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Search & Seizure – Applicability of Exclusionary Rule – Violation of Statutory Right, Generally: Suppression Need not Be Expressly Provided

State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16
For Popenhagen: James B. Connell

Issue/Holding:

¶62 …[E]vidence obtained in violation of a statute (or not in accordance with the statute) may be suppressed under the statute to achieve the objectives of the statute, even though the statute does not expressly provide for the suppression or exclusion of the evidence. …

The court of appeals had previously stated: “”wrongfully or illegally obtained evidence is to be suppressed only where the evidence was obtained in violation of an individual’s constitutional rights or in violation of a statute that expressly requires suppression as a sanction,” State ex rel. Jane Peckham v. Krenke, 229 Wis.2d 778, 787, 601 N.W.2d 287 (Ct. App. 1999). The supreme court now says (¶65) that that statement is “too broad”:

¶68 Arnold, Raflik, Peckham, and Verkuylen, properly read, do not require the legislature expressly to require or allow suppression of unlawfully obtained evidence in order for a circuit court to grant a motion to suppress. In other words, the legislature need not express its intent to provide a remedy of exclusion or suppression of evidence with greater clarity than ordinarily required of any legislative enactment. The cases demonstrate that the circuit court has discretion to suppress or allow evidence obtained in violation of a statute that does not specifically require suppression of evidence obtained contrary to the statute, depending on the facts and circumstances of the case and the objectives of the statute.

¶70 The proposition of law that wrongfully or illegally obtained evidence may not be suppressed except when the evidence was obtained in violation of an individual’s constitutional rights or in violation of a statute that expressly requires suppression of evidence as a sanction has been carried expressly or impliedly from case to case without any support or reasoning. This proposition is an unsupported mistaken statement of the law. Mistaken statements of the law should not constitute precedent that binds this court. [39] We do more damage to the rule of law by refusing to admit error than by correcting an erroneous proposition of law. [40] The instant case presents an opportunity to correct an error of law that has been repeated in numerous cases, and we do so

 

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