
¶ 2. The court certified the questions regarding
exclusionary rule:
(1) application Does search warrant in this case meet the third Leon, test set out in United States v. (1984), lacking U.S. 897 it that must not be so indicia *7 cause as to render the officers' belief in its entirely existence unreasonable?
(2) investigation Did in these cases meet the "significant investigation" Eason, in test set out State v. ¶98,WI 63, 2d 206, Wis. 629 N.W.2d625?2
1 Judge Roderick A. presided Cameron over in proceedings the Circuit for Chippewa County; Judge Court Eric J. Wahl presided proceedings in over the Circuit Court Eau for Claire County.
2 The certification
four
questions:
contained
additional
(1)
considering
When
issue
whether
search warrant
Leon,
application meets the third test set out in United States v.
(1984), may
(2) discovery apply Does doctrine of inevitable if the officers had additional information not included in the warrant application that could have been used valid to secure a search denied, warrant if the application initial had been and did the support affidavit determine that the 3. We probable cause suffi- indicia of warrant contains here and that the facts to meet the Leon test cient investigation pursuant significant to demonstrate excep- that the therefore conclude Eason. We exclusionary applies to the search of rule to the tion Additionally, reject we assertion cabin. finding by Marquardt erred in that the circuit court represent competent in the Eau himself him not County case. Claire County Chippewa Accordingly, reverse the we County Eau Claire and affirm the
Circuit Court orders the circuit court order. remand to Circuit Court We proceedings this consistent with further each case for opinion.
H father dis- March 5. On body Marquardt's mother, wife, the dead of his covered Chippewa shot and home. She had been in their stabbed. a war- untainted information secure
officers have sufficient destroyed? might have been the evidence lost rant before (3) discovery apply inevitable when Does the doctrine of likely resulted in a valid investigation would have additional warrant, investigation may have taken five but the search eight days illegal after the initial search?
(4) inevitability can made about the assumptions What be *8 delay when the record finding of evidence after substantial destroy to hide or evidence? attempt by no the defendant shows support the affidavit in of the Because determine that we indicia of in contained sufficient warrant this case significant investigation conducted a cause and that officers here, questions. additional certified we need not address these day,
¶ 6. That same law enforcement officers ob- a tained and executed warrant to search the home. days discovery body, Within of the two including estimated 20 law enforcement officers, State agents, Department of Justice became in an involved investigation extensive of the crime. 7. On March officers obtained and executed County
a search warrant for an Eau in Claire cabin Marquardt staying. According which had been application, Marquardt's Investiga- warrant father told Marquardt tor Richard Price that had not been seen or body. heard from since the location of his The mother's application body warrant also noted was cov- ered a blanket.3
¶ 8. As a of the March result 15 search of dog cabin, officers found three carcasses They among and three found, rabbit carcasses. also carpet, evidence, other sections of a bloodstained blood- quilt, large tarp, stained a rifles, bloodstained two and a Marquardt charged knife with a sheath. was in Eau Claire of with mistreatment an animal result- ing death, in the animal's and a warrant issued for his arrest.4 Marquardt 9. On March officers arrested During arrest,
outside his cabin. incident search they folding spatters found a knife and on noticed blood
3 Some appli of information the March warrant cation from came the March 13 search warrant. The March 15 application of incorporated copy and attached the March 13 warrant. ultimately charged with ten felonies County, including
Eau Claire seven counts mistreatment death, resulting an animal in the animal's two counts possession felon, of a firearm aby convicted and one count of aggravated burglary, all a repeater. *9 Subsequent jacket. crime lab shoes
testing in the blood on found DNA indicated folding of his shoes was knife and one DNA. for his mother's match searched a officers also ¶ enforcement 10. Law parked had a reddish The vehicle at the cabin. vehicle panel, and crime lab door interior driver's on the stain testing in the vehicle's on a shirt that blood indicated Marquardt's mother. match for also a DNA trunk was Chippewa charged Marquardt possession County of a homicide intentional with guilty by guilty pled by and not He firearm a felon. charges. to the or defect of mental disease reason suppress Marquardt evidence obtained then moved argued He that the of his cabin. of the search as a result provide face, failed to warrant, on its search the search. cause for Marquardt's mo- court denied 12. The circuit appeals suppress, reversed. See court of but the
tion to
App
¶¶
Marquardt,
7-8, 20, 53,
2001 WI
v.
State
appeals
The court of
765,
in the suppress case to Eau court Claire circuit of his cabin. of the search a result evidence obtained as for review and Marquardt's petition court denied This decision. appeals the court of for petition cross-review State's support appeals In of motion, his he cited the court of argued In addition, decision. he apply police did not because the had not *10 "significant investigation" required by undertaken a Eason. Marquardt's
¶ 14. The circuit court denied mo- holding evidentiary hearing good tion after on the faith issue. The court determined that the State had good themet test for faith under Eason. Marquardt subsequently
¶ sought repre- 15. to Although County sent himself. the Eau Claire Circuit Marquardt competent Court had determined that competent trial, to stand it concluded that he was not to proceed pro se. jury
¶ Marquardt guilty 16. After a found on all charges, County the Eau Claire Circuit Court found Marquardt guilty by reason of mental disease or Marquardt defect. The court ordered committed to the Department Family years. of Health and Services for 75 challenge
¶ 17. renewed his to the post-commitment search of his cabin in a motion. The Marquardt ap- circuit court denied the motion, and pealed. Meanwhile, on remand the homicide case Chippewa County, the circuit court concluded that Marquardt's satisfy
the search of failed cabin good requirement faith as set forth in Leon because the application lacking search warrant was so in indicia of probable reasonably cause that no officer could have believed the warrant contained cause Accordingly, search cabin. the circuit court ordered that evidence obtained as a result of the search suppressed.6 a motion for court denied After the
be appealed both State, the State reconsideration suppression order and the court's circuit court's denying for order the State's motion reconsideration. appeal Eau Claire in the Chippewa appeal County in the case and the State's pursuant are now before us on certification case (2003-04). (Rule) § 809.61 to Wis. Stat. dispute in the no the facts 20. There is Marquardt's cabin 15, 2000,
March warrant for search supply probable cause for the insufficient were address, which is the same The central issue we search. to the cases, whether the both is *11 exclusionary applies to the search of rule good uphold addressing a issue, faith we will In a cabin. they findings are fact unless circuit court's clearly of historical Richardson, 156 Wis. 2d erroneous. See State v. (1990). However, whether a 830 128, 137, 456 N.W.2d ultimately is a constitutional standards search question satisfies subject independent appellate to review.
of law See id. at 137-38.
¶ assertion also address 21. We must County erred in Circuit Court that finding the Eau Claire competent represent himself. We him not to a of whether a circuit court determination review proceed pro competent is to se under what defendant is 6 pre did not preclusion The court determined that issue the Eau Claire reaching a different from it from conclusion vent challenge The State does not County Circuit Court's conclusion. appeal. on this determination
216 "essentially clearly erroneous standard of review." 214, State v. 207 Garfoot, 224, Wis. 2d 558 626 N.W.2d (1997); Byrge, see also v. 101, State 2000 WI 45, 237 197, Wis. 2d 614 N.W.2d477.7 addressing good In ini- issue, recognized the faith we tially good examine the faith standards analyze light Leon and Eason. thenWe the warrant in good of the relevant standards and determine that the exception Finally, applies. compe- faith we to turn tency issue and conclude Eau Claire determining Circuit Court quardt not err in did that Mar- competent proceed pro was not se.
HH h—I Reviewing great ¶ 23. accord courts deference to warrant-issuing judge's probable cause determina tion, which will stand "unless defendant establishes clearly support the facts are insufficient probable finding Higginbotham, of cause." v. State 162 (1991). 978, 989, Wis. 2d 24 Here, N.W.2d the court already appeals has determined that the in the facts support judge's issuing warrant were insufficient to finding Marquardt, cause. See 2dWis. appeals 765, 19. The court determination not, does inquiry light however, end our in this case in exclusionary rule as set forth Leon and Eason. Byrge, Both State v. 2000 WI 237 Wis. 2d *12 477, Garfoot, State v. 214,
N.W.2d
207 Wis. 2d
558 N.W.2d
(1997),
trial,
626
competency
involved
to stand
not competency
Byrge,
proceed pro
1,
48, 53;
2d
3-4,
se.
237 Wis.
¶¶
Garfoot,
Garfoot,
216-17,
207 Wis. 2d
at
223. The court in
however, equated the
of review for
types
standards
these two
competency determinations. Garfoot,
objective exception exclusionary good rule faith to the by Leon, in the warrant context. Under evidence seized "reasonably by relying a warrant officers on issued necessarily magistrate" neutral will detached and ordinary suppressed. Leon, "In at 913. the U.S. be explained, in "an officer cannot be case," the Court Leon probable-cause magistrate's expected question the judgment the his form of determination or technically at sufficient." Id. 921. warrant is de- time, the same the Court in Leon At good under scribed four of circumstances which the sets apply: exception faith does not judge issuing in a warrant was magistrate affidavit that affiant misled information except knew was false or would have known false for his reckless disregard of the truth.... [2] issuing magistrate wholly judicial abandoned his good official belief Finally, role.... "so lacking faith depending [3] in indicia relying Nor would an in its existence on the on warrant based circumstances entirely officer cause manifest unreasonable." on an to render affidavit objective particu [4] case, may facially i.e., in lar a warrant be so deficient — failing place to be searched or the particularize things executing cannot to be seized—that the officers reasonably it to presume be valid. added). (citations emphasis omitted; at
Id. require- Eason, In this court added two met ments that must be before the may apply. Specifically, the State must show that obtaining process warrant included used the search *13 (2) (1) and a "review a a "significant investigation," in, of, trained very knowledgeable officer police cause and reasonable probable suspi- legal vagaries Eason, cion, government attorney." or a knowledgeable 206, 2d 245 Wis. ¶ Here, as well as the certified parties on the third of the court of focus Leon appeals
questions circumstance and the first Eason require- disqualifying that, is based on argument ment.8 The State's primary could the warrant law enforcement officers application, faith on the reasonably rely good issuing judge's disagrees, cause. assert- finding probable Marquardt the warrant was based on an that under Leon ing in indicia of cause as to affidavit so lacking entirely official belief in its existence unreason- render 8 that the other three Marquardt argued appeal has not on application circumstances a bar to the disqualifying present Leon of the in this case. We take this as apply do not disqualifying concession that those circumstances here. however, note, respect Chippewa with to the
We
case,
Marquardt
requested
hearing
under Franks v.
Delaware,
(1978),
of a *14 sup- ¶ 28. We address first whether the affidavit porting the warrant contained sufficient "indicia" of probable meaning doing cause within the so, of Leon. In begin by observing inquiry we that the into whether a lacking probable warrant affidavit is "so in indicia of entirely cause to render in as official belief its existence Leon, unreasonable," 923, 468 U.S. at must be different inquiry from the into whether the facts the warrant application "clearly support are insufficient to a deter- probable Higginbotham, mination of cause." 162 Wis. 2d at 989. disquali- 29. it otherwise, Were the third Leon
fying applicability circumstance, which limits the exception, superfluous. faith would be The limita- operate nothing tion would more than the usual yardstick by reviewing which courts measure a warrant-issuing judge's probable cause determination. [for probable cause] "If a lack of a substantial basis also prevented application objective good of the Leon exception, would be devoid of substance." (4th Bynum, United States v. 293 F.3d Cir. 2002). Consequently, appeals'
¶ the court of conclu- application sion that the warrant support was insufficient to warrant-issuing judge's probable cause de- support termination does not mean that the affidavit 9Although Marquardt represented by is not the same appellate cases, counsel in both generally we have combined the arguments of counsel unless otherwise indicated because the implicate cases the same central issue. probable lacking in indicia of cause
of the warrant meaning here not the of Leon. Our task is within reviewing if the warrant- we were as it would be same judge's probable issuing cause determination. require- time, the Leon "indicia" At the same requirement The is substantive force.
ment carries Byron grounded in Illi- concurrence in Justice White's (1983), in Gates, which Justice 462 U.S. nois v. good-faith exception explained "the would White magistrate presented apply to the if the material clearly lacking judge cause that no ... so is thought reasonably have officer could well-trained Leon, U.S. at 923. issue." See a warrant should recognized previously that, has 32. This court has Leon, "even an officer obtained under where *15 may by none- terms, exclusion and abided its warrant ¶ appropriate." Eason, 2d 245 Wis. theless be 922). Although (citing cannot Leon, officers 468 U.S. at warrant-issuing judge's prob- expected question a he ordinary "[i]n Leon, case," the cause determination able unreasonably rely may 921, the officers 468 U.S. at it. on Leon's, rationale, sufficient "indicia" Under 33. fact that one more than the cause refers to
of signed judges approved the warrant. or more "[I]t have the will circumstances officer is clear that some believing grounds the for no reasonable have properly Leon, 468 at 922-23 issued." U.S. warrant was (footnote omitted). apply exclusionary The rule will reasonably have officer would "a well trained when despite illegal the that the search warrant known magistrate's n.23. Id. at 922 authorization." In short, the of very point the third Leon circumstance is that will not when the warrant apply is based on an affidavit so in indicia of lacking probable cause that law enforce- ment ordinarily officer —who should not be expected to second-guess the warrant-issuing be judge said to —can have on unreasonably relied the warrant. Here, the warrant application included an
affidavit with following information:
Investigator [of Price the Chippewa County Sheriffs reports finding office] that after body Mary Marquardt, J. spoke husband, he with her Alfred E. Marquardt. Mr. informed him that he son, Mary Marquardt, who, have Bill since the location of Ms. Marquardt's body had not been seen or heard from. Alfred Marquardt further informed Inves- tigator Price that Bill Marquardt owned with Alfred Marquardt a cabin which Bill resided at E27505 M, County Highway Fairchild, County Town of of Eau Claire, Wisconsin.
Investigator Price reports further that in examin- ing body Mary J. Marquardt and the scene where found, she was appeared though it among wounds incurred her was a knife wound. Also at the scene, officers were able to locate a number of foot- prints may be suitable for comparison with shoes that made them.
Investigator Barnier reports checking that in Eau rolls, Claire tax he learned that a cabin. .. M, located at Highway Fairchild, E27505 Town Eau *16 County, Claire [is] owned Alfred Bill Marquardt. and 36. The warrant also application incorporated and attached the affidavit the search supporting war- rant that Circuit Chippewa County Court had
222 home of for the search earlier days two issued infor- included this affidavit That parents. mation: 2000, on March reports that Price
Inv. received a 911 call Dispatch County Sheriffs Chippewa Falls, Township Hwy Chippewa State from 11766 Alfred E. himself as The caller identified Eagle Point. reported that Marquardt DOB Marquardt, 07/30/1946. at the residence. dead apparently his wife the Mar- responded he Price continued Marquardt. [Alfred] [Alfred] home and met with quardt AM home at about 7 relayed that he had left Marquardt 11:50. The to call home about morning and tried remainder of busy remained so the and phone was early that he left work stated day. [Alfred] upon and busy phone home because of the and returned with wife, Mary Marquardt covered arrival, J. found his unresponsive garage. She was cold in the a blanket have a head wound. appeared tentatively casing, iden- reports Price shell premises. mm, on the 9 was observed tified as a determi may upon issue A search warrant a search war issuing Before cause. nation of probable facts of 'sufficient "apprised must be rant a magistrate mind that in a reasonable an honest belief to excite commission of linked with the are sought objects in the will he found crime, objects sought and that at 2dWis. Higginbotham, be searched.'" place DeSmidt, 119, 131-32, 2d v. State Wis. 989 (quoting (1990)). above, an "indicia" As discussed 454 N.W.2d cause as a probable not the same cause is of probable "indicia" is less for Rather, the standard determination. signs It sufficient requires demanding. cause se.
cause, per not probable *17 objects sought ¶ Here, 38. in the search war- any clothing knives, firearms, shoes, rant included containing linking hair, blood, or fibers the victim to clothing. appli- such A number facts the warrant along cation, with reasonable that en- inferences law satisfy forcement officers could from facts, draw those us that there is sufficient indicia of cause that objects sought are linked with the commission of a objects sought crime, and that the found in will be place to searched. be objects regarding sought First, 39. in the war- application
rant, the warrant there states that was a casing nine-millimeter shell found at the scene of the appeared though homicide, and that it one of the wounds suffered the victim was a knife wound. Additionally, application includes information that footprints thought number found at the scene were comparison to be suitable for with the shoes that made them. application Second, the warrant indicates Marquardt's provided police
that father the location Marquardt's reported cabin and that had not been seen or from heard since the time of his days mother's death two earlier. From facts, these officer could draw a reasonable inference that suspicious absence and that thought Marquardt might father that be involved in his mother's death. application Third, indicates
Marquardt's mother was found in a covered blanket. reasonably Officers fact, could infer from this as has another circumstances, court under similar perpetrator was familiar with the victim and felt re- guilt. Schuetzle, morse or See v. Thiel 200 F.3d (8th 1999) (victim's body Cir. "was found covered a blanket, with which was circumstantial evidence that friend"). family the murderer was a member This may only inference, not be the but it an inference is *18 a reasonable officer could make. application
¶ Fourth, 42. the warrant makes no entry, mention of evidence a trauma, forced sexual or missing valuables. The absence of such facts the application supports a reasonable inference that the burglary motive of the killer was not tending assault, sexual suggest Marquardt's to further that mother knew her killer. application
¶ Fifth, 43. the included information phone busy starting that the was at 11:50 a.m. and busy day. remained for the A rest of the reasonable phone inference from this information is that the was likely hook, off the homicide, relation to the and that perpetrator the had therefore been inside the residence. Again, perpetrator this an raises inference that the someone who mother knew. determining
¶
In
44.
whether an affidavit con-
probable
any competing
tains sufficient indicia of
cause,
reasonable inferences are
in favor of the
resolved
State.
App
Schaab,
204,
13,
See State v.
2000 WI
2d Wis.
Dunn,
872;
617 N.W.2d
see also
State v.
Wis. 2d
(1984).
389, 397-98,
¶ 46. at experienced Eau Claire case established that attorney district had met with officers and had drafted application. Thus, the warrant there can be no real dispute State satisfied the Eason second re- quirement process obtaining because the used in by... knowledge- search warrant "review included government attorney." Id., ¶ able parties dispute do, 47. The however, whether requirement the State the first satisfied Eason significant investigation. determining there be a In *19 significant investigation rely there primarily here, was we report on facts from two sources: a one of responded the who officers to the scene, murder Inves- tigator County Chippewa Price the office, Sheriffs hearing and the in the Eau Claire case. approximately
¶ 48. Within one after hour discov- ery body Marquardt's of the March mother on Investigator Marquardt's Price interviewed fa- approximately ther for four hours. Price learned that I, Article Section 11 of the Wisconsin Constitution reads as follows: right people houses, persons, The of the secure in to be their papers, against effects and unreasonable and searches seizures violated; upon probable shall not be and no shall warrant issue but cause, supported by affirmation, particularly oath or and describ-
ing place persons things to be searched the to and be seized. problem Marquardt in the with law enforcement had gone jail. past addition, to In Price discovered and had Marquardt parents' he house, his last visited that when previously dug up he had buried. $12,000 cash that very upset Marquardt his at the time and told was parents he had to after him and that that someone was get country. also that when Price learned out Marquardt parents Marquardt's at the last visited had Marquardt agitated appeared and was cabin, parents at his the cabin. want phone Price discovered that a addition, 49. In Marquardt, Marquardt's message had mother for which refrigerator, put Price also had been removed. on the only his other than learned that one parents keys and that the who had to their residence normally locked to the residence were service doors Marquardt's was home alone. when mother Investigator evening Price The same Marquardt's father, officers obtained interviewed for the residence executed the search warrant Department parents. Agents Marquardt's from State Investigation arrived on Division of Justice of Criminal Agents investigation. pursuing to assist in the scene attempted con- cabin and then drove morning during early March hours of tact him neighbors agents one of The interviewed morning, had been a discovered there neighbor's neighbor's home and that the break-in at neigh- Agents dog from the had shot. also learned been investigating the had officers break-in found bor that the *20 casings, the same nine-millimeter shell which were five casing The found at the homicide scene. caliber as the day agents homicide to scene later that returned the investigating. continued autopsy Also on an March initial
performed body. autopsy on the The revealed that there suggested was no indication of sexual assault and that gunshot the victim's death from a resulted wound to the head and a stab wound the throat.11 Investigator
¶ 52. Price that estimated over the course of March 13 a total of 20 law enforce- investigation ment officers had become involved in the aptly of the homicide. The circuit court observed as concluding follows in that State had met the Eason "significant investigation" requirement: Chippewa County Sheriff,
You have the Eau Claire County Sheriff. You the State investigators had and I Sergeant Vogler thought maybe City think even Chippewa Department you Police [was] involved. So any jurisdic- had different event officers from different working tions all nearly what I would consider to be around the clock efforts. Like court, the circuit we are satisfied that police
the facts demonstrate the State has shown engaged significant investigation were in a within the meaning "signifi- of Eason. Our read of a Eason is that investigation" require showing cant does not that the investigation yielded cause would necessary support have been at search issue. contrary arguments Marquardt's Thus, to what some of suggest, seem to whether, we need not determine Marquardt's pursuant time officers searched cabin addition, In it appears may begun officers have attempt cell phone to obtain before records execut ing the warrant Investigator search for cabin. Price testified that the report deputy of sheriffs indicated that deputy had obtained the records on March 16. *21 warrant, their had investigation provided March 15 the cause for the search.12 with them does the time, recognize, At same we as the for of State, investigation purposes that significant than of officers or refers more the number Eason words, In other investigation. devoted to an hours the nature essentially acknowledges, the State of the are investigation important. focus faith analysis, To our we good summarize on an affidavit that the warrant was based determine cause to indicia of probable that contained sufficient Leon, not the argue does satisfy Marquardt Leon. We by faith is otherwise barred exception good shown with conclude that the State has compliance also faith Accordingly, good Eason. the the requirements Eau the the of the Marquardt objects transcript use of hearing Chippewa evidentiary the Claire hearing the not County case the facts adduced at were because County proceedings and Chippewa tested in the separately properly he these not addressed because facts were believes by County hearing. How in the Eau Claire or handled counsel the ever, arguments from appear it would hearing goes at dispute of his with facts adduced essence knew that have question of the officers would to the what search, by the of the not to the incriminated time investigative time of the question officers' efforts Thus, objection misperceives the nature search. Eason, State "significant investigation" inquiry under v. our said, 625. As we have 245 Wis. 2d N.W.2d WI officers to demonstrate that law enforcement State does need constituting probable for the at facts cause search possessed investigation significant time of the search in order meet requirement. exclusionary applies to the rule to the search Marquardt’s cabin.13
IV *22 ¶ 56. We turn to address assertion finding compe- that the circuit court erred him not represent tent to in the himself Eau Claire case. right represen- a Defendants have constitutional to self Klessig, tation. State 211 See v. 217-18, Wis. 2d (1997). proceed N.W.2d716 pro aWhen defendant seeks to two-part inquiry, se, the circuit court undertakes (1) ensuring knowingly, the defendant has intelli- gently, voluntarily right and waived the counsel, to (2) competent proceed pro is to se. Id. at 203. part
¶ 57.
on
focus is
the second
of
inquiry.
by
He asserts that the circuit court erred
higher
applying
competence
of
standard
for self
representation
competence
than for
to stand triad. He
argues that,
Moran,
under
v.
Godinez
13Having determined that the applies for the this case have explained, reasons we we need not Marquardt's argument that, consider in the Claire County Eau case, his trial argue counsel was ineffective for to failing the search warrant for his cabin lacked sufficient indicia of probable light cause under In Leon. of our determination that the warrant was containing based on an affidavit indicia of satisfy Leon, cause sufficient counsel's failure to an argument make such prejudicial cannot be deemed Marquardt. See Washington, Strickland v. 466 U.S. (1984) (In order to demonstrate of ineffective assistance coun sel, the defendant both prove perfor must that trial counsel's was deficient and performance preju deficient mance defense.). diced the representa- for self (1993), competence the standard the standard higher competence can no than tion be to stand trial. re- analyzed This court has previously See Klessig. Klessig, argument
jected very this 2d at 208-12. Wis. Wisconsin, determining higher standard for
In there is a oneself competent represent defendant is whether a competent a defendant is determining than whether for based higher This standard is not on to stand trial. Amendment, but stems from requirements of Sixth higher standard independent adoption states] allowed under Godinez. [individual (footnote omitted).14 Id. at 212 court that the circuit also asserts on his lack focused improperly erred because court Further, Marquardt argues, ability. technical legal or *23 he had a finding specific to make a that the court failed him from repre- disability prevented or problem senting himself. State, 2d in Pickens v. 96 This court Wis. 60.
¶
(1980),15
set forth standards
549, 292
601
N.W.2d
14
why
reason
provide any compelling
does
not
2d
Klessig, 211 Wis.
the
of State v.
portions
we should overrule
argument under
194,
(1997),
preclude his
564
716
N.W.2d
(1993).
Moran, 509
389
Godinez v.
U.S.
15
v.
portion
Pickens
Klessig
in
overruled one
The court
State,
(1980),
549,
specifically
but
2d
Factors to consider . .. include the defendant's edu-
cation, literacy, fluency English,
any
physical
or
disability
psychological
may significantly
which
affect
ability
possible
his
a
communicate
defense to the
jury. However,
California,
[v.
since Faretta
Id. at 568-69 omitted); see also Klessig, 2d at Wis. Thus, circuit court may consider Pickens, enumerated
factors in addition to other At the time, factors. same the record must demonstrate an identifiable problem disability may prevent defendant from making a meaningful defense. 62. Although the record here shows that circuit court was concerned about Marquardt's lack of skill, legal lack of legal skill not the *24 representation] conduct self ...."); set out in Pickens see also Thornton, n.7, State v. 2002 WI App 259 2d ¶ Wis. 656 N.W.2d45. At the the circuit court's determination. basis for
sole competency proceed pro hearing Marquardt's se, to on Marquardt and about his education court asked high experience, Marquardt that he had a testified trial he had never been to a and that school education before. "the The circuit court voiced concern about charges[,]... complex- of the
absolute seriousness Marquardt's ity mental case[,]" and evidence of addition, court that it was illness. In observed Marquardt's "particularly Mr. kind of concerned over things, microscopic of these whether he's review of all any charges enough out of the to make sense detached proof." put and to the state to its burden Finally, on the court relied medical competence, opinions psychological as to specific psychological problems or di- identified which opinion agnoses. instance, least concluded In at one psychological problems interfered that strategy.16 ability plan his to a defense with compelling in its brief refers to 65. The State Marquardt's mental illness. in the record of evidence opined Marquardt psychiatrist example, For one originally given recognize opinions we that the were trial, to competent was stand Marquardt the context of whether competent was Marquardt in the not context whether However, given is a difference there represent himself. a circuit competency Klessig, under between the two standards necessarily by making both determination court err does incompe- and a determination of competence to stand trial Here, the se on the evidence. pro tence based same proceed recognized Circuit Court even Eau Claire trial was competent stand question of whether call." "very close *25 suffers from a mental illness that with interfered his ability appreciate charges against to him. She explained as follows: Marquardt
I believe that Mr. suffers from a delusional symptom living which leaves him in a world where he everything going believes that's part on around him is of a to plot frame him and such he appreciate as cannot that these are charges, serious that things these have occurred, that there is evidence which indicates he has committed get beyond these crimes. He can't simply his system legal belief that the framing is him. psychiatrist Marquardt The concluded that was "so appreciate delusional that he cannot the evidence" and "[h]e plan strategy that cannot a defense is realis- tic .. . Similarly, psychologist opined that Mar-
quardt paranoid suffers from a delusional disorder of schizophrenia and that nature the delusional system According was a "command hallucination." to psychologist, Marquardt professed to be "the [prophet] provide gift Nostradamus, foretold that will save the world." Further, mental anyone challenged illness caused him to view who his enemy." "the beliefs as
¶ 67. The circuit court concluded follows, psychological opinions reference the medical and that were before the court: part ruling
That would be at least because of fact that that has put been —his mental status has been question by into a number of people, but I more was focusing recent, on the watching that is him here and understanding court I very what consider to be a just case. It complex simple isn't some shoplifting, but yes, I would also add that —and incorporate the reports that have been received. argues, Contrary Marquardt we to what supports the circuit court's the record
conclude that competent determination represent not share view himself. We do always express make the circuit court must *26 disability pre- problem finding specific as to which being meaningfully to from able vented a defendant represent himself.
¶ us that the Our review of the record satisfies 69. opinions psychological in this case identi- medical and specific problems that have a of could fied number meaningfully presenting prevented his from took these and the circuit court own defense Accordingly, problems determine that into account. we on did not err in its decision the court competency represent to himself.
V sum, In we conclude that exclusionary applies to March rule to the in The affidavit 15, 2000, of cabin. search support contains indicia of the warrant and the here to meet the Leon test facts cause sufficient pursuant significant investigation demonstrate Additionally, court Eason. conclude that the circuit we Marquardt's competency did not err in its decision on County represent in himself the Eau Claire case. Consequently, the Eau Claire we affirm denying Marquardt's County mo- Court order Circuit post-commitment relief, reverse the for and we tion suppressing County Chippewa evi- Court order Circuit denying motion to recon- dence order the State's sider the court's order. We remand to the suppression court in circuit each case for further con- proceedings sistent with this opinion.17 the Court. —The order of
By Eau Claire County Circuit Court is affirmed and the cause is remanded to the circuit court for further proceedings consistent with this opinion; orders the Chippewa Circuit Court are reversed and the is cause remanded to the circuit court for further proceedings consistent with this opinion. (concur- ABRAHAMSON, 72. SHIRLEY S. C.J.
ring part dissenting part). This case is best understood illustrating aphorism that "hard
17 the County case, In Eau Claire Marquardt raised addi tional issues the court of appeals: whether certain testi mony silent; right violated his to remain whether the exclusion testimony defense; other violated right present his whether evidence was admitted in violation of Stat. Wis. *27 904.04(1) § (2003-04), pertaining evidence; to character whether he was denied effective of assistance counsel based on during comment counsel made opening statements.
Marquardt not, however, did address these issues new brief-in-chief he accepted submitted after we certification. State, in brief, The its response suggests that Marquardt has issues, therefore Marquardt abandoned these not offer does any reply the State this point. on
Our certification parties order alerted the when we certification, accept upon acquire jurisdiction review we of the issues, "entire which appeal, merely includes all not issues certified issue for which the accepts court the certifica- Moreover, tion." our certification order indicated if the parties briefs, here, file new they did must restate any they upon rely. material which wish to circumstances,
Given all the we deem the additional issues Cos., abandoned. See A.O. Corp. Smith v. Allstate Ins. 222 Wis. (Ct. 1998). 2d 285 App. N.W.2d because a hard case This is law." make bad cases suppression prosecution may jeopardize evidence of the degree charged inten- Marquardt, first with who is homicide. tional exception. good apply I faith
¶ I not 73. would an court for to the circuit cause remand the would hearing seized evidentiary determine whether discovery inevitable under the admissible are items doctrine.1 protects of us each Fourth Amendment The 74. The Con-
against and seizures. searches unreasonable finding requires on a be based that a warrant stitution probable cause.2 agree Marquardt, court and this State, The present warrant case the search in the probable the evidence seized and that cause on based exception probable suppressed an unless must be applies. cause good adopted Supreme Court has The U.S. requirement. The exception cause to the
faith suppressed officer if a well-trained not be evidence need good the search reasonably relies on faith and in apply, does not The warrant. exception applied, good faith that the it found Because reach the inevitable did not County Circuit Court Eau Claire considered County Circuit Court discovery Chippewa The issue. for reconsideration only on a motion discovery, but inevitable hearing. evidentiary order and without suppression its Constitution the United States Amendment of The Fourth provides: houses, papers, persons, people in their right to be secure
The *28 seizures, shall not be effects,against and searches unreasonable and cause, issue, probable upon violated, but shall and no Warrants describing the affirmation, particularly supported by or Oath things searched, persons to be seized. place to be 237 however, when the warrant is "based on an affidavit 'so lacking probable in indicia of cause as to official render "3 entirely belief its existence unreasonable.' In other acting good words, the officer is not faith when the probable affidavit lacks "indicia of A en- cause." law sufficiency forcement officer's reliance on the objectively facts stated must be reasonable. Bare bones good enough.4 affidavits are not present Thus, the focus in the case is not the magistrate's probable determination cause but rather probable support whether there are "indicia of cause" to a law enforcement officer's faith belief that the warrant is valid.5 bring
¶ 78. What facts a case within this "indicia of probable frequently cause" rule ais difficult issue that is litigated.6 probable "Indicia of cause" must have sub- probable stantive force. Unless the "indicia of cause" standard is check on searches law enforcement officials, the Fourth Amendment warrant and reason- requirements naught. ableness are for aWhen court "anything goes" approach looking takes when for probable effectively cause," "indicia of it has excised the probable requirement cause from the Fourth Amend- ment. underlying
¶ 79. I turn to the affidavits present searching search warrant in the case, for "indi- cia of cause." (1984) Leon, 897, United States v. 468 U.S. (quoting (1975) Illinois, (Powell, J.,
Brown v. 422 U.S. 610-611 concurring in part)).
4 Leon,
Fourth Amendment at 96 ed. 6 LaFave, supra note at 92. *29 in warrant the for the search The affidavit cause" "indicia of probable contain case must present commission of the used the the described items that premises.7 are on the described described crime affidavits the that the It is uncontested in the tie the items used directly do not case present cabin. That to Marquardt's of the murder commission linking directly no evidence is, affidavits contain crime or instrumentalities cabin to the Therefore, nexus between any crime. evidence of the a nexus between must rest on crime and the cabin cabin, in the occupies and the who person the crime crime If nexus between the a case, Marquardt. instant established, necessary then it is still is and Marquardt to the in the search warrant objects described to tie "[Pjrobable a has that person cause believe cabin. automatically give a crime does not committed house for evidence cause to search his police probable where held, however, police crime."8 We have committed an individual cause believe have probable a warrant cause for could assert crime, probable police (e.g., to that individual connected to search locations car) crime between the if there was nexus his home or and the premises.9
7
Starke,
399, 408,
643 N.W.2d he murders because for evidence of Multaler's home killers killer, characteristic serial unique and a alleged serial indefinitely); State v. murders of their keep mementoes is 723, 29-34, 604 N.W.2d Ward, 231 Wis. 2d 2000 WI ¶¶ present 82. The affidavits ease do not provide Marquardt "indicia of cause" that murdered his mother.
¶ 83. The most that can be drawn from the affi- davits is that father informed a law en- forcement officer that had not been seen or *30 body Assuming heard from since the was discovered. spoke Investigator Investigator the father to Price and Investigator Price communicated this information to Vogler immediately Investigator Vogler before executed the March 15 affidavit, the maximum time the father days. did not see is two two-day ¶ 84. A absence of an adult son is not an probable person "indicia of cause" to believe that the murdered his mother. majority
¶ 85. The
further concludes that because
body,
objectively
a blanket covered the
an
reasonable
law enforcement officer could have inferred that the
victim
perpetrator
had an emotional attachment to the
perpetrator
Marquardt.
majority
and that the
was
The
study,
peer-reviewed
cites no
no
article, no text, not
even a
crime
popular
TV
show or an article in a
517 (holding
probable
that
cause existed to search Ward's home
based on fact that
alleged
because he
large-scale
was
drug
dealer, it was reasonable to infer that he kept
drugs
in his
home,
likely
which was his
place
business);
Higginbotham,
(in
162 Wis. 2d
case,
at 995-96
arson
probable cause for warrant
to search defendant's residence based on
sighting
earlier
turpentine
home);
at defendant's
Tompkins,
State v.
144 Wis. 2d
(1988)
116, 123-24,
¶ 86. show that statistics most murderers are and that men men tend use knives guns murders, these and supply facts are not sufficient to probable pointing
"indicia of cause" to Mar- quardt as the murderer. Nor are the facts that no phone busy occurred and break-in theft probable pointing Marquardt. "indicia of cause" together ¶ 87. The facts the affidavits taken (1) support finding a believe cause to (2) gun committed; crime was committing knife and were used in (3) sought crime; and if this the evidence *31 it discovered, the search warrant were would tend to particular person indicate that a had committed the crime. Giving
¶ of all the State the benefit reasonable rejecting overly inferences and technical or formal- approach probable istic the affidavits or cause or probable disagree cause," "indicia of I must with the majority opinion's conclusion search that the warrant probable contained sufficient "indicia of cause" that Marquardt objects committed the murder and that the reasonable, located in were his cabin allow a well- objectively good rely officer trained and in faith on the warrant. (8th Schuetzle, See Thiel v. 200 F.3d Cir.
1999).
¶ 89. The most that can be said is that law en- may forcement officers have had a hunch that Mar- quardt may be connected to the murder and believed it might My understanding be fruitful to search his cabin. suspects generally is that the first in a murder are family. good enough members of the Such a hunch is not protection to overcome the Fourth Amendment's against government intrusion into the home. appeals, holding 90. The court of the application probable warrant failed to cause, show described well the total lack of "indicia of cause" in the warrant affidavits:
Although
[in
these facts
may
affidavits]
lead a
police
reasonable
pursue
officer to
investigation
further
Marquardt,
we conclude that there
nothing
is
in the
crime,
to tie
to the
much less to tie his
facts
Although
home to the crime.
the warrant-issuing judge
may
provided
have been
sufficient facts to excite an
honest belief
a reasonable mind that the particular
types
objects
sought
including shoes, knives, and
—
guns
be linked with the commission of the
—could
crime, there
suggested
was no
those items
fact
cabin,11
would be
found
Chippewa County
¶ 91. The
Circuit Court had it
right when it stated
if
bare bones affidavits like present
satisfy
good
exception,
one in the
case
faith
there is little deterrence to
searches,
unlawful
which
exclusionary
prevent.
rule seeks to
The circuit court
correctly
declared that under the
(and
adopted by
as conceived
the State
now
majority opinion),
creativity
it would take little
any person
target
minimal evidence to make
of an
*32
11State v. Marquardt,
AppWI
247 Wis. 2d
added).
765,
B. JR. this