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State v. Gary Monroe Scull, 2011AP2956-CR, petition for review granted 5/22/14

On review of published court of appeals decision; case activity

Issue (composed by On Point)

Did the good-faith exception to the exclusionary rule apply to a search of a home conducted in reliance on a search warrant that was itself based on a search by a drug-sniffing dog that violated Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013)?

The lack of an easily available electronic copy of the petition for review makes the precise issue statement a bit of a guess, but the overall parameters of the case are clear enough. Our post on the court of appeals decision provides much more background, including the facts of the case and a discussion about the ever-widening gyre that the good-faith exception to the exclusionary rule is tracing through Fourth Amendment law.

Note there are two “varieties” of good-faith exception involved here, and this decision will be significant because it will likely clarify or modify both of them. The first and longest-standing exception involves police reliance on a search warrant. In Wisconsin, to avail itself of this good-faith exception the state must prove that the process by which the warrant was obtained included “significant investigation.” State v. Eason, 2001 WI 98, 74, 245 Wis. 2d 206, 629 N.W.2d 625. Thus, one question in the case is whether the “significant investigation” requirement was met.

The second, more recently minted good-faith exception involves police reliance on “clear and settled Wisconsin precedent,” State v. Dearborn, 2010 WI 84, ¶51, 327 Wis. 2d 252, 786 N.W.2d 97. This exception arises because, as part of their investigation, the police took a drug-detection dog on to Scull’s front porch, an act now clearly unlawful under Jardines. The court of appeals applied this exception to excuse the unlawful dog-sniff search, thus allowing the dog’s “alert” to count as part of the “significant investigation” supporting the warrant—a conclusion that is dubious, at best, as we tried to explain in our previous post. The supreme court will now either leash the Dearborn good-faith exception back down to its original rationale, or loose some new, rough beast upon the Fourth Amendment world.

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