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Use of unreasonable force during arrest does not automatically require suppression of evidence

State v. Jonathan A. Herr, 2013 WI App 37; case activity

In a case arising from a high-speed chase and subsequent arrest for OWI, the court holds that the use of unreasonable force to arrest the defendant does not require the suppression of evidence that was not a product of, or causally related to, the alleged unreasonable force.

Police saw Herr driving erratically and attempted to stop him. He fled at high speed, ran stop signs, and avoided a stop strip, but was eventually boxed in. (¶¶2-3). When he did not follow police commands to get out his car, an officer opened the car door and, deploying his taser, took Herr into custody. (¶4). Without deciding whether the police used excessive force (¶11 n.1), the court noted that Wisconsin has not yet addressed application of the exclusionary rule to the excessive use of force, the court looks to federal law—specifically United States v. Watson, 558 F.3d 702 (7th Cir. 2009), which held that even if police use excessive force, a defendant’s remedy is a civil suit for damages rather than exclusion of the evidence in the defendant’s criminal trial. The court adopts this approach in light of the policy that “[t]he penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve.” Hudson v. Michigan, 547 U.S. 586, 593 (2006). The court concludes:

¶11      As there is no causal relationship between the alleged use of unreasonable force and the evidence sought to be suppressed, Herr’s suggested remedy would ill serve our legal system.  Deterring police misconduct is an important goal, but not one that should necessarily be pursued at the expense of bringing criminals to justice.  See [State v.] Felix, [2012 WI 36,] 339 Wis. 2d 670, ¶39[, 811 N.W.2d 775].  The exclusionary rule is an extraordinary remedy that exacts “substantial social costs,” including potentially releasing guilty and dangerous criminals into our communities and impairing the truth-seeking objectives of our legal system.  See Hudson, 547 U.S. at 591.  “Suppression of evidence … has always been our last resort, not our first impulse.”  Id.  Even though the threat that evidence may be suppressed may deter some police officers from using unreasonable force in carrying out otherwise lawful seizures, “[t]he Fourth Amendment does not require courts to exclude all evidence or forgo prosecuting a defendant following unlawful police conduct.”  Felix, 339 Wis. 2d 670, ¶40.  As the evidence Herr seeks to suppress was not causally related to the alleged use of unreasonable force, we affirm the decision of the circuit court and Herr’s conviction.

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