State v. Scull
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Based on evidence obtained from a search of Defendant’s home, the State charged Defendant with possession with several drug-related offenses. Defendant moved to suppress the evidence obtained from his home, contending that the warrant was unlawfully obtained because it was based on information gained from a prior illegal search. Specifically, Defendant contended that the police officers needed, but did not have, a warrant to conduct the dog sniff, and because the warrant relied on an affidavit detailing the dog’s alert to the presence of drugs, the warrant was invalid and the evidence must be suppressed. The circuit court denied the motion. While Defendant’s appeal was pending, the United States Supreme Court issued Florida v. Jardines. Based on Jardines, the court of appeal determined that Defendant’s Fourth Amendment rights were violated when the officers brought the drug-sniffing dog to his home without a search warrant. The court nevertheless affirmed the conviction because the police subsequently obtained a search warrant upon which they relied in good faith. The Supreme Court affirmed, holding that the good faith exception to the exclusionary rule applied because the evidence at issue was obtained in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate.
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2015 WI 22 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2011AP2956-CR State of Wisconsin, Plaintiff-Respondent, v. Gary Monroe Scull, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS (Reported at 352 Wis. 2d 733, 843 N.W.2d 859) (Ct. App. 2014 – Published) PDC No.: 2014 WI App 17 OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 5, 2015 October 2, 2014 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Milwaukee David Borowski JUSTICES: CONCURRED: ROGGENSACK, CROOKS, ZIEGLER, GABLEMAN, JJJJ., concur (Opinion filed). ZIEGLER, CROOKS, GABLEMAN, JJJ., concur (Opinion filed). DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant-petitioner, there were briefs by Basil M. Loeb, Wauwatosa, and oral argument by Basil M. Loeb(?). For the plaintiff-respondent, the cause was argued by Nancy A. Noet (?), assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general. An amicus curiae brief was filed by legal intern Nolan A. Jensen, Eileen Henak and Henak Law Office, S.C., Milwaukee; and Melinda A. Swartz and Law Office of Melinda Swartz LLC, Milwaukee, and intern Nolan A. Jenson behalf of the Wisconsin Association of Criminal Defense Lawyers. An amicus curiae brief was filed by Kelli S. Thompson, state public public defender, defender, on and behalf Jefren of Defender. 2 E. the Olsen, assistant Wisconsin State state Public 2015 WI 22 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2011AP2956-CR (L.C. No. 2010CF337) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, Plaintiff-Respondent, FILED v. MAR 5, 2015 Gary Monroe Scull, Defendant-Appellant-Petitioner. Diane M. Fremgen Clerk of Supreme Court REVIEW of a decision of the Court of Appeals. ¶1 ANN WALSH BRADLEY, J. Affirmed. Petitioner, Gary Monroe Scull, seeks review of a published decision of the court of appeals that affirmed the denial of his motion to suppress evidence.1 The court of appeals determined that the evidence obtained from a search of his home was admissible because the officers conducted the search in good faith reliance on a search warrant. 1 State v. Scull, 2014 WI App 17, 352 Wis. 2d 733, 843 N.W.2d 859 (affirming judgment of the circuit court of Milwaukee County, David L. Borowski, J.). No. ¶2 2011AP2956-CR Scull contends that the warrant was invalid because it was based on information gained from a prior illegal search. More specifically, he asserts that an alert by a drug sniffing dog outside his home constituted a prior illegal search in violation of his Fourth Amendment rights because the officers needed, but did not have, a warrant to conduct the dog sniff. Accordingly, he argues, because the warrant relied on an affidavit detailing the dog's alert to the presence of drugs, the warrant was invalid and the evidence seized pursuant to that warrant must be suppressed. ¶3 Like the court of appeals, we resolve this case with a straight-forward application of our good governing police reliance on a warrant. good faith exception to the faith jurisprudence It provides that the exclusionary rule applies to evidence obtained in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate that is ultimately found to be defective. State v. Eason, 2001 WI 98, ¶3, 245 Wis. 2d 206, 629 N.W.2d 625. objectively reasonable when: the Reliance on a warrant is warrant was preceded by a substantial investigation, the affidavit supporting the warrant was reviewed knowledgeable by in either the a police requirements reasonable suspicion, or of officer probable trained and cause and a knowledgeable government attorney, and a reasonably well-trained officer would not have known that the search was illegal despite the magistrate's authorization. Id. 2 No. ¶4 In this case we determine that 2011AP2956-CR the good faith exception to the exclusionary rule applies because the evidence Scull seeks to suppress was obtained in objectively reasonable reliance on magistrate. a warrant issued by a detached and neutral Accordingly, we conclude that the evidence should not be suppressed and affirm the court of appeals. I ¶5 For purposes of our review, the facts of this case are undisputed. that an A confidential informant told Officer Wiesmueller individual named Gary M. Scull was involved in distribution of cocaine base within the City of Milwaukee. informant further identified the defendant by The providing address where he thought Scull possibly resided. the an Indicating that he had personally witnessed Scull distributing the cocaine base throughout the City, the informant stated that Scull conducts narcotics trafficking from his vehicle, a 1990s Ford Bronco, license plate 792-NYG. ¶6 Officer After receiving Wiesmueller the conducted information from a investigation. follow-up the informant He discovered that an individual named Gary M. Scull, born March 28, 1981, was on probation at the time. The address on file for Scull matched the address provided by the informant. Officer Wiesmueller further confirmed with the Wisconsin Department of Transportation that a vehicle with the license plate number and description matching the information provided by the informant was registered to Scull. 3 No. ¶7 Officer Wiesmueller asked take his dog to Scull's address. Detective 2011AP2956-CR Ederesinghe to Detective Edersinghe and his dog, Voden, are a drug detection team certified in the detection of the odor of marijuana, cocaine, heroin, and methamphetamine. When Voden detects the presence of controlled substances he will "alert" by aggressively scratching at the object. ¶8 Detective In response Edersinghe to took Officer Voden to Weismueller's Scull's request, house. As he approached, a woman exited the house with two small children. He decided to come back at another time when he would not be observed. When Detective Edersinghe returned with Voden, they were on the premises for less than 20 seconds. He took the dog on the sidewalk to the side entrance of the home and then they followed the walkway to the front door. They left the premises after Voden alerted at the front door. ¶9 Based on Voden's alert and the information provided by the informant, Officer Wiesmueller sought a warrant to search Scull's home. The affidavit for the search warrant detailed Detective Edersinghe's and Voden's training and explained how Voden "alerts" to the presence of a narcotic. It then stated that "within the past seventy two (72) hours, his canine, VODEN, made an 'Alert' on the front entry door to [Scull’s residence]. Detective Christopher Ederesinghe states that the 'Alert' of VODEN is a positive indication that controlled substances are contained in said apartment unit." ¶10 The affidavit further detailed how the information from the confidential informant resulted in the dog sniff. 4 It No. 2011AP2956-CR explained that the confidential informant was in a position to identify cocaine because the confidential informant had previously been involved in cocaine trafficking and that the informant was reliable because the informant had provided information in the past that had been confirmed by subsequent searches and arrests. The affidavit stated that the confidential informant told Officer Wiesmueller that "Gary M. Scull, b/m, 04-28-1981" was "involved in the distribution of cocaine base within the personally witnessed. City of Milwaukee," which he had The affidavit included the informant's description of Scull's vehicle and its license plate, and the address he provided for Scull. ¶11 The steps Officer Wiesmueller took to follow up on the information he received from the informant were likewise identified. The affidavit stated that Officer Wiesmueller had ascertained that "Gary M. Scull, b/m, 04-28-1981, is currently on probation" and that the Department of Corrections gave the same address for Scull as the informant had provided. Additionally, the affidavit stated that Officer Wiesmueller had confirmed with the Wisconsin Department of Transportation that a vehicle with the license plate number and description matching the information provided by the informant was registered to Scull. ¶12 the An assistant district attorney reviewed and approved affidavit for the search warrant. submitted to a circuit court commissioner. affidavit, the commissioner determined 5 It was subsequently After reviewing the that the affidavit No. submitted by Officer Wiesmueller showed 2011AP2956-CR probable cause to believe that there were controlled substances in Scull's home. The commissioner granted the search warrant to search Scull's home for those substances. Upon executing the warrant, officers found 53.85 grams of crack cocaine, 102.41 grams of marijuana, and drug-trafficking paraphernalia including digital scales, a razor blade, sizes. and numerous clear plastic baggies of various Based on this evidence, the State charged Scull with possession with intent to deliver cocaine, possession with intent to deliver THC, and keeping a drug house. ¶13 home. Scull moved to suppress the evidence obtained from his Scull asserted that the warrant was unlawfully obtained. He contended that the grounds for the warrant were insufficient because the dog sniff of his home was a warrantless search and information from an unlawful search cannot be used as a basis for a warrant justifying a subsequent search. ¶14 The circuit court denied the motion. It recognized that there was no case directly addressing the use of a drugsniffing dog at the entrance of a home. the State that the cases addressing However, it agreed with dog sniffs in other circumstances established that dog sniffs were not searches and that police are lawfully on an individual's property when approaching the front door of a residence by means of a walkway. Accordingly, it determined that the dog was brought to the door of the residence "in a valid manner, violated the Fourth Amendment." 6 not in a manner that After his motion was denied, No. 2011AP2956-CR Scull pled guilty to possession with intent to deliver more than forty grams of cocaine and to keeping a drug house. ¶15 Scull appealed.2 While his appeal was pending, the United States Supreme Court issued Florida v. Jardines, 569 U.S. __, 133 S. Ct. 1409 (2013), in which it determined that using a drug-sniffing contents of Amendment. dog the on a home homeowner's constitutes porch a to search investigate under the the Fourth Based on Jardines, the court of appeals determined that the police violated Scull's Fourth Amendment rights when they brought a drug-sniffing dog to his home without a search warrant. 843 State v. Scull, 2014 WI App 17, ¶1, 352 Wis. 2d 733, N.W.2d conviction 859. because Nevertheless, the police the court subsequently warrant upon which they relied in good faith. affirmed obtained Scull's a search Id., ¶¶1, 22. II ¶16 We are asked to determine whether the evidence obtained through the execution of a search warrant on Scull's home must be suppressed. Generally, in reviewing motions to suppress, we apply a two-step standard of review. Wis. 2d 206, ¶9. Eason, 245 First, we review the circuit court's findings of fact, and uphold them unless they are clearly erroneous. Second, we independently review constitutional principles to those facts. 2 the application Id. of Id. Although a defendant generally waives all nonjurisdictional defects when entering a guilty plea, Wis. Stat. § 971.31(10) creates an exception to this rule for appellate review of an order denying a suppression motion. 7 No. ¶17 2011AP2956-CR In this case, however, the facts are undisputed. It is further undisputed that the dog sniff of Scull's house which served as part of the basis for the warrant violated Scull's Fourth Amendment right to be secure from unreasonable searches and seizures. Thus, we are left to address whether the exclusionary rule applies or whether the evidence from Scull's home is admissible under the good faith exception to the rule. The application of the good faith exception to the exclusionary rule is an issue of law which we review independently of the decisions rendered by the circuit court and court of appeals. State v. Hess, 2010 WI 82, ¶19, 327 Wis. 2d 524, 785 N.W.2d 568. III ¶18 We constitutional begin right our at analysis issue, United States Constitution. the by setting Fourth forth Amendment to the the It provides the right of citizens to be secure against unreasonable searches and seizures: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const., Amend. IV.3 3 Article I, Section 11 of the Wisconsin contains substantially the same language: Constitution The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported (continued) 8 No. ¶19 2011AP2956-CR The Supreme Court has declared that Fourth Amendment rights are "indispensable to the 'full enjoyment of personal security, United personal States, 255 liberty U.S. and 298, private 304 property.'" (1921). Gouled Courts have v. long extolled the importance of the home, noting that the amendment was drafted in part to codify "the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic." Payton v. New York, 445 U.S. 573, 601 (1980); Holt v. State, 17 Wis. 2d 468, 477, 117 N.W.2d 626 (1962) ("A home is entitled to special dignity and special sanctity."). ¶20 The Court first applied the exclusionary rule to protect against violations of Fourth Amendment rights in Weeks v. United States, 232 U.S. 383 (1914). Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment is generally inadmissible in court proceedings. U.S. 643, 655 (1961). exclusionary rule designed safeguard to The operates court as against a has Mapp v. Ohio, 367 explained judicially future that "[t]he created remedy violations of Fourth by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Ordinarily, we interpret Article I, Section 11 of the Wisconsin Constitution consistent with the Fourth Amendment of the United States Constitution. However, in State v. Eason, 2001 WI 98, ¶63, 245 Wis. 2d 206, 629 N.W.2d 625, we required additional safeguards. 9 No. 2011AP2956-CR Amendment rights through the rule's general deterrent effect." Arizona v. Evans, 514 U.S. 1, 10 (1995). ¶21 Wisconsin has adopted the exclusionary rule and applied it to exclude evidence obtained in violation of the Wisconsin Constitution as well. v. State, 180 Wis. 407, 193 It was first applied in Hoyer N.W. 89 (1923). There, after declaring that the provisions of the Bill of Rights embodied in the constitutions are "of substance rather than mere tinsel," the Wisconsin Supreme Court determined that the evidence obtained in an unlawful search and seizure should have been suppressed. ¶22 Id. at 415. This court has cited two rationales in support of its application of the exclusionary rule: assurance of judicial integrity and deterrence of unlawful police conduct. State v. Felix, 2012 WI 36, ¶39, 339 Wis. 2d 670, 811 N.W.2d 775; Hess, 327 Wis. 2d 524, ¶47; State v. Artic, 2010 WI 83, ¶65, 327 Wis. 2d 392, 786 N.W.2d 430; State v. Knapp, 2005 WI 127, ¶79, 285 Wis. 2d 86, 700 N.W.2d 899; State v. Noble, 2002 WI 64, ¶31, 253 Wis. 2d 206, 646 N.W.2d 38; Eason, 245 Wis. 2d 206, ¶31 n.10; State v. Ward, 2000 WI 3, ¶47, 231 Wis. 2d 723, 604 N.W.2d 517; State v. McMorris, 213 Wis. 2d 156, 177, 570 N.W.2d 384 (1997); State v. Whitrock, 161 Wis. 2d 960, 988, 468 N.W.2d 696 (1991); Conrad v. State, 63 Wis. 2d 616, 635, 218 N.W.2d 252 (1974). furtherance "[c]ourts of and constitution. judicial judges integrity, should not we have sanction explained violations of In that the The integrity of the judicial process must be 10 No. 2011AP2956-CR inviolate and free from reliance upon transgressions against the constitution." ¶23 Conrad, 63 Wis. 2d at 635.4 "Unlawful police conduct is deterred when evidence recovered in unreasonable searches is not admissible in courts." State v. Tompkins, 144 Wis. 2d 116, 133-34, 423 N.W.2d 823 (1988); State v. Gums, 69 Wis. 2d 513, 516-17, 230 N.W.2d 813 (1975). However, when police action was pursued in good faith "the deterrence rationale loses much of its force." Gums, 69 Wis. 2d at 517 (quoting Michigan v. Tucker, 417 U.S. 433, 447 (1974)). Such is the case where officers act in reliance on clear and well-settled law that is subsequently changed, State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, and where officers act in objectively reasonable reliance on a subsequently invalidated search warrant, Eason, 245 Wis. 2d 206. ¶24 the In this case, the parties frame the question regarding application of the good faith exception as whether the officers could have acted in reliance on clear and well-settled law that was subsequently reversed. Both parties agree that Jardines, 133 S. Ct. 1409, rendered the dog sniff of Scull's home illegal at the time it was conducted. 4 They dispute whether We are not asserting that judicial integrity is a standalone basis for the exclusion of evidence. The protection of judicial integrity goes hand-in-hand with deterrence of police misconduct. As this court has explained, "[t]he protection of rights and the preservation of judicial integrity depend in reality on the deterrent effect of the exclusionary rule." State v. Tompkins, 144 Wis. 2d 116, 133, 423 N.W.2d 823 (1988). 11 No. 2011AP2956-CR the officers could have acted in reliance on the law at the time of the search such that the good faith exception should apply. ¶25 We need not address this argument because a straight- forward application of our good faith jurisprudence governing police reliance on a warrant resolves our inquiry. Here, the officers ultimately obtained a warrant to search Scull's home and that warrant commissioner. was issued by a detached and neutral The commissioner's decision to grant the warrant was a reasonable application of the unsettled state of the law at the time the warrant issued. ¶26 Two Wisconsin cases had addressed the validity of a dog sniff. The first, State v. Miller, 2002 WI App 150, 256 Wis. 2d 80, 647 N.W.2d 348, addressed a warrantless dog sniff of a vehicle. rights, In the addressing court observed the that intrusive than a typical search. defendant's a dog Fourth sniff Id., ¶6. is Amendment much less Further, dog sniffs reveal only illegal conduct to which there is no legitimate privacy interest. Id., ¶9. Accordingly, the court concluded that the dog sniff of the vehicle did not constitute a search and thus there was no Fourth Amendment violation. ¶27 Id., ¶10. In the second case, State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748, this court likewise considered a dog sniff of a vehicle in a public place. We agreed with Miller's statements that there is no constitutionally protected interest in possessing contraband, and that a dog sniff is much less intrusive searches. than activities Id., ¶¶22-24. that have been held to be Accordingly, we determined that a dog 12 No. 2011AP2956-CR sniff of a vehicle located in a public place was not a search for purposes of the Wisconsin Constitution. ¶28 Id., ¶24. Both Wisconsin cases are consistent with the United States Supreme Court precedent issued prior to Jardines. In Illinois v. Caballes, 543 U.S. 405 (2005), the Court assessed whether a dog sniff of a vehicle stopped for speeding violated the Fourth Amendment. was impermissible suspicion to persuaded. The defendant had argued that the sniff because justify it. the officers Id. at 407. lacked The reasonable court was not Like Miller and Arias, it focused on the fact that there is no protected privacy interest in having an illegal substance and the non-intrusive nature of a dog sniff. The court not observed that "[o]fficial conduct that does 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Id. at 408 (quoting United States v. Jacobsen, 466 U.S. 109, 123 (1984)). concluded that "[a] dog sniff conducted Therefore, it during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." ¶29 the Id. at 409. In United States v. Place, 462 U.S. 696, 707 (1983), Court considered individual's luggage. a dog After sniff an in airline the context passenger's of an conduct aroused suspicion, the officers seized his luggage and subjected it to a "sniff test" by a trained narcotics detection dog. at 699. Id. The Court noted that although a person possesses a privacy interest in the contents of their personal luggage, a 13 No. 2011AP2956-CR dog sniff does not require opening the luggage. Id. at 707. Thus, the Court concluded that the dog sniff of the luggage did not constitute Amendment. ¶30 a search within the meaning of the Fourth Id. In sum, at the warrant in this case, time the commissioner issued the there was Wisconsin and United States Supreme Court precedent stating there is no search when a dog sniffs a vehicle. There was also precedent stating that there is no search when a dog sniffs luggage at an airport. However, it was unsettled whether the same analysis would apply to a dog sniff a home.5 to grant of decision Given the the precedent, warrant appears the to commissioner's be a reasonable application of the unsettled law at the time the warrant issued. Accordingly, we turn to our case law addressing the application of the good faith exception to evidence obtained in reliance on a warrant. ¶31 The seminal Wisconsin case on the application of the good faith exception to the exclusionary rule in circumstances involving a search warrant is Eason, 245 Wis. 2d 206. In that case a court commissioner issued a no-knock search warrant based on an affidavit submitted by police. 5 Id., ¶4. When the Notably, at the time the warrant was issued, had the commissioner reviewed other states' jurisprudence on this question, he would have discovered the appellate decision in State v. Jardines, 9 So. 3d 1 (Fla. Dist. Ct. App. 2008), which held that a dog's sniff of a home was not a Fourth Amendment search. 14 No. 2011AP2956-CR officers executed the warrant they discovered narcotics at the defendant's home. Id., ¶5. At trial, however, the circuit court granted the defendant's motion to suppress the narcotics because it determined that the affidavit in support of the warrant failed to allege the requisite reasonable suspicion to justify the issuance of the no-knock search warrant. ¶32 On appeal, this court acknowledged Id., ¶7. that in United States v. Leon, 468 U.S. 897 (1984), the United States Supreme Court formulated a good faith exception to the exclusionary rule where a police officer acts in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate. Id., ¶27. In that situation, there would be little deterrent effect from suppression because the "officer is acting as a reasonable officer circumstances." ¶33 not would and should act in similar Id., ¶32 (quoting Leon, 468 U.S. at 920). Leon cautioned that the existence of a warrant does necessarily mean that the exclusionary rule will apply. good faith exception to Leon, 468 U.S. at 922. the It will not apply where "a reasonably well trained officer would have known that the authorization." rely upon a search was illegal Id. at 922 n.23. warrant that was despite the magistrate's An officer "cannot reasonably based upon a deliberately or recklessly false affidavit, or, a bare bones affidavit that she or he reasonably knows reasonable suspicion." Leon, 468 U.S. at could not Eason, 923). support probable cause or 245 Wis. 2d 206, ¶36 (citing Further, "[t]he officer cannot reasonably rely upon a warrant 'so facially deficient' that she 15 No. 2011AP2956-CR or he could not 'reasonably presume it to be valid'" or "upon a warrant issued by a magistrate that 'wholly abandoned his [or her] judicial role.'" Id. (quoting Leon, 468 U.S. at 923). ¶34 this The Eason court observed that Leon is consistent with court's exclusionary interests. prior rule statements requires a that application weighing of Eason, 245 Wis. 2d 206, ¶43. of the the pertinent It concluded that the good faith exception should apply to the situation where an officer acts in objectively reasonable reliance on a warrant by a detached and neutral magistrate because in that scenario, the exclusionary rule has no deterrent effect. ¶35 However, rather court added to the test. than Id., ¶52. adopting Leon outright, this It determined that Article I, Section 11 of the Wisconsin Constitution required additional protection. Id., ¶63. Thus, in order for the good faith exception to apply to scenarios involving a warrant, the State must "show that the process used significant in obtaining investigation officer trained probable cause and and government attorney." ¶36 Eason the and search review a warrant by knowledgeable reasonable in the suspicion, or included either a of knowledgeable Id., ¶74. In applying this test to the facts of the case, the court determined that the officers had conducted significant investigation before seeking the warrant. The police requirements a a court confidential explained that informant, the officers researched the had Id., ¶70. worked suspects in with a police records, and researched utility records for the premises. 16 a Id. No. 2011AP2956-CR The Eason court also determined that the warrant application had been reviewed by a government attorney. Id., ¶71. To reach this conclusion, it relied on the fact that "[t]he warrant and affidavit reflect advanced legal training, beyond that given to a well-trained police officer." ¶37 The application Id. section of Eason's analysis also reflects that the court considered whether a reasonably welltrained officer would have known that the search was illegal despite the magistrate's authorization, which would render the officers' reliance on the warrant unreasonable. Id., ¶66. The court observed that "[t]here have been no allegations that the warrant was so facially deficient that a reasonable, trained officer would not have relied upon it." Id. well- Further, there were "no contentions that there [were] technical or other glaring deficiencies with the warrant" [was] not sketchy or bare-boned." determined that the officers' Id. and "[t]he affidavit Accordingly, the court reliance on the warrant was objectively reasonable and the evidence obtained from execution of the warrant should not have been suppressed. IV ¶38 laid out Turning to the facts of this case, we follow the test in Eason. significant First, we determine investigation a warrant. Second, we assess whether the affidavit supporting the knowledgeable in the to officers conducted warrant was reviewed by either prior whether obtaining the a police officer trained and requirements of probable cause and reasonable suspicion, or a knowledgeable government attorney. 17 No. 2011AP2956-CR Lastly, we consider whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization, rendering the officers' reliance on the warrant unreasonable. ¶39 In terms of the first factor, we determine that Officer Wiesmueller conducted a significant investigation before obtaining the warrant. began when that Scull a It appears the investigation into Scull confidential was selling informant cocaine told base. Officer Wiesmueller Officer Wiesmueller determined that the informant would be in a position to know that the substance Scull distributed was cocaine because the informant had been involved in cocaine trafficking in the past. Further, he deemed the informant reliable because the informant had provided information in the past that had been confirmed by subsequent searches and arrests. ¶40 Upon investigating further, Officer Wiesmueller discovered that there was an individual named Scull, matching the informant's description, who was on probation at the time for robbery County. and recklessly endangering safety in Milwaukee From the Department of Corrections records, Officer Wiesmueller confirmed that the home address the informant had given him was Scull's address. Officer Wiesmueller also obtained records from the Wisconsin Department of Transportation from which he was able to confirm that a vehicle matching the description and license plate number provided by the informant was registered to Scull. 18 No. ¶41 Officer After verifying the information from the informant, Wiesmueller sniffing dog to had Detective Scull's Edersinghe address. The presence of drugs at Scull's front door. combined with Wiesmueller Officer 2011AP2956-CR the information sought a Wiesmueller trafficking were warrant. to from The investigate reasonable at the take dog his alerted drug- to the With this information, the informant, multiple the steps Officer taken allegations time and of by drug sufficient to satisfy the investigation requirement for purposes of the good faith exception under Eason. Therefore, we conclude that the State met its burden of showing that a significant investigation was conducted prior to the warrant. ¶42 second The State factor, also review government attorney. face of the determination. met of its the burden affidavit with by regard a that the knowledgeable In this case, we need look only at the affidavit for the search warrant to make this The affidavit states that it was "reviewed and approved by ADA Christopher Ladwig on 07-02-2010." evident to the affidavit government attorney. was reviewed by a Thus, it is knowledgeable See State v. Marquardt, 2005 WI 157, ¶46, 286 Wis. 2d 204, 705 N.W.2d 878 (testimony that an experienced district attorney had met with the officers and drafted the warrant established that it had been reviewed by a knowledgeable government attorney); Eason, 245 Wis. 2d 206, ¶71 (determining that warrant had been reviewed by a knowledgeable government attorney based on the language in the warrant which "reflect[ed] advanced legal training."). 19 No. ¶43 2011AP2956-CR Lastly, we turn to consider whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization, rendering the officers' reliance on the search warrant unreasonable. As in Eason, it is not contended and we see nothing to suggest that the warrant in this case was so facially deficient that a reasonable, welltrained officer would not have relied upon it, that there were technical or other glaring deficiencies with the warrant, or that the affidavit was sketchy or bare-boned. conclude that Accordingly, we at the time the officers executed the warrant on Scull's home, a reasonable officer would not have known that a search was illegal despite the warrant. ¶44 From the record presented in this case it appears that the officers did everything they were required to do. With the assistance of a knowledgeable government attorney they obtained a warrant from a detached and neutral magistrate, which they relied on to search Scull's home. Suppressing evidence obtained in objectively reasonable reliance on that warrant would have no deterrent effect. In such circumstances it is inappropriate to apply the exclusionary rule. Therefore we determine that the good faith exception to the rule applies. V ¶45 rule In sum, the good faith exception to the exclusionary applies to evidence obtained in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate that is ultimately found to be defective. Reliance on a warrant is objectively reasonable when: the warrant was 20 No. preceded by a substantial investigation, 2011AP2956-CR the affidavit supporting the warrant was reviewed by either a police officer trained and knowledgeable in the requirements of probable cause and reasonable suspicion, or a knowledgeable government attorney, and a reasonably well-trained officer would not have known that the search was illegal despite the magistrate's authorization. ¶46 In this case we determine that the good faith exception to the exclusionary rule applies because the evidence Scull seeks to suppress was obtained in objectively reasonable reliance on magistrate. a warrant issued by a detached and neutral Accordingly, we conclude that the evidence should not be suppressed and we affirm the court of appeals. By the Court.—The decision affirmed. 21 of the court of appeals is No. ¶47 2011AP2956-CR.pdr PATIENCE DRAKE ROGGENSACK, J. (concurring). I join the majority opinion's conclusions that the officers conducted their search in reasonable reliance on a search warrant that they believed was valid and that the good faith exception to the exclusionary rule precludes suppression.1 I write in concurrence to clarify that the "assurance of judicial integrity," standing alone, is not a sufficient basis upon which to employ the exclusionary rule to preclude the prosecution's use of evidence seized when there is no underlying finding of police misconduct. Accordingly, the majority opinion is not to be read as setting a new standard that permits the exclusion of evidence without police misconduct. ¶48 The exclusionary rule is a judicially created remedy that may be applied to certain violations, including those of the Fourth Amendment of the United States Constitution Article I, Section 11 of the Wisconsin Constitution. and Davis v. United States, __ U.S. __, 131 S. Ct. 2419, 2423 (2011); State v. Ward, 2000 WI 3, ¶¶46, 58, 231 Wis. 2d 723, 604 N.W.2d 517. The exclusionary rule was developed as a safeguard of Fourth Amendment rights by requiring police to comply with the Fourth Amendment's reasonableness requirements as a precondition to the prosecution's use of evidence that police seized. Weeks v. United States, 232 U.S. 383, 398 (1914); Hoyer v. State, 180 Wis. 407, 417, 193 N.W. 89 (1923). 1 Majority op., ¶1. 1 No. ¶49 As Fourth jurisprudence Amendment developed, subject to exceptions. and our own and the Article exclusionary 2011AP2956-CR.pdr I, rule Section has 11 become Both the United States Supreme Court's decisions have established good faith as an exception to the exclusionary rule that permits prosecution's use of evidence even though police have transgressed the Fourth Amendment and Article I, Section 11. United States v. Leon, 468 U.S. 897, 916, 920 (1984); State v. Eason, 2001 WI 98, ¶2, 245 Wis. 2d 206, 629 N.W.2d 625; Ward, 231 Wis. 2d 723, ¶3. decisions are grounded police in judicial actions under assessment the totality These of of the reasonableness of the circumstances. Davis, 131 S. Ct. at 2427-28; Eason, 245 Wis. 2d 206, ¶3. ¶50 As the parameters of the good faith exception to the exclusionary rule have developed both in the Supreme Court's and in our jurisprudence, so too have the judicial expressions of the policies that underlie the exclusionary rule. in its recent decision in considerable effort For example, Davis, the Supreme Court expended explaining the policies that must be considered with regard to the exclusionary rule and what facts are necessary before exclusion of evidence is even an option for courts to consider. ¶51 Davis involved the search of the passenger compartment of Stella Owens' vehicle, in which Willie Davis was a passenger, after both Owens and Davis were placed under arrest and secured. Davis, 131 S. Ct. at 2425-26. Davis was a convicted felon. A gun was found in Davis' jacket; Id. 2 The search occurred before No. 2011AP2956-CR.pdr the Court's decision in Arizona v. Gant, 556 U.S. 332 (2009), which Alabama agreed set out new concerns relative to the search of Davis' jacket under the Fourth Amendment if Gant were applied to that search. Davis, 131 S. Ct. at 2431. However, while Gant provided a "newly announced rule of substantive Fourth Amendment law as a basis for seeking relief," Gant did not determine the remedy, i.e., whether suppression applies. ¶52 Id. The ultimate question presented in Davis was whether the good faith exception to the exclusionary rule permitted the prosecution complied to with present appellate evidence precedent obtained that in a pre-dated search that Gant. In deciding this question, the Court examined whether police had proceeded in objectively reasonable reliance on then-controlling precedent in conducting the search. 24. Davis, 131 S. Ct. at 2423- After concluding that police had done so, the Court held that "searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule." ¶53 Id. Although the Court's conclusion settled an important area of Fourth Amendment law, what is equally interesting about Davis is the Court's detailed descriptions of the showing that is required before the exclusionary rule can be considered. For example, the Court reaffirmed its holding in Herring v. United States, 555 U.S. 135 (2009), that the exclusionary rule's sole purpose is to deter future Fourth 3 Amendment violations by No. police. 2011AP2956-CR.pdr Davis, 131 S. Ct. at 2426 (citing Herring, 555 U.S. at 141).2 ¶54 The Court explained, "[r]eal deterrent value is a necessary condition for exclusion, but it is not a sufficient one. . . . The analysis must also account for the substantial social costs generated by the rule. . . . appropriate, the deterrence outweigh its heavy costs." omitted). When the benefits For exclusion to be of suppression must Id. at 2427 (cited and quoted cases error that leads to a Fourth Amendment violation is not that of police but that of a magistrate or judge who issues the warrant, the exclusionary rule does not apply. "[P]unish[ing] the errors of judges is not the office of the exclusionary rule." omitted). practice Id. at 2428 (cited and quoted cases And finally, the Court explained, "in 27 years of under Leon's good-faith exception, we have 'never applied' the exclusionary rule to suppress evidence obtained as a result of nonculpable, innocent police conduct." Id. at 2429 (quoting Herring, 555 U.S. at 144). ¶55 Our decision in Eason discussed the development of the exclusionary rule. We began by reviewing Hoyer, which addressed the Fourth Amendment's requirements, and we also considered the exclusionary rule as developed within the parameters of Article I, Section 11 of the Wisconsin Constitution. 2 Eason, 245 Wis. 2d See also State v. Hess, 2010 WI 82, ¶¶79-84, 327 Wis. 2d 524, 785 N.W.2d 568 (Gableman, J., dissenting), for a thorough discussion of Herring v. United States, 555 U.S. 135 (2009), and Herring's explanation of the considerations that courts must address when asked to apply the exclusionary rule. 4 No. 2011AP2956-CR.pdr 206, ¶¶41, 47 (citing Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923). We noted that at least since confirmed in State v. Tompkins, 144 Wis. 2d 116, 423 N.W.2d 823 (1988), "the exclusionary rule has been a remedy, not a right" under Article I, Section 11 of the Wisconsin Constitution, as well as the Fourth Amendment. Eason, 245 Wis. 2d 206, ¶48. We also cited Ward as explaining that without police misconduct, evidence was admissible objective." because Id., "exclusion . . . ¶49 (quoting would serve no remedial Ward, 231 Wis. 2d 723, ¶63). Therefore, just as with the Fourth Amendment, Article I, Section 11 of the Wisconsin Constitution requires police misconduct as a necessary predicate to consideration of whether the exclusionary rule should be applied. ¶56 Id. So how does the above discussion fit within my concern set out in the first paragraph of this concurrence? It provides the necessary foundation to understand that the lead opinion in Hess cannot be combined with certain narrations of the majority opinion herein to conclude that the protection of judicial integrity, standing alone without underlying police misconduct, is sufficient to permit courts to suppress relevant evidence.3 3 Majority op., ¶22, citing the lead opinion in Hess, 327 Wis. 2d 524, ¶47, in which there was no underlying police misconduct. 5 No. 2011AP2956-CR.pdr Let me explain further, beginning with the problem set up by the lead opinion in Hess.4 ¶57 First, while protection of judicial integrity was mentioned in Supreme Court decisions and in our decisions that preceded Leon's 1984 decision on good faith, protection of judicial integrity is no longer part of the Supreme Court's analysis. In that regard, the Supreme Court has unequivocally held that before the exclusionary rule may be employed as a remedy for a Fourth Amendment violation two conditions are required: (1) police misconduct and (2) a reviewing court's conclusion that outweigh its "the heavy deterrence costs." benefits Davis, 131 of suppression S. Ct. at [] 2427. Protection of judicial integrity is not part of the Supreme Court's Fourth Amendment suppression of evidence. analysis when the remedy sought is We came to the same conclusion in Eason as we addressed Article I, Section 11 of the Wisconsin Constitution. Eason, 245 Wis. 2d 206, ¶48. Accordingly, when an opinion relies on case law that has been refined through years of consideration by many courts without discussing current 4 In Hess, the court sat six because Justice Crooks did not participate. Hess, 327 Wis. 2d 524, ¶70. The lead opinion, authored by Justice Prosser, was joined by Chief Justice Abrahamson and Justice Bradley. Justice Ziegler joined the result reached by the lead opinion, but on a very limited basis. Id., ¶71 (Ziegler, J., concurring). Justice Gableman wrote a thoughtful dissent that took issue with the lead opinion's conclusion that application of the exclusionary rule could stand on a foundation of judicial integrity when there had been no police misconduct. Id., ¶¶75-97 (Gableman, J., dissenting). 6 No. 2011AP2956-CR.pdr jurisprudence on the issues presented, it does not accurately articulate the state of the law and may confuse the reader. ¶58 Second, the protection of judicial integrity was spoken of only in regard to its connection to police misconduct. See Conrad v. State, 63 Wis. 2d 616, 635, 218 N.W.2d 252 (1974) (explaining that judicial integrity could be compromised if unlawful police conduct was sanctioned by the use of evidence obtained in violation of the Fourth Amendment); Elkins v. United States, 364 U.S. 206, 222-23 (1960) (explaining that "[i]f the Government becomes a law-breaker, it breeds contempt for law"). ¶59 Third, the lead opinion in Hess is the only Wisconsin Supreme Court decision, or United States Supreme Court decision, that I could locate that employs protection of judicial integrity as a stand-alone basis for employing the exclusionary rule. Justice Gableman tried to point out this concern, but the lead opinion in Hess did not heed his thoughtful dissent. ¶60 Fourth, because the majority opinion herein cites the lead opinion in Hess in a manner that could permit the reader to erroneously conclude that police misconduct is not a necessary predicate to the application of the exclusionary rule under both United States Supreme Court precedent and our own precedent, I have chosen to bring this issue forward. It is my hope that my colleagues both on the bench and at the bar will take heed of this trap for the unwary and recognize that the majority opinion is not setting a new standard that permits the exclusion of evidence without police misconduct. concur. 7 Accordingly, I respectfully No. ¶61 I am authorized to state that 2011AP2956-CR.pdr Justices N. PATRICK CROOKS, ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this opinion. 8 No. ¶62 Justice ANNETTE KINGSLAND ZIEGLER, J. Roggensack's concurrence 2011AP2956-CR.akz (concurring). because I believe I join that the "assurance of judicial integrity" is not a stand-alone basis for suppressing evidence under the exclusionary rule. case at issue centers on the Fourth Although the Amendment, I write to clarify that the exclusionary rule can apply to violations of constitutional provisions other than the Fourth Amendment.1 The exclusionary was rule requires suppression of evidence that obtained in violation of the Constitution, unless suppression would not deter police misconduct or the error in admitting the evidence was harmless beyond a reasonable doubt. United States v. Leon, 468 U.S. 897, 906, 916 (1984); Arizona v. Fulminante, 499 U.S. 279, 309-12 (1991); Chapman v. California, 386 U.S. 18, 21-22 (1967); State v. Armstrong, 223 Wis. 2d 331, 368, 588 N.W.2d 606 (1999). ¶63 Because this is a Fourth Amendment case, the majority opinion's discussion of the exclusionary rule focuses on that constitutional provision. Specifically, the majority opinion states that, "[t]he [United States Supreme Court] first applied the exclusionary rule to protect against violations of Fourth Amendment rights in Weeks v. United States, 232 U.S. 383 (1914). Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment is generally 1 inadmissible in court Because this case involves a discussion of the exclusionary rule, I do not address circumstances unrelated to constitutional violations, which may otherwise warrant the exclusion of evidence. 1 No. proceedings." this court 2011AP2956-CR.akz Majority op., ¶20 (citation omitted). has previously discussed the Similarly, origins of the exclusionary rule as it relates to the Fourth Amendment because the focus of the case was the Fourth Amendment. Hess, 2010 WI (explaining 82, the ¶¶38-52, history of 327 the Wis. 2d 524, Fourth rule in federal courts and Wisconsin). See State v. 785 Amendment N.W.2d 568 exclusionary I write to clarify that the history of the exclusionary rule is not limited to Fourth Amendment violations——it applies to other constitutional the exclusionary violations as well. ¶64 deter The Supreme Court constitutional exclusionary rule created violations, to the Fourth unreasonable searches and seizures. but did Amendment not rule limit right to the against The exclusionary rule, if warranted, results in the suppression of evidence so that it may not be introduced to prove prosecution's case-in-chief. The exclusionary rule, for a defendant's guilt in the See Leon, 468 U.S. at 906, 916. example, may apply to deter violations of the Fourth Amendment,2 Fifth Amendment,3 or Sixth Amendment.4 2 Weeks v. United States, 232 U.S. 383, 398 (1914), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961); State v. Tye, 2001 WI 124, ¶24, 248 Wis. 2d 530, 636 N.W.2d 473. 3 Blackburn v. Alabama, 361 U.S. 199, 205 (1960); Bram v. United States, 168 U.S. 532, 542, 548 (1897); Rudolph v. State, 78 Wis. 2d 435, 441-42, 254 N.W.2d 471 (1977). 4 United States v. Wade, 388 U.S. 218, 237-39 (1967); Massiah v. United States, 377 U.S. 201, 203-04, 206-07 (1964); State v. McMorris, 213 Wis. 2d 156, 178, 570 N.W.2d 384 (1997). 2 No. ¶65 The origins of the 2011AP2956-CR.akz exclusionary rule further demonstrate that it was designed to apply to evidence obtained in violation Amendment. of The constitutional United provisions States Supreme beyond Court the Fourth applied the exclusionary rule for the first time in Boyd v. United States, 116 U.S. 616 (1886). See Christopher Slobogin, The Exclusionary Rule: Is It on Its Way Out? Should It Be?, 10 Ohio St. J. Crim. L. 341, 343-44 (2013). In Boyd the Supreme Court held that the evidence at issue was inadmissible because it was obtained in violation of the Fourth and Fifth Amendments. 621-22, 633-35, 638. Boyd, 116 U.S. at Ten years later, the Supreme Court held that the exclusionary rule applied, in federal criminal cases, to confessions obtained in violation of the Fifth Amendment. Wilson v. United States, 162 U.S. 613, 623 (1896); see also Bram v. United States, 168 U.S. 532, 542, 548 (1897). Nearly 20 years later, in 1914, the Supreme Court held for the first time that the exclusionary rule applied, in federal criminal cases, to evidence obtained in violation of the Fourth Amendment. Weeks v. United States, 232 U.S. 383, 398 (1914), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961); see also Mapp, 367 U.S. at 648 (explaining that Weeks was the first case in which the Supreme Court "held that 'in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure'" (quoted source omitted)). Thus, the Fourth Amendment was not the only driving force behind the Supreme Court's adoption of the occurred decades before Weeks. 3 exclusionary rule, which No. ¶66 Furthermore, the exclusionary rule 2011AP2956-CR.akz does not always require suppression of evidence, even if it was obtained through unconstitutional means. In fact, the exclusionary rule does not apply when suppression would not deter police misconduct. Davis v. United States, 564 U.S. ___, 131 S. Ct. 2419, 2426-28 (2011); State v. Dearborn, N.W.2d 97. 2010 WI 84, ¶35, 327 Wis. 2d 252, 786 For example, evidence may not be suppressed under the good faith exception5 because suppression would not serve the exclusionary rule's purpose of deterring police misconduct. Evidence obtained after a constitutional violation may otherwise be admissible if the discovery of the evidence was sufficiently attenuated from discovered through misconduct,7 or the the misconduct,6 police a source independent evidence discovered through lawful means.8 would have the evidence from been the was police inevitably In addition, evidence that is suppressed because of a constitutional violation may nonetheless 5 United States v. Leon, 468 U.S. 897, 922-25 (1984); State v. Dearborn, 2010 WI 84, ¶¶35-49, 327 Wis. 2d 252, 786 N.W.2d 97; State v. Eason, 2001 WI 98, ¶3, 245 Wis. 2d 206, 629 N.W.2d 625. 6 Brown v. Illinois, 422 U.S. 590, 603-04 (1975); Wong Sun v. United States, 371 U.S. 471, 488 (1963); State v. Phillips, 218 Wis. 2d 180, 204-06, 577 N.W.2d 794 (1998). 7 Murray v. United States, 487 U.S. 533, 537 (1988); Nix v. Williams, 467 U.S. 431, 443 (1984); State v. Carroll, 2010 WI 8, ¶¶43-55, 322 Wis. 2d 299, 778 N.W.2d 1. 8 Murray, 487 U.S. at 539; Nix, 467 U.S. at 446-50; State v. Weber, 163 Wis. 2d 116, 140-44, 471 N.W.2d 187 (1991); State v. Schwegler, 170 Wis. 2d 487, 499-500, 490 N.W.2d 292 (Ct. App. 1992). 4 No. be admitted evidence for may be certain used purposes. collaterally For for 2011AP2956-CR.akz example, suppressed impeachment purposes, outside of the prosecution's case-in-chief.9 ¶67 Some potential confusion surrounding the exclusionary rule could stem from the fact that evidence may be properly excluded for a variety of reasons. But the mere fact that evidence is being excluded does not mean that it is excluded under the exclusionary rule. "There are judicially created exclusionary rules and legislatively created exclusionary rules. There are constitutional exclusionary rules." exclusionary rules and statutory Sun Kin Chan v. State, 552 A.2d 1351, 1355 (Md. Ct. Spec. App. 1989). A careful reader will keep in mind that courts may inaccurately refer to "the exclusionary rule" when a constitutional violation is not the basis for exclusion. Cf. Oregon v. Elstad, 470 U.S. 298, 306-08 (1985) (explaining the differences between the "Fourth Amendment exclusionary rule" 9 Kansas v. Ventris, 556 U.S. 586, 593-94 (2009) (holding that defendant's statement obtained in violation of Sixth Amendment right to counsel was inadmissible to prove guilt but admissible to impeach defendant's inconsistent testimony); State v. Pickett, 150 Wis. 2d 720, 727-30, 442 N.W.2d 509 (Ct. App. 1989) (same); United States v. Havens, 446 U.S. 620, 627-28 (1980) (holding that evidence obtained in violation of Fourth Amendment was inadmissible to prove guilt but admissible to impeach defendant's inconsistent testimony); State v. Thompson, 142 Wis. 2d 821, 833 & n.8, 419 N.W.2d 564 (Ct. App. 1987) (same); Oregon v. Hass, 420 U.S. 714, 722-24 (1975) (holding that defendant's statement made without warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), was inadmissible to prove guilt but admissible to impeach defendant's inconsistent testimony); State v. Mendoza, 96 Wis. 2d 106, 118-19, 291 N.W.2d 478 (1980) (same). 5 No. and the "Miranda10 Amendment is at exclusionary issue in the rule"). present 2011AP2956-CR.akz Because case, the the Fourth majority opinion's discussion of the exclusionary rule focuses on the Fourth Amendment. ¶68 With the foregoing clarification, I join Justice Roggensack's concurrence, and I concur. ¶69 I am authorized to state that Justices CROOKS and MICHAEL J. GABLEMAN join this concurrence. 10 Miranda v. Arizona, 384 U.S. 436 (1966). 6 N. PATRICK No. 7 2011AP2956-CR.akz
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