State v. Cherise A. Raflick, 2001 WI 129
For Raflik: Michael J. Fitzgerald, Dean A. Strang
¶1. This case requires us to decide whether suppression is the proper remedy when a telephonic application for a search warrant is not recorded in accordance with Wis. Stat. § 968.12(3)(d)1, and when the factual basis for the warrant is reconstructed in an ex parte hearing after the warrant has been executed. We conclude that suppression is improper, and that the warrant application in this case was appropriately and adequately reconstructed.
As the court notes, three constitutional protections are implicated by this Issue: fourth amendment (unreasonable search & seizure); 14th amendment due process (meaningful judicial review); and Art. I, § 21 (meaningful appeal). Given conceded procedural regularities (probable cause, etc.) other than lack of contemporaneous record, no direct fourth amendment violation occurred. ¶17. As to the irregularity that did occur, the court holds that at least where, as here, the failure to record a warrant application isn’t the result of police misconduct, the fourth amendment is satisfied “when a careful reconstruction of a warrant application is made.” ¶21. Various factors should be considered, such as length of unrecorded segment, time between application and reconstruction, and extent of issuing judge’s role in reconstruction. ¶26. As to the rights to meaningful appeal/review, prior case law allowing reconstruction of missing trial transcripts is relevant. State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987); State v. DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App. 1985):
¶39. We hold that the reconstruction procedures articulated in Perry and DeLeon may be used in a situation where a telephonic warrant application has mistakenly not been recorded. Where there is no evidence of intentional or reckless misconduct on the part of law enforcement officers, a reconstructed warrant application may serve as a functional equivalent of the record of the original application. Such a reconstruction, when made appropriately, can protect the defendant’s right to a meaningful appeal, as well as the defendant’s ability to challenge the admission of evidence in a suppression hearing.
Reconstruction of a missing warrant application will virtually always be required. ¶40. Application of the Perry–DeLeon factors satisfies the court that the reconstruction was the functional equivalent of the original application. ¶¶42-43 (court stressing that only 18 hours lapsed between application and reconstruction). That the issuing judge conducted the hearing, and asked leading questions, wasn’t inappropriate. ¶¶44-48. Nor need the hearing have been adversarial, given that it occurred prior to issuance of a charge; however, a post-charge reconstruction hearing might well require presence of counsel. ¶¶49-51. Finally, the burden of proof is to the same degree of certainty as the reconstructed proceeding; because suppression is judged by preponderance of evidence, that is the standard that applies to warrant-application reconstruction. ¶¶53-57.