Police violated Scull’s Fourth Amendment rights under Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409, 1417-18 (2013), when they brought a drug-sniffing dog to the front door of his residence without a warrant or probable cause. But because the police then obtained a search warrant to search Scull’s home, the good-faith exception to the exclusionary rule applies–even though the warrant was based, in part, on the prior illegal search with the drug dog.
The court first concludes that the basic requirements of State v. Eason, 2001 WI 98, ¶74, 245 Wis. 2d 206, 629 N.W.2d 625, were met. There was no claim the magistrate who issued the warrant was not “detached and neutral,” nor was there an argument that the prosecutor who reviewed the affidavit was not “a knowledgeable government attorney.” (¶¶15-16). Further, the warrant was obtained through a “significant investigation” as the affidavit in support of the search warrant cited both the drug dog’s “alerting” outside Scull’s home and the tip from a reliable confidential informant that detailed Scull’s drug activities and which was the basis for taking the dog to Scull’s home in the first place. (¶¶3-5, 17-18). Finally, at the time of the search the law did not clearly establish that taking a drug dog to sniff the outside of a residence was a “search”:
¶21 Relevant caselaw at the time the search warrant was signed also convinces us that the police acted reasonably in objectively relying on the search warrant in this case. As the State points out, prior to Jardines, dog-sniff searches of the type presented in this case had been held lawful in many jurisdictions. Furthermore, the law was and still is that a dog sniff of the exterior of a car is not a “search” under either the Fourth Amendment or the Wisconsin Constitution. State v. Arias, 2008 WI 84, ¶14, 311 Wis. 2d 358, 752 N.W.2d 748; see also Illinois v. Caballes, 543 U.S. 405, 408-09 (2005) (holding that a dog sniff of a vehicle during a traffic stop, conducted absent reasonable suspicion of illegal drug activity, did not violate the Fourth Amendment because it did not implicate any legitimate privacy interest).
¶22 In light of the reliability of the process used to obtain the search warrant for Scull’s home and the state of the law at the time the search warrant was issued, we conclude that the police “‘acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment’” when they executed the search warrant and searched Scull’s home. See [State v.] Dearborn, [2010 WI 84,] 327 Wis. 2d 252, ¶33[, 786 N.W.2d 97] (citation omitted). As such, application of the exclusionary rule in this case would not act to “deter police misconduct” nor would the deterrent benefits of the rule “outweigh the substantial costs to the truth-seeking and law enforcement objectives of the criminal justice system.” See id., ¶38. Therefore, we conclude that the good-faith exception to the exclusionary rule applies in this case, and we must affirm the circuit court.
Judge Kessler dissents, concluding the good-faith exception should not apply because there was no significant investigation, for “[w]ithout the illegal dog-sniff, the warrant had no basis in fact or law.” (¶25).
Dearborn, you will remember, extended the good-faith exception to police officers acting “in objectively reasonable reliance on clear and settled Wisconsin precedent.” 327 Wis. 2d 252, ¶51. The holding in this case demonstrates the prescience of the dissent in Dearborn, which said: “The majority opens the door to a ‘good faith’ exception in cases where police act on their own evaluation of the case law rather than in reliance on the evaluation of a neutral and detached magistrate.” Id., ¶ 102 (emphasis added). That is exactly the rationale the court uses to excuse the officer’s unlawful use of the drug dog on Scull’s property: Other jurisdictions allowed the conduct, Wisconsin allowed it with respect to cars (never mind that cars and homes have a very different status under the Fourth Amendment), and there was no precedent clearly prohibiting such a search, so an officer could reasonably conclude it was perfectly legitimate. (¶¶21-22).
The holding here likewise validates the fears of the dissent in Davis v. United States, 564 U.S. ___, 131 S.Ct. 2419 (2011), the U.S. Supreme Court’s counterpart to Dearborn. The Davis majority held that the “sole purpose” of the exclusionary rule is deterrence and claimed the rule has never been applied “to suppress evidence obtained as a result of nonculpable, innocent police conduct.” 131 S.Ct. at 2426, 2429. Thus, when an officer acts with an objectively reasonable good-faith belief that his or her conduct is lawful, exclusion is not justified because “suppression would do nothing to deter police misconduct in these circumstances.” Id. at 2423. When the police act with an objectively “reasonable good-faith belief” that their conduct is lawful, or when their conduct involves only simple, “isolated” negligence, the deterrence rationale loses much of its force and exclusion cannot “pay its way.” Id. at 2427-28 (quoted sources omitted). See also Illinois v. Krull, 480 U.S. 340, 348-49 (1987) (“evidence should be suppressed ‘only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment'”); Herring v. United States, 555 U.S. 135, 145 (2009) (the relevant question is “‘whether a reasonably well trained officer would have known that the search was illegal’ in light of ‘all of the circumstances’”). As the Davis dissent points out, however:
…[A]n officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable than an officer who follows erroneous “binding precedent.” Nor is an officer more culpable where circuit precedent is simply suggestive rather than “binding,” where it only describes how to treat roughly analogous instances, or where it just does not exist. Thus, if the Court means what it now says, if it would place determinative weight upon the culpability of an individual officer’s conduct, and if it would apply the exclusionary rule only where a Fourth Amendment violation was “deliberate, reckless, or grossly negligent,” then the “good faith” exception will swallow the exclusionary rule. Indeed, our broad dicta in Herring—dicta the Court repeats and expands upon today—may already be leading lower courts in this direction.
Davis, 131 S. Ct. at 2439 (Breyer, J., dissenting).
Though the court of appeals doesn’t cite Davis or Herring, it is clearly going down the path blazed in those cases. And our court is not alone. It appears many (though not all) lower courts grappling with police action in areas where the law is unsettled have applied a good-faith exception to police officers’ own extrapolation of, or analogizing to, existing case law–at least as illustrated by the cases dealing with attaching GPS tracking devices to cars without a warrant before United States v. Jones, 132 S.Ct. 945 (2012). David J. Twombly, The Good-Faith Exception and Unsettled Law: A Study of GPS Tracking Cases after United States v. Jones, 74 Ohio St. L. Jr. 807, 825-29 (2013). (For a case rejecting application of the good-faith exception on GPS tracking, see United States v. Katzin, 732 F.3d 187 (3rd Cir. 2013), decision vacated, rehearing en banc ordered (Dec. 12, 2013)).
There is also a split in authority addressing the precise factual scenario in this case–a warrant that relies in part on information seized as the result of a previous illegal search–and the split predates Herring and Davis. Thus, United States v. Vasey, 834 F.2d 782, 789-90 (9th Cir. 1987), held that a search warrant issued in part on the basis of evidence seized in an illegal search could not be rescued by the good-faith exception because the constitutional error was made by the officer, not the magistrate, and the good-faith exceptions makes it clear that the exclusionary rule should apply if the exclusion of evidence would alter the behavior of law enforcement. On the other hand, United States v. McClain, 444 F.3d 556, 565-66 (6th Cir. 2006), held that even if a warrant is based on an illegal predicate search, the good faith exception may apply in “unique cases” where “the facts surrounding the initial Fourth Amendment violation were ‘close enough to the line of validity to make the officer’s belief in the validity of the warrant objectively reasonable.'” With Herring and Davis supporting the approach that “close enough to the line of validity” is good enough, we may indeed be headed for a good-faith exception that swallows the exclusionary rule. For an equally pessimistic view, see Tracey Maclin & Jennifer Rader, No More Chipping Away: The Roberts Court Uses an Axe to Take Out the Fourth Amendment Exclusionary Rule, 81 Miss. L. Jr. 1183, 1190 (2012) (the rationale of Davis confirms that “the Court intends to limit application of the rule to deliberate, bad-faith, or recurring Fourth Amendment violations”).