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Exclusionary rule applies to property forfeiture actions; but so does good faith exception

State v. Michael J. Scott, et al., 2019 WI App 22; case activity (including briefs)

Applying long-standing U.S. Supreme Court precedent, the court of appeals holds that the exclusionary rule can be used to defend against a civil forfeiture complaint filed by the state. But it also holds the state should have a shot at arguing the good-faith exception to the exclusionary rule also applies, despite the state’s failure to assert this claim in the circuit court.

Police got a warrant to search the Scotts’ residence for evidence of manufacturing and possessing marijuana with intent to deliver. Based on evidence seized during the execution of the warrant the Scotts were charged with criminal offenses. The state also filed a complaint under §§ 961.55 and 961.555 seeking forfeiture of property that the state argued was used to “facilitate” their drug crimes. (¶¶6-8). The criminal case was dismissed after the circuit court granted the Scotts’ motion to suppress evidence because the search warrant failed to state probable cause. The state made no argument that, despite the lack of probable cause, the search was saved by the good-faith exception, nor did the state appeal the suppression order. (¶9, 11).

The Scotts then moved for summary judgment on the property forfeiture, citing  One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965), which held that the exclusionary rule applies to state forfeiture proceedings that are of a “quasi-criminal nature.” The circuit court granted summary judgment, and the court of appeals affirms, rejecting the state’s attempts to argue that, unlike the forfeiture proceeding in Plymouth Sedan, a forfeiture proceeding under ch. 961 isn’t “quasi-criminal”:

¶27     There is no reasonable dispute that an action of the type at issue here is, in the words of Plymouth Sedan, intended “to penalize for the commission of an offense against the law.” 380 U.S. at 700. The State fails to engage on the point, but the Scotts properly note that there is a clear punitive purpose behind a statute that permits “forfeiture of a vehicle ‘used to transport any property or weapon used or to be used or received in the commission of any felony.’” See State v. Hammad, 212 Wis. 2d 343, 351, 569 N.W.2d 68 (Ct. App. 1997) ….

¶28     As the Court in Plymouth Sedan notes, the state civil forfeiture provision at issue in that case “requir[ed] the determination that the criminal law has been violated.” Plymouth Sedan, 380 U.S. at 701. In particular, the provision at issue there required that the item sought to be seized had been “used” in the commission of the crime. Id. at 694 n.2 (quoting state law provision that forfeiture was merited when property was “used in the … illegal transportation of liquor”). But the reasoning of the Plymouth Sedan Court does not hinge on whether the property is subject to seizure because it was used in the commission of the crime. Rather, as summarized above, the Court holds that a civil forfeiture action to obtain property based on proof of criminal conduct is quasi-criminal for Fourth Amendment purposes because “[i]ts object, like a criminal proceeding, is to penalize for the commission of an offense against the law.” See id. at 700. This is the case here, where the commission of a felony under Wis. Stat. ch. 961 … is an explicit element of forfeiture claims alleged by the State in the forfeiture complaint. See Wis. Stat. §§ 961.55(1)(d), (f), 961.555(3). As we have summarized above, the forfeiture complaint here relies on allegations that the property subject to forfeiture was either “used in violation” of the Controlled Substances Act or was derived from such violations. See §§ 961.55(1)(d), (f), and 961.555.

The court notes that Plymouth Sedan and this case do not involve forfeiture of contraband as opposed to property that may otherwise be lawfully possessed, but is subject to forfeiture solely because of its relationship to the commission of a crime. (¶27 n.6). Contraband will, presumably, be subject to forfeiture regardless of the exclusionary rule.

Also, the state suggests that Plymouth Sedan has been modified by later cases limiting the application of the exclusionary rule in grand jury proceedings, civil deportation proceedings, revocation proceedings, and by a different sovereign in a different prosecution. (¶¶33-40). The court finds it is bound by Plymouth Sedan (¶34), as that the cases relied on by the state “simply decline to provide the protections afforded by the exclusionary rule in specific contexts, all different from the context shared by Plymouth Sedan and this case.” (¶41).

So far, so good. But the state mounts a new challenge it didn’t make in the circuit court in either the criminal case or this case: That despite the invalid warrant, the evidence was lawfully seized because the police relied on the warrant in good faith. Apparently the district attorney’s initial briefs didn’t make this argument (they weren’t e-filed, so they can’t be viewed online), but after the court ordered the case to be decided by a three-judge panel the AG got involved and filed a replacement brief making the good-faith argument. As described by the court:

¶43     …. The State provides a string of citations from non-Wisconsin and non-U.S. Supreme Court jurisdictions for the broad proposition that “the good-faith exception analysis” may be applied “in civil forfeiture actions before determining whether evidence should be excluded.” However, the State does not provide argument or authority for the specific proposition that, when the State has failed to argue the good-faith exception in a criminal action, it may make that argument in a related forfeiture action.

Unfortunately, the Scotts stood on their initial response brief to the DA’s opening brief rather than filing a new response brief to answer the AG, so they are silent on the good-faith exception beyond noting that the state’s failure  to raise it in the criminal case. The upshot:

¶44     …. We take this non-response as a concession that the State is entitled to at least an opportunity to address the potential for application of the good-faith exception. On that basis only, we conclude that it is appropriate to remand to the circuit court for further proceedings with respect to the State’s good-faith exception argument. We lack sufficient adversarial briefing to express a view on any aspect of the potential applicability of the good-faith exception. It might be, for example, that on remand the Scotts will present a persuasive argument that the circuit court should not allow further litigation with respect to whether the evidence obtained in the search is admissible.

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