Wisconsin has recognized 2 grounds for applying the exclusionary rule to suppress evidence–to deter police misconduct and to ensure judicial integrity. State v. Hess, 2010 WI 82, ¶¶20, 33, 327 Wis. 2d 524, 785 N.W.2d 568; State v. Eason, 2001 WI 98, ¶¶3, 31 n.10, 245 Wis. 2d 206, 629 N.W.2d 625. The majority opinion in this case clarifies that a judge’s failure to follow the law when issuing a warrant cannot serve as an independent basis for the exclusionary rule.
After a 911 hang-up call, 2 officers were dispatched to Kerr’s home due to an outstanding civil bench warrant. They discovered that the 911 call was in error, but pursuant to the warrant, they arrested Kerr, searched his home, and found methamphetamine. He was charged accordingly. Kerr moved to suppress arguing that while the police had not engaged in misconduct, the civil bench warrant was void ab initio because the issuing judge had not followed §800.095’s procedures for issuing a warrant for failing to pay a civil forfeiture. The Bayfield County Circuit agreed and granted suppression. The majority opinion written by Ziegler (and joined by Roggensack, Gableman, and Kelly) reversed. Going forward, the rule is:
¶24 Our overarching inquiry in this case is whether the circuit court erred in granting Kerr’s motion to suppress. Fundamental to our analysis is whether evidence discovered during a search incident to arrest is properly suppressed under the exclusionary rule when there is no police misconduct. We conclude that suppression is not appropriate because the sole purpose of the exclusionary rule is to deter police misconduct, and there is no police misconduct here. Neither judicial integrity nor judicial error is a standalone basis for suppression under the exclusionary rule. We therefore conclude that the circuit court’s grant of Kerr’s motion to suppress on the basis of judicial integrity is error.
As noted in our post on the bypass grant, Hess, recognized judicial integrity has a standalone justification for suppressing evidence under the exclusionary rule. But just a few years later, a concurring opinion in State v. Scull, 2015 WI 22, 361 Wis.. 2d 288, 862 N.W.2d 562 signaled its demise. Although the State asked SCOW to overturn Hess, the majority says that it didn’t need to because Hess produced only a lead opinion with 3 votes so it never represented the law in Wisconsin. Opinion, ¶16.
Zigler’s concurrence. Justice Ziegler, following what seems to be a new trend in SCOW, filed a concurrence to her own majority opinion (joined by Roggensack and Gableman). Opinion, ¶¶28-58. She drew a distinction between a warrant that is invalid because the judge lacked authority to issue it and a warrant that is invalid because the judge failed to follow the law before issuing it. Only the former are “void ab initio.” The warrant at issue in Hess fell into the first category. The warrant at issue in Kerr’s case at best fell into the 2nd category. Ziegler’s distinction did not persuade Kelly, A.W. Bradley, Abrahamson, or R.G. Bradley, so it is not the law in Wisconsin. In fact, R.G. Bradly contends that there is no case law to support the distinction. Opinion ¶89 n.12.
The dissents. Justices A.W. Bradley (joined by Abrahamson) and R.G Bradley filed dissenting opinions. They both point out that the State conceded that the warrant issued to Kerr was void ab initio because the judge had not followed §800.095. See AWB dissent ¶70; RGB dissent ¶83. AWB argues that while SCOTUS has held that judicial integrity cannot serve as an independent basis for applying the exclusionary rule, Wisconsin can and and should continue to provide its citizens the greater protections. AWB dissent ¶¶64-65.
In contrast, RGB agrees with the majority that only police misconduct can justify use of the exclusionary rule. Instead, she relies on a different line of Wisconsin cases to argue that a circuit court’s failure to follow statutory procedures deprives it of authority to issue a warrant, which means the warrant is void ab initio, and a search conducted pursuant to a void warrant is by definition constitutionally unreasonable. RGB dissent ¶¶82-87 (citing Hess, State v. Kriegbaum, 194 Wis. 229, 232, 215 N.W. 896 (1927) and subsequent cases).
RGB also argues that the famous pre-dawn raid recounted in State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85 proves her point. When judges unlawfully issue warrants against innocent citizens the resulting search violates Article I, §11 of the Wisconsin Constitution. RGB ¶78. (She does not breathe the term “New Federalism” but her dissent makes you wonder if she would be open to the argument).