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SCOW will address State’s request that it overrule State v. Hess’s limit on good-faith exception to exclusionary rule

State v. Christopher John Kerr, 2016AP2455-CR, petition for bypass granted 10/17/17; case activity (including briefs)

Issue (based on the parties’ court of appeals briefs)

Does the good-faith exception to the exclusionary rule apply when there is no misconduct by a law enforcement officer in arresting an individual on an active commitment order that is later found to be void ab initio?

In State v. Hess, 2010 WI 82, 327 Wis. 2d 524, 785 N.W.2d 568, the supreme court declined to apply the good-faith exception to the exclusionary rule that usually attends police conduct undertaken in reliance on a warrant. It did so because the “warrant” issued Hess’s case—a “civil bench warrant” for being a no-show at his PSI interview—was void due to the fact the judge had no business whatsoever issuing it. The supreme court reasoned that because the circuit court had no authority to issue such a warrant, the warrant was “defective on its face” and suppression furthered the interests of “judicial integrity.” That is (as we put it in our post on the case), the judge, not the constable, blundered, so while there could be no deterrent effect on police misconduct, deterrence of police misconduct isn’t the only purpose served by the exclusionary rule: “judicial integrity” is an equally important value. Said the supreme court:

The goal of judicial integrity warrants some clarification.  The court of appeals concluded that “[t]he act of issuing a warrant without any authority whatsoever to do so … is not a ‘judicial’ act and the attempt to clothe it as such is contrary to judicial integrity.” Hess, 320 Wis. 2d 600, ¶30. The purpose of preserving judicial integrity is often tied directly to the purpose of deterring unlawful police conduct. [United States v.] Leon, 468 U.S. [897,] 921 n.22 [(1984)]…. But judicial integrity is implicated when a judge issues a warrant that does not comply with statutory requirements and is not supported by the constitutionally required oath or affirmation. In this case, there was no affidavit at all. In Leon, the Supreme Court held that “[a]bsent unusual circumstances, when a Fourth Amendment violation has occurred because the police have reasonably relied on a warrant issued by a detached and neutral magistrate but ultimately found to be defective, ‘the integrity of the courts is not implicated.'” Leon, 468 U.S. at 921 n.22 [(quoted source omitted)] (emphasis added). Even were we to hold that the circuit court fulfilled Leon’s “detached and neutral magistrate” requirement, this case presents those “unusual circumstances.” The constitutional violation was initiated when the court issued a warrant without authority to do so, and the officer’s good-faith reliance on that warrant cannot save the resulting evidence.

327 Wis. 2d 524, ¶63.

Comes now the State of Wisconsin, arguing Hess is wrongly decided and should be overruled because the exclusionary rule is, indeed, only about deterrence of police misconduct, and judicial integrity has nothing to do with it—or, at least, is not enough that it can serve as a stand-alone justification for suppression. In support of this pitch to cast aside the judicial integrity rationale the state cites State v. Scull, 2015 WI 22, 361 Wis. 2d 288, 862 N.W.2d 562, where four concurring justices said that judicial integrity can’t be a stand-alone rationale for suppression. 361 Wis. 2d 288, ¶¶47, 45-60 (Roggensack, J., concurring). As we noted in our post on Scull, this concurrence was aimed squarely at Hess, and we speculated judicial integrity as a basis for suppression was likely moribund, if not actually dead.

With its grant of review in this case the court has drawn a bead on Hess. Are its days numbered? Does the court really care so little for “judicial integrity”? Perhaps Hess will survive, albeit in a very limited version, for this reason: The trial judge in Hess acted aberrantly in ordering a citizen’s lockup, and the ultra vires act of the judge in issuing the warrant wasn’t even a close call. In this case, however, the commitment warrant for failure to pay a civil forfeiture was void because it was issued without the court making one of the findings required in § 800.095(1)(b)2. (State’s brief at 3-5, 7-9). This may be more court system failure than a fit of pique by a judge, and perhaps SCOW will say suppression is inappropriate in the former situation (cf. Arizona v. Evans, 514 U.S. 1, 3-4 (1995) (declining to suppress evidence under exclusionary rule where officer reasonably relied on an erroneous police record indicating that there was an outstanding arrest warrant for the defendant)) but appropriate in the latter situation, as that will cause that judge to think twice about issuing a plainly invalid warrant. We’ll soon see if even that nod to judicial integrity is too much for our forever contracting exclusionary rule.

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