State v. Cherise A. Raflik
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2001 WI 129 SUPREME COURT CASE NO.: OF WISCONSIN 00-1086-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Cherise A. Raflik, Defendant-Appellant. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 12, 2001 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Washington Leo F. Schlaefer JUSTICES: CONCURRED: DISSENTED: December 4, 2001 BRADLEY, J., dissents (opinion filed). ABRAHAMSON, C.J., joins dissent. NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant there were briefs by Michael J. Fitzgerald, Dean A. Strang, and Fitzgerald & Strang, S.C., Milwaukee, and Michael J. Fitzgerald, Craig W. Albee, and Glynn, Fitzgerald & Albee, S.C., Milwaukee, and oral argument by Michael J. Fitzgerald. For the plaintiff-respondent the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. 2001 WI 129 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 00-1086-CR (L.C. No. 98 CF 259) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, DEC 4, 2001 v. Cherise A. Raflik, Cornelia G. Clark Clerk of Supreme Court Defendant-Appellant. APPEAL from an order of the Circuit Court for Washington County, Leo F. Schlaefer, Judge. ¶1 whether JON P. WILCOX, J. suppression is the Affirmed. This case requires us to decide proper remedy when a telephonic application for a search warrant is not recorded in accordance with Wis. Stat. § 968.12(3)(d)1, and when the factual basis for the warrant is reconstructed in an ex parte hearing after the warrant has been improper, executed. and that the We conclude warrant that application in suppression this case is was appropriately and adequately reconstructed. 1 All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated. No. ¶2 The State charged Cherise Raflik with 00-1086-CR seven felony drug counts, including possession of tetrahydrocannabinol (THC) with intent to deliver, drug tax stamp violations,2 possession of psilocybin with intent to deliver, and keeping a drug house. Raflik moved to suppress all of the evidence seized from her home because the State had not made a contemporaneous record of the telephonic search § 968.12(3)(d). warrant After application conducting a in accordance hearing, the with Washington County Circuit Court, Leo F. Schlaefer, Circuit Court Judge, denied Raflik's motion. possession of THC, Raflik pleaded guilty to misdemeanor misdemeanor felony keeping a drug house. denial of her motion to possession of psilocybin, and On appeal, Raflik challenged the suppress, and the court of appeals certified the case to this court. I ¶3 August The relevant facts in this case are undisputed. 4, Kocher, of 1998, Assistant the shortly after Washington District 6:00 County Attorney Todd p.m., Detective Sheriff's Martens at Douglas Department, the On met Germantown Police Station, where they were going to apply for a telephonic search warrant. Kocher sought 2 to seize drugs and drug We note that the drug tax stamp laws, Wis. Stat. §§ 139.87-.96, were found unconstitutional by this court in State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997), an opinion issued over 18 months before the charges in this case were filed. However, because these charges were dismissed they are not at issue here. 2 No. 00-1086-CR paraphernalia from the residence and garage of Cherise Raflik in the town of Jackson. ¶4 Police Kocher and Martens placed a call from the Germantown Department Annette Ziegler. to Washington County Circuit Court Judge Both Martens and Kocher thought the phone line they were using was a recorded line. Martens had brought along his own recording equipment, but was assured by local police that he did not need to use his equipment because the phone line was already being recorded. Thus, Martens did not hook up his independent recording device. ¶5 Judge Detective Ziegler took Kocher and found testimony that there over was the phone probable from cause to issue the search warrant. During the telephone conversation, Detective Ziegler warrant Kocher and Judge document with identical each language filled that out a search specified location of the property and the items to be seized. the The search warrant was executed that evening, and law enforcement officials seized drugs, drug paraphernalia, and cash from Raflik's house and garage. ¶6 The next morning, Martens contacted the Germantown Police Department to obtain the recording of the search warrant application. The department informed Martens that there had been a mistake and that the call had been made on a non-recorded phone line. There was no evidence of improper behavior on the part of Martens, Kocher, or the Germantown Police. ¶7 At about 11:15 a.m. that same day, Martens notified Judge Ziegler of the mistake. Judge Ziegler directed Martens to 3 No. 00-1086-CR locate Detective Kocher and to have Kocher review his notes so he would be prepared to give testimony about the previous evening's warrant application. Martens contacted Kocher, and Kocher which prepared application of an affidavit, the night before. recounted Kocher's the warrant affidavit was prepared at approximately 12:15 p.m. on August 5th. ¶8 At 1:23 p.m. that day, Judge Ziegler convened an ex parte hearing with Kocher and Martens present. explained on the record that they were Judge Ziegler "trying to, as contemporaneously as possible, provide a record of what exactly the testimony was search warrant." that he Police had met Station, that . . . supported the issuance of the At the hearing, Detective Kocher testified Martens where the they telephonic search warrant. night had before called at Judge the Germantown Ziegler for a Kocher testified that he thought the line they had used was recorded, and that he had found out that morning that the conversation, in fact, had not been recorded. ¶9 Kocher went on to testify to the warrant application from the previous evening. contents of his Kocher recounted the location and description of the home in question, the fact that Raflik lived there, and the details of the investigation that led to his requesting the warrant. ¶10 When Martens concluded his questioning, Judge Ziegler proceeded to ask Kocher several questions. asked Kocher about Steven Wydirek. his conversations with First, Judge Ziegler Raflik's landlord, Judge Ziegler also asked Kocher how he had made the inference that there might have been drugs in the house 4 No. 00-1086-CR after seeing marijuana-like substances in the garage. Finally, the judge questions confirmed asked by Wydirek's Judge reliability. Ziegler was phrased Each of in leading a the format, that allowed Kocher to answer either "yes" or "correct."3 3 Raflik takes particular issue with the portions of the reconstruction hearing where leading questions by Judge Ziegler provided the nexus between the house and the garage, and where they provided the reliability of the informant. See infra ¶¶4448. This part of the hearing follows: COURT: . . . I also recall certain testimony of yours where you said that the single car garage is next to, or on this property, or property the landlord has access to. KOCHER: Correct. It's attached, or the building adjoins another building that the landlord reserves for his own personal use. COURT: The garage? KOCHER: Correct. COURT: Okay, and you personally observed, through an open door, marijuana-like substances in the garage, right? KOCHER: Correct. The main garage door was open. . . . COURT: . . . And based on your conversations with the landlord, Mr. Wydirek, did you find him to be someone that was reliable and would have information in this regard? KOCHER: Yes, I did. COURT: Okay. And so basically you had reason to believe what he was telling you, right? KOCHER: That's correct. 5 No. 00-1086-CR After she finished questioning Kocher, Judge Ziegler found, from the facts presented and the inferences drawn from those facts, that there was probable cause to support the search warrant, and that they had adequately recreated the record of the warrant application. The affidavit Kocher had drafted that afternoon was also attached to the record. ¶11 Based on the evidence found when the search warrant was executed, Raflik was charged with possession of THC with intent three to deliver, drug contrary tax Wis. Stat. §§ 139.87, to stamp 139.88 Wis. Stat. § 961.41(1m)(h)2; violations, and 139.95; contrary manufacture of to THC, contrary to Wis. Stat. § 961.41(1)(h)2; possession of psilocybin with intent to §§ 961.41(1m)(g)1; and Wis. Stat. §§ 961.42. deliver, contrary maintaining a drug to house, Wis. Stat. contrary to Raflik filed a motion to suppress the evidence found pursuant to the warrant on the grounds that the State had failed to make a contemporaneous record of the warrant application, in violation of Wis. Stat. § 968.12(3), the Fourth Amendment of the U.S. Constitution, and Article I, Section 11 of the Wisconsin Constitution. ¶12 In a hearing on the suppression motion, Washington County Circuit Court Judge Leo Schlaefer ruled that the evidence seized pursuant to the search warrant should not be suppressed. COURT: Okay. And so you think that along with the items you saw in the garage, there will likely be items in the residence. KOCHER: That's also correct. 6 No. 00-1086-CR The court noted that the State had exercised its best efforts to recreate the application Kocher's record within and that testimony 24 hours the at record the of hearing the original indicated was that Detective consistent testimony he had offered the previous evening. warrant with the The trial court found that Raflik's substantial rights had not been prejudiced, and that, under the totality of the circumstances, the failure to record the warrant application was a technical irregularity under Wis. Stat. § 968.22. The court held that suppression was not a proper remedy and denied Raflik's motion. ¶13 Raflik misdemeanor pleaded possession guilty of THC, to the amended psilocybin, and felony keeping a drug house. of possession misdemeanor charges of On appeal, Raflik challenged her conviction on the grounds that the trial court erred when it had denied her motion to dismiss. appeals, recognizing this as a case of first The court of impression in Wisconsin, certified the appeal to this court. II ¶14 Several constitutional rights are significant to this case: the right to be free from unreasonable search and seizure, protected by the Fourth Amendment to the U.S. Constitution and Article 1, Section 11 of the Wisconsin Constitution; the due process right to meaningful judicial review, protected by the Fourteenth Amendment to the U.S. Constitution; and the right to a meaningful appeal, protected by Article I, Section 21 of the Wisconsin Constitution. The State concedes that Wis. Stat. § 968.12(3)(d) was violated when no contemporaneous recording of 7 No. the warrant application was made. 00-1086-CR However, the State maintains that the failure to record the application only affects Raflik's right to have a meaningful record for the purposes of appeal, and that Raflik's right to a meaningful appeal was protected when the warrant application was reconstructed. Raflik, on the other hand, argues that the failure of the State to meet the requirements of § 968.12 is not merely a technical irregularity, but instead Raflik renders concludes the that warrant such a constitutionally significant inadequate. violation warrants suppression. ¶15 right, The suppression of evidence is not a constitutional but rather it is a judge-made rule misconduct by law enforcement officials. U.S. 465, evidence 482 has (1976). been Suppression obtained in used to deter Stone v. Powell, 428 is violation only of required a when defendant's constitutional rights, State v. Hochman, 2 Wis. 2d 410, 419, 86 N.W.2d 446, 451 (1957), or if a statute specifically provides for the suppression remedy. State ex rel. Arnold v. County Court, 51 Wis. 2d 434, 439-440, 187 N.W.2d 354 (1971); see also State ex rel. Peckham v. Krenke, 229 Wis. 2d 778, 787, 601 N.W.2d 287 (Ct. App. 1999); State v. Verkuylen, 120 Wis. 2d 59, 61, 352 N.W.2d 668 (Ct. App. 1984). There is no specific statutory remedy provided for the failure to record a telephonic search warrant application. See Wis. Stat. § 968.12. Thus, the only question that remains is whether the failure to record the warrant application and the subsequent reconstruction application violated a constitutional right. 8 of the No. ¶16 00-1086-CR We are presented with three potential constitutional violations which could warrant suppression. First, as Raflik contends, the failure to record the warrant application may be a grievous enough error that the Fourth Amendment was violated in its own right. Second, if the record cannot be reconstructed, or if the record was not adequately reconstructed, there would be no probable cause on the record to support the warrant and the Fourth Amendment's probable cause requirement would arguably not be met. Finally, if the record was not adequately reconstructed, Raflik's Fourteenth Amendment due process right to meaningful judicial review and her right to a meaningful appeal under Article I, Section 21 of the Wisconsin Constitution may have been violated. ¶17 violated We now address each of these concerns. We conclude that the Fourth Amendment was not directly in this case. The Fourth Amendment to the U.S. Constitution states: [t]he 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. Here, Detective Kocher met all of the requirements of the Fourth Amendment during his warrant application. The parties agree that probable cause existed to issue the warrant, that a neutral and detached magistrate issued the warrant, and that the warrant described with specificity the places to be searched and the 9 No. items to be seized. 00-1086-CR Nothing in the Fourth Amendment requires a contemporaneous recording of the application. ¶18 her Raflik points to a number of decisions in support of position application that is of the a mere failure constitutional to record magnitude. the In warrant State v. Myers, 815 P.2d 761 (Wash. 1991), the Washington Supreme Court addressed a telephonic warrant that was, by recorded as required under that state's rule. Ct. Crim. R. 2.3(c) (2001). accident, never See Wash. Super. The day after the warrant had been executed (which was also the day after the warrant application had been made), the officer learned that the application had not been recorded prior. and wrote down what he recalled from the day Over three months later, at the suppression hearing, the defendant challenged the adequacy of the warrant application. At the hearing, the issuing judge testified that he did not have an independent recollection of the events surrounding the issuance of the warrant. ¶19 failure The Washington State Supreme Court determined that the to record the warrant deviation" from the rule. application was Myers, 815 P.2d at 768. a "gross The court went on to state that reconstruction of the application might have been acceptable if it did not "impair the reviewing court's ability to ascertain issued the warrant." what Id. the magistrate The court considered noted that when the he only evidence of the telephonic affidavit was the police officer's testimony, offered four months after the original application, and the officer's report made after the warrant was executed, 10 No. 00-1086-CR and after it was discovered that there was no recording. court held made it that, under "impossible the to circumstances, accurately review considered" when he issued the warrant. ¶20 Raflik emphasizes the the The reconstruction what the judge the Myers Id. policies cited by court that support strict adherence to statutory rules regarding recording telephonic compelling guarantees respect of warrants: for the and Fourth facilitating observance of Amendment, judicial the review, constitutional preserving judicial integrity, and removing any hint of misconduct or bad faith by the prosecutor or the police. ¶21 Id. at 767. We recognize the importance of these policies, but we find that they are not necessarily compromised by allowing a warrant application to be reconstructed. the right to judicial review, and the Judicial integrity, observance of Fourth Amendment guarantees can be adequately protected when a careful reconstruction of a warrant application is made. We also recognize the defendant's concerns about police misconduct and the possibility of police acting in bad faith. In cases where the failure to record a warrant application is the result of misconduct by police, reconstruction may option, and suppression may be appropriate. not be an adequate However, there was no evidence of police misconduct in this case, so we do not reach the question here. ¶22 Raflik also directs our attention to City of Minneapolis v. Cook, 498 N.W.2d 17 (Minn. 1993), along with a number of federal cases that have examined situations where all 11 No. or part of a warrant application was not recorded. and the present case, Cook involved a 00-1086-CR Like Myers telephonic warrant application that was not recorded in conformance with a statute. In Cook, the Minnesota Supreme Court criticized the failure to record the warrant application, particularly because there were no contemporaneous notes relied upon by the officer in applying for the warrant, and no notes taken by the officer as he made his application. "substantially Id. at 22. there was record . . . made" the suppressed the evidence that arose from the warrant. no Id. ¶23 contemporaneous Because court Likewise, in United States v. Hittle, 575 F.2d 799 (10th Cir. 1978), the court found a search warrant inadequate when there was no oral testimony and an inadequate affidavit. The court held that the probable cause requirement of the Fourth Amendment would be "significantly weakened if a court can rely on the recollection of those concerned to support a probable cause finding long after the search warrant has been issued." Id. at 802. ¶24 Still, Raflik admits that most federal courts have not seen fit to suppress evidence because of a failure to record some or States all of the warrant v. Richardson, suppression were unaware 943 inappropriate that the application. F.2d when 547 the (5th See, Cir. magistrate recording equipment did e.g., United 1991) (finding and prosecutor not work, and where no record was made); United States v. Rome, 809 F.2d 665 (10th Cir. preliminary 1987) (refusing discussions to between 12 suppress the evidence magistrate and when the the agent No. 00-1086-CR were not recorded); United States v. Loyd, 721 F.2d 331 (11th Cir. 1983) (per curiam) (holding that suppression is not necessary when the magistrate failed to certify the accuracy of the recorded transcript); United States v. Stefanson, 648 F.2d 1231 (9th Cir. 1981) (declining to suppress evidence when the oath was not recorded); United States v. Johnson, 641 F.2d 652 (9th Cir. 1980) (refusing to suppress evidence when the oath was not administered until after the oral affidavit). ¶25 Raflik several ways. bore the differentiates these cases from her own in First, Raflik notes that in her case, the police responsibility for recording the conversation, as opposed to the magistrate, who is responsible for recording a telephonic warrant application in a federal case. Crim. P. 41(2)(D) (2000). See Fed. R. Second, Raflik's case featured no contemporaneous recording at all, as opposed to the majority of the federal cases where only part of the warrant application was unrecorded. Third, the time between the application and reconstruction, 18 hours in this case, was less than that in most cases a fact which, Raflik concedes, benefits the State's position. some Finally, Raflik suggests that the judge lost at least appearance of neutrality when she asked Kocher leading questions at the reconstruction hearing. ¶26 factors, Amendment We but do not none right to deny of be the them free importance directly from an of affects each of Raflik's unreasonable these Fourth search or seizure, and none of them warrants suppression in its own right. Each of the factors Raflik identifies, however, may be relevant 13 No. 00-1086-CR to the question of whether an adequate reconstruction of the record can meaningful judicial length be made consistent with appeal, and her review of the warrant process. of the unrecorded due Raflik's process segment and right In the right to to a meaningful particular, the time between the application and reconstruction can be taken into consideration by the trial court reconstruction. when See determining infra the ¶¶41-43. adequacy of the regard to the With possibility of the issuing judge becoming a prosecution witness, we recognize that it is not an ideal situation. In the reconstruction of a warrant application, however, we find that a limited amount of judicial involvement is appropriate as long as the judge's participation is not excessive and the participation does not compromise the judge's neutral and detached role. See infra ¶¶44-48. ¶27 Raflik also asks us to consider Glodowski v. State, 196 Wis. 265, 220 N.W. 227 (1928). era case where the sheriff of Glodowski is a Prohibition- Portage County applied warrant to seize illicit liquor from the defendant. for a No record was made of the probable cause offered by the sheriff before the warrant was issued. This court held that suppression of the evidence found pursuant to the warrant was appropriate based on the fact that no record had been kept. The court emphasized that a record must be made "at or before the time that the judicial act was performed." the core of the Glodowski Id. at 271. holding 14 is Raflik argues that that the failure to No. contemporaneously record a warrant application Fourth Amendment's probable cause requirement. ¶28 00-1086-CR weakens the We disagree. In Glodowski, this court stated that "[t]he essential thing is that proof be reduced to permanent form and made a part of the record, which may be transmitted to the reviewing court." Id. at 272. The record of the warrant application "may consist of the sworn complaint, of affidavits, or the sworn testimony taken in shorthand . . . or of testimony reduced to longhand . . . or of a combination of all these forms of proof." Id. We find that the focus of Glodowski was primarily on the ability of a reviewing court to assess the record, and not on the sufficiency of the warrant itself. After discussing the probable cause requirement, the Glodowski court stated, "there must be a record upon which the reviewing court may determine whether there was proof of any facts before the magistrate which would support the finding of probable cause." Id. at 271. We find that the concerns raised in Glodowski can be adequately protected by the careful reconstruction of a warrant application, as outlined below. ¶29 Finally, we note that several courts have invoked the "good faith exception"4 of United States v. Leon, 468 U.S. 897 (1984), under circumstances similar to those here. See, e.g., United States v. Chaar, 137 F.3d 359, 363-64 (6th Cir. 1998); United States v. Richardson, 943 4 F.2d 547, 549-51 (5th Cir. This court adopted a version of the good faith exception last term in State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625. 15 No. 1991). 00-1086-CR However, since we find that the reconstruction in this case was sufficient to protect Raflik's constitutional rights, we do not address the good faith exception here. III ¶30 Although we find that Raflik's Fourth Amendment rights were not directly violated by the accidental failure to record the warrant application, the failure to record the application does affect Raflik's right to meaningful judicial review of the warrant process, and her right to a meaningful appeal. The right to appeal is absolute under the Wisconsin Constitution: "Writs of error shall never be prohibited, and shall be issued by such courts as the legislature designates by law." Const. art. I, § 21(1). Wis. We have interpreted the right to appeal to require that the appeal be meaningful. State v. Perry, 136 Wis. 2d 92, 99, 401 N.W.2d 748 (1987). ¶31 criminal Stemming from the right to a meaningful appeal is a defendant's proceedings. Id. right to a full transcript of the Providing a defendant with a full transcript guarantees that the defendant has the opportunity to analyze the proceedings of the trial court and to challenge any errors. In some cases, however, a functionally-equivalent substitute of the transcript may be provided if the substitute accurately portrays what happened during the course of the trial. ¶32 relevant Wisconsin Stat. § (Rule) 809.15(3) part, that "[a] party who Id. provides, believes the in record, including the transcript of the reporter's notes, is defective or does not accurately reflect what occurred in the trial court 16 No. 00-1086-CR may move the court in which the record is located to correct the record." This court has recognized that reconstruction is an acceptable method for correcting a missing portion of a trial record. Perry, 136 Wis. 2d at 100-01. Whether such a reconstruction is adequate is a question that is reviewed by the court ab initio. Id. at 97. ultimately within this court. Id. ¶33 the The determination is one that is procedural supervisory jurisdiction of The court of appeals first addressed the adequacy of a record reconstruction in State v. DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App. 1985). lost some of her notes, trial testimony. In DeLeon, the court reporter had comprising about fifteen the of The trial court attempted to reconstruct the missing portion by having the witnesses recalled. challenged minutes new record, claiming that it DeLeon then had not been properly reconstructed. ¶34 The court § (Rule) 809.15(3) of allowed appeals noted correction of a that trial Wis. Stat. record, but that it did not set out any guidelines by which an adequate reconstruction could be made. DeLeon, 127 Wis. 2d at 77-78. The court therefore laid out a procedure by which parties could reconstruct a missing portion of a trial record. ¶35 must As the court of appeals explained, the trial court first portion make variables of the as availability a record the of facial inquiry can length witnesses, be of as 17 whether reconstructed, the and to the missing amount the missing weighing transcript, of time such the elapsed No. between the trial and the reconstruction. court may find that a portion of a 00-1086-CR Id. at 81. trial record A trial cannot be reconstructed as a matter of law, in which case a new trial should be ordered. ¶36 If Id. the trial court finds that reconstruction is possible, the parties should first attempt to prepare an agreed statement of the record on appeal, either by stipulation, or by an amendment-counteramendment process similar to the one laid out in Federal Rule of Appellate Procedure 10(c). Id. at 80-81. If any disputes remain, those disputes will be settled by the trial court. trial court If the may rely reconstruction on its own reaches this recollection stage, and notes materials from the parties as an aid to reconstruction. the or The trial court is also allowed to conduct hearings or consult with counsel. Id. at 81-82. Every step of this procedure is reviewable on appeal, and appellate courts should review errors in the reconstruction standard. ¶37 itself under the "clearly erroneous" Id. at 82. This court expanded on DeLeon in State v. Perry, 136 Wis. 2d 92. Perry involved a criminal defendant who sought to reconstruct a portion of his trial record. Before a transcript of the trial was made, the notes of the trial were lost in the mail, en route from the primary court reporter to a substitute court reporter. When the postal service finally located the notes, they were in poor condition and were incomplete. Many of the notes could be pieced together, but large portions of the transcript were still missing, including significant portions of 18 No. the final two days of the eight-day jury trial. 00-1086-CR The trial court reviewed what was left of the record and found that, although it was not perfect, the record was at least "'sufficient . . . to provide the appellate court with a basis of reviewing the entire record . . . .'" ¶38 Id. at 97. On review, this court determined that the trial record was insufficient as a matter of law. noted that the proper procedure for Id. at 108. The court reconstruction had been articulated in DeLeon, and thereby adopted the methodology used by the DeLeon court. This court went on to determine that the reconstruction of a record can protect a defendant's right to meaningful review when it meets certain criteria. Expanding on the factors in DeLeon, this court held that when assessing the adequacy nature of of a the reconstruction, case, the a nature court of the should claim consider of "the error, the passage of time from the date a transcript originally was, or should have been, prepared, and whether the trial was to the court or to a jury." Id. at 98. Because the trial court did not take these factors into account at all, the Perry court deemed the reconstruction inadequate. ¶39 in Perry Id. at 108. We hold that the reconstruction procedures articulated and DeLeon may be used in a situation where a telephonic warrant application has mistakenly not been recorded. Where there is no evidence of intentional or reckless misconduct on the part of law enforcement officers, a reconstructed warrant application may serve as a functional equivalent of the record of the original application. Such a reconstruction, when made 19 No. 00-1086-CR appropriately, can protect the defendant's right to a meaningful appeal, as well as the defendant's ability to challenge the admission of evidence in a suppression hearing. ¶40 The Perry court pointed out that when challenging the sufficiency of a record, the appellant has the burden to demonstrate that there is a "colorable need" for the missing portion of the record. Id. at 108. The appellant is not required to show prejudice, but the error cannot be so trivial that it is clearly harmless. Given the pronouncement of Id. the legislature in § 968.12 and the importance of the Fourth Amendment rights at stake in the issuance of a search warrant, we think that application most, is if not all, inadvertently situations not recorded where a warrant will require reconstruction if the defendant's due process right and right to a meaningful appeal are to be protected. Without an appropriate reconstruction, there would be no probable cause on the record to support the warrant, which would arguably be grounds for suppression. ¶41 When reconstructing a warrant application, many of the same factors announced by the Perry and DeLeon courts should be taken into consideration, particularly the length of time between the application and the reconstruction, and the length of the reconstructed segment in relation to the entire warrant request. also In addition to these factors, a trial court should consider if there were any contemporaneous or nearly contemporaneous written documents, such as notes, that were used to reconstruct the record, the availability of witnesses used to 20 No. reconstruct the record, and the complexity of 00-1086-CR the segment reconstructed. ¶42 In the present case, we find enough evidence in the record to demonstrate that Raflik's due process right and her right to a meaningful appeal have been protected. The length of the and reconstructed section was relatively short witness, Detective Kocher, was required to testify. only one Even though the entire application was unrecorded, the facts that provided probable cause Kocher. Many Kocher's were uncomplicated of the facts affidavit and by separately but and could the simultaneously by easily be remembered corroborated warrant documents Detective Kocher by both by filled in and Judge Ziegler during the original telephonic application. ¶43 Perhaps most importantly, the application was reconstructed only 18 hours after the actual application, when the events of the previous night were still fresh in the minds of all of the participants. Immediately after Assistant District Attorney Martens discovered that no recording had been made, he contacted the magistrate and Detective Kocher, and they prepared before. notes about the telephonic application the night This is in sharp contrast to a case like Myers, where almost four months had elapsed between the application and the reconstruction. the participants See Myers, 815 P.2d at 768. in the original warrant Finally, all of application were available to the trial court when it reconstructed the record. ¶44 Raflik expresses concern participation in the reconstruction 21 over hearing, Judge and Ziegler's particularly No. 00-1086-CR over the fact that the judge asked Detective Kocher a series of leading questions. Raflik argues that allowing a judge to question a witness is inappropriate, particularly when it is done in a leading manner, because the judge will be inclined to ask questions that tend to support the judge's decision to issue the warrant. Raflik also suggests that the prospect of judges testifying is unseemly because it puts a judge into the role of prosecution witness and raises the specter that the judge might not act in a neutral and detached manner. ¶45 We do not find Judge Ziegler's actions inappropriate in this case. judicial Although we do not necessarily encourage active participation in the reconstruction of a warrant application, a limited amount of participation is appropriate as long as the judge's participation is relevant to the proceeding, is not excessive, and does not compromise the judge's neutral and detached role. As this court noted in Perry, a judge is allowed to resolve disputes during the reconstruction of a trial record based on the judge's "recollection, trial notes, consultation with counsel, affidavits, or recall of witnesses." Perry, 136 Wis. 2d at 102. that pronouncement for We see no reason to deviate from the reconstruction of a warrant application. ¶46 more Several factors may even make a judge's participation appropriate application than it might trial segment. corroborate during the the be reconstruction during the of a warrant reconstruction of a A judge's recollections may, as in this case, fact that the 22 judge had been told certain No. information during the original application. 00-1086-CR This is particularly helpful given the ex parte nature of the warrant application process, and the limited number of participants in the application process. In Myers, the Washington Supreme Court actually required a neutral person, such as the magistrate or court clerk, to testify whenever reconstruction is attempted because the judge or clerk has no stake in the outcome. Myers, 815 P.2d at 768. ¶47 As an alternative to preventing the judge from testifying, Raflik asks us at least to establish a rule that would prevent a judge from asking leading questions during a reconstruction hearing. We decline to do so. The nature of the warrant application process sometimes requires a magistrate to clarify or question probable cause. the law warrant which officer's basis for In such a case, a leading question from the magistrate may be appropriate. practice, enforcement is application, We see no reason to prevent this perfectly from acceptable carrying over during to a the actual reconstruction hearing, as long as the judge's participation is not excessive and the judge's neutral and detached role is not compromised. ¶48 Here, we find that Judge Ziegler's participation did not cross the line. The questions asked by Judge Ziegler went no further than to clarify several points addressed by Detective Kocher and helped confirm that Kocher had, in fact, testified to the judge the previous evening about the nexus between the house and the garage, and about the reliability of the informants. 23 No. 00-1086-CR The judge's questions did not amount to excessive testimony, and did not compromise the integrity of the proceeding. ¶49 We also reject Raflik's request to make the reconstruction of a warrant application an adversarial hearing. In a situation like Perry, where a portion of the trial record is reconstructed, appropriate, and proceedings being the even participation required out reconstructed of were of both fairness, originally parties is because the adversarial. Perry, 136 Wis. 2d at 102. If a portion of a criminal trial is being defendant reconstructed, the Amendment right to counsel. Id. may also have a Sixth However, the same concerns do not exist for a warrant application. ¶50 attaches arrest The Sixth Amendment when either a is filed. criminal Kirby v. right to complaint Illinois, 406 counsel or a U.S. generally warrant 682, for 688-89 (1972); State v. Harris, 199 Wis. 2d 227, 235 n.3, 544 N.W.2d 545 (1996). At the time a search warrant is issued, there is technically no defendant, and the suspect does not have a right to counsel. telephonic This should be apparent from the fact that the warrant application itself is ex parte. When applying for a search warrant, the only participants need to be the law enforcement officials applying for the search warrant and a neutral magistrate. As long as reconstruction of the application is done before the suspect is charged, there is no constitutional requirement that the hearing be adversarial, and we decline to impose such a requirement. 24 No. ¶51 00-1086-CR Although we do not reach the question here, we note that if the reconstruction of a warrant application were to take place after the suspect is charged, the defendant may have the right to have counsel present at the reconstruction hearing. We also be note that, even though a warrant application may reconstructed in an ex parte hearing, the defendant retains the protection of an adversarial proceeding when challenging the adequacy of the reconstruction at a motion for suppression and on appeal. Douglas v. California, 372 U.S. 353, 356-58 (1963); Powell v. Alabama, 287 U.S. 45, 57 (1932). ¶52 In adopting this procedure for the reconstruction of a telephonic search caution. The warrant preferred telephonic warrant legislature in contemporaneous application, method application, for we sound making a as not note record articulated Wis. Stat. § 968.12(3)(d), recording, a reconstruction. of by is of a the through Where police intentionally or recklessly disregard the statute, or where the failure to record the application significantly prejudices the defendant, reconstruction might not be sufficient to protect the defendant's rights. IV ¶53 As a final matter, we address the burden of proof for reconstruction. The State argues that when a warrant application is reconstructed, the trial court must find, by a preponderance of the evidence, that the reconstruction adequately replaces the missing portion of the record. State's view, because the controlling 25 burden of proof In the at a No. 00-1086-CR suppression hearing should be no greater than a proof by the preponderance of the evidence, see United States v. Matlock, 415 U.S. 164, 177 application, n.14 which (1974), likewise is the reconstruction challenged at a of the suppression hearing, will only carry a burden of proof of a preponderance of the evidence. of a Raflik contends that because the reconstruction warrant application is a portion of a larger criminal proceeding, the proper burden of proof is beyond a reasonable doubt. ¶54 We find the State's view persuasive. The and DeLeon Perry courts both held that in a reconstruction hearing, the judge must be satisfied that the reconstructed record accurately reflects what actually happened to the same level required in the proceeding itself. Wis. 2d at 99; DeLeon, 127 Wis. 2d at 82. Perry, 136 That is, to reconstruct a portion of a criminal trial, the trial judge must find that the record has been adequately reconstructed beyond a reasonable doubt. reconstruct a Perry, portion of 136 a Wis. 2d at civil trial, 99. Likewise, the court must to be satisfied that the record has been reconstructed to the level appropriate for that trial. ¶55 The application. constitutes proceeding DeLeon, 127 Wis. 2d at 82. in question here is a warrant Because a warrant application is not a fact that an element of the charged crime, there is no requirement that the contents of a warrant application be proved beyond a reasonable doubt. 486-87 (1972); In re See Lego v. Twomey, 404 U.S. 477, Winship, 397 U.S. 358, 364 (1970). Additionally, the admissibility of evidence may be determined by 26 No. 00-1086-CR a less stringent standard without affecting the reliability or constitutionality of a verdict. Lego, 404 U.S. at 487. This court has held that a preponderance of the evidence standard is generally appropriate in a suppression hearing. See, e.g., State v. Armstrong, 223 Wis. 2d 331, 345, 588 N.W.2d 606 (1999) ("[T]he State must establish by a preponderance of the evidence whether a custodial interrogation took place."); State v. Santiago, 206 Wis. 2d 3, 12, 556 N.W.2d 687 (1996) ("[T]he State must prove knowing the and sufficiency intelligent of the waiver warnings Miranda of Miranda and rights by the a preponderance of the evidence."). ¶56 Following the holdings of DeLeon and Perry, the trial court must find that a reconstruction is accurate to the same level of proof as the proceeding that is being reconstructed. Because a motion for suppression of evidence would be judged by a preponderance of the evidence standard, we hold that the reconstruction of a warrant application should be judged by that standard as well. ¶57 Applying this standard, we find that the trial court had ample evidence to conclude that the State met its burden of proof in reconstructing the warrant application, and in doing so, protected Raflik's right to a meaningful appeal and her due process right to meaningful judicial review. that the parties record agree was that properly there reconstructed, was sufficient Because we find and because probable cause the to support the warrant, the evidence seized pursuant to the warrant 27 No. should not be suppressed, and Raflik's convictions 00-1086-CR must upheld. By the Court. The order of the circuit court is affirmed. 28 be No. ¶58 ANN WALSH BRADLEY, J. (dissenting). 00-1086-CR.awb While I agree with the majority that there may be instances when a warrant application proceeding can be reconstructed, I cannot agree with the reconstruction procedure the majority has adopted. The majority's approach fails to protect adequately a defendant's right to meaningful review and undermines the warrant judge's role as a neutral and detached decision maker. ¶59 In analogizing to State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987), and State v. DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App. 1985), the majority sidesteps the import of the significant differences between the facts in those cases and the facts at hand. Reconstruction of an ex parte proceeding requires additional safeguards if review is to remain meaningful and if the warrant judge is to remain neutral and detached. ¶60 Even the State acknowledges that it would be better to have additional safeguards that the majority has now rejected. I would require procedures different from the majority's that would serve reconstruction as the of an additional ex parte safeguards proceeding. necessary Because in the those safeguards were not present here, I conclude that Raflik's right to meaningful review was violated and that the evidence against her should have been suppressed. Accordingly, I respectfully dissent. I ¶61 I begin by highlighting the principal reasons that the majority's application of Perry and DeLeon gives me pause. First, both Perry and DeLeon arose in contexts where only a 1 No. portion of Wis. 2d a at full was 15 minutes In missing. approximately 76, transcript 00-1086-CR.awb DeLeon, 127 testimony was of unavailable from the transcript of a first-degree sexual assault trial. The court of appeals agreed with the circuit court that the testimony could be reconstructed adequately. See id. at 83. In Perry, 136 Wis. 2d at 96, 107, "significant portions" of the transcript for two of eight days of a trial were missing. agreed with the court of appeals in Perry that the We missing portions could not be adequately reconstructed, and we concluded "as a matter of law that the transcript is insufficient." Id. at 104, 108-109. ¶62 As the majority recognizes in form if not in substance, one of the factors for circuit courts to consider in determining whether reconstruction is appropriate is "the length of the missing portion in relation to the entire transcript." Perry, 136 Wis. 2d at 101. Here, it is the full transcript of a proceeding that is unavailable, yet the majority has concluded that it may be reconstructed. ¶63 Second, Perry and DeLeon involved the reconstruction of adversarial proceedings. explained that the In DeLeon, the court of appeals reconstruction procedure would also adversarial: [T]he parties should first attempt to prepare an agreed statement of the record on appeal, either by stipulation or by the amendment and counteramendment procedure outlined in Fed. R. App. P. 10(c). Then, if any dispute remains as to what occurred, the difference shall be submitted to and settled by the trial court. 2 be No. 127 Wis. 2d methodology. at 79. This court in 136 Wis. 2d at 102. Perry 00-1086-CR.awb approved of this The procedure contemplated by both Perry and DeLeon is an adversarial reconstruction of an adversarial proceeding. In contrast, here both the proceeding to well be reconstructed as as the reconstruction procedure adopted by the majority are ex parte. ¶64 Thus, Raflik's case presents a situation significantly different from those in Perry and DeLeon. Given the standards the majority has adopted, I am not convinced that an ex parte proceeding reconstructing an ex parte proceeding will sufficiently protect a defendant's right to meaningful review. In DeLeon, 127 Wis. 2d at 82, the court of appeals recognized that reconstruction is "not a normal fact-finding process but is actually a process for refreshing recollection." Therefore, the court concluded, procedural safeguards are necessary to protect an appellant's right to meaningful review. Id. In Perry and DeLeon, one of those safeguards was the defense's ability to challenge, as a first-hand witness of the trial, the State's recollection of the trial events. Here, the parties do not stand on such a level playing field, and the majority has failed to build in additional safeguards to restore the equilibrium. ¶65 My hesitation at the majority's decision is compounded by a close examination of this court's opinion in Glodowski v. State, 196 Wis. 265, 220 N.W. 227 (1928). rested its decision, meaningful review. at least Id. at 271. in part, The Glodowski court on principles of Additionally, Glodowski is more 3 No. 00-1086-CR.awb instructive than either Perry or DeLeon because it involved the impermissible supplementation of a warrant application. ¶66 In Glodowski, a sheriff testified before a magistrate in order to establish probable cause for a warrant. 266. After the execution of the warrant, 196 Wis. at the magistrate testified at a suppression hearing as to "further statements made by the sheriff under oath before the warrant was issued," apparently to bolster the finding of probable cause. Id. The court admitted the evidence, and the defendant was convicted. Id. This court reversed, explaining that a warrant judge is prohibited from contributing to the record after the probable cause determination has been made: Judicial action must be reviewed upon the record made at or before the time that the judicial act was performed. The validity of judicial action cannot be made to depend on the facts recalled by fallible human memory at a time somewhat removed from that when the judicial determination was made. . . . Mature deliberation satisfies the court that State v. Blumenstein, 186 Wis. 428, 202 N.W. 684, and Hiller v. State, 190 Wis. 369, 208 N.W. 260, must be overruled in so far as these cases hold that the reviewing court may supplement the record made by the magistrate by taking oral testimony to disclose the proof that was in fact offered before the warrant was issued. Id. at 271-72. We concluded: Upon hearing the motion to suppress, the court should not have considered the proof of additional testimony given by the sheriff before the warrant issued or the proof offered by the defendant, but should have considered only the record made before the search warrant was issued. Id. at 272. 4 No. ¶67 because The the majority fails majority analysis. When to cannot asked at acknowledge reconcile oral 00-1086-CR.awb this Glodowski argument whether language with a its decision adopting its position would require this court to overrule any cases, the State answered: problem for the State." "I think Glodowski presents the That is because Glodowski forbids a warrant judge from supplementing the record after the warrant was executed, which is precisely what has occurred in this case. II ¶68 This Glodowski prohibition leads into concern I have with the majority's methodology. condones a warrant judge's active yet another The majority participation in reconstruction, thereby undermining the neutrality of the judge. Although the majority begins its discussion of active judicial participation by saying it does not encourage it, the majority then backtracks by explaining that some judicial participation is acceptable as long as it is not "excessive." ¶45. Majority op. at The majority adds that a judge's participation is "more appropriate during the reconstruction of a warrant application than it might be during the reconstruction of a trial segment." Majority op. at ¶46. ¶69 The majority asserts that the judge's testimony is "particularly helpful given the ex parte nature of the warrant application process, and the limited number of participants in the application process." conclude that it is Majority op. at ¶46. exactly these qualities of I, however, the warrant application process the ex parte nature of the proceeding and 5 No. 00-1086-CR.awb the presence of witnesses for only one side that demand the strictest caution in reconstructing a warrant application. bothered by the State's star specter witness of at a a warrant-issuing reconstruction judge I am as proceeding. the As a general rule it will prove difficult for a judge's role as an active participant in a reconstruction hearing to coexist with that judge's role as a neutral and detached decision maker. Asking judges to fill both roles places them in an awkward and unseemly position. ¶70 Some of the judge's questions at the reconstruction hearing in this case raise the Glodowski problem because they provide crucial information that was not a part of Detective Kocher's affidavit: the informant location of affidavit. and the information supporting the reliability of information search and providing the a nexus location set between forth in the the The search warrant included authorization to search Raflik's house, although Kocher's affidavit stated that he had seen marijuana plants only in an unattached garage and "in an orchard behind provide any Raflik's house unattached questions the residence." particular and garage. that the facts Kocher's establishing drug evidence Instead, it solidified a affidavit link a found was in the between nexus the the judge's house did not between yard and leading and garage and verified the reliability of Kocher's informant. the Yet, the majority concludes that these questions "did not amount to excessive testimony" without telling us what would be excessive. Majority op. at ¶48. 6 No. 00-1086-CR.awb III ¶71 I would require procedures different from the majority's that would better protect the defendant's right to meaningful review and do less damage to the judge's role as a neutral and detached decision maker. The police investigators, the district attorney, and the judge involved in the warrant application should independently prepare affidavits detailing their recollections of the information in support of probable cause. Because police investigators who applied for the warrant may also have executed it, they should specifically aver whether the information supplied in their affidavits was known to them at the time of acknowledges, the this warrant sort of application. independent As the State reconstruction has support in case law and is preferable to the procedure approved by the majority. See State v. Smith, 941 P.2d 691, 694 (Wash. Ct. App. 1997.) ¶72 As the State also advances, if reconstruction is done independently, then the defendant has a meaningful opportunity to challenge the reconstruction at a suppression hearing. that hearing, a judge other warrant would preside. each judge's neutral than the judge who issued At the This procedure would better maintain role, and it is yet another safeguard recommended by the State that the majority does not require. ¶73 Finally, I note that although the majority correctly acknowledges that under Perry and DeLeon, a circuit court is to determine that reconstruction is accurate to the "same level of proof as the proceeding that is 7 being reconstructed," the No. 00-1086-CR.awb majority nevertheless concludes that the burden the State must meet is a preponderance of the evidence because "generally appropriate in a suppression hearing." at ¶¶55-56 (emphasis added). that is Majority op. The proceeding to be reconstructed in this case, however, is a warrant application where the State must establish probable cause. See State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991). ¶74 with What does the majority mean when it says it agrees the State preponderance adequately Majority that of the replaces op. at "the the ¶53. trial evidence, missing How court must that the portion does this find, by a reconstruction of burden the record"? relate to the requirement that the State show probable cause for a warrant or prove facts beyond a reasonable doubt in a criminal case? ¶75 The majority's statement of the burden of proof is deceptively simple. It gives little indication as to how the standard applies when it concludes without explanation that "the trial court had ample evidence to conclude that the State met its burden of proof in reconstructing the warrant application, and in doing appeal." ¶76 right so, protected Raflik's right to a meaningful Majority op. at ¶57. In sum, I do not agree with the majority that Raflik's to meaningful review was adequately reconstruction procedures employed. protected by the Additional safeguards are necessary when a court attempts by an ex parte proceeding to reconstruct in its entirety another ex parte proceeding. procedures approved by the majority 8 both compromise The a No. 00-1086-CR.awb defendant's right to meaningful review and undermine the warrant judge's role as a neutral decision maker. Thus, I would reverse the decision of the court of appeals. ¶77 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent. 9 No. 1 00-1086-CR.awb
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