State v. PopenhagenState v. Popenhagen
Lead Opinion
¶ 1. The defendant, Michelle R. Popenhagen, seeks review of a published court of appeals decision reversing an order of the Circuit Court for Oneida County, Mark Mangerson, Judge.
¶ 2. In reversing the circuit court's order, the court of appeals concluded that the defendant cannot rely on the federal or state constitution for suppression and that
¶ 3. The issue on review is whether the circuit court erred in granting the defendant's motion to
¶ 4. We conclude that suppression of both the bank documents and the defendant's incriminating statements in the present case is an appropriate remedy when the bank documents were obtained in violation of
¶ 5. The court of appeals addressed the constitutional issues. Because we affirm the circuit court's order on statutory grounds, we leave the interpretation of the federal and state constitutional provisions and federal statutes relating to the obligations of banks that the court of appeals addressed for another case in which these issues are determinative.
I — I
¶ 6. The relevant facts are not in dispute for purposes of this appeal. The defendant was an employee at Save More Foods, a grocery store in Minocqua. In August 2004, the owner of Save More Foods contacted the Minocqua Police Department and alleged that the defendant had improperly obtained money from the store. The owner specifically alleged that the defendant had cashed checks at the store drawn from accounts containing insufficient funds and further that the defendant had stolen money from the store's automated teller machine. According to the complaint and attached police report, the defendant allegedly stole approximately $29,000.
¶ 7. As part of the State's investigation, the district attorney's office sought three subpoenas before filing a complaint. Circuit Court Judges Kinney and
¶ 8. A copy of each subpoena is attached hereto. Each subpoena states that it is issued pursuant to
¶ 9. Although the subpoenas on their face are in a form substantially similar to the forms set forth in both
¶ 10. The District Attorney apparently conceded in the circuit court that it used the wrong form of subpoena.
¶ 11. In the court of appeals the only statute the parties briefed relating to the subpoenas was
¶ 12. The defendant's petition for review in this court raised the following issue: "Is suppression of
¶ 13. Having taken this case to address the issue whether the remedy of suppression is available when bank records were obtained by the district attorney with a subpoena that did not comply with the probable cause affidavit requirement of
Subpoena for documents. Upon the request of the attorney general or a district attorney and upon a showing of probable cause under s. 968.12, a court shall issue a subpoena requiring the production of documents, as specified in s. 968.13(2). The documents shall be returnable to the court which issued the subpoena. Motions to the court, including, but not limited to, motions to quash or limit the subpoena, shall be addressed to the court which issued the subpoena. Any person who unlawfully refuses to produce the documents may be compelled to do so as provided in ch. 785. This section does not limit or affect any other subpoena authority provided by law.
¶ 15. The banks complied with their respective subpoenas, delivering bank statements, deposit slips, and cancelled checks to the Minocqua Police Department. Having obtained her bank documents, police officers interviewed the defendant, confronting her with her bank documents. The officers explained to the defendant that her bank deposits corresponded in time and amount to money reported missing from Save More Foods. At that point, the defendant made several incriminating statements. No transcript of the defendant's remarks is
¶ 16. The defendant was charged with theft of more than $10,000 contrary to
¶ 17. The circuit court granted the defendant's motion. The circuit court reasoned that the defendant had a right to privacy in her bank documents under the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. The circuit court further reasoned that suppression is an appropriate remedy not only for the State's constitutional violations but also for the State's violation of
¶ 18. The State appealed the circuit court's order, and a divided court of appeals reversed the order. The majority of the court of appeals held that the defendant had no right to privacy in her bank documents under either the United States or the Wisconsin Constitution and that suppression is not a proper remedy when evidence is obtained in violation of
¶ 19. The dissenting opinion concluded that
¶ 20. The State contends that the circuit court erred in suppressing as evidence the bank documents
A
¶ 21. We first consider whether the defendant had the requisite standing to challenge the subpoenas issued to her banks under
¶ 22. The State asserts that only the banks, as targets of the subpoenas, could move to quash or limit the subpoenas for lack of probable cause, even though the statute does not expressly limit the motions to those made by the target of the subpoenas. The State further argues that the legislative history of
¶ 23. A determination of standing presents a question of law that we décide independently of the
¶ 24. A person has standing to seek judicial intervention when that person has "a personal stake in the outcome"
¶ 25. The defendant meets the test for standing. In requiring a showing of probable cause and a court order,
¶ 26. The State sought the defendant's bank documents in contemplation of charging the defendant with a crime and using the bank documents against her. Clearly the defendant had a "personal stake" in the question whether the State's subpoenas were valid; she would be "directly affected" by the resolution of this question.
¶ 28. The State's reliance on the legislative history to support its argument that the defendant does not have' standing is unpersuasive. We agree with the State that a note to an early draft of
¶ 29. For the reasons set forth, we conclude that the defendant has standing to challenge subpoenas issued to the banks under
B
¶ 30. The State concedes, and properly so, that contrary to the requirements of
¶ 31. In the present case, the circuit court ordered suppression of the bank documents on undisputed facts on the basis of
¶ 32. Statutory interpretation and application of a statute to undisputed facts are ordinarily questions of
¶ 33. In deciding to suppress the defendant's bank documents as evidence, the circuit court reasoned that failure to suppress the bank documents would undermine the statute:
If we would allow those documents to be subpoenaed, and tell the defendant she may have a personal right to sue the police department because they violated her rights, and then allowed the information that was illegally obtained in at the criminal trial, then we would emasculate the clear directives of 968.135 ....
¶ 34. The State contends that the circuit court erred as a matter of law in interpreting and applying
¶ 36. Wisconsin Stat.
Subpoena for documents. Upon the request of the attorney general or a district attorney and upon a showing of probable cause under s. 968.12, a court shall issue a subpoena requiring the production of documents, as specified in s. 968.13(2). The documents shall be returnable to the court which issued the subpoena. Motions to the court, including, but not limited to, motions to quash or limit the subpoena, shall be addressed to the court which issued the subpoena. Any person who unlawfully refuses to produce the documents may be compelled to do so as provided in ch. 785. This section does not limit or affect any other subpoena authority provided by law.
¶ 37. By its plain terms,
¶ 38. The question presented is the meaning of the statutory language "[mjotions to the court, including, but not limited to, motions to quash or limit the subpoena." More specifically, the question presented is: Does the class of motions that, may be brought in response to a subpoena issued under
¶ 39. The word "motions" is used in
¶ 40. The word "motion" is broadly defined in the statutes as an application for an order.
¶ 41. We next examine the words "motions to the court including but not limited to." In common parlance these words plainly provide that the two enumerated motions are not the only motions that may be brought in response to a subpoena issued under
¶ 43. One rule to be used in interpreting the word "includes" is that the word may be interpreted contrary to its ordinary, non-exclusive meaning. The word "includes" may therefore be read as a term of limitation or enumeration, so that a statute encompasses only those provisions or exceptions specifically listed. This court has, however, adopted this limited reading of "includes" only when there is some textual evidence that the legislature intended the word "includes" to be interpreted as a term of limitation or enumeration.
¶ 45. A second rule to be used in interpreting the word "includes" is to give the word its common, broad, non-exclusive meaning.
¶ 46. A third rule to be used in interpreting the word "includes" is ejusdem generis, which literally means "of the same kind." This rule helps determine whether the statutorily enumerated motions limit in some way the other motions that may be brought under
¶ 48. Applying the ejusdem generis rule of statutory interpretation, we must determine whether a motion to suppress documents obtained through a subpoena issued in violation of
¶ 49. A motion to quash or a motion to limit a subpoena is ordinarily made before the subpoena is complied with. The motion is aimed at preventing the State from obtaining all or some documents that the State may want to use as evidence. If the motion to
¶ 50. A motion to suppress documents obtained by a subpoena issued in violation of
¶ 51. A motion to suppress documents obtained by’ a subpoena issued in violation of
¶ 52. Furthermore, a motion to suppress documents obtained by a subpoena issued in violation of
¶ 53. Wisconsin Stat.
¶ 54. A motion to suppress documents obtained by a subpoena issued in violation of
¶ 55. Applying the doctrine of ejusdem generis, we conclude that a motion to suppress documents obtained in violation of
¶ 56. In applying each of the three rules for interpreting the word "includes" we have concluded that under each rule the defendant's motion to suppress the documents at issue in the present case was properly granted.
¶ 57. The State argues that our interpretation of
¶ 58. The State relies on State ex rel. Arnold v. County Court of Rock County,
¶ 59. In Arnold, the Wisconsin Electronic Surveillance Control Law characterized the interceptions at
¶ 60. In the face of this statutory silence, the Arnold court inferred that the results from the unauthorized but "not unlawful" interceptions at issue in that case were inadmissible. The Arnold court drew this inference from the Electronic Surveillance Control Law's procedure for court authorization of interceptions, as well as the Law's provisions governing authorization for the use and disclosure of intercepted communications.
¶ 61. This same reasoning applies in the present case. In the present case, as in Arnold, the government did not comply with the statutory requirements to obtain the evidence in question. In addition, like in Arnold, we could not allow the admission of the evidence in the present case, as we explained previously, without rendering meaningless the safeguards established by
¶ 62. Thus Arnold, correctly read, stands for the proposition that evidence obtained in violation of a statute (or not in accordance with the statute) may be suppressed under the statute to achieve the objectives of the statute, even though the statute does not expressly provide for the suppression or exclusion of the evidence. This correct reading of Arnold has been lost in succeeding cases.
¶ 63. As recently as State v. Raflik,
¶ 64. In Peckham, another case upon which the State relies, the court's statement of suppression law is somewhat different from the court's statement of suppression law in Raflik. Peckham involved the Department of Corrections opening the mail of an inmate in violation of administrative rules. In Peckham, the court of appeals asserted that "wrongfully or illegally obtained evidence is to be suppressed only where the evidence was obtained in violation of an individual's constitutional rights or in violation of a statute that expressly requires suppression as a sanction."
¶ 66. Although in Peckham the court of appeals announced a broad rule of law, in examining the regulation at issue in the Peckham case, the court of appeals properly applied a narrower rule of law consistent with Arnold and the correct interpretation oí Raflik, namely that the evidence obtained in that case was admissible if it did not "violate any statute or administrative rule that expressly or impliedly provided for the exclusion of such evidence."
¶ 67. In Verkuylen, a search warrant case upon which the State relies, the court of appeals cited Arnold (without a citation to a page number) for the proposition that suppression is required only when a statute specifically requires suppression of unlawfully obtained evidence.
¶ 68. Arnold, Raflik, Peckham, and Verkuylen, properly read, do not require the legislature expressly to require or allow suppression of unlawfully obtained evidence in order for a circuit court to grant a motion to suppress. In other words, the legislature need not express its intent to provide a remedy of exclusion or suppression of evidence with greater clarity than ordinarily required of any legislative enactment. The cases demonstrate that the circuit court has discretion to suppress or allow evidence obtained in violation of a statute that does not specifically require suppression of evidence obtained contrary to the statute, depending on the facts and circumstances of the case and the objectives of the statute.
¶ 69. The State cites a number of additional court of appeals cases for the proposition of law that suppression is not a proper remedy for a statutory violation. None of these cases is apposite. The court in each case cited by the State referred either to Verkuylen or to another case (1) for the ambiguous proposition that suppression is required only when a statute expressly requires suppression of the unlawfully obtained evidence;
¶ 70. The proposition of law that wrongfully or illegally obtained evidence may not be suppressed except when the evidence was obtained in violation of an individual's constitutional rights or in violation of a statute that expressly requires suppression of evidence as a sanction has been carried expressly or impliedly from case to case without any support or reasoning. This proposition is an unsupported mistaken statement of the law. Mistaken statements of the law should not constitute precedent that binds this court.
¶ 71. For the reasons set forth, we conclude that
C
¶ 72. We turn lastly to the question whether the circuit court erred as a matter of law in granting the defendant's motion to suppress the incriminating statements the defendant made after police confronted her with the bank documents obtained in violation of
¶ 73. The circuit court explained its decision to suppress the defendant's statements in addition to the bank documents as follows:
In regard to the statement of Ms. Popenhagen, I'm finding that the fruit of the poisonous tree doctrine does apply here just as it would in a had search, standard search case without a warrant.
¶ 75. The question whether
¶ 76. We again apply the three rules to interpret the word "includes" in
¶ 77. Under the first two rules of statutory interpretation of the word "includes," the motion to suppress the incriminating statements falls within
¶ 78. Under the first rule of statutory interpretation applicable to the word "includes," the word "includes" is viewed narrowly and contrary to its ordinary,
¶ 79. Under the second rule of statutory interpretation applicable to the word "includes," the word "includes" is given its common, broad, non-exclusive meaning. Applying this rule of interpretation we would conclude that the motion to suppress the incriminating statements in the present case is encompassed within the class of motions contemplated by
¶ 80. Applying the rule of ejusdem generis to the defendant's motion to suppress the incriminating statements that law enforcement officers obtained by confronting the defendant with the unlawfully obtained bank records, we examine whether the motion at issue is similar in nature to the statutorily enumerated motions to quash or to limit the subpoena and is germane to the objectives of
¶ 81. The defendant's motion to suppress the incriminating statements in the present case is substantially similar in nature to a motion to quash the subpoena. Both motions prevent the State's using evidence derived from the subpoena. The documents are derived from the unlawful subpoena and the incriminating statements are derived from the documents derived from the unlawful subpoena.
¶ 82. Had the defendant been able to bring and prevail upon a motion to quash the subpoena obtained in violation of
¶ 83. We do not know whether the defendant would have made incriminating statements had she not been confronted with the unlawfully obtained bank documents.
¶ 84. We next examine whether the motion to suppress the incriminating statements that law enforcement officers obtained by use of a subpoena issued in violation of
¶ 85. The defendant's motion to suppress the incriminating statements in the instant case serves these objectives. Suppressing incriminating statements derived directly from documents obtained in violation of
¶ 86. If a person were permitted to bring a motion to quash the subpoena for bank documents unlawfully obtained but not permitted to bring a motion to suppress incriminating statements derived directly from the unlawfully obtained bank documents, the person would not get the full benefit of the protections of the statute, and the underlying objectives of the statute would be defeated.
¶ 87. When the legislature allows a motion to quash or limit a subpoena to prevent the State from enforcing a subpoena issued in violation of
¶ 89. In applying each of the three rules for interpreting the word "includes," we have concluded that under each rule of statutory interpretation, the defendant's motion to suppress the statements at issue in the present case was properly granted.
¶ 90. As we explained previously, this interpretation of
¶ 91. Óur conclusion in the present case for suppression of both the documents and the incriminating statements is similar to the conclusions reached by the United States Supreme Court in two cases involving wiretaps that were performed in contravention of the. applicable federal statute governing legal wiretaps.
¶ 92. In the first case, Nardone v. United States,
¶ 94. In the Nardone cases, as well as in the present case, the law being interpreted is silent about suppression of evidence obtained as a result of a statutory violation. In the first Nardone case, the Court
¶ 95. The Nardone cases support our approach to statutory interpretation in the present case. The instant case, however, presents an easier task of statutory interpretation than did the Nardone cases. In the instant case the motions to suppress the documents and the incriminating statements are in the very text of the statute, that is, the text explicitly provides for "motions to the court, including, but not limited to, motions to quash or limit the subpoena." The Act interpreted in the Nardone cases had no such similar broadly worded language allowing a motion to suppress evidence.
¶ 96. For the reasons set forth, we conclude that the circuit court did not err in suppressing the incriminating statements that the defendant made after police confronted her with the bank documents obtained in violation of
‡ ‡ ‡ H*
¶ 97. We conclude that suppression of both the bank documents and the defendant's incriminating statements in the present case is an appropriate remedy
By the Court. — The decision of the court of appeals is reversed. The cause is remanded to the circuit court for further proceedings not inconsistent with this opinion.
Notes
State v. Popenhagen,
All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.
The Fourth Amendment of the United States Constitution provides in full:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article I, Section 11 provides in full:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
The subpoenas in the present case were issued under
The State's brief before this court asserts that the prosecuting attorney conceded at circuit court that the office used the wrong form. State's brief at 5-6.
The other three issues relate to the defendant's state constitutional right to an expectation of privacy in the bank records; the defendant's Fourth Amendment right to an expectation of privacy in the hank records; and the court's inherent power to order suppression of evidence.
Wisconsin Stat. § (Rule) 809.62(6) provides that if a petition for review is granted, the petitioner cannot raise or argue issues not set forth in the petition unless ordered otherwise by this court. The court has not ordered that any other issue be argued.
Justice Prosser's concurrence, ¶¶ 119,126, concludes that suppression of both the bank documents and the incriminating statements was proper because
Zellner v. Cedarburg Sch. Dist.,
Vill. of Slinger v. City of Hartford,
Vill. of Slinger,
Bence v. City of Milwaukee,
Bill Drafting File on 1979 S.B. 221, available at Wisconsin Legislative Reference Bureau, 1 East Main Street, Madison, Wisconsin.
See State v. Eichman,
State v. Drew,
Marquette S. v. Bobby G.,
The decision whether to admit or exclude evidence based on a violation of evidentiary rules ordinarily lies within the circuit court's discretion. Leitinger v. DBart, Inc.,
Wis. Stat. (Rule) § 971.30(1).
Wis. Citizens Concerned for Cranes & Doves v. Wis. DNR,
The Wisconsin Bill Drafting Manual 2006-2007 explains that using the phrase "but is not limited to" along with the word "includes" is redundant. Wisconsin Bill Drafting Manual 2006-2007, § 2.01(l)(i) at 39.
Wisconsin Bill Drafting Manual 2007-2008, § 2.01(1)6) at 39.
State v. Campbell,
State v. James B,
This limited meaning of the word "includes" was reached by the court's using the maxim of statutory interpretation expres-sio unius est exclusio alterius ("the express mention of one matter excludes other similar matters not mentioned"). See FAS, LLC v. Town of Bass Lake,
Although the maxim expressio unius est exclusio alterius does not by its terms apply to
For additional cases considering the maxim expressio unius est exclusio alterius, see, e.g., State v. Delaney,
The cases sometimes refer to this "exclusio" maxim as inclusio unius est exclusio alterius. See, e.g., Koestler v. Pollard, 162 Wis. 2d 797, 804 n.4,
Karl H. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes are to be Construed, 3 Vand. L. Rev. 395, 405 (1950).
When no inconsistency exists between specifically named particular words and the general statutory language or when the enumeration does not suggest a class, the maxim of ejusdem generis does not apply. 2A Singer & Singer, supra note 23, § 47:17, at 380, 387-89.
State v. Engler,
The maxim ejusdem generis is an attempt to reconcile the specific and the general by treating the particular words as indicating the class and the general words as extending the provisions to everything embraced in that class, though not specifically named by the particular words. Ejusdem generis is a common drafting technique to avoid spelling out in detail every contingency in which the statute, could apply.
For additional cases considering the maxim ejusdem gen-eris, see, e.g., State v. Peters,
The maxim ejusdem generis is a variation of the maxim noscitur a sociis. The maxim noscitur a sociis means that words may be defined by accompanying words, that is, that the meaning of doubtful words may be determined by reference to their relationship with other associated words or phrases. Wis. Citizens Concerned for Cranes & Doves,
Engler,
The dissent in State ex rel. Arnold v. County Court of Rock County,
Arnold,
State ex rel. Peckham v. Krenke,
Peckham was so interpreted in State v. Wallace,
Peckham v. Krenke,
State v. Verkuylen,
Verkuylen,
State v. Repenshek,
State v. Cash,
See, e.g., State v. Piddington,
The State recognizes that in two John Doe cases this court indicated that suppression of evidence could be available as a remedy for "clear abuse" of the John Doe statutory process. See State v. Noble,
Cf. State v. Kelty,
See Wenke v. Gehl Co.,
Had the defendant merely been told that the police had her bank documents, she might have questioned this assertion and doubted the police's claim in light of the numerous lengthy documents she probably had received (as we all have) from banks and other institutions advising that privacy interests are protected by law.
See Wenke,
Nardone v. United States,
Id. at 340-41.
Id. at 341.
Concurrence Opinion
¶ 98. {concurring). The State obtained the bank records of Michelle Popenhagen from local banks after it issued three subpoenas duces tecum, each of which was signed by an Oneida County circuit judge. The process used to obtain these subpoenas is not clear. What is clear, however, is that: (1) the State used the wrong subpoena forms; (2) the State never submitted evidence of probable cause for the subpoenas to the court; (3) the judges made no findings of probable cause for the subpoenas; and (4) the documents obtained from the subpoenas were not returned to the court. Consequently, after two hearings on Popenhagen's motion to suppress her bank records and the incriminating statements she made after being confronted by police with her bank records, Circuit Judge Mark Mangerson suppressed the records and the statements.
¶ 99. I concur in this result. However, because I share some of the concerns voiced in Justice Roggen-sack's dissenting opinion, I write separately to explain my position.
H
¶ 100. The owners of Save More Foods in Minoc-qua terminated Michelle Popenhagen, a longtime employee who worked as their bookkeeper, because they detected financial irregularities at the store. Several weeks later, the owners complained to the Minocqua Police Department that they believed Popenhagen had embezzled a substantial amount of money. In the subsequent investigation, Todd Hanson, a detective with the Minocqua Police Department, "filled out an affidavit" for the Oneida County District Attorney to support subpoenas to local banks to obtain Popenhagen's bank records. In a police report, Hanson stated that he faxed a request for subpoenas "to the Oneida DA on 8/16/04 @ 3:00 p.m."
¶ 102. All three subpoenas contain the following language in bold type: "PURSUANT TO SECTION 805.07 OF THE WISCONSIN STATUTES, YOU ARE HEREBY COMMANDED TO APPEAR IN PERSON AND GIVE EVIDENCE". All three subpoenas give a date and time to appear in circuit court. Two of the subpoenas also state: "In lieu of appearing, copies may be mailed to Sergeant Todd Hanson of the Minocqua Police Department, PO. Box 346,.Minocqua, Wisconsin 54548."
¶ 103. All three subpoenas were served personally on the banks by Todd Hanson. Thereafter, the hanks did not appear in court; instead, they turned over the records to the Minocqua Police Department.
¶ 104. As noted, the subpoenas were issued pursuant to
Subpoena. (1) Issuance and service. Subpoenas shall be issued and served in accordance with ch. 885. A subpoena may also be issued by any attorney of record in a civil action or special proceeding to compel attendance of witnesses for deposition, hearing or trial in the action or special proceeding.
(2) Subpoena requiring the production of mdte-rial. (a) A subpoena may command the person to whom it is directed to produce the books, papers, documents or tangible things designated therein.
(b) Notice of a 3rd-party subpoena issued for dis-' covery purposes shall be provided to all parties at least 10 days before the scheduled deposition in order to preserve their right to object. If a 3rd-party subpoenarequests the production of books, papers, documents, or tangible things that are within the scope of discovery under s. 804.01(2)(a), those objects shall not be provided before the time and date specified in the subpoena. The provisions under this paragraph apply unless all of the parties otherwise agree.
(3) Protective orders. Upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, the court may (a) quash or modify the subpoena if it is unreasonable and oppressive or (b) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things designated therein. (Emphasis added.)
¶ 105. Wisconsin Stat.
Subpoenas, who may issue. The subpoena need not be sealed, and may be signed and issued as follows:
(1) By any judge or clerk of a court or court commissioner or municipal judge, within the territory in which the officer or the court of which he or she is the officer has jurisdiction, to require the attendance of witnesses and their production of lawful instruments of evidence in any action, matter or proceeding pending or to be examined into before any court, magistrate, officer, arbitrator, board, committee or other person authorized to take testimony in the state.
(2) By the attorney general or any district attorney or person acting in his or her stead, to require the attendance of witnesses, in behalf of the state, in any court or before any magistrate and from any part of the state. (Emphasis added.)
¶ 106. The record shows that the district attorney's office executed three subpoenas pursuant to
¶ 107. In sum, the three subpoenas were defective in every respect. The circuit court was not powerless to address defective subpoenas issued pursuant to
¶ 108. Probable cause is not required for a subpoena issued pursuant to
¶ 109. Here, of course, there was no pending action and thus no opposing "party" to serve with notice. The district attorney erred. Even if the district
¶ 110. The parties now appear to agree that the State should have sought subpoenas under
Subpoena for documents. Upon the request of the attorney general or a district attorney and upon a showing of probable cause under s. 968.12, a court shall issue a subpoena requiring the production of documents, as specified in s. 968.13(2). The documents shall be returnable to the court which issued the subpoena. Motions to the court, including, but not limited to, motions to quash or limit the subpoena, shall be addressed to the court which issued the subpoena. Any person who unlawfully refuses to produce the documents may be compelled to do so as provided in ch. 785. This section does not limit or affect any other subpoena authority provided by law. (Emphasis added.)
¶ 111. To obtain subpoenas under this statute, a district attorney is required to provide the court with "probable cause under s. 968.12," meaning that a district attorney is required to proceed as though he were requesting a search warrant under
¶ 112. The Oneida County District Attorney could have provided the court with a sworn complaint or
¶ 113. Wisconsin Stat.
¶ 114. Judge Mangerson stated that a subpoena under
¶ 115. The State is not entitled to utilize incriminating statements obtained from Popenhagen after she was confronted with her bank records simply because it completely disregarded the applicable statute (
I — I hH I — I
¶ 116. This brings us to the question of what authority should be employed to suppress Popenhagen's statements without altering longstanding Wisconsin law.
¶ 117. In State v. Raflik,
The suppression of evidence is not a constitutional right, but rather it is a judge-made rule used to deter misconduct by law enforcement officials. Stone v. Powell,428 U.S. 465 , 482 (1976). Suppression is only required when evidence has been obtained in violation of a defendant's constitutional rights, State v. Hochman,2 Wis. 2d 410 , 419,86 N.W.2d 446 (1957), or if a statute specifically provides for the suppression remedy. State ex rel. Arnold v. County Court of Rock County,51 Wis. 2d 434 , 439-40,187 N.W.2d 354 (1971); see also State ex rel. Peckham v. Krenke,229 Wis. 2d 778 , 787,601 N.W.2d 287 (Ct. App. 1999); State v. Verkuylen,120 Wis. 2d 59 , 61,352 N.W.2d 668 (Ct. App. 1984).
Id., ¶ 15 (emphasis added).
¶ 118. The Raflik court went on to explain that there is no specific statutory remedy provided for the failure to record a telephonic search warrant application
¶ 119. In my view, a violation of
¶ 120. Wisconsin Stat.
¶ 121. This view is supported by the cases. In State v. Tye,
¶ 123. This theme was echoed in State v. Elam,
¶ 125. In the Raflik case, where the government mistakenly failed to record the application for a warrant by telephone, the circuit court did not suppress the evidence because the search warrant was grounded in probable cause, and the search was not unreasonable because the court promptly took steps to reconstruct the application. Raflik,
¶ 126. These cases, together with
¶ 127. Suppression of evidence is a drastic remedy. Suppression is required when evidence has been obtained in violation of a defendant's constitutional rights. Raflik,
¶ 128. In evaluating statutory irregularity with respect to a search warrant or a
¶ 129. In this case, the State's misuse of the subpoena statutes was serious and material, not technical. The State used the wrong subpoena forms, pursuant to the wrong statute (
IV
¶ 130. The last sentence of
¶ 131. In my view, the State is entitled to use
V
¶ 132. The circuit court's suppression of Popenhagen's bank records and incriminating statements was appropriate. The State used the wrong subpoena forms and followed the wrong procedure. As a result, its subpoenas were defective. However, the State's subpoena access to these records is not limited to access under
Wisconsin Stat.
Search warrant. (1) Description and issuance. A search warrant is an order signed by a judge directing a law enforcement officer to conduct a search of a designated person, a designatedobject or a designated place for the purpose of seizing designated property or kinds of property. A judge shall issue a search warrant if probable cause is shown.
(2) Warrant upon affidavit. A search warrant may be based upon sworn complaint or affidavit, or testimony recorded by a phonographic reporter or under sub. (3)(d), showing probable cause therefor. The complaint, affidavit or testimony may be upon information and belief.
Concurrence Opinion
¶ 133. {concurring in part, dissenting in part). The majority decision, which suppresses both the documents and the statements, proceeds much further than necessary. I agree that the circuit court has authority to preclude the documents and to require the State to go through the correct process to obtain them for future use. However, I disagree with doing so on a statutory or constitutional basis. If there is such authority to preclude the documents, it lies in the court's inherent authority to administer justice. Under the facts presented, however, no authority exists for suppressing the statements.
¶ 134. The majority finds that the statutory language calls for suppression as a remedy. If the language of this statute provides for suppression, then almost any statute from this point forward does so as well. That has never been the law. Moreover, no authority exists for going even further and suppressing the statements based on the statute, the fruit of the poisonous tree doctrine, or otherwise. This is a good example of bad facts making bad law.
¶ 135. The law is well established that unless the statute provides for suppression or unless constitutional protections exist, suppression is not a remedy. The majority decision extends the law to unworkable standards and leaves a black hole with respect to the suppression of evidence. Suppression law is no longer linked to the language of the statute, nor is it tethered to a constitutional right. No longer is there any stop
¶ 136. Under the unique facts of this case, the circuit court should have the authority to preclude the documents because the subpoena at issue was fatally defective: (1) the district attorney used the wrong subpoena (a civil subpoena was used by the district attorney in a criminal investigation); (2) the district attorney had no authority to obtain documents by using the civil statutes; while there is no record that this was done in bad faith, using the wrong subpoena and civil procedure were more than a scriveners' error; (3) although the record reflects that the investigating officer faxed a probable cause affidavit to the district attorney, nothing suggests that a probable cause affidavit was submitted to the court, and no such document is in the record; (4) nothing suggests that a probable cause determination was made by any judicial officer;
¶ 137. In short, the State had no authority to obtain the documents by using purely a civil subpoena process in a criminal investigation. When a court realizes that it issued a subpoena without any authority, it can and should quash the subpoena under its own authority in the administration of justice.
¶ 138. The State utilized a civil subpoena statute,
¶ 141. The State, in this case, should have used
II. DEFECTIVE SUBPOENA
¶ 142. The State's subpoena was fatally defective. Absolutely nothing was done correctly with respect to this subpoena. The district attorney had no authority to request it, and the judge should not have signed it. If there is a remedy for this unusual statutory violation, it lies in the court's inherent authority to administer justice since the legislature did not provide for suppression as a remedy in the statute and the violation did not
¶ 143. A circuit court judge has the authority to quash a subpoena that is defective.
¶ 144. The majority eliminates longstanding precedent that suppression is required only if the statute specifically provides for suppression. Majority op., ¶¶ 57-71. The majority questions whether any justification exists for such a rule. Majority op., ¶ 70. We, however, need not look any further than well respected and accepted principles of statutory construction and interpretation for justification. When the legislature intends to provide suppression for a statutory remedy, it specifically does so,
¶ 145. Here, the majority is making new law. No case has ever suppressed evidence without specific statutory authority unless there has been a constitutional violation. With this new basis for suppression, is there any stopping point? Is anything attenuated? If something is suppressed in a case, does that now mean that anything obtained thereafter is suppressed? If not, why not? What is the standard? For example, if law enforcement obtains a lead in an investigation and that evidence is later found to be inadmissible, is all evidence obtained thereafter suppressed because officers built a case based upon various leads? Is law enforcement now required to obtain an independent basis for
¶ 146. In order to suppress the documents, the majority decides that suppression is allowed under
III. FRUIT OF THE POISONOUS TREE DOCTRINE
¶ 147. The majority takes the extra step of suppressing the statements that were obtained when the defendant was subsequently shown the bank documents. While the majority frames its analysis under the auspices of statutory authority, it really does so by an unprecedented application of the fruit of the poisonous tree doctrine, shx so doing, the majority undermines longstanding case law. There is no legal support for the proposition that the court can suppress the statements as fruit of the poisonous tree or, as the majority has now done, under the language of the statute. The statute at issue does not list suppression as a remedy and the fruit of the poisonous tree doctrine has never been extended to a statutory violation. Unlike using its inherent authority in the administration of justice to quash the improperly issued subpoena, the court's inherent authority does not extend to suppressing the attenuated statements, especially where there is no bad faith. In
¶ 148. We have no reason to believe that law enforcement acted in bad faith to obtain the documents. There is no reason to believe that law enforcement used the documents in bad faith. The majority suppresses the statements by finding that there was a statutory violation in obtaining the documents in the first instance; it then suppresses the "fruit" of the "poisonous tree" — the statements derived from the use of those documents.
¶ 149. The fruit of the poisonous tree doctrine has never been applied to suppress statements elicited by virtue of a defendant being shown documents obtained from a faulty civil subpoena. This doctrine applies to constitutional violations, and no constitutional violation has occurred in this case.
It is true that evidence obtained as a direct result of a violation of a constitutional right is inadmissible and the exclusionary rule applies to intangible evidence as well as tangible evidence, such as statements following an unlawful arrest or entry. Not only evidence obtained by the primary illegality is inadmissible but also derivative evidence if such evidence is obtained 'by exploitation of that illegality.1
State v. Schneidewind,
¶ 150. Suppression of derivative evidence does not occur every time a procedural mishap occurs with the subpoena process. In this case, there is no showing of bad faith on the part of law enforcement. The majority fails to provide any direction to our circuit courts, district attorneys, defense lawyers, and law enforcement with regard to when a circuit court judge must "suppress" derivative evidence or when it simply can quash a subpoena that was issued without authority and order compliance with the statute at issue. Surely not all procedural violations demand such drastic measures as the court prescribes in this case.
IV CONCLUSION
¶ 151. The majority, instead of directly deciding the issue at hand, proceeds down a path of "correcting" law that does not need correction. At the fault of both the State and the circuit court, a fatally defective subpoena was issued. The State had no authority to use the subpoena, and the court had no authority to issue the requested subpoena. This case does not call upon us to decide whether our current case law needs any clarification or changing with regard to when suppression is permitted. Because of the majority's decision, the law has been contorted to fit an outcome. Longstanding precedent is called into question. Courts and law enforcement are left with uncertainty.
¶ 153. While the circuit court did not invoke its inherent authority in the case at hand because it had improperly suppressed based upon a constitutional expectation of privacy in bank records, we should remand to the circuit court with instructions that no such expectation of privacy exists
¶ 154. For the foregoing reasons, I concur in part and dissent in part.
Not only was no probable cause found prior to the subpoenas being issued, but no subsequent opportunity existed for a judicial officer to correct this problem. In this case, Judge Kinney signed the civil subpoena that produced the bank records from F&M Bank and used in eliciting incriminating statements from the defendant. No probable cause affidavit was attached to that subpoena. Judge Mangerson presided over the subsequent suppression hearing. However, because Judge Man-gerson did not sign the subpoena at issue and no probable cause affidavit was provided to him, Judge Mangerson could not make a finding of probable cause or correct the record as to why the subpoena was issued. There is nothing in the record to indicate that the criminal process was utilized.
Although inherent authority was not utilized by the circuit court in this case, we should remand with directions that the circuit court consider utilizing its inherent authority.
Perhaps the argument in favor of allowing the State to use civil subpoena statutes-arises out of
Section 24.11 of Wisconsin Criminal Practice and Procedure states in relevant part:
The "subpoena power" is the authority to require "the attendance of any witness, residing or being in any part of this state, to testify in any matter or cause pending or triable. . . ." Compelling a witness to appear in a Wisconsin court may he accomplished by any attorney practicing before that court. This situation exists because WS.A. 757.01(1)2 bestows subpoena power on all state courts of record, and WS.A. 885.01(1)3 permits issuance of subpoenas by "any judge or clerk of a court or court commissioner or municipal judge" within that officer's or the appropriate court's jurisdiction. W.S.A. 757.355 then provides that the clerk of any court of record may deliver blank, pre-signed and sealed process forms to any attorney practicing before that court. Upon completion by the attorney, these documents have the same force as they would if they were perfected by the clerk. Utilizing this procedure, attorneys practicing in Wisconsin have subpoena power.
The Wisconsin attorney general and district attorneys, or persons acting in their stead, may also statutorily sign and issue subpoenas to compel the appearance of witnesses in any court or before any magistrate, from any part of the state, on behalf of the state. Similarly, under the Children's Code, a juvenile who is alleged to have performed a delinquent act must be informed by the intake worker that the juvenile has a "right to present and subpoena witnesses."
9 Christine M. Wiseman, Nicholas L. Chiarkas, & Daniel D. Blinka, Criminal Practice and Procedure § 24.11 (1996) (internal footnotes omitted).
See 9 Wiseman et al., supra, § 24.16.
See 9 Wiseman et al., supra, § 24.11, n.6 (stating that "[i]n civil cases, attorneys have subpoena power under
See Justice Roggensack's dissent, ¶ 165.
See City of Sun Prairie v. Davis,
See, e.g.,
Any aggrieved person ... may move before the trial court or the court granting the original warrant to suppress the contents of any intercepted wire, electronic or oral communication ....
See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI58, ¶ 39,
See also State v. Yang,
United States v. Miller,
All further references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.
Dissenting Opinion
155. (dissenting). We are asked to review a court of appeals decision reversing the circuit court's order (1) suppressing bank records that were subpoenaed and produced without a finding of probable cause, which
I. BACKGROUND
¶ 157. While Popenhagen was an employee of Save-More Foods in Minocqua, the owner, Brian Krue-ger, suspected that she was stealing from the store. Krueger reported to the Minocqua Police Department that Popenhagen cashed checks at the store that she drew on accounts containing insufficient funds. Krue-ger also alleged that Popenhagen had stolen money from the store's automated teller machine. According to the criminal complaint and the attached police reports, it is alleged that Popenhagen stole approximately $29,000 from her employer.
¶ 158. To further their investigation of the matter, the Minocqua Police sought to obtain Popenhagen's bank records through criminal subpoenas under
¶ 159. All three banks complied with the subpoenas by delivering Popenhagen's bank statements, deposit slips and cancelled checks to the Oneida Police Department. Oneida police officers then interviewed Popen-hagen. She initially denied that she had stolen money from Save-More, but after the police confronted Popen-hagen with her bank records, which revealed that her deposit amounts closely corresponded to amounts missing from Save-More, she made several incriminating statements.
¶ 160. Popenhagen was charged with theft of more than $10,000, contrary to
¶ 161. The State appealed the circuit court's decision, and in a two-to-one decision, the court of appeals reversed. The majority concluded that neither the Fourth Amendment of the United States Constitution nor Article I, Section 11 of the Wisconsin Constitution accorded Popenhagen a right of privacy in her bank records; and therefore, it was error to suppress them. In addition, although the issuance of subpoenas without a finding of probable cause conflicts with the provisions of
¶ 162. On review before this court, Popenhagen advances four arguments to support her assertion that her bank records and her incriminating statements must be suppressed. First, Popenhagen argues that because
II. DISCUSSION
A. Standard of Review
¶ 163. Resolution of this case requires the court to interpret
B. Wisconsin Stat.
1. Suppression precedent
¶ 164. Judges formulated the discretionary remedy of suppression to deter unreasonable or bad-faith police conduct that resulted in the violation of a defendant's constitutional rights. Stone v. Powell,
¶ 165. The majority opinion concludes that Popenhagen is entitled to suppression of the bank records and her subsequent incriminating statements under
¶ 166. State ex rel. Arnold v. County Court of Rock County,
¶ 167. Arnold arose under the Electronic Surveillance Control Law,
¶ 169. However, as we relayed in Arnold, the Electronic Surveillance Control Law also provides that not all evidence that has been lawfully obtained by eavesdropping interceptions can be disclosed after it has been obtained. Arnold,
¶ 170. Even though the evidence at issue in Arnold was intercepted without court authorization, it was lawfully obtained because one of the parties to the conversation consented to the interception. Arnold,
¶ 171. Because the evidence at issue in Arnold had been lawfully obtained, it was not appropriate to analyze whether the evidence should have been suppressed, as the trial court concluded in ruling on Arnold's motion to suppress the intercepted communications. Instead, because the evidence in Arnold was lawfully obtained, thereby foreclosing Arnold from having the evidence suppressed, the relevant question was whether the evidence could be disclosed. We ruled that the evidence could not be disclosed. Id. at 444.
¶ 172. Therefore, the majority opinion is revising history when it says that "in Arnold, the government did not comply with the statutory requirements to obtain the evidence in question."
¶ 173. Consequently, Raflik correctly cited Arnold for the proposition that suppression is an available remedy for a statutory violation only if the statute so provides, as
¶ 174. The majority opinion errs in its use of Arnold. Arnold does not support the majority opinion's assertion that "Arnold, correctly read, stands for the proposition that evidence obtained in violation of a statute (or not in accordance with the statute) may be suppressed under the statute to achieve the objectives of the statute, even though the statute does not expressly provide for the suppression or exclusion of the evidence."
¶ 175. Therefore, in order for the decision in this case to be consistent with 20 years of prior precedent, including Arnold,
¶ 176. The majority opinion affirms the suppression of two types of evidence: the bank records and Popenhagen's incriminating statements. I begin with a discussion of the bank records.
2. Bank records
¶ 177. In deciding to exclude Popenhagen's bank records, the circuit court reasoned:
But it is clear to me that there is now a Federally- and Wisconsin-recognized right to privacy in one's personal banking records. And I'm convinced that, obtaining those records over which there is an umbrella of privacy by violating 968.135 of the statutes, should result in suppression.
We will not disturb an evidentiary ruling that suppresses evidence if the record shows that the circuit court, in making its ruling, exercised its discretion in accord with the correct legal standards and the facts of record. State v. Clark,
¶ 178. Furthermore, courts do not necessarily suppress evidence that is obtained in violation of a statute that provides for suppression as a remedy. State v. House,
¶ 179. The first part of the resolution of this question rests with the interpretation of
¶ 180. Wisconsin Stat.
Subpoena for documents. Upon the request of the attorney general or a district attorney and upon a showing of probable cause under s. 968.12, a court shall issue a subpoena requiring the production of documents, as specified in s. 968.13(2). The documents shall be returnable to the court which issued the subpoena. Motions to the court, including, but not limited to,motions to quash or limit the subpoena, shall, be addressed to the court which issued the subpoena. Any person who unlawfully refuses to produce the documents may be compelled to do so as provided in ch. 785. This section does not limit or affect any other subpoena authority provided by law.
¶ 181. Wisconsin Stat.
¶ 182. The statute specifies two particular types of motions: to "quash"
¶ 183. Both specified motions under
¶ 184. Furthermore,
¶ 185. The majority opinion observes the two statutory examples of motions that may be brought under
¶ 187. To illustrate the first point, I contrast
¶ 188. Second,
¶ 189. Moreover,
¶ 190. Accordingly, I conclude that when the legislature intended to authorize suppression as a remedy for non-compliance with a statute, it specifically stated that "suppression" was the remedy for that statutory violation. See State v. Christensen,
¶ 191. In sum, because more than 20 years of precedent of the appellate courts of this state have required that the statute specifically authorize suppression as a remedy for a statutory violation before suppression may be employed, and because the legislature has not done so here, I conclude that the circuit court erroneously exercised its discretion when it suppressed Popenhagen's bank records based on the circuit court's failure to find probable cause to issue the subpoena. As I have explained above, the majority opinion's analysis of the issue is not well reasoned; it ignores the procedures that occurred before the trial court in Arnold and does not identify any compelling interest that is served by overturning more than 20 years of well established precedent.
¶ 192. Wisconsin Stat.
¶ 193. Because Popenhagen's incriminating statements were acquired indirectly as a result of the subpoena for her bank records, Popenhagen's statements constitute "derivative evidence." State v. Gums,
¶ 194. Popenhagen does not argue that this derivative evidence should be suppressed because
¶ 195. The majority opinion does not address Popenhagen's constitutional argument. Instead, it cre
¶ 196. To amplify the misguided nature of the majority's analysis, it is necessary to provide a brief sketch of the standard application of the exclusionary rule.
¶ 197. The exclusionary rule may operate to suppress derivative evidence, such as Popenhagen's statements, when a constitutional violation has occurred "under certain circumstances, via the fruit of the poisonous tree doctrine, if such evidence is obtained 'by exploitation of... illegality.'" State v. Knapp,
¶ 199. Even when a constitutional right has been affected, suppression of derivative evidence is not automatically accorded. United States v. Leon,
¶ 200. No police misconduct is even alleged to have occurred here. Instead, all agree that an officer involved in the investigation of the theft from Save-More had prepared a probable cause affidavit, but apparently, it did not reach the circuit court. Judge Mangerson expressed surprise and dismay that his
¶ 201. Accordingly, it is an enormous expansion of the rights of a defendant in a criminal case to engraft the fruit of the poisonous tree doctrine onto a statutory violation where no constitutional right was also at issue and no police misconduct caused the violation. However, that is exactly what the majority opinion does.
¶ 203. Therefore, I conclude that Popenhagen's incriminating statements made to Oneida police officers after she was confronted with her bank records cannot be suppressed under the authority granted in
C. United States Constitution, Fourth Amendment
¶ 204. One of the legal premises upon which the circuit court based its decision to suppress was its conclusion that Popenhagen had a constitutionally protected right of privacy in her bank records. The Fourth Amendment protects persons from unreasonable searches of their "persons, houses, papers, and effects ... ."
¶ 205. Miller emphasized that bank records are not the type of "papers" to which the Fourth Amendment refers. Miller,
are not confidential communications but [may be] negotiable instruments to be used in commercial transactions. [Records such as] financial statements and deposit slips[] contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. ... The depositor takes the risk, in revealing [her] affairs to another, that the information will be conveyed by that person to the Government.
Id. at 442-43.
¶ 206. Popenhagen argues that Miller is not controlling because the enactment of the Right to Financial
¶ 207. The Financial Privacy Act was indeed passed in response to Miller, but it does not render Miller any less robust in the present context. While the Financial Privacy Act prescribes the means by which bank records may be obtained by a "Government authority," it defines Government authority as an "agency or department of the United States, or any officer, employee, or agent thereof."
¶ 208. Moreover, the remedy of suppression is unavailable under the Financial Privacy Act. See
¶ 209. Popenhagen encourages this court to recognize a right of privacy in bank records under the Wisconsin Constitution. We interpret the Wisconsin Constitution in a manner that "give[s] effect to the intent of the framers and of the people who adopted it." Schilling,
¶ 210. The Wisconsin Constitution's search and seizure provision almost identically mirrors its federal Fourth Amendment counterpart.
¶ 211. However, under our authority to interpret the Wisconsin Constitution independently from the United States Constitution, we have not always marched in lockstep with federal jurisprudence. For instance, we recently parted company with a plurality of the United States Supreme Court
¶ 212. Popenhagen urges this court to exercise its authority to independently interpret the Wisconsin Constitution and to construe Article I, Section 11 in a fashion that would depart from Miller to hold that the
¶ 214. While we retain the authority to interpret our state constitution independently from the United States Constitution, I would decline to do so here. I observe distinctions between our Article I, Section 8 jurisprudence and our Article I, Section 11 jurisprudence, and I am unpersuaded by Thompson, DiGiacomo, and DeJohn.
¶ 215. First, our jurisprudence demonstrates that this court has construed Article I, Section 11 consistently with the Fourth Amendment. In the nearly 160 years that Article I, Section 11 has graced our state constitution, I located only one instance in which this court has interpreted that provision differently from the Supreme Court's interpretation of the Fourth Amendment. That case presented the question of
¶ 216. Second, I would decline to adopt the reasoning of Thompson, DiGiacomo, and DeJohn, or the substantive interpretations these courts applied to their respective state constitutions. Those courts declined to follow Miller primarily because they found the reasoning of Justice Brennan's Miller dissent more persuasive than the reasoning offered by the Miller majority. See, e.g., DeJohn,
¶ 218. The interests of consistency, uniformity, and predictability are well-served by continuing to interpret Article I, Section 11 in conformity with the Fourth Amendment. Such an approach "reduces to a minimum the confusion and uncertainty under which the police must operate." State v. Fry,
III. CONCLUSION
¶ 219. I conclude that controlling precedent, as established more than 20 years ago by the appellate courts of this state, precludes suppressing Popenhagen's bank records and her subsequent incriminating statements. I reach this conclusion because: (1)
¶ 220. Accordingly, I would affirm the court of appeals decision that overturned the circuit court's
Circuit court Judges Robert Kinney and Mark Mangerson of Oneida County signed the subpoenas directed to three banks where Popenhagen held accounts.
There is no transcript in the record of precisely what Popenhagen said; her statements are recounted in summary fashion in the September 19, 2004 police report prepared by Officer Todd G. Hanson and provided in the record. Officer Hanson states in that report that, upon being confronted with her bank records, Popenhagen explained that "she didn't know why she did this" and that "she always thought she might get caught." According to Officer Hanson's report, Popenhagen further stated that "she used some of the money to pay the mortgage and to pay on some judgments against her."
Majority op., ¶¶ 4-5.
Id., ¶ 71.
Majority op., ¶¶ 58-71. In addition, Popenhagen did not request the sweeping change in the law that the majority opinion effects. Nevertheless, the majority opinion uses this case as a vehicle to effect an enormous expansion of the rights of defendants in criminal cases at the expense of victims of crimes, where the failure to follow a statute was simply an error of law by a circuit court judge and no police misconduct is alleged to have occurred.
State ex rel. Arnold v. County Court of Rock County,
Majority op., ¶¶ 58, 63, 67.
The same substantive provision was in existence in 1971 when Arnold was decided, although the form of the statute differed slightly.
Majority op., ¶ 61.
Id., ¶ 62.
Ordinarily, motions to quash must be made before the time specified in the subpoena for compliance. See, e.g., Fed. R. Civ. E 45; see also, 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2458 (3d ed. 2008).
Because the statute is ambiguous, I may turn to "interpretive resources outside the statutory text" for guidance. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI58, ¶ 50,
Majority op., ¶¶ 46-55.
Id., ¶ 56. The majority opinion does not bother to balance the rights of the victim from whom $29,000 was stolen with the right it claims Popenhagen has under
Majority op., ¶ 91.
Id.
State v. Knapp,
Majority op., ¶ 81-91.
The Fourth Amendment of the United States Constitution provides in full:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article I, Section 11 of the Wisconsin Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
Patane,
Miranda v. Arizona,
The California Supreme Court in Burrows v. Superior Court,
The Florida Supreme Court's decision in Winfield v. Division of Pari-Mutuel Wagering,
Although the New Jersey. Supreme Court expressly held for the first time in 2005 that its state constitution provides an expectation of privacy in bank records, in so holding, it
My conclusion is in accord with eight of the other states that have ruled on the issue. State v. Schultz,
Moreover, though not determinative, it is instructive that the Wisconsin Legislature has been aware of Miller's holding for 31 years and State v. Swift,