Holding: “No,” said the court of appeals. Popenhagen simply abrogated case law that prohibited the circuit court from suppressing evidence obtained in violation of a statute when the statute does not expressly require suppression. Slip op. ¶9. It held 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.” Popenhagen, ¶64.
Popenhagen involved § 968.135, which provides for the subpoena of certain documents upon of showing of probable cause. The court of appeals saw this statute as fundamentally different from § 968.255, the strip search statute:
¶9 . . . Since the statute in Popenhagen expressly authorized “[m]otions to the court, including, but not limited to, motions to quash or limit the subpoena,” a suppression motion was allowed because “[a] motion to suppress documents obtained by a subpoena issued in violation of [the statute] is … similar in nature” to motions to quash or limit the subpoena. Id., ¶¶36, 51. The court pointed out that a suppression motion was also “germane to the objectives” of the statute in question. Id., ¶54.
¶10 The same is not true here. Firstly, this statute, unlike the statute in Popenhagen, enumerates specific remedies for its violation: (1) a $1000 fine or imprisonment, Wis. Stat. § 968.255(4), and (2) civil damages or injunctive relief. Thus, unlike in Popenhagen, here there is no evidence that the legislature contemplated any remedies “similar in nature” to a motion to suppress. Secondly, allowing such a motion would not be germane to the objectives of the statute. This is a regulatory statute aimed at controlling law enforcement officers’ conduct via criminal penalties. It does not mention probable cause and authorizes no motions to quash or limit the search. So, while, in other cases, a suppression motion might be an appropriate remedy for a violation of the law that took place during a strip search—if, for instance, there was no probable cause for the search—where, as here, there was concededly no violation of any constitutional right but merely of the statute itself, the violation of the statute provides no basis for a suppression motion. See also Jenkins v. State, 978 So. 2d 116, 128-30 (Fla. 2008) (holding that absent constitutional violation, where the strip search statute did not expressly authorize suppression as a remedy, suppression was not a remedy).
Popenhagen generated a 54-page decision, including a concurrence by Justice Prosser, a concurrence/dissent by Justice Ziegler and a dissent by Justice Roggensack. Folks interested in suppressing illegally obtained evidence in situations where there has been no constitutional violation and no statute explicitly authorizes suppression might want to study Prosser’s and Ziegler’s concurrences in particular. They both highlight arguments that might achieve such a result—arguments that the Popenhagen majority (if forced to) might agree with. For more on strip searches and suppression see our prior post here.