*1 Plaintiff-Appellant, Wisconsin, State v. Michelle R. Popenhagen, Defendant-Respondent-Petitioner.
Supreme Court argument September Oral No. 2006AP1114-CR.
—Decided June
Ziegler, J., part, part. concurs dissents Roggensack, J., dissents. defendant-respondent-petitioner
For there were by Crooks, Connell, briefs James B. Connell and Low & argument oral S.C., Wausau, and B. James Connell. plaintiff-appellant argued by For the the cause was attorney general, Freimuth, M. James assistant with attorney Hollen, whom on the brief was J.B. Van general.
¶ 1. ABRAHAMSON, SHIRLEY S. C.J. The defen- Popenhagen, pub- dant, Michelle R. seeks review a appeals reversing court of lished decision an order of County, Mangerson, the Circuit Court for Oneida Mark Judge.1 granted The circuit court the defendant's mo- suppress police tion to bank that documents obtained pursuant showing to a issued without a probable § in cause violation Wis. Stat. (2005-06),2 incriminating as as well statements that police the defendant made after confronted her with the unlawfully obtained bank documents. reversing In order, circuit court's appeals
court of concluded that defendant cannot rely suppression on the federal or state constitution for expressly provide and that Wis. Stat. 968.135 does not permits suppression that a violation of the statute as a remedy.
¶ 3. The issue on review is whether the circuit granting court erred in the defendant's motion to 1 16, 298 State v. Popenhagen, App 2007 WI Wis. 2d N.W.2d subsequent All references to the Wisconsin are Statutes the 2005-06 version unless indicated. otherwise and the defendant's both the bank documents incriminating defendant raises four statements. The arguments support in of the circuit court's order. (1) police her contends that obtained bank defendant incriminating and violation of documents statements (2) right privacy; police her that Fourth Amendment3 incriminating her state- obtained bank documents and right privacy her under Article ments violation of (3) I, Constitution;4 11 of that Section the Wisconsin were obtained in violation of Wis. the bank documents suppression of both Stat. 968.135 and that the bank incriminating and state- documents the defendant's (4) appropriate remedy; ments is an the circuit authority suppression possessed inherent to order court by the "mis- of the contested evidence obtained State's process." use of both 4. We conclude incriminating
bank and the defendant's documents remedy present appropriate case is an statements in violation of when the bank documents were obtained incriminating state- Wis. Stat. 968.135 and when Amendment The Fourth of the United States Constitution provides in full: *8 houses, persons, right people
The to be secure in their seizures, effects, against and papers, unreasonable searches and issue, violated, upon be no warrants shall but shall not and cause, affirmation, particularly by probable supported oath or and searched, describing place persons things and the or to be to be seized. I, provides in full: Article Section houses, persons, right people to be secure in their papers, against searches and seizures and effects unreasonable violated; upon probable but not be and no warrant shall issue shall affirmation, cause, supported by particularly or and describ- oath things ing place persons to be to be and or seized. searched
ments were obtained law enforcement officers con- fronting unlawfully the defendant with the obtained Accordingly, bank documents. we conclude that statutory circuit court did not err as a matter of interpretation granting the defendant's motion to suppress the bank documents and the defendant's in- criminating statements. We reverse the decision of the appeals court of and affirm the circuit court's order to suppress evidence of the bank documents and incrimi- nating statements at issue. appeals
¶ 5. The court of addressed the constitu- tional issues. Because we affirm the circuit court's order statutory grounds, interpretation on we leave the provisions federal and state constitutional and federal relating obligations statutes to the of banks that the appeals court of addressed for another case which these issues are determinative.
I—I ¶ 6. dispute The relevant facts are not in purposes appeal. employee of this The defendant was an grocery at Minocqua. Save More Foods, a store in In August 2004, the owner of Save More Foods contacted Minocqua Department alleged Police and that the improperly money defendant had obtained from the specifically alleged store. The owner that the defendant had cashed checks at the store drawn from accounts containing insufficient funds and further that the de- money fendant had stolen from the store's automated According complaint teller machine. to the and at- police report, allegedly tached ap- the defendant stole proximately $29,000. part investigation, 7. As of the State's the dis- attorney's sought subpoenas
trict office three before filing complaint. Judges Kinney Circuit Court *9 ordering subpoenas, Mangerson signed the banks to appear a date and time court on the circuit before specified bring Popenhagen's bank and to certain Minocqua to the records mail the bank records or to Although Department. Minoc- officer of the an Police apparently Department qua filled out an had Police County police the Oneida nor affidavit, neither any Attorney's show- included affidavit Office District ing probable application court to the circuit cause in the subpoe- subpoenas. issued the The circuit court finding probable recording cause. of a nas without subpoena copy hereto. attached A each pursuant subpoena to Wis. that it is issued states Each 805.07(1) "subpoenas states 805.07. Section Stat. ch. 885."5 in accordance with issued and served shall be any judge may provides that Wisconsin Stat. require sign the "attendance and issue a production instruments of lawful and their witnesses proceeding any or to be action, matter or evidence magistrate, any . . . court, officer into before examined testimony person in the take authorized to other or 972.11(1) provides that the rules of state." Section applicable crimi- practice in all shall be in civil actions mani- proceedings the section the context of unless nal festly requires Section 972.11 construction. a different apply Chapter provides all 885 "shall further proceedings." criminal subpoenas Although in a face are on their substantially forth in both the forms set similar to
form issued under Wis. case were subpoenas present in the The signed and to he 885.01, subpoenas authorizes which Stat. authorizes judge. Section 805.07 by circuit court issued attorney of record. signed by an subpoena to he issued attorney signed an were not present in the case subpoenas record. *10 805.07(4)
§§ subpoenas satisfy 885.02, and do not § § subpoenas either Wis. Stat. 885.01 or 805.07. The require did not banks, the words of either proceeding statute, "action, attend an matter or pending or to be examined into before" the circuit explanation why subpoenas court.6 For an these do satisfy §§ namely not Wis. Stat. 805.07, 885.01 or be proceeding pending, cause no see State v. Schaefer, ¶25, 44, 2008 WI 308 Wis. 2d 746 N.W.2d (Abraha- concurring opinion, Part A ¶¶ 102-125 concurring). mson, C.J., Attorney apparently 10. The District conceded wrong
in the circuit court that it used the form of subpoena.7 Attorney Both the District and the defen- agreed dant in the circuit court that the State should § followed, have but did not follow,Wis. Stat. 968.135. Attorney disagreed The District and the defendant suppression appropriate the circuit court whether is the remedy suppressed for the error. The circuit court incriminating bank records and statements under § 968.135. appeals only In the court of statute the
parties relating subpoenas briefed to the was Wis. Stat. § appeals § 968.135. The court of ruled on 968.135, declaring suppression was not available in the present remedy case as a for the violation of 968.135. petition
¶ 12. The defendant's for review this following suppression court raised the issue: "Is 885.01(1). 805.07(1) Wis. Stat. Wisconsin Stat. simi larly provides that a subpoena by issued attorney an in a civil action is to compel attendance of a deposition, witness for hearing or trial in an special action or proceeding. 7 The State's brief before this court pros asserts that ecuting attorney conceded at circuit court that the office used wrong form. State's brief at 5-6. violation of Sec. 968.135 which remedy for evidence of a cause for the issuance requires probable defendant and statute the only documents?"8 to the sub- relating in this court the State addressed § 968.135.9 Wis. Stat. was poenas the issue case to address taken this Having when is available remedy whether attorney the district obtained bank records were *11 the probable did with comply a that not subpoena with 968.135, § of Wis. Stat. cause affidavit we requirement that issue.10 address the defendant's state three issues relate to The other privacy in the bank expectation an of right
constitutional expec right Amendment to an records; defendant's Fourth the records; inherent and the court's privacy of in the hank tation suppression of evidence. power to order (Rule) 809.62(6) peti if a provides § that Stat. Wisconsin argue or petitioner cannot raise granted, is the tion for review by ordered otherwise petition forth in the unless not set issues any issue be not ordered that other The court has this court. argued. concurrence, 119,126, concludes Prosser's ¶¶ Justice incriminating documents and the of both the bank
suppression 968.22, governing § proper because Wis. Stat. statements was warrants, circuit court discre affords the deficiencies in search subpoena of a obtained in violation tion to evidence or affects the is nontechnical such violation statute when Ziegler's rights. Justice substantial defendant's concurrence/dis the bank suppression of sent, 136, concludes that ¶¶ statements) (but proper incriminating was not documents not authorized remedy suppression when the because even authority to statute, has inherent circuit court by any subpoena. defective pursuant to a obtained suppress evidence docu the bank both we conclude that Because Wis. proper was under incriminating statements ments and the whether question 968.135, need not address we Stat. subpoena falls defective obtained suppression of evidence 14. Wisconsin Stat. "a show- requires ing cause" before a court probable may issue a subpoena under that section. The State does not dis- pute subpoenas requiring production of the defendant's bank documents were issued in violation of Stat. 968.135. The statute provides in full as follows:
Subpoena for Upon documents. the request of the attorney general attorney or a district upon showing probable 968.12, cause under s. a court shall subpoena requiring issue a production of docu- 968.13(2). ments, specified in as s. The documents shall be returnable to the court which issued subpoena. court, Motions to the including, to, but not limited motions to quash subpoena, or limit shall be addressed to the which subpoena. Any court issued the person unlawfully who produce refuses to the docu- may compelled ments be do provided so as in ch. 785. This section does not any limit or affect other authority provided by law. 15. The banks complied with their respective
subpoenas, bank delivering statements, deposit slips, and cancelled checks to the Police Minocqua Depart- ment. Having obtained her bank documents, police offic- ers interviewed defendant, her confronting with her bank documents. The officers explained the defendant that her bank deposits in time corresponded and amount to money reported missing from Save More Foods. At that point, the defendant made several incriminating statements. No of the transcript defendant's remarks is § within governing Wis. Stat. 968.22 warrants; defective search or within the circuit authority; court's inherent or within Wis. 805.18(1) § Stat. requiring a disregard any court to error or defect in proceedings that does not affect the rights substantial party. adverse summary remarks are recounted record; in the police report is in the record. in a that fashion charged theft of ¶ The defendant was with 16. 943.20(l)(b) contrary to Wis. Stat. $10,000 more than (3)(c). pretrial the defendant moved to motion, In a and documents and the statements both her bank being those documents. after confronted with she made granted ¶ the defendant's 17. The circuit court that the defendant The circuit court reasoned motion. right privacy in her bank documents under had a United States Constitution Amendment of the Fourth I, 11 of the Wisconsin Constitution. and Article Section suppression is further reasoned that The circuit court only remedy appropriate for the State's consti- an not but also for the State's violation tutional violations Stat. 968.135. appealed order, court's The State the circuit appeals The reversed the order. and a divided court majority appeals that the defendant of the court of held right privacy under in her bank documents had no or Wisconsin Constitution either the United States remedy proper suppression when and that is not § 968.135. in violation of Wis. Stat. evidence is obtained dissenting opinion that Wis. concluded 19. The expec- person's reasonable 968.135 establishes Stat. privacy in the context in bank documents tation of explained proceedings; its the State never criminal comply and therefore com- the statute failure to with flagrant statute; that the violation of mitted a remedy only appropriate bank is the incriminating statements. tainted and the documents court the circuit contends State *13 suppressing the bank documents as evidence erred incriminating following and the statements for the rea- (A) standing challenge sons: The defendant lacked (B) subpoenas Suppression banks; the issued to her appropriate remedy the bank documents an is not (C) § Suppression 968.135; violation of Wis. Stat. incriminating the defendant's statements as evidence is appropriate remedy not an for violation of 968.135 obtaining in reject the for the bank statements. We arguments, concluding
each of these the standing challenge subpoenas defendant had is- sued to her banks and that of the bank incriminating documents and statements as evidence appropriate remedy is an for violation of Wis. Stat. § 968.135.
A ¶ 21. Wefirst consider whether the defendant had requisite standing challenge subpoenas is- sued to her banks under Wis. Stat. 968.135. only The State asserts that banks, as targets subpoenas, quash of the could move to or limit subpoenas probable though cause, for lack of even expressly the statute does not limit the motions to those by target subpoenas. made argues of the State further legislative history
that the of Wis. Stat. 968.135 legislative expand prosecutor's reflects a intent to investigative authority to obtain information sub- poena parties suspected from third not of criminal activ- ity giving standing person and that to the whose docu- being sought legislative ments are contravenes the purpose. standing presents A23. determination of
question independently of law that we décide *14 appeals benefiting of but from circuit court and court analyses.11 their standing judicial person
¶ A seek inter- has person personal in the that has "a stake vention when "directly by affected the issues outcome"12 and is standing controversy."13 law, "should Under Wisconsin restrictively," narrowly but or rather not be construed seeking broadly in favor of those be construed should to the courts.14 access standing.
¶ meets the test for 25. The defendant showing probable requiring and a court In of cause protects the interests of order, Wis. Stat. sought persons in addition to are whose documents person protecting whom a interests of the on subpoena prevents unwarranted is served. statute fishing expeditions. sought
¶ defendant's bank docu- 26. The State charging contemplation the defendant with ments in of against using her. the bank documents a crime and "personal Clearly in the the defendant had a stake" subpoenas question valid; she the State's were whether "directly by resolution of this would be affected" question.
11
Dist.,
53,
13,
Cedarburg
Zellner v.
Sch.
2007 WI
300
¶
290,
2d
subpoenaed produce standing documents has oppose 968.135, issued under Wis. Stat. position language this is belied of the statute provides simply subpoenas itself. Section 968.135 *15 according provisions subject "[m]o- issued to its are to including, court, to, tions to the but not limited motions quash subpoena." to limit or The statute does not persons may bring limit the who such motions. legislative ¶ 28. The State's reliance on the his- tory support argument to its that the defendant does standing unpersuasive. agree not have' is We with the early State that a note to an § draft of Wis. Stat. acknowledges legislature intended § give prosecutors authority 968.135 to new to conduct investigations. legislative history Nevertheless, persons may does not limit the who make a motion § under 968.135.15 forth, 29. For the reasons set we conclude that standing challenge subpoenas
the defendant has § issued to the banks under Wis. Stat. 968.135.
B properly ¶ 30. The concedes, and so, State contrary requirements to the of Wis. Stat. 968.135 no showing probable cause was made to the circuit court subpoenas. before circuit court issued the We must suppression therefore consider whether of the bank appropriate remedy documents is an for the violation of "suppression" appears 968.135. The term to be em- Drafting Bill File on 1979 S.B. available at Wisconsin Legislative Bureau, Street, Madison, Reference East Main Wisconsin. ordinarily when evidence inadmissible
ployed obtained; been the term "exclusion" having unlawfully ordinarily covers a violation of rules of evidence.16 terms, however, The are often used interchangeably inasmuch as and exclusion have the same suppression effect: The evidence cannot be court. presented case, In the the circuit court ordered present of the bank documents on facts undisputed on the Stat. The basis 968.135. decision evidence, whether when based on applica- tion of a constitutional facts on provision undisputed record, ais of law that we determine question of the circuit court and court of independently appeals but from their case benefiting analyses.17 present interpretation. does not involve constitutional Statutory interpretation application a statute to facts are undisputed ordinarily questions
16
Eichman,
552, 562-63, 570-73,
See State v.
155 Wis. 2d
(1990) (explaining
purposes
that for
of a statute
law that this court decides appeals benefiting court and court of but from their analyses.18 Accordingly, we review the circuit court's suppress to evidence under Wis. Stat. decision § independently the circuit court and court 968.135 analyses. appeals benefiting but from their deciding suppress ¶ In bank to defendant's evidence, as the circuit court reasoned that documents suppress failure to the bank documents would under- mine the statute: subpoenaed,
If we would allow those documents to be may personal right the defendant have a and tell she police department they her sue the because violated rights, and then the information that was allowed trial, illegally obtained in at the criminal then we would the clear directives of 968.135 .... emasculate the circuit 34. The State contends court interpreting applying erred as a matter of law Wis. Stat. 968.135. The State asserts permit does not a motion to documents as a remedy for a violation of the statute. The State is correct that the statute silent about any specifically only of quashing The statute refers evidence. limiting subpoena; it refer-
or makes no suppressing excluding ence to or evidence. G., 77, 42, Marquette Bobby S. v. 2007 WI 301 Wis. 2d
531, 734 N.W.2d or on decision whether admit exclude evidence based evidentiary ordinarily
a violation of rules lies within the circuit DBart, Inc., 18, Leitinger court's discretion. v. 2007 WI case, 2d 1. In the instant the circuit court N.W.2d *17 suppress did not base its decision to and exclude evidence on a evidentiary rules. The circuit we violation court's order § interpretation review was based on an of Wis. Stat. 968.135. Statutory interpretation begins ¶ with interpret statutory language text of the statute. Wealso light in the context in which it is used and in of the surrounding closely or related statutes. Statutes are interpreted give surplus- effect word, to each to avoid age, objectives to fulfill the statute, of the and to avoid absurd or unreasonable results. provides 36. Wisconsin Stat. 968.135 in full:
Subpoena for Upon request documents. of the attorney general attorney or a district upon showing probable 968.12, cause under s. a court shall subpoena issue a requiring production of docu- 968.13(2). ments, specified as in s. The documents shall be returnable to the court which issued subpoena. court, Motions to the including, to, but not limited quash motions to or limit the subpoena, shall be addressed to the court which subpoena. issued the Any person unlawfully who produce refuses the docu- may compelled ments be provided do so as in ch. 785. This section not any does limit or affect other subpoena authority provided by law. By plain pro- its terms, Wis. Stat. subpoenas may
vides that issued under its terms be "[mjotions upon reviewed the circuit court to the including, quash court, to, but not limited motions to or subpoena." limit the question presented meaning 38. The is the "[mjotions
statutory language including, court, to the quash to, but not limited motions to or limit the sub- poena." specifically, question presented More is: that, may brought Does the class of motions be response to a issued under Wis. Stat. 968.135 pursu- include a motion to documents obtained *18 subpoena Stat. of Wis. issued violation to a ant question Although § not is to this the answer 968.135? is evident explicitly statute, the answer in the set forth upon the statute. of the text of close examination in Wis. Stat. "motions" is used
¶
The word
"including
phrase
along
not
but
with the
968.135
along
specific
limited
enumeration
to" and
with
subpoena.
quash"
These
limit" the
and "to
"to
motions
aspects
must
examined.
of the text
be
three
broadly
in the
defined
¶
is
The
"motion"
word
application
The motion to
order.19
for an
as an
statutes
present
case falls within
in the
evidence
"motion."
of the word
definition
"motions to
examine the words
41. We next
parlance
including
In common
not limited to."
court
but
plainly provide that the two enumerated
these words
may
brought
only
motions that
be
are not the
motions
response
So too in
under 968.135.
to a
issued
"including
phrase
legislative parlance,
lim-
but not
given
expansive
generally
an
ited to"
a statute
meaning, indicating
that follow
the words
phrase
part
general
contrast,
In
the whole.20
are but a
provided
that a motion under
the statute
had
quash
limit, the word
or a motion to
a motion to
means
ordinarily
any
two
limit
motion to the
"means" would
motions.21
enumerated
19
971.30(1).
(Rule) §
Stat.
DNR,
& Doves v. Wis.
Cranes
Wis. Citizens Concerned for
n.11,
2d
2004 WI explains Drafting Manual 2006-2007 Bill Wisconsin along to" with the word using phrase "but is not limited Drafting Bill Manual "includes" is redundant. Wisconsin 2.01(l)(i) 2006-2007, § at 39. 2.01(1)6) 2007-2008, § Drafting Bill Manual Wisconsin
at 39.
statutorily
42. We are thus led to the
enumer-
quash
question
ated motions to
or to limit. The
then
becomes whether the enumeration of the two motions
*19
way
may
limits in
brought
some
other motions that
be
§
statutory
under Wis. Stat.
968.135. Three rules of
(sometimes
interpretation
canons)
called maxims or
answering
question.
assist us in
this
The canons are
statutory interpretation,
rules of
not rules of law.
statutory interpretation
Canons of
are aids to ascer-
taining
meaning
the
of a
A
statute.
canon is not a final
interpretation.22
or exclusive method of
¶
interpreting
43. One rule to be used in
the word
may
interpreted contrary
"includes" is that the word
be
ordinary,
meaning.
to its
non-exclusive
The word "in-
may
cludes"
therefore be read as a term of limitation or
encompasses only
enumeration, so that a statute
those
provisions
exceptions specifically
or
listed. This court
adopted
reading
has, however,
this limited
of "includes"
only when there is some textual evidence that
the
legislature intended the word "includes" to be inter-
preted as a term of limitation or enumeration.23
22
Campbell,
State v.
243,
246,
102
2dWis.
This
meaning
limited
word "includes" was reached
the
using
court's
the maxim statutory interpretation
expres-
("the
sio unius est exclusio
alterius
express
mention of one
mentioned").
matter
excludes other
similar matters not
See
FAS,
Lake,
LLC v.
Town Bass
2007 WI
301 Wis. 2d
321,
The cases
refer to
"exclusio" maxim
sometimes
this
as
See,
Pollard,
v.
e.g.,
unius est exclusio alterius.
Koestler
inclusio
(1991);
797,
n.4,
2d
The maxim is an to reconcile specific general by treating particular and the as words indicating general extending class and words as *21 class, provisions everything though to embraced in that not specifically by particular Ejusdem generis named the words. is drafting technique spelling a common to out in detail avoid statute, every contingency apply. in which the could considering ejusdem gen- For additional the maxim cases eris, see, Peters, 88, 16-23, 25, 27-34, e.g., State v. 2003 WI ¶¶ ejusdem generis, According
¶ to the rule of only general similar items is construed embrace word Furthermore, for items. in nature to the enumerated general apply, word is the items to which the rule to objectives germane of the to the restricted must be enactment.26 ejusdem generis Applying rule of statu-
tory interpretation, mo- must determine whether a we through suppress a sub- documents obtained tion to § poena 968.135 is similar issued violation ofWis. Stat. quash to limit to the enumerated motions to or nature germane objectives subpoena to the and is compare quash therefore motions to 968.135. We must subpoena 968.135 with a limit a under Wis. Stat. or obtained in violation of motion to documents § 968.135. quash limit a 49. A motion or a motion to ordinarily subpoena is made before preventing
complied The is aimed at with. motion obtaining State from all or some documents that the may If State to use as evidence. the motion to want Campbell, State v. 171; 475, 2d 263 Wis. 2d 665 N.W.2d Wis. (Ct. 1981). 243, 246-47, App. 306 N.W.2d ejusdem generis maxim The maxim is a variation a sociis means that words noscitur sociis. maxim noscitur words, is, by may accompanying be defined by meaning may be determined reference doubtful words or relationship phrases. their with other associated words Doves, & Citizens Concerned Cranes 40; 270 Wis. 2d supra note 47:16, Singer Singer, 2A & at 347-57. The statute, would, "motions," doubtful word in this under this doctrine, relationship be defined reference to its with the accompanying enumerated motions.
26 Engler,
by subpoena a issued in violation of Wis. Stat. § quash 968.135, unlike a motion to or limit the sub- ordinarily subpoena poena, com- is made after the is plied case, In with. the instant the defendant used the first, challenge opportunity to her to available right validity subpoena to as and the State's use the documents received as a result of the evidence subpoena. The did not have the unlawful defendant bring opportunity quash or limit the a motion to complied subpoe- subpoena with before banks subpoenas nas; the defendant did not know that the had been issued. suppress A motion to documents obtained
by’ subpoena Stat. a issued violation § quash subpoena, 968.135, like a motion to or limit the preventing using at the State from as evidence is aimed sought has all or some of the documents the State through subpoena. suppress If the motion to using granted, prevented from as the State would be through obtained the sub- evidence documents by poena. suppress A motion to documents obtained § subpoena issued in violation of Wis. Stat. 968.135 is quash in nature to the motions to or thus similar subpoena in 968.135. limit the enumerated Furthermore, a motion to docu- ments obtained issued violation objectives germane to the of Wis. Wis. Stat. 968.135 is quash § 968.135, are the motions to and to Stat. as textually objectives *23 evident of 968.135 are limit. acquire to and use documents while to allow the State ensuring statutory require- that the State meets also protect persons ments that affected. § strictly
¶ 53. Stat. limits a Wisconsin subpoena production court's issuance of a for the of Only attorney general documents. or a district attorney may request subpoena production a for the of request upon by documents. The must be ruled subpoena circuit The circuit court before is issued. may subpoena only upon court issue a for documents a showing probable of cause. Motions to the circuit court challenge permitted by subpoena expressly are including quash statute, but not limited to motions to or to limit. The enumerated motions make clear that § comply 968.135, when State fails with may quashed removing subpoena limited, State's be or ability the State's to obtain the documents and then use them in evidence. suppress
¶ 54. A motion to documents obtained § by subpoena a issued violation Wis. Stat. 968.135 § germane objectives is to these If of 968.135. given opportunity an defendant suppress is not to move to by subpoena the bank documents obtained requirements probable issued in violation of the cause § 968.135, would, set forth in Wis. Stat. a court as the explained, circuit court "emasculate the clear directives § If 968.135." this court allowed documents obtained by subpoena complying probable not with the cause § requirement set forth in 968.135 to be admitted in § safeguards evidence, the of 968.135 be mean- would ingless. compliance If Wis. Stat. 968.135 is to effect requirements, interpret with its we must the statute as encompassing ob- documents a motion to within the word of the statute in violation tained in the statute. "motions" generis, ejusdem Applying the doctrine of 55. suppress documents that a motion conclude
we motion is a Stat. 968.135 in violation Wis. obtained of like quash limit a or kind to motions to objectives germane of 968.135. to the applying inter- the three rules for In each of preting concluded that "includes" we have the word suppress the motion to the defendant's under each rule properly present case was in the at issue documents granted. interpretation argues that our The State *24 prece- Wisconsin is foreclosed Stat. argues hold that cases that Wisconsin The State dent. suppression remedy as a is not available of evidence except in violation of been obtained evidence has when rights a statute or when constitutional a defendant's "expressly" provides suppression as of evidence for present argues remedy. no in the case The State § 968.135 and Wis. Stat. exists violation constitutional provide expressly of evidence for not does remedy its violation. as v. Arnold State ex rel. The State relies on County, 439-40,
County 2d 51 Wis. Rock Court of (1971); Krenke, v. rel. Peckham State ex 354 187 N.W.2d (Ct. 1999); App. N.W.2d287 778, 787, 601 229 Wis. 2d Verkuylen, 59, 61, 352 N.W.2d 2d 120 Wis. v. and State (Ct. 1984). support App. cases do not These cases are proposition these law, and therefore State's controlling the instant precedent outcome of not case. Electronic Surveil- Arnold, In the Wisconsin interceptions at characterized Law
lance Control issue in that case as "unauthorized" but "not unlaw- explicitly ful."27The Law stated that the information "unlawfully intercepted" obtained from communica- tions was inadmissible as evidence at trial.28 The Elec- tronic Surveillance silent, Control was however, Law through about whether the information obtained unau- (as interceptions thorized but "not unlawful" at issue Arnold) was admissible in evidence. statutory ¶ 60. In the face of this silence, the Arnold court inferred that the results from the unau- interceptions thorized but "not unlawful" at issue in that case were inadmissible. The Arnold court drew this inference from the Electronic Surveillance Control procedure intercep- Law's for court authorization of provisions governing tions, as well as the Law's autho- intercepted rization for the use and disclosure of com- munications.29 The Arnold court declared that interceptions information from the "not unlawful" was interception inadmissible because the was not in com- pliance statutory procedures with the for court autho- explained rization. The Arnold court its as decision interceptions follows: If the results of that were "not comply unlawful" but nevertheless did not with the Surveillance Law were admitted in evidence, "it was entirely useless to include in the act the careful delin- 968.31(2) (1971). Wis. Stat. *25 968.30(9)(a) (1971). 968.30(9)(a) Wis. Stat. Section ex pressly provides suppression for of the results of unlawfully (and intercepted therefrom). wiretaps any information derived 968.30(9) Section was not even mentioned in the deci Arnold sion because the intercepted communications at issue in Arnold had not been intercepted unlawfully. 29The dissent in State ex rel. County Arnold v. Court Rock (1971)
County,
434,
(Robert
51
444-52,
Wis. 2d
630 provisions admissible under which evidence eated by might electronic court be obtained surveillance with safeguards Law] [of approval. All for the the would be naught... ."30 present reasoning applies
¶ in 61. This same the government present case, Arnold, In as the case. the in comply statutory requirements did not to obtain with question. Arnold, addition, In like we the evidence in in the not the admission of evidence could allow explained previously, present case, render- as we without meaningless safeguards ing Stat. established Wis. subpoenas. for the issuance correctly Arnold, read, stands for Thus proposition of a that evidence obtained violation (or statute) may be statute suppressed not in accordance with objectives the statute achieve the
under though expressly statute, not the statute does the provide even suppression for or exclusion evidence. reading lost in correct of Arnold has been succeed- This ing cases. recently 129, as v. 2001 WI Raflik, 63. As State cited 690, 636 Arnold was 15, 248 Wis. 2d N.W.2d only "[suppression proposition
for the broad required has obtained violation when evidence been rights... or if a statute a defendant's constitutional remedy." provides suppression specifically See App Popenhagen, ¶16, 25, v. State 2007 WI also Raflik). (quoting 2d N.W.2d Raflik application telephonic for a record involved failure to required by state statute. search warrant as Raflik's may interpreted in at least law ment of be 30 Arnold, at 443. 2d 51 Wis. *26 ways: Suppression
two of evidence obtained in violation requirements permissible of a statute is at the discretion of the circuit court when a statute does not specifically require suppression. Or, a circuit court is prohibited suppressing from evidence obtained in viola- requirements tion of the of a statute when the statute expressly require suppression. does not As the Arnold interpretation demonstrates, decision the first is the interpretation. correct upon Peckham, In another case which the suppression relies,
State the court's statement of law is sup- somewhat different from the court's statement of pression Depart- law in Peckham involved the Raflik. opening ment of Corrections the mail of an inmate in violation of administrative Peckham, rules. In the court appeals "wrongfully illegally asserted that or obtained suppressed only evidence is to be where the evidence was obtained in violation of an individual's constitutional rights expressly requires or in violation of a statute that suppression as a sanction."31Peckham's statement of explicitly prohibits law a circuit court from suppressing evidence obtained in violation of a statute expressly require suppres- when the statute does not sion.32 31 Krenke, State ex rel. Peckham v. 778, 787, 229 Wis. 2d (Ct. 1999) added).
N.W.2d
App.
(emphasis
The Peckham court
also stated that Wisconsin "cases stand for the proposition that
the exclusionary
applicable
rule is
in civil and
proceed
criminal
ings only where the
sought
evidence
to be excluded was obtained
in violation of a
right
constitutional
or a
specifically
statute that
requires suppression of wrongfully
illegally
or
obtained evidence
(citation omitted).
as a sanction."
which State number) (without proposi- page a citation to only required suppression a statute when tion that unlawfully requires suppression specifically of obtained suppression statement of the law This evidence.34 (like like that stated but not Raflik, that stated Peckham) required may implies suppression not be specifically permissible not statute does when a but is keeping require suppression. inter- this correct In with Verkuylen suppression, pretation court of the law evidence, not because refused to 33 added). Krenke, (emphasis Peckham v. Wis. 2d at 794 229 (Ct. 59, 61, N.W.2d 668 Verkuylen, State v. 2d 1984). App. specifically require suppression,
statute at issue did not but because error the search warrant was a result judicial oversight that was corrected.35 Verkuylen, Arnold, Peckham, Raflik, properly require legislature expressly read, do not require suppression unlawfully or allow obtained grant evidence in order for a circuit court to a motion to suppress. legislature words, In other need not express provide remedy its intent to a greater clarity of exclusion or of evidence with than ordi- *28 narily required any legislative enactment. The cases demonstrate that the circuit court has discretion to suppress or allow evidence in obtained violation of a specifically require suppression statute that does not contrary depending evidence obtained statute, to the on objec- the facts and circumstances of the case and the tives of the statute.
¶ 69. The State cites a number of additional court
appeals
proposition
suppres-
cases for the
of law that
proper remedy
statutory
sion is not a
for a
violation.
apposite.
None of these cases is
The court in each case
Verkuylen
cited
the State referred either to
or to
(1)
ambiguous proposition
another case
for the
that
suppression
required only
expressly
when a statute
requires suppression
unlawfully
of obtained evi-
(2)
proposition
suppres-
dence;36
for the erroneous
that
except
expressly requires
sion is barred
when a statute
35 Verkuylen, 120
2dWis.
at 61.
36
Repenshek,
State v.
229,
App
23-24,
2004 WI
277
¶¶
Keith,
780,
2d
State v.
369;
Wis.
691 N.W.2d
App 47,
2003 WI
8,
592,
403;
260
2d
Thompson,
State v.
¶
Wis.
659
N.W.2d
222
(Ct.
179, 189,
2dWis.
State v.
App. 1998);
illegally ex- not be obtained evidence cept of an violation the evidence was obtained when rights of a or violation individual's constitutional requires suppression expressly of evidence statute that expressly impliedly carried or as a sanction has been reasoning. any support without or from case to case unsupported proposition mistaken statement is an This should not statements of law of the law. Mistaken precedent do this court.39 We that binds constitute Cash, 63, 30, 271 451, 2d State v. App 2004 WI Wallace, 61, 25, Wis. 2d State v. 709; App 2002 WI N.W.2d Jackowski, App State v. 549; 2001 WI 642 N.W.2d *29 430, 17, 247 2d 633 N.W.2d Wis. ¶ 38 52, 24, 241 Piddington, v. See, e.g., State 2001 WI ¶ 754, 2d 623 N.W.2d court Doe cases this recognizes that in two John The State as a of evidence could be available indicated that statutory process. See John Doe remedy for "clear abuse" 206, 28-31, 646 Noble, 64, 2d v. 253 Wis. State 2002 WI ¶¶ 721, 746, 546 N.W.2d Cummings, 199 Wis. 38; 2d State v. N.W.2d (1996). 406 39 62, 101, 39, 2d 716 Kelty, State v. 294 Wis. WI Cf. language" "unnecessarily expansive (withdrawing N.W.2d 886 prior opinions). from damage by refusing
more to the rule of law to admit by correcting proposition error than an erroneous presents opportunity law.40 The instant case an repeated correct an error of law that has been in cases, numerous and we do so. forth, 71. For the reasons set we conclude that § encompasses suppress
Wis. Stat. 968.135 a motion to § in documents violation of Wis. Stat. 968.135 and that provides remedy suppression. the statute thus As explained, sup- we have unless the documents were pressed present safeguards as case, evidence established Wis. Stat. 968.135 for the issuance of subpoenas meaningless. would be rendered Accord- ingly, we conclude that the circuit court did not err in ordering that the bank documents obtained in violation suppressed. of Wis. Stat. 968.135 be
C lastly question ¶ 72. We turn to the whether the granting circuit court erred as a matter of law incriminating defendant's motion to state- police ments the defendant made after confronted her with the bank documents obtained violation of Wis. Stat. 968.135. explained
¶ 73. The circuit court its decision to suppress the defendant's statements in addition to the bank documents as follows: regard
In to the statement of Popenhagen, Ms. I'm finding that the fruit of poisonous tree doctrine apply just does here search, as it would in a had standard search case without a warrant. Co., See Wenke v. Gehl 2004 WI 274 Wis. 2d ("We
220,
¶ Wis. Stat. whether 75. suppress permitted the in- the defendant's motion to criminating enforcement officers ob- statements law by confronting the the defendant with unlaw- tained fully question is, documents like the obtained bank suppressing above, considered the bank documents statutory interpretation question that decide we appeals independently circuit court and court of analyses. benefiting from their but interpret apply again the three rules to 76. We § applies to Stat. 968.135 as it the word "includes" Wis. incriminating conclude that under statements. We suppress incriminat- defendant's motion to each rule the by ing officers obtained statements that law enforcement unlawfully confronting obtained the defendant with encompassed the class of within bank documents contemplated We reach Wis. Stat. 968.135. motions essentially the same reasons this conclusion for persuaded encompasses Stat. 968.135 us Wis. unlawfully suppress obtained motion defendant's bank documents. statutory inter- first rules of Under the two
pretation "includes," motion to word incriminating falls within Wis. Stat. statements previously set forth. the reasons 968.135 for statutory interpreta- first rule of Under the applicable "in- "includes," the word the word tion ordinary, narrowly contrary to its cludes" is viewed *31 meaning only non-exclusive when there is some textual legislature evidence that the intended "in- the word interpreted cludes" to be as a term of limitation or already enumeration. We have decided that no evidence legislative reading of such a intent exists and this applicable present word "includes"is not to the case. See ¶ 38 above. statutory interpre-
¶ 79. Under the second rule of applicable tation "includes," to the word the "in- word given common, cludes" is its broad, mean- non-exclusive ing. Applying interpretation this rule of we would suppress incriminating conclude that the motion to the present encompassed statements in the case is within contemplated by the class of motions Wis. Stat. § 968.135. Applying ejusdem generis
¶ 80. the rule of to the suppress incriminating defendant's motion to the state- by ments that law enforcement officers obtained con- fronting unlawfully the defendant with the obtained records, bank we examine whether the motion at issue is statutorily similar in nature to the enumerated motions quash subpoena germane or to limit the and is to the objectives Wis. Stat. 968.135. See above.
¶ 81. The defendant's motion to the in- criminating present statements case is substan- tially quash similar in nature to a motion to the sub- poena. prevent using Both motions the State's evidence subpoena. derived from The documents are derived subpoena incriminating from the unlawful and the state- ments are derived from the documents derived from the subpoena. unlawful bring 82. Had the defendant been able to
prevail upon quash a motion to obtained in violation of Wis. Stat. 968.135 before the banks subpoena, turned over the documents demanded position present in a not have been State would during question- defendant to the the bank documents incriminating ing statements. to induce to use them or the defendant not know whether 83. We do incriminating had she not statements made would have unlawfully obtained bank confronted with been however, from the record know, We do documents.41 incriminating statements made the that the defendant unlawfully obtained with she was confronted when *32 incriminating statements and that the bank documents unlawfully directly to the obtained related are therefore documents. bank the motion to examine whether 84. We next incriminating
suppress enforce- that law the statements subpoena by in a issued use of ment officers obtained germane § the to 968.135 of Wis. Stat. violation explained, § objectives 968.135. As we have Stat. acquire § objective the State to 968.135 is to allow ensuring the State that while also and use documents privacy protect statutory requirements meets objec- by subpoena. persons The affected interests strictly § limit the conditions are to of 968.135 tives may subpoena in order to be obtained under which being sought. protect persons are records whose that when in make clear enumerated motions require- comply the statute's strict fails to with the State may quashed subpoena limited, or be ments, the State's ability removing obtain the documents to the State's police had merely told that the been Had the defendant documents, questioned this assertion might have she her bank lengthy light of the numerous claim police's doubted the and have) (as banks all from had received we probably she documents pro are advising privacy interests other institutions by law. tected subpoena
demanded and their use evidence. See ¶¶ 46-47, above.
¶ 85. The defendant's motion to the in- criminating statements in the instant case serves these objectives. Suppressing incriminating statements de- directly rived from documents obtained in violation of necessary protect person Wis. Stat. 968.135 is to fully acquiring from the State's documents without complying with the statute. Unless the defendant's suppress incriminating motion to statements that law by enforcement officers obtained use of documents subpoena granted, obtained safeguards the unlawful were given
of 968.135 would not be full force significantly compromised. and effect and would be person permitted bring If a were a motion quash unlawfully for bank documents permitted bring sup- obtained but not a motion to press incriminating directly statements derived from unlawfully person obtained bank documents, the get protections would not the full benefit of the underlying objectives statute, and the of the statute would be defeated. *33 legislature
¶ 87. When the allows a motion to quash subpoena prevent or limit a the State from enforcing subpoena a issued in violation of Wis. Stat. § 968.135, it is absurd and unreasonable to allow the incriminating directly State to use statements derived subpoena gain advantage by from such a and to an violating legislature the statute. The could not have interpreted intended that the statute would be in such way carefully a to allow circumvention of the drafted legislative requirements safeguards and for the issu- subpoena ance of a under Wis. Stat. 968.135.42 42 Wenke, (WTien See 274 Wis. 2d construing ¶ statutes, presume courts must legislature the intends for a ejusdem generis, Applying ¶ 88. the doctrine of suppress the these incrimi- conclude that motion to we nating like kind to motions to statements is a motion of germane quash is the or limit and objectives Wis. Stat. 968.135. applying In each of the three rules for inter-
preting "includes," have concluded that the word we statutory interpretation, the each rule of under statements at defendant's motion to issue properly granted. present case in the was previously, interpreta- explained ¶ 90. As we this foreclosed Wiscon- tion of Wis. Stat. 968.135 not precedent. hold, Wisconsin cases do not as State sin "expressly" provides urges, for that unless a statute remedy, may suppression court evidence as a circuit suppress the evidence. not present sup- for case 91. Óur conclusion incriminating
pression of both documents by the to the conclusions reached is similar statements involving Supreme in two cases States Court United wiretaps performed of the. in contravention that were governing legal wiretaps. applicable federal statute States, case, v. In the United first Nardone (1937), Supreme the United States Court U.S. 379 interpreted Act of the Communications which application agents Act's federal silent about the was provide suppression explicitly as did not and which any obtained violation communications evidence of covering interpreted the Act as The Court of the Act. embracing government agents and as of the federal obtained in court of words of evidence wiretaps. through the unlawful interpreted a manner that advances to be statute (internal purposes.") statute, not defeats those
purposes omitted). *34 and citation quotation marks
641 subsequent In case, Nardone v. United (1939), States, 338, 308 U.S. 340 was Court faced question with the whether under the Communications only through Act of the "exact heard words forbid- (as interceptions" suppressed den were to be as evidence case), decided the first Nardone or whether evidence procured through knowledge gained the use of from the suppressed. forbidden conversations should also be The accommodating Court concluded that in the concerns of pro- crime detection and effective law enforcement and privacy, "meaning given tection individual be must Congress explicit what written, has if even not in lan- guage, policy Congress so as to effectuate the which has reading formulated."43 Court concluded that only through Act to the exact words heard interceptions forbidden but at the same time to allow the use of evidence derived from the exact words intercepted largely stultify policy sup would pressing intercepted. the exact words The Court relied on the words of Silverthorne Lumber v.Co. United provision States, 251 U.S. 392: "The essence of forbidding acquisition way evidence a certain merely acquired is that not evidence so shall not be used court, before the but that it shall not be used at all."44 say: respect The Court went on to "A decent for policy Congress imputing must save us from to it a self-defeating, disingenuous purpose."45 if not
¶ 94. In the cases, Nardone as well as in the present being interpreted case, the law is silent about suppression of evidence obtained as a result of a statu- tory violation. In the first Nardone case, the Court (1939). States, Nardone v. United 308 U.S. 44Id. at 340-41.
45Id. at 341. *35 by wiretaps suppressed the that violated words obtained present suppress In case the docu- the Act. the we of by subpoenas the statute. ments that violated obtained suppressed infor- case, the Court In the second Nardone by by mation obtained improper use the words obtained wiretaps. present suppress In the case we by incriminating of the docu- obtained use statements subpoenas. by improper ments obtained support approach cases our to 95. The Nardone present statutory interpretation The in- in the case. statutory presents however, an easier task of case, stant interpretation In the than did the Nardone cases. suppress documents and instant case the motions very incriminating in the text of the statements are explicitly provides for "motions statute, that the text is, including, court, to, interpreted but not limited motions subpoena." quash The Act or limit broadly such worded cases had no similar the Nardone allowing language a motion to evidence. forth, For set we conclude the reasons suppressing the incrimi- err in the circuit court did not police nating that the defendant made after statements bank documents obtained her with the confronted Unless the incriminat- Stat. 968.135. violation Wis. ing suppressed in the as evidence statements were by safeguards present Stat. case, established Wis. subpoenas be ren- would 968.135 for the issuance meaningless. dered ‡ ‡
‡ H* suppression both We conclude incriminating defendant's and the bank documents remedy appropriate present in the case is an statements when the bank documents were obtained in violation of incriminating Wis. Stat. and the statements confronting were obtained law enforcement officers unlawfully the defendant with the obtained bank docu- Accordingly, ments. we conclude that the circuit court granting did not err the defendant's motion to *36 suppress evidence of the bank documents and incriminating defendant's statements. We reverse the appeals decision court of and affirm the circuit court's order the bank documents and incriminating at statements issue. Because we affirm statutory grounds, the circuit court's order on we need presented by not and do not reach the additional issues interpretation We defendant. leave of the fed- provisions eral and state constitutional and federal relating obligations statutes of banks that the court appeals addressed for another case which these issues are determinative.
By appeals the Court.—The decision of the court of reversed. cause is remanded to circuit court proceedings opin- further not inconsistent with this ion. *39 98. DAVID T. PROSSER, J. {concurring).
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 (1) is not clear. clear, however, What is is that: the State (2) used the wrong forms; the State never submitted evidence of cause for probable the subpoenas (3) court; to the the judges made no findings of probable (4) cause for the subpoenas; the documents obtained from the subpoenas were not returned to the court. after Consequently, two hearings on Popenhagen's mo- tion to her bank records and the incriminating statements she made after being confronted by police with her records, bank Circuit Judge Mark Mangerson suppressed records and the statements. I concur in this result. However, I because
share some of the concerns voiced in Justice Roggen- sack's I dissenting opinion, write separately to explain my position.
H 100. The owners of Save More Foods in Minoc- qua terminated Michelle Popenhagen, em- longtime ployee who worked as their bookkeeper, because they detected financial irregularities at the store. Several later, weeks the owners complained to the Minocqua Police Department they believed Popenhagen had embezzled a substantial amount of In money. the subse- quent investigation, Todd Hanson, a detective with the Minocqua Police Department, "filled out an affidavit" for the Oneida County District Attorney to support subpoe- nas 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 3:00 p.m." 8/16/04 attorney's prepared ¶ 101. The district office then subpoenas, August 18, 2004, three two dated and one August 31, 2004, dated to three different banks. *40 subpoenas following ¶ 102. All three contain the language type: in bold TO "PURSUANT SECTION 805.07 OF THE STATUTES, WISCONSIN YOU ARE HEREBY COMMANDED TO APPEAR IN PERSON subpoenas give GIVE All AND EVIDENCE". three appear and in date time to Two of circuit court. the subpoenas appearing, copies may "In also state: lieu of Sergeant Minocqua be mailed to Todd Hanson the of Department, 346,.Minocqua, Police PO. Box Wisconsin 54548." subpoenas personally
¶ 103. All three were served by Thereafter, on the banks Todd Hanson. the hanks appear they court; instead, did not in turned over the Minocqua Department. records to the Police subpoenas pur- noted, 104. As the were issued suant to Wis. Stat. 805.07. Stat. Wisconsin part reads in as follows: (1)
Subpoena. Subpoenas Issuance and service. shall be issued served in accordance with ch. 885. A subpoena may by any attorney be issued of also record special proceeding in a civil or compel action atten- deposition, hearing dance of for or in witnesses trial the proceeding. or special action (2) Subpoena requiring production mdte- of to whom (a) subpoena may person
rial. A command the books, it produce papers, is directed to documents or tangible things designated therein. (b) 3rd-party subpoena Notice issued dis-' for
covery purposes at provided parties shall be to all least days deposition scheduled order before object. preserve right 3rd-party subpoena their aIf documents, books, or production papers,
requests scope discovery things that are within the tangible 804.01(2)(a), objects provided not be those shall under s. specified subpoena. in the the time and date before provisions apply unless all of the paragraph under this agree. parties otherwise
(3) made Upon orders. motion Protective any at or before the time promptly and event therewith, the subpoena compliance in the specified (a) modify if it is may subpoena or quash court (b) or condition denial oppressive unreasonable and person upon the motion the advancement the reasonable behalf the is issued of whose books, documents, papers, or producing cost of added.) things designated (Emphasis therein. tangible 805.07(1) refers to "ch. Wisconsin Stat. *41 § reads in part: 885." Wisconsin Stat. not
Subpoenas, may subpoena issue. The need who sealed, may signed and issued as follows: be and be
(1) court or court By any judge or clerk of a municipal judge, territory within the commissioner or he or is in which the officer or the court of which she jurisdiction, require to the attendance officer has production witnesses and their instruments of lawful action, pending or any proceeding evidence in matter or court, officer, any magistrate, into to be examined before arbitrator, board, person committee or other autho- testimony the state. rized to take (2) By attorney general any or district attor- stead, require ney person acting in his or her to or witnesses, state, any in behalf of the attendance of any part of the any magistrate court or before and from added.) (Emphasis state. record shows district 106. The to subpoenas pursuant office executed three attorney's 885.01(1). §§ subpoena Stat. 805.07 and Each was signed by judge. Subpoenas a issued under these stat- signed by judge utes had to be or clerk because there subpoena was never "a civil action" in which a could (Wis. attorney have been issued an of record Stat. 805.07(1)) § attorney and because the district was seek- ing (documents), "lawful instruments of evidence" not (Wis. merely hearing the "attendance" of a witness at a 885.01(2)). § attorney's Stat. Nonetheless, the district wrong subpoena office used the forms and followed the wrong procedure, legal any inasmuch as no action of pending subpoenas kind was when the were issued. 805.07(2)(b) § Moreover, the notice that Wis. Stat. re- quires given "party" concerning "3rd-party he to a subpoena discovery purposes" given issued was not Popenhagen. Popenhagen alleged In addition, attorney's the district office never asked the court to schedule return dates in court because the district attorney expected appear never wanted or witnesses to in court. The fictitious, stated return dates were objects brought were not to court. subpoenas sum, In the three were defective every respect. powerless The circuit court was not subpoenas pursuant address defective issued to Wis. § authority quash subpoe- Stat. 805.07. court's 805.07(3). explicitly provided nas is in Wis. Stat. required ¶ 108. Probable cause not for a sub- poena pursuant issued to Wis. Stat. 805.07. The designed pres- reason is that 805.07 is to secure the *42 pending ence of a action, witness a and the statute permits "party" protective a in that action to a seek subpoena oppressive. order if the is unreasonable and pending ¶ Here, course, 109. there was no opposing "party" action and no thus to with serve attorney notice. The district erred. if Even the district using argument attorney's some office could concoct comply § subpoenas to with 805.07, it failed under denied A circuit court cannot be that statute. terms of undisputed remedy power misuse an obvious and attorney. authority by judicial the district of its agree appear parties that the 110. The now subpoenas sought Stat. under Wis. have State should § § reads Stat. 968.135 968.135, not 805.07. Wisconsin (cid:127) as follows: Upon request Subpoena for documents. attorney a upon attorney general or a district 968.12, s. a court shall showing probable cause under of docu- requiring production subpoena issue a 968.13(2). ments, The documents shall specified in s. as subpoena. to the court which issued be returnable to, court, limited including, but not Motions to the be quash subpoena, or limit shall motions to subpoena. Any which issued the to the court addressed docu- unlawfully produce refuses to person who in ch. provided as may compelled be to do so ments any other does not limit or affect This section added.) authority provided by (Emphasis law. subpoenas statute, a under this 111. To obtain attorney provide required to the court with is district meaning "probable 968.12," that a dis- under s. cause though attorney required proceed he were as trict requesting under Stat. 968.12.1 a search warrant County Attorney could The Oneida District complaint provided a or the court with sworn have part reads in as follows: Stat. Wisconsin (1) Description A and issuance. search war- Search warrant. judge directing signed a law enforcement rant is an order designated designated person, of a officer to conduct a search *43 testimony, showing probable affidavit, or sworn recorded 968.12(2). § cause. Wis. Stat. The court would then have responded probable with a determination whether cause subpoenas for had been shown. Wis. Stat. 968.12(3)(c). § happened. None of this None of this happened attorney's because the district office followed wrong procedure by using § Wis. Stat. 805.07. § only 113. Wisconsin Stat. 968.135 is not the subpoena attorneys. statute available to district For § applicable instance, Wis. Stat. 885.01 is made proceedings by § criminal Wis. Stat. However, 972.11. subpoena § ap- statutes other than Wis. Stat. pear require pending some sort of action. Wisconsin § require pending Stat. 968.135 does not action, a but it require attorney does the district to follow the same procedures obtaining he would use a search warrant § § provides under 968.12. Wisconsin Stat. 968.135 for subsequent implies motions to the court. The statute procedures that when the in the statute are not fol- may lowed, subpoena the court deal awith defective way same it would deal with a defective search warrant. Judge Mangerson subpoena stated that a directly analogous under Wis. Stat. 968.135 "is to a agree search warrant." He understood —and I —that remedy a defective under this statute is analogous remedy to the for a defective warrant search object designated place purpose or a seizing designated for the
property property. judge or kinds of A shall issue search warrant probable if cause is shown. (2) upon may Warrant affidavit. A search warrant be based upon complaint affidavit, testimony sworn or or recorded phonographic reporter (3)(d), showing probable or under sub. complaint, cause testimony may therefor. The upon affidavit or be information and belief. 968.12(l)-(2). Wis. Stat. why support That I
under Wis. Stat. 968.12. *44 specific documents ob- decision to exclude court's subpoenas the statements from three tained Popenhagen with after she was confronted these made improperly obtained documents.
¶ incrimi- 115. is not entitled to utilize The State Popenhagen nating from after statements obtained simply her bank records be- she was confronted with completely disregarded applicable it statute cause 968.135) (§ those bank records. obtain
I—I hH I—I
brings
question
¶
116.
us to the
what
This
authority
employed
suppress Popenhagen's
should be
altering longstanding Wisconsin
statements without
law.
593, 690, this court 636 N.W.2d stated: suppression
The
of evidence
not a constitutional
is
right,
judge-made
rather
rule used to deter
but
it is a
by
v. Pow
misconduct
law enforcement officials. Stone
(1976).
ell,
465,
only
Suppression
428 U.S.
482
required when
has been
in violation
evidence
obtained
v. Hoch
rights,
of a defendant's constitutional
State
man,
419,
(1957),
2
or if
Wis. 2d
remedy by in situations where an error right. the state does not violate a constitutional decision whether to evidence is informed § 968.22, Stat. which reads: "Effect of technical irregularities. No evidence seized under a search war- suppressed irregulari- rant shall be because of technical affecting rights ties not the substantial of the defen- dant." *45 implies
¶ 120. Wisconsin Stat. 968.22 that evi- by suppressed dence can be court if a the court deter- statutory irregularity reasonably that mines a cannot statutory irregular- be described the as "technical" or if ity rights has affected the substantial of the defendant.
¶ supported by 121. view is This the cases. In Tye, 124, State v. 530, 2001 WI 248 Wis. 2d 636 N.W.2d 473, the state obtained a search warrant for the presented ¶ Id., 4. defendant's residence. The state probable ¶ Id., cause for the warrant to the court. 5. investigator prepared However, the who the to affidavit sign support failed warrant to and to the swear subsequently truth of the Id. circuit affidavit. court suppressed Id., seized evidence at residence. concluding sign affirmed, court This that the failure to the affidavit and swear to its truthfulness "awas matter component form, an substance, not and it essential is legal proceedings." Id., of the Fourth Amendment holding ¶ 19. The court's stated black letter law about of evidence obtained violation of a rights. defendant's constitutional
655 kind noted A different of defect was (1973). Meier, 452, 60 2d N.W.2d 685 State v. 210 warrant for Meier's residence Police executed search Wednesday, April p.m. 1972, Id. 455. The on at 9 at Monday, to the of court on warrant was "returned" May clerk p.m. 1972, at Meier 12:06 Id. claimed failing had violated Wis. Stat. authorities return the "within hours after execution" warrant designated warrant, and in the that evidence clerk suppressed. from be See id. at 456. the search had to disagreed. computing time, court This In the trial court period p.m. Fri- from the weekend—the 4:30 excluded day Monday period. Id. at a.m. the 48-hour to 8 —from trial 459. The court said: "The court's construction 968.17, Stats., reasonable in view of the fact sec. requirement contained therein is of a minis- time nothing and that there is in the record terial nature any way rights were indicate that defendant added). prejudiced." (emphasis Id. at 459-60 Elam, 123. This theme was echoed in State v. (1975), 614, 229 Wis. 2d N.W.2d where the defendant transcript moved to evidence because testimony time search warrant was not filed within the days" after the execution of the search limit—"within 968.17(2). prescribed in Id. at Wis. Stat. warrant — suppressed trial 618-19. The court the evidence because *46 transcript the was not filed until more than ten months though warrant, after execution of the even it found the prejudiced by delay. the was the Id. at 619. defendant not "[Wisconsin saying: 968.22], reversed, This Stat. court together finding prejudice with the to the noof defen dispose dant .. The time for ... would issue.. filing... duty, is ... a ministerial a violation of which prejudice does not the search to the invalidate absent added). rights (emphasis the Id. at 620 defendant." of ¶ Nicholson, In v. State 174 Wis. 2d (Ct. 1993), App. police N.W.2d 791 obtained a search apartment upper two-story, for an east in a warrant multi-family apartment building at 1512 State Street in Although police Racine. Id. at 544-45. executed the apartment, at the warrant correct the address turned Street, out be 1510 State so that the address in the was Id. at warrant not correct. 545. The circuit court and appeals upheld court suppress the warrant and refused to appeals
evidence. The court of cited Wis. Stat. "The stated: warrant's recital the 1512 irregularity State Street was a address technical under agree facts of this case. We with the trial court that irregularity any right not this did substantial affect (footnote added) (emphasis Id. Nicholson." at 549 omit- ted). government case, In where Raflik
mistakenly application failed to record the for a warrant by telephone, the circuit court not did grounded search evidence because the warrant was probable cause, and the search not was unreasonable promptly steps because court took to reconstruct the application. ¶¶ 248 Wis. 2d 8-10. Raflik, This court Id., affirmed. 57. The inadvertent failure to record the application prejudice id., did not See defendant. ¶¶ 42, 52. together cases, 126. These with Stat. suggest suppressed 968.22, that evidence must not be statutory irregularity a mere violation or a technical procedure search warrant unless the violation or
irregularity irregularity or the or is material violation prejudiced has the defendant or affected defendant's rights. Conversely, statutory if a substantial statutory violation or procedure irregularity of search warrant irregularity prejudiced material or if the or has violation *47 substantial or the defendant's defendant affected the statutory implicit, explicit, rights, if court not the has authority Id. This is to the tainted evidence. prior synthesis ground. reasonable of law. new It is a not Suppression ¶ of is a drastic rem- evidence 127. required edy. Suppression has when evidence been is of a defendant's constitutional obtained violation Suppression rights. 593, ¶ 2d 15. of 248 Wis. Raflik, per- not of obtained in violation a statute evidence requires or either authorizes mitted unless statute Verkuylen, suppression. id.; 2d at 61. See 120 Wis. irregularity evaluating statutory In with respect a search or Wis. Stat. warrant weigh gravity subpoena, the the court should statutory strong public against the interest in violation availability e.g., See, evidence. Brewer v. reliable (1977) (weighing Williams, 387, 424 the deter- 430 U.S. against strong rent effect of "the interest system justice making any available to the under concededly trustworthy fact all relevant and trier of omitted)). (citation Suppression of evidence is evidence" deter 248 Wis. 2d intended to misconduct. Raflik, by public suppres- 15. The interest is not served resulting that is sion evidence from conduct inadvert- ent unintentional unless that conduct results or prejudice defendant. case, In misuse of the this State's
subpoena material, serious not statutes was and tech- wrong subpoena pur- forms, nical. The State used the (Wis. 805.07), wrong suant to the statute Stat. and it protections required wrong to accord the failed bootstrap by trying position It could its statute. not subpoenas bring applicable under 968.135) (Wis. totally statute Stat. because it disre- protections garded procedures that statute. *48 prejudiced by In addition, the defendant was the State's incriminating errors when she blurted out statements being improperly after confronted with her obtained Finally, authority bank records. the court's was abused. suppression Popenhagen's case, In this then, state- improper ments is a sanction for the use of the sub- poena power by attorney's the district office.
IV § 130. The last sentence of Wis. Stat. should not be overlooked. It reads: "This section does any subpoena authority pro- not limit or affect other § vided law."Wis. Stat. 968.135. my
¶ 131. In view, the State is entitled to use Wis. subpoenas Stat. 885.01 for duces tecum of bank records Popenhagen's Popenhagen's at trial. bank records are business records. These records can be obtained from the by following proper procedure. banks The owners of Save More Foods and their insurer could also obtain Popenhagen's they bank records if sued her to recover damages. excluding their In short, the defendant's state- permit escape ments will not the defendant un- scathed.
V 132. The circuit court's Popenhagen's incriminating bank records and state- appropriate. wrong ments was The State used the sub- poena wrong procedure. forms and followed the As a subpoenas result, its However, were defective. the State's subpoena access to these records is not limited to access under Wis. Stat. 968.135. The State is entitled to use 885.01(1) charge. Wis. Stat. it has filed a criminal after subpoenas records. of the bank can do over The State obtaining Popenhagen's blunders do over its It cannot respectfully Accordingly, concur. I statements. {con- ZIEGLER, J. KINGSLAND 133. ANNETTE majority part). dissenting deci- curring part, suppresses and the documents both sion, which necessary. proceeds I than much further statements, authority preclude agree has circuit court that the through go require State to documents *49 process future use. them for to obtain the correct statutory doing disagree or on a so However, I with pre- authority to If is such basis. there constitutional inherent lies in the court's documents, it clude the authority pre- justice. facts Under the administer to authority suppressing the exists for however, no sented, statements. statutory majority lan- the finds that 134. The language remedy. suppression
guage If the as calls for suppression, provides almost then for this statute any point does so as well. forward from this statute authority Moreover, no been the law. That has never suppressing going state- the further and exists for even poisonous the statute, the fruit of on the ments based good example This is a doctrine, or otherwise. tree making bad law. bad facts that unless The is well established law suppression provides constitu- or unless
statute remedy. protections is not a exist, tional majority to unworkable extends the law decision respect to the with a black hole standards and leaves suppression longer Suppression is no law of evidence. language statute, is it tethered nor linked to the any stop- right. longer is there No to a constitutional ping point suppression. join I result, As cannot majority part instead, and, must concur in and dissent part. unique
¶ 136. Under the case, facts of this authority preclude circuit court should have the subpoena fatally documents because the at issue was (1) attorney wrong defective: the district used the (a subpoena civil was used the district (2) attorney investigation); in a criminal the district attorney authority by using had no to obtain documents statutes; the civil while there is no record that this was using wrong subpoena faith, done in bad and civil (3) procedure were more than a error; scriveners' al- though investigating the record reflects that the officer probable attorney, faxed a cause affidavit the district nothing suggests probable that a cause affidavit was court, submitted to the and no such document is in the (4) nothing suggests probable record; that a cause (5) by any judicial officer;1 determination was made sought through documents were not returned the cir- directly cuit court instead but were returned to the (6) safeguards State; and all at the court failed. circuit *50 only probable prior Not was no cause found to the issued, subpoenas being subsequent opportunity but no existed case, judicial problem. Judge for a officer to correct this In this Kinney signed subpoena the civil the produced that bank eliciting incriminating records from F&M Bank and in used probable from the affidavit statements defendant. No cause was subpoena. Judge Mangerson the presided attached to that over subsequent However, Judge suppression hearing. because Man- gerson sign subpoena probable did not the at issue and no cause him, provided Judge Mangerson affidavit was could not make finding probable why or correct the as to the cause record subpoena nothing There in the record to was issued. indicate process that the criminal was utilized. IN
I. SUBPOENA POWER WISCONSIN authority to short, In the State had no subpoena by using purely a civil obtain the documents investigation. process realizes When a court in a criminal any authority, subpoena it can it without issued authority quash subpoena under its own and should the long justice.2 as there is no administration of So the may require then the State to use faith, the court bad by subpoena. process the records the correct to obtain by any person. record, is no bad faith From this there obtaining subpoena, The State made mistakes signing subpoena and the court made mistakes probable wrong authority and without a under the cause affidavit. subpoena statute, State utilized a civil 138. The § subpoena bank 805.07, Stat. the defendant's
Wis. subpoena in the does the State cite the records. Nowhere may The not circumvent the criminal statute. State by using subpoena process The civil statutes.3 criminal subpoena statutes, criminal law has its own which required was to use. State authority not utilized Although inherent was case,
circuit court in this we should remand with directions authority. utilizing circuit court consider its inherent allowing Perhaps argument in favor of the State use 972.11(1), § which subpoena civil statutes-arises out of Wis. Stat. applicable proceed to all criminal makes the rules of civil actions However, of a ings. impermissible this is when "context manifestly requires rule a different construction." Wis. section or 972.11(1). required § in this case. Stat. A different construction is statutes, therefore, subpoena criminal law its own it has on, on, rely it civil rely does not need to nor should 972.11(1) statutes. See (stating chapter Stat. 885 shall apply proceedings); (providing Wis. Stat. 885.01 to criminal (providing criminal inves subpoena power); Wis. Stat. tigative subpoena power). *51 139. The Wisconsin criminal code specifically Witnesses and Oral Testi-
provides chapter in mony, "shall all criminal Wis. Stat. apply proceedings." 972.11(1). result, any attorney, including As a district secure a witness to at a attorney, may testify hearing. By Wis. Stat. 885.01.4 virtue of Wis. Stat. .02, §§ 885.01 and an a district attorney, including a attorney, may require bring witness to documents with him or her to a scheduled hearing.
4 Section 24.11 of Wisconsin Criminal Practice and Proce part: dure states relevant "subpoena power" authority require The is the to "the any witness, residing being any part attendance of or of this state, testify any pending matter or . cause or triable. . ." may Compelling appear a witness to in a Wisconsin court he attorney accomplished by any practicing before court. This 757.01(1)2 situation exists because WS.A. bestows 885.01(1)3 record,
power permits on all state courts of and WS.A. by "any subpoenas judge issuance of or clerk of a court or court municipal judge" commissioner or within that officer's or the appropriate jurisdiction. provides court's W.S.A. 757.355 then any blank, may pre-signed that the clerk of court of record deliver process any attorney practicing and sealed forms to before that by Upon completion attorney, court. these documents have they they by perfected if the same force as would were clerk. Utilizing procedure, attorneys practicing this in Wisconsin have subpoena power. attorney general attorneys, and or Wisconsin district stead, statutorily persons acting may sign in their and also issue any subpoenas compel appearance of witnesses in court or any any state, magistrate, part before from on behalf of the Code, juvenile Similarly, state. under the Children's a who is alleged performed delinquent to have act must be informed juvenile "right present the intake worker that the has and subpoena witnesses." Wiseman, Chiarkas, M. L. & Daniel D. 9 Christine Nicholas (1996) (inter- Blinka, Criminal Practice Procedure omitted). nal footnotes *52 attorney possesses additional 140. The district § subpoena power This virtue of Wis. Stat. 968.135.5 investigative subpoena power to enhance the is meant powers It used before a of law enforcement. can be hearing charged and no scheduled crime is even § upon required. the However, because 968.135 bestows great safeguards apply power, certain such as a State finding probable being cause, documents re- court providing court, turned to the and the circuit court completely quash subpoena. power to or limit the State, case, in this should have used 141. The § § rather than Wis. Stat. 805.07—a Wis. Stat. 968.135 litigants.6 subpoena Be- civil statute meant for civil § 968.135, should have used Wis. Stat. cause State remedy. majority a looks to that statute for How- § support ever, the record does not 968.135 was a scriveners' error or ever used. This was not mere malfunctioning tape subpoena, recorder; this was a juncture every process, at of the entire was which defective.
II. DEFECTIVE SUBPOENA fatally subpoena ¶ 142. The State's was defective. correctly Absolutely nothing respect was done with attorney authority subpoena. this The district had no judge signed request it, If and the should not have it. remedy statutory violation, there is a for this unusual it authority lies in the court's inherent to administer justice legislature provide suppres- did not for since remedy a in the statute and the violation did not sion as al., supra, § See 9 Wiseman et 24.16. al., 24.11, supra, (stating "[i]n et n.6 See 9 Wiseman cases, attorneys subpoena power civil under Wis. have Stat. 805.07"). remedy protections. proper invoke constitutional permit this, exists, in a no faith is to case like where bad judge quash error is discovered—to —when require subsequently seek the State subpoena. through properly the documents enforced finding In that Wis. Stat. calls ultimately the of the documents —and statements —the prece- majority remedy years that unravels weaves *53 dent.7 authority judge
¶
to
A circuit
has the
court
quash
subpoena
case, the
a
that is defective.8 In this
subpoena
part
to
court's
was in
due
the circuit
defective
It
not
a circuit court
own errors.
is nonsensical to
allow
7
dissent,
Roggensack's
See Justice
8
Davis,
749-50,
738,
226
2d
City
See
Sun Prairie v.
Wis.
of
(1999)
stating
(citing to a number of cases and
595 N.W.2d635
authority
the
ensuring
"the
i[n]
court exercises inherent
effectively
the fair
efficiently
provide
court functions
and
to
Holmes,
31, 44,
justice");
2d
of
State v.
106 Wis.
administration
(1982)
are
(discussing
powers,
inherent
which
does if not, and it does this court should not insert words into the Rather, statute.10 when no
9 See,
968.30(9)(a).
e.g.,
§
Wis. Stat.
provides
part:
It
Any aggrieved person
may
...
move before the trial court or
granting
original
the court
warrant to
contents
any intercepted wire, electronic or oral communication ....
10See State ex rel. Kalal v. Circuit
County,
Court
Dane
for
WI58,
39,271
Wis. 2d
(citing
the admission of each of evidence for fear that something may suppressed? earlier be suppress In order to the documents, the majority suppression decides that is allowed under Wis. Stat. 968.135. However, 968.135 was never utilized by subpoena by the State to the documents or the court subpoena. that issued the record, From the the State solely and the court relied on the civil statute and procedure subpoena the documents —Wis. Stat. deciding 805.07. Instead of the case on the basis that authority subpoena there exists no to so the documents civilly, majority contorts this into a criminal sub- poena. fatally It is not. The was defective.
III. FRUIT OF THE POISONOUS
TREE DOCTRINE majority step sup- 147. The takes the extra pressing the statements that were obtained when the subsequently defendant was shown the bank docu- majority analysis ments. While the frames its under the auspices statutory authority, really it does so an unprecedented poisonous of the fruit of the application doctrine, doing, majority tree longstanding shx so undermines legal support
case law. There is no for proposition that the court can the statements poisonous majority as fruit of or, tree as the has now language done, under the of the statute. The statute at remedy issue not list does as a and the fruit poisonous tree doctrine has never been extended statutory using to a violation. Unlike its inherent authority justice quash the administration of improperly subpoena, issued the court's inherent au- thority suppressing does not extend to the attenuated especially statements, where there is no bad In faith. *56 suppress the there must be author- to statements order ity or in constitutional law. No such in the statute authority here. exists reason law 148. We have no to believe in bad faith to obtain the documents.
enforcement acted no enforcement used There is reason to believe law majority suppresses documents in bad faith. statutory by finding that there was a the statements obtaining in the in- the documents first violation suppresses "poisonous stance; it the "fruit" of the then from statements derived the use of those tree"—the documents. poisonous The fruit of the tree doctrine has by applied been statements elicited
never being of a shown documents obtained virtue defendant subpoena. applies faulty This doctrine from a civil and no constitutional viola- violations, constitutional has occurred this case. tion evidence as a direct result of a
It is true that obtained right inadmissible and of a constitutional violation exclusionary intangible evidence as applies rule evidence, following as tangible as such statements well only entry. or Not evidence obtained an unlawful arrest also deriva- primary illegality is inadmissible but 'by exploita- evidence if such evidence is obtained tive illegality.1 tion of that Schneidewind, 110, 118, 2d N.W.2d v. 47 Wis. 176
State
(1970).11
majority
However,
find a
if the
were to
303
63,
20,
2dWis.
Yang,
App
also
v.
2000 WI
See
State
Court,
Supreme
545,
(stating that United States
inherent upon improperly suppressed a constitutional ex- based pectation privacy records, remand bank we should that no such circuit court with instructions to the remedy proper expectation privacy exists12 and the *58 authority as articulated can found under its inherent be throughout opinion. this part foregoing reasons, I concur in For the part.
and dissent
(dis-
J.
ROGGENSACK,
DRAKE
155. PATIENCE
appeals
senting).
a court of
We are asked to review
(1)
reversing
suppress-
order
the circuit court's
decision
subpoenaed
produced
ing
and
bank records that were
finding
probable cause, which
Stat.
of
without
(2)
(2005-06)1 requires,
suppressing
and
incriminating
Popenhagen's subsequent
state-
Michelle
ments.
Miller,
State
(1976);
v.
United States v.
Swift,
App.
2d
I. BACKGROUND Popenhagen employee ¶ 157. While was an Minocqua, owner, Save-More Foods Brian Krue- ger, suspected stealing that she was from the store. Krueger reported Minocqua Department to the Police Popenhagen cashed checks at the store that she containing on drew accounts insufficient funds. Krue- ger alleged Popenhagen money also had stolen According from the store's teller automated machine. complaint police reports, the criminal attached *59 alleged Popenhagen approximately it stole employer. $29,000 her from investigation ¶ 158. To further their of the mat- Minocqua sought Popenhagen's ter, the Police to obtain through subpoenas bank records criminal under Wis.
672 compliance end, To that with Stat. 968.135. completed police an affidavit show- 968.135, officer sought ing probable that the records were linked cause the However, crime. when of a to the commission subpoenas requests affidavit made, the were the apparently presented showing probable was not cause judges subpoenas.2 to the who issued two complied subpoe- All three banks with by delivering Popenhagen's deposit statements, bank nas Depart- slips and cancelled checks to Oneida Police police Popen- ment. then interviewed Oneida officers money initially hagen. she denied that had stolen She Popen- police Save-More, from but confronted after hagen records, that her her bank which revealed with corresponded deposit closely amounts miss- to amounts incriminating ing Save-More, she made several from statements.3 charged Popenhagen theft of more was with 943.20(l)(b) contrary to Stat. and $10,000,
than (3)(c). pretrial both motion, she moved to In a incriminating and statements. The her bank records her ruling suppress, granted her motion circuit court Kinney Mangerson Judges and Mark Circuit court Robert to three County signed subpoenas directed banks of Oneida Popenhagen where held accounts. precisely no in the record of what transcript There is summary said; are her statements recounted
Popenhagen September 19, police report prepared fashion in the record. Officer provided Hanson Officer Todd G. and that, upon with report being in that confronted Hanson states records, didn't Popenhagen explained that "she know her bank might get always she why thought this" and that "she she did Popenhagen caught." According report, to Officer Hanson's money pay that "she used some further stated judgments against her." mortgage pay on some *60 the State obtained her bank records in violation of Popenhagen's right federal and state constitutional of privacy § and in violation of Wis. Stat. 968.135. appealed
¶ 161. The State the circuit court's deci- appeals sion, and in a decision, two-to-one the court of majority reversed. The concluded that neither Fourth Amendment of the United States Constitution nor I, Article Section of the Wisconsin Constitution Popenhagen right privacy accorded of in her bank records; therefore, and it was error to them. In although subpoenas addition, the issuance of without a finding probable provisions of cause conflicts with the of appeals Wis. Stat. 968.135, the court of ruled that suppression proper was not because 968.135 does not suppression remedy, prece- authorize as a as Wisconsin requires. dent Popenhagen 162. On review before court, this arguments support
advances four her assertion that incriminating her bank records and her statements must suppressed. Popenhagen argues be First, that because requires finding probable Wis. Stat. 968.135 of cause before a is issued thereunder, she has a statu- tory "expectation privacy" of in her bank records which subpoenas was violated when these were Second, issued. Popenhagen subpoenas contends that the issuance of the finding probable without a process of cause is a misuse of suppressing that necessitates her bank records and in- criminating Third, statements. she contends that she right privacy has a Fourth Amendment in her bank holding records because the of United States v. Miller, (1976), longer good 425 U.S. 435 is no Fourth, law. she encourages interpret this court to Article I, Section 11 independently the Wisconsin Constitution of Fourth interpretations, Amendment and to hold that there is a right privacy constitutional in bank records under the majority opinion reverses Constitution. Wisconsin upholds appeals the court of *61 Popenhagen's first contention.4 based on evidence
II. DISCUSSION of Review A. Standard requires the court
¶ of this case 163. Resolution interpret federal 968.135, as well as the Wis. Stat. ques independently review constitutions. We and state statutory interpretation. Fisher, 2006 v. State tions of 495. We also 121, 2d 714 N.W.2d 4, 290 Wis. 44,WI questions independently inter constitutional of review pretation. Rights Schilling 2005 Bd., Crime Victims v. 623. Whether 2d 692 N.W.2d 12, 278 Wis. WI grant is a discretion evidence a motion to Keith, ary v. court. State of the circuit determination 1997). (Ct. App. 888 61, 68, 573 N.W.2d 216 Wis. 2d evidentiary of decision an Therefore, overturn we will erroneously only exercised if that court circuit court Id. at 69. its discretion. § Stat.
B. Wisconsin precedent Suppression discretionary Judges rem- formulated suppression or bad-faith edy to deter unreasonable of a police in the violation resulted conduct rights. Powell, 428 v. Stone constitutional defendant's (1976). automatically Suppression is not 465, U.S. right remedy, a constitutional even when as a accorded suppression impaired; of evidence rather, has been 4-5. Majority op., ¶¶ weighed against "depriving jury the court or of relevant endangering society, allowing guilty evidence, go Verkuylen, free." State v. 59, 60-61, Wis. 2d (Ct. 1984). App. 352 N.W.2d668 majority opinion ¶ 165. The concludes that Popenhagen suppression is entitled to of the bank subsequent incriminating records and her statements though under 968.135, Wis. Stat. even there was no police unreasonable or bad-faith conduct and even though § expressly 968.135 does not authorize the remedy when a was issued finding probable without a concluding, cause.5 In so majority opinion change effects an enormous in the expands rights law of the state of Wisconsin that expense prosecu criminal defendants at the of effective *62 by overruling years tions. It does so more than 20 precedent appeals.6 of this court and of the court of This years, suppression is so because for than more 20 could remedy only be considered as a when a constitutional right specifically was violated or a statute authorized suppression remedy statutory as a for the See, violation. e.g., Noble, State ¶ v. 64, 13, 2002 WI 253 Wis. 2d 206, (concluding suppression 646 N.W.2d38 that of Noble's testimony required was not because the violation "dur ing proceeding the John Doe did not amount to either a statutory constitutional violation or a violation for ¶ 5Id., 6Majority op., addition, 58-71. In Popenhagen ¶¶ did not request sweeping change in the law majority that opinion Nevertheless, effects. majority opinion uses this case as a vehicle to effect an expansion enormous rights of defendants in criminal expense cases at the of victims of crimes, where the failure to follow a simply statute was an error of law a circuit judge court police no misconduct alleged to have occurred.
676
State v.
remedy");
as a
is provided
suppression
which
593, 636 N.W.2d
129,
15, 248 Wis. 2d
2001 WI
Raflik,
¶
is only required
that
(concluding
"[suppression
690
in
of a
obtained
violation
evidence has been
when
if a statute
... or
rights
defendant's
constitutional
State
remedy");
for
provides
specifically
451,
Cash, 2004 WI App
63,
30, 271 Wis. 2d
677
v.
¶
or illegally
that
(concluding
"[Wrongfully
709
N.W.2d
where
only
is to be suppressed
obtained evidence
in violation of an individual's
was obtained
evidence
that
or in violation
a statute
rights
constitutional
sanction")
as a
requires suppression
(emphasis
expressly
229,
24, 277
Cash);
State v.Repenshek,
2004 WI
App
if suppres
that
780,
(concluding
2d
¶ 171. Because the evidence at issue Arnold lawfully appropriate obtained, had been it was not analyze sup- the whether evidence should been have pressed, ruling as the trial court concluded on intercepted Arnold's motion to communi- Instead, cations. because the evidence in Arnold was lawfully thereby foreclosing obtained, Arnold from hav- ing suppressed, question the evidence the relevant was whether the evidence could be disclosed. ruled that We the evidence could not be disclosed. Id. at 444. majority opinion revising
¶ Therefore, 172. history says government when it that "in Arnold, comply statutory requirements did not with question."10 obtain the evidence in As trial court 10Majority op., denying suppression motion, Arnold's law
found when obtaining comply the statute in did with enforcement the evidence. correctly Consequently, Ar- cited Raflik proposition that is an available
nold for the remedy only statutory the statute so for a violation if 968.30(9)(a) provides, as Wis. Stat. does when lawfully obtained. evidence was not majority opinion errs in its use of 174. The support majority opinion's Arnold. Arnold does not correctly "Arnold, read, for the stands assertion proposition in violation of a that evidence obtained *66 statute) (or may be statute not in accordance with the objectives suppressed under the to achieve the of statute though expressly statute, the statute does not the provide even suppression or exclusion of the evi- for the majority opinion ignores the factual his- dence."11The tory explained above, I Arnold's motion to ofArnold. As not denied because the evidence was was law; rather, the evidence in violation obtained of regu- in the statute that obtained accordance with was wiretap obtain evidence. lates the lawful means to obtaining statutory in Therefore, there was no violation simply meet a The evidence did not the evidence. statutory requirement, relating to disclo- second occurred if the course, Of disclosure would have sure. Arnold, 2d admitted trial. 51 Wis. evidence had been at 444. at Therefore, in order for the decision this 175. years prior precedent,
case to be consistent with 20 expressly including Arnold, must Wis. Stat. without authorize evidence obtained finding probable cause. 248 Wis. 2d Raflik,
11 Id., suppression;
Section 968.135 does not authorize accord- ingly, majority by allowing suppression errs for this statutory violation. See id. majority opinion suppres-
¶ 176. The affirms the types sion of two of evidence: the bank records and Popenhagen's incriminating begin I statements. with a discussion of the bank records.
2. Bank records deciding Popenhagen's
¶ 177. In to exclude bank records, circuit court reasoned: Federally-
But it is clear to me that there is now a Wisconsin-recognized right privacy one's personal banking that, records. And I'm convinced obtaining those records over which there is an umbrella privacy by statutes, violating 968.135 of the should suppression. result evidentiary ruling sup-
We will not disturb an presses if evidence the record shows that the circuit making ruling, court, in its exercised its discretion in legal accord with the correct and the standards facts of Clark, 484, 490, record. State v. 2dWis. 507 N.W.2d (Ct. 1993). App. The concern here is whether the applied legal circuit court the correct standard. *67 necessarily sup ¶ Furthermore, 178. courts do not press evidence that is obtained in violation of a statute provides suppression remedy. House, for as a State v. (con ¶79, 38, 1, 2007 WI 2dWis. 734 N.W.2d140 968.30(9)(a) § cluding though spe that even Wis. Stat. cifically remedy violating authorizes as a for Law, the Electronic Surveillance Control whether a vio "requires suppression depends upon lation whether the statutory purpose despite has been achieved the viola tion"); § Wigmore Arthur Best, on Evidence 2183a (2007-2 2008) Supp. (concluding that not all Cumulative illegally suppressed). There- obtained evidence should be erroneously fore, the circuit court exercised its whether Popenhagen's suppressing in discretion bank records initially appellate turns on whether a Wisconsin decision provision specifically or some of Wis. Stat. suppression; so, and if the circuit authorizes whether gave explanation Clark, court a reasoned for its decision. 2d 179 Wis. at 490. part
¶ 179. The first of the resolution of this question interpretation the rests with Wis. Stat. Statutory interpretation 968.135. commences with obligation language statute, the of the as it is our legislature by it determine what the meant the statute ex rel. Kalal v. Circuit Court Dane enacted. State County, ¶ 45, 2004 WI 271 Wis. 2d 681 N.W.2d legislative meaning 110. We assume that is ex- pressed Id., the words chosen. The context operative language appears important which the is too by meaning may because a statute's be affected legislature context in which the words chosen are language Id., If used. our focus on statute's meaning, ambigu- yields plain, is no a clear then there according plain ity, applied to its and the statute is statutory language unambiguous, If is it terms. Id. unnecessary to consult extrinsic sources to facilitate interpretation. Id. provides: Stat. 968.135 180. Wisconsin Upon request
Subpoena for documents. attorney upon attorney general or a district 968.12, showing probable cause under s. a court shall of docu- subpoena requiring production issue 968.13(2). ments, The documents shall specified as s. subpoena. to the court which issued the be returnable to, court, including, limited Motions to the but not *68 shall, quash subpoena, or limit be motions to subpoena. Any the court which issued the addressed to unlawfully produce to the docu- person who refuses in ch. may compelled provided to do so as ments be any subpoena This does not limit or affect other section authority provided law. § plainly provides
¶ 181. Wisconsin Stat. 968.135 subpoenas produce to documents issued for review authority. regard It silent in to verbal under its is regulate Accordingly, the statute does not statements. production verbal statements. of. specifies particular types ¶ 182. The statute two "quash"12 to and to "limit." It also includes of motions: "including, phrase, to," but not limited which the ambiguously un- quash that motions to or to limit
directs the universe of motions that are do not constitute appropriately § brought under Wis. 968.135. Stat. How- phrase ambiguity ever, that creates an about what same may unspecified those motions be.13 specified Both motions under Wis. Stat. target appear 968.135 to mean that obligation provide subpoena's the documents re- quested may prior production. reduced, be to their For example, "quash," granted, if a motion to will remove
12Ordinarily, quash must made before the motions be See, specified compliance. e.g., time in the for Fed. R. 45; also, Miller, Wright E Alan & Arthur R. Civ. see 9A Charles (3d 2008). ed. Federal Practice and Procedure ambiguous, may I turn to "inter Because the statute is statutory guidance. pretive outside the text" for State resources WI58, County, ex rel. Kalal v. Circuit Court Dane customary 2d 110. It is 271 Wis. 681 N.W.2d consult history However, legislative history legislative first. of Wis. sparse interpreting and of no avail in Stat. statute. *69 obligation target subpoena
the provide of the of the sought. may the documents A motion to "limit" narrow scope subpoena thereby target's the of the and limit the obligation produce some, but all, not of the docu- ments.
¶
§
Furthermore,
Wis. Stat. 968.135 is silent
regard
in
to what should
if
occur
records outside the
scope
subpoena
produced,
privileged
are
if
docu
produced
subpoena
ments are
or if the
itself is defec
tive, as the circuit court found here. State v. Swift, 173
(Ct.
1993).
App.
870, 885-86,
Wis. 2d
¶ 185. The observes the two statutory examples may brought of motions that be presents lengthy under Wis. Stat. 968.135 and then ejusdem generis.14 discourse on the doctrine of There- after, it concludes, in one sentence,' that the circuit properly granted Popenhagen's sup- court motion to press the use of her bank records in the State's theft against case her.15
14Majority op., 46-55. ¶¶ 15Id., 56. The majority opinion does not bother rights $29,000 balance the of the victim from whom was stolen right with the Popenhagen it claims has under Wis. Stat. § 968.135. It does not bother to note parties agree that probable there was cause for the issuance of the and that law enforcement had made an regard affidavit that issued, before the subpoena through was but inadvert ence, presented Instead, it was not judge. to the it automati- my majority opinion errs in view, In its (1) statutory it for at least two reasons: construction legislature language chosen overlooks precluding the authorized use laws have other improperly (2) misper- it trial; at obtained evidence subpoena, Stat. the nature of a Wis. ceives either or a seizure. does not authorize a search which point, the first I contrast 187. To illustrate Wis. 968.30(9)(a), Arnold, at the statute issue with Stat. § 968.135, the at issue here. In Stat. statute *70 968.30(9)(a), legislature specifically § authorized the remedy wiretap suppression as when evi- an available Electronic was obtained in violation of the Sur- dence recognized in as we Gilmore. Law, Control veillance 968.3Q(9)(a) Gilmore, 201 2d at 839. Section shows legislature suppression the knew how to authorize 968.30(9)(a) § apparent, it chose so. As is when specified to do person" may "aggrieved move that an "to by suppress" means evidence obtained unlawful unlawfully also to "evidence derived" from temporal addition, obtained evidence. In the focus of 968.30(9)(a) period § the State is on a time has after By already tempo- the contrast, the evidence. obtained §in a focus of the listed 968.135 is on time ral motions complied by period target subpoena the of the has before producing otherwise, the focus documents. Stated of a limiting target § motion the of the 968.135 is on what provide, subpoena obligated the use is not on the provided target subpoena the documents has after (concluding "[b]e- at 886 Swift, them. 173 Wis. 2d by records cause additional bank were not obtained crime. cally suppresses Popenhagen's the evidence Even violated, suppression right when a constitutional has been Tucker, 417 automatically Michigan not follow. See v. U.S. does (1974). 433, 446 violating rights, state action Swift's constitutional Swift suppression is not entitled to of the additional bank records"). § Second, Wis. Stat. 968.135 not au- does §
thorize either search or a A seizure. 968.135 sub- poena equivalent of is not the a search A warrant. § subpoena give 968.135 does not law enforcement the authority go place things. into a Rather, and seize subpoena production is a demand for the gives target documents that time to contemplate object providing and to in court to things sought. person Id. at 885-86. No "seized" Popenhagen's They produced bank records. were objected production. banks, who could have to that In interception, leg- contrast, an electronic which 968.30(9)(a) islature Wis. Stat. has authorized interception unlawful, when the consti- tutes a search and seizure under the Fourth Amend- States, ment. v. See Katz United 389 U.S. 352-53 (1967). 968.30(9)(a) Moreover, Wis. Stat. is not only legislature place statute which the meant
limits on the admission of evidence obtained viola- *71 938.31(3)(b) tion aof statute. Wisconsin Stat. also provides juvenile's "during a that taken a statement interrogation custodial is in not admissible evidence against juvenile any proceeding alleging the in the court juvenile delinquent," juvenile's to be unless the state- provi- ment is in with taken conformance the statute's underlying interrogation sions. The concern for the of.a juvenile custody in has constitutional The con- roots. juvenile custody may compelled cern is that a be testify against himself; therefore, certain safe- guards required preserve right are order to his in. against compelled self-incrimination. Jerrell v. State 2d
C.J., 105, 30, 145, Wis. 699 N.W.2d 2005 WI legislature Therefore, where the both instances suppression specifically of evidence authorized the has statutory followed, the a directive was not because underlying protection policy the the statute is right. constitutional leg Accordingly, I conclude that when remedy to authorize as
islature intended specifically non-compliance statute, it with a stated for remedy statutory "suppression" that was the App Christensen, v. violation. See State 2007 WI (interpreting ¶ 17, 304 Wis. 2d 737 N.W.2d 968.30(9)(a) providing suppression as for com Stat. intercepted). improperly addition, In munications legislature such a the remedy, where authorized statutes rights constitutional underlie statutes. legislature Therefore, did not au I conclude that is thorize the courts to evidence that obtained in violation of Wis. Stat. 968.135. years sum, 191. In more than 20 because appellate
precedent courts of this state have suppres- required specifically that the statute authorize suppres- remedy statutory as a for a violation before sion may legislature employed, sion be and because the has I here, not done conclude the circuit court so erroneously suppressed exercised its discretion when it Popenhagen's bank records based on the circuit court's subpoena. probable issue the As I failure find cause to majority opinion's analysis explained above, have ignores procedures reasoned; it the issue not well court in Arnold and that occurred before trial does identify any compelling interest that is not served years overturning more than 20 established well precedent. *72 Incriminating
3. statements § ¶ 192. Wisconsin Stat. 968.135 is directed to documents. Verbal statements are not mentioned in the Accordingly, target statute. obligation of the has no produce verbal statements. Therefore, a "quash" brought motion to and a motion to "limit" under provisions of 968.135 could not affect a verbal only statement. scope Those motions affect production majority opinion However, documents. upholds suppression Popenhagen's the circuit court's incriminating statements, as well as the her bank records.16
¶
Popenhagen's incriminating
193. Because
state
acquired indirectly
ments were
as a result of the sub
poena
Popenhagen's
for her bank records,
statements
constitute "derivative
Gums,
evidence." State v.
(1975).
513, 515,
Wis. 2d
rivative evidence should be because Wis. argues Stat. 968.135 was Rather, violated. she suppression is warranted because bank records are protected under the state and federal constitutions. authority Therefore, in order to have the Popenhagen's required statements, we would be engraft poison- doctrine, constitutional "fruit of the statutory tree," ous onto a violation. majority opinion
¶ 195. The does not address Popenhagen's argument. constitutional Instead, it cre-
16Majority op., *73 party argument made, and it no then
ates an by concluding that Wis. Stat. the issue created it decides provides of derivative for precedent majority opinion no cites evidence.17 precedent no for such a Indeed, there is conclusion. its years precedent contrary, there is To the 20 decision. opinion majority against discards without it, which the why step any is such a drastic reasoned discussion necessary. misguided amplify
¶ nature 196. To analysis, provide majority's necessary it is brief exclusionary application of the standard sketch rule. exclusionary may operate sup
¶ 197. The rule Popenhagen's press evidence, derivative such as state has occurred ments, when a constitutional violation poi circumstances, fruit of the "under certain via the 'by doctrine, if is obtained tree such evidence sonous exploitation Knapp, illegality.'" of... State v. 2005 WI (hereinafter 86, 899 127, 24, 285 Wis. 2d 700 N.W.2d II)18 (quoting Wong Knapp v. United referred to as States, Sun (1963)). 471, 371 U.S. 485-88 The fruit of the " designed poisonous tree 'deter future doctrine police (quoting Id., 22 conduct.'" United unlawful (1974)). Calandra, 338, It v. 414 U.S. is not States 347 employed has been unreasonable and when there no police Knapp Powell, 482; at bad-faith conduct. 428 U.S. ¶¶ II, 2d 86, 285 Wis. 74-75.
17Id. 86, v. 2d Knapp, State 2005 WI 285 Wis. N.W.2d (hereinafter IT), Knapp by referred to as is a second decision court, Supreme made after remand from the United States this Patane, 542 after it issued United States v. U.S. 630 Court (2004). Knapp II, In we excluded certain evidence police Knapp II, based on misconduct. 285 Wis. 2d ¶ 75. Our decision was driven law enforcement's Knapp's rights. intentional violation of Miranda Id. Knapp However, II stands in stark contrast with this Knapp First, case. II is based on a violation, Miranda judicially-created grounded pro- which is a tecting doctrine *74 right a criminal defendant's constitutional explain remain silent. ally I Here, below, as no constitution- presented, majority opinion related issue is and the Popenhagen's has referred no violation of constitu- rights. Knapp provides Second, tional while II an ex- ample application of circumstances in which exclusionary policy deterring rule furthers the of delib- illegal police erate, conduct, the case before us mani- any fests the absence of Id., "need for deterrence." 74 (quoting Knapp, State v. 121, n.15, 2003 WI 76 265 (hereinafter 278, Wis. 2d 666 N.W.2d881 referred to as I")). "Knapp parties agree police Instead, the that the good officers acted in accordance with the law and in faith. The here error was the circuit court's inadvert- ently failing signing to ask for the affidávit before warrants. right
¶ 199. Even when a constitutional has been suppression affected, of derivative evidence is not auto- matically Leon, accorded. United States v. 468 U.S. (1984). remedy suppression 916 designed The of evidence "is police
to deter misconduct rather than to punish judges magistrates." the errors of and Id. police alleged
¶ 200. No misconduct is even agree have occurred here. Instead, all that an officer investigation involved the theft from Save- prepared probable More had a affidavit, cause but apparently, Judge it did not reach the circuit court. Mangerson expressed surprise dismay that his
signature com to a that did not was affixed port Courts have been loathe to Wisconsin statute. with as a result of an error com exclude evidence obtained dispassionate jurist. e.g., See, Arizona v. mitted (1995); Leon, Evans, 916; at U.S. 14-16 468 U.S. (W.D. Supp. Hickman, F. Va. United States v. 1994). majority opinion here, so and as a Yet, the does Popenhagen stealing prosecution result, effective hampered employer be $29,000 more than from her will significantly. Accordingly, expansion it is an enormous engraft rights of a defendant in a criminal case to statutory poisonous onto a
the fruit of the tree doctrine right no constitutional was also at issue violation where police How and no misconduct caused violation. majority exactly opinion ever, that is what the does.19 majority opinion the terminol is careful not to use ogy associated with of derivative evidence violation, "the fruit of that arises from constitutional *75 poisonous tree," it does not address a because majority opinion However, the constitutional violation. an end result that heretofore could be accom achieves plished only violation had oc when constitutional suppression specifically authorized curred or statute 968.30(9)(a) evidence, does. of derivative as Wis. Stat. By naming actually applying, that it is not doctrine majority opinion prior of reminds me of a statement any "Like illusionist's Chief Justice Abrahamson: majority opinion mysti magical sleight hand, of ultimately appears." fying puzzling, not it and but what Sykes, ¶48, 742, 2d State v. 2005 WI (Abrahamson, dissenting). C.J., N.W.2d 19Majority op., 81-91. ¶
¶ Moreover, 202. the inadvertent nature of the disposes of another error committed here arguments. Popenhagen's contends the lack of a She probable process finding cause constitutes an abuse of Popen- that demands of her statements. Mangerson's Judge hagen Judge and is incorrect. Kinney's unintentional errors lead to conclusion that "nothing suggest there is in the record to that judges by respective] responsibili- [s] [their did not abide magistrate[s]." acting ties in as ... neutral and detached Accordingly, Noble, no 253 Wis. 2d there was process support exclusion of her abuse of would incriminating ¶¶ Id., statements. 26-27. Popenhagen's Therefore, I conclude that
incriminating police statements made to Oneida officers after she confronted with her bank records cannot was authority suppressed granted in be under the Wis. Stat. (1) clear, 968.135, 968.135 because: its unam- biguous applies only documents; no terms, it has (2) application statements; the fruit of to verbal only may applied poisonous tree doctrine be to constitu- (3) process violations; occurred. tional and no abuse Constitution, Fourth Amendment C. United States upon legal premises which the 204. One of the was its circuit court based its decision constitutionally pro- Popenhagen had a conclusion right privacy records. The Fourth tected her bank protects persons unreasonable from Amendment "persons, papers, houses, ef- their searches of Const, amend. IV The United States fects ... ."20U.S. *76 Fourth Amendment of the United States Constitu The provides tion in full:
Supreme that Fourth Amend- Court held Miller right privacy person's in a ment does not afford bank records. emphasized that records are 205. Miller bank type "papers" to which the Fourth Amend-
not the According Miller, at to ment refers. 425 U.S. "private papers" Miller, bank records are not which "ownership" "posses- or an account holder can assert they belonging sion"; instead, are business records Moreover, Id. bank records do not remain the bank. custody holder, the sole of the account but rather reside custody in the of the financial institution. Id. at 442. deliberately exposed Indeed, the records have been knowingly exposes public person and to the the public "what a subject pro- ... is not of Fourth Amendment 351). (quoting Katz, tection." Id. 389 U.S. at Further- more, bank records [may be]
are not confidential communications but negotiable instruments to be used in commercial trans- and [Records as] actions. such financial statements only voluntarily deposit slips[] contain information conveyed exposed employees to the banks and to their ordinary depositor in the The course of business. ... risk, another, revealing [her] takes the affairs to conveyed by person the information will be to the Government.
Id. at 442-43. Popenhagen argues
¶ that Miller is not con- trolling Right because the enactment of the to Financial right people persons, houses, to be secure in their effects, seizures,
papers,
against
and
unreasonable
searches and
violated,
issue,
upon
shall not be
and no Warrants
shall
but
cause, supported by
affirmation,
particularly
probable
Oath or
describing
searched,
place
persons
things
to be
and the
or
to be
seized.
*77
(Financial
Act),
§
Privacy
Privacy
3401,
12
et
Act
U.S.C.
effectively
seq.,
and, therefore,
it
the Finan-
overruled
privacy
Privacy
in
citizens to a
interest
cial
Act entitles
Popenhagen argues
Accordingly,
records.
their bank
Privacy
operation
the Financial
Act mandates
inculpatory statements
that her bank records and her
Popenhagen
from evidence.
is mistaken.
be excluded
Privacy
Financial
Act was indeed
207. The
passed
response
render
Miller,
but it does not
any
present
context.
Miller
less robust
While
by
Privacy
prescribes
Act
the means
which
Financial
by
may
au
records
be obtained
"Government
bank
"agency
authority
thority,"
as an
it defines Government
any
department
States,
officer,
or
of the United
or
3401(3).
agent
employee,
12
There
thereof." U.S.C.
or
apply
Privacy
not
to sub
fore,
Financial
Act does
poenas
id.;
also,
see
In re
a state court. See
issued
Jury Applications,
939,
536 N.Y.S.2d
942-43
Grand
(N.Y.
1988);
Sup.
on Judicial
Ct.
Nichols v. Council
1980).
(Okla.
Complaints,
615 P.2d
282-83
remedy
suppression
Moreover,
Privacy
12
the Financial
Act. See
unavailable under
6 F.3d
also,
Daccarett,
v.
3417;
U.S.C.
see
United States
(2d
1993);
Kington, 801 F.2d
United States v.
52
Cir.
(5th
1986),
denied,
21 I, Article Section 11 of the pro Wisconsin Constitution vides: right people houses, persons, to be secure in their papers, against and effects unreasonable searches and seizures violated; upon probable shall not be and no warrant shall issue but cause, supported by affirmation, particularly oath or describ-
ing place persons things and the be searched or to be seized. Supreme jurisprudence Court's constru United States Amendment); ing Guzman, the Fourth State v. (1992) (explaining 577, 586-87, 480 Wis. 2d N.W.2d446 routinely consistently and conformed the that "wehave seizure under the Consti of search and Wisconsin law by developed to the law the United States tution Amendment"); Supreme under Fourth State Court (1992) Guy, 2d v. 492 N.W.2d (conforming and seizure to "Wisconsin's law search developed Supreme of search and seizure the law part is identical in all Court—in because the text... respects"). important authority interpret However, under our independently
the Wisconsin Constitution
from
always
Constitution,
have not
United States
we
marched
lockstep
jurisprudence.
instance,
For
we
with federal
*79
plurality
recently parted company
of
with a
the United
Supreme
Fifth
Court22to hold under
States
Wisconsin's
analogue
I,
8,
in Article Section
Amendment
contained
an
obtained as a result of
intentional
that evidence
suppressed. Knapp II, 285
Miranda23 violation must be
Knapp
for the
86,
However,
2d
does not stand
2.
proposition
I, Section 11 more
that we construe Article
Supreme
expansively
has
the United States
Court
than
explained below,
the Fourth Amendment. As
construed
only
Eason,
in
case.
v.
2001
we have done so
one
State
N.W.2d625.
98, 245 Wis. 2d
629
WI
urges
Popenhagen
its
¶ this court to exercise
authority
independently interpret
the Wisconsin
I, Section 11 in a
and to construe Article
Constitution
depart
from Miller to hold that
that would
fashion
22 Patane,
23 (1966). Arizona, Miranda v. 436 384 U.S. right privacy
Wisconsin Constitution affords a in support argument, one's bank records. As her points (California, Popenhagen out that several states Washington, Jersey, Pennsylva- Florida, Illinois, New Utah) rejected holding nia, Colorado, and have adopted right privacy Miller and have a in hank respective records under their state constitutions. A decisions, review of these however, reveals that upon they cases which were based differ from this case many respects.24 in Supreme The California Court in Superior Burrows v. (Cal.
Court,
1974),
persons
698
Pennsylvania
Utah,
remain
Colorado and
only
post
recognize privacy right
-Miller to
states
provisions
state
in bank records under
constitutional
nearly identical to the Fourth Amendment. State v.
(Utah 1991);
Thompson,
415
Charnes v. Di
810 P.2d
(Colo. 1980);
Giacomo,
P.2d 1117
Commonwealth v.
612
(Pa. 1979).
DeJohn,
A.2d
in these three
403
1283
Courts
reasoning
departing
adopted similar
states have
ex
from Miller: Customers
pect
financial institutions
they voluntarily
that
that
transmit
documents
private; moreover,
remain
these
those institutions will
reason,
financial affairs to
courts
disclosures
one's
virtually
institutions are
unavoidable because
these
society require people
modern
to maintain
demands of
e.g., DeJohn,
this court has construed nearly tently In the with the Fourth Amendment. graced years 11 has our state I, Article Section only in which this constitution, I located one instance differently interpreted provision from court has Supreme interpretation Court's Fourth presented question Amendment. That case courts, Supreme Jersey like the California that New observed Burrows, in bank recognized privacy interest Court McAllister, A.2d 866 Miller. v. pre-dated records that State (N.J. 2005). *81 recog
whether,
extent,
and to what
Wisconsin should
"good
exclusionary
exception
nize a
faith"
to the
rule
under
state
Eason,
constitution.
and
conformity
interpret
I,
11 in
with
Article
Section
approach
to a
an
"reduces
Fourth Amendment. Such
uncertainty under which
confusion and
minimum the
Fry,
police
operate."
v.
131 Wis. 2d
must
State
(1986),
denied,
III. CONCLUSION controlling precedent, I conclude that years ago by appellate as established more than 20 precludes suppressing Popenhagen's state, courts this subsequent incriminating bank records and her state- (1) I ments. reach this conclusion because: Wis. Stat. 968.135 does not authorize the *83 Popenhagen's remedy bank records as a for the circuit probable court's failure to find cause that the bank (2) records were Popenhagen crime; linked to the of a commission and privacy right has no in her bank records Amendment under either the Fourth of the United States I, Constitution or Article Section 11 of the Wis- consin Constitution. Accordingly,
¶ 220. I would affirm the court of appeals decision that overturned the circuit court's
25My conclusion is in
eight
accord with
of the other states
(Kan.
Schultz,
that have ruled on the issue. State v.
850
818
P.2d
(N.Y.
1993);
Hoey,
Norkin v.
App.
1992);
suppression upholds majority opinion and her in- subsequent bank records Popenhagen's statements. criminating