In a decision that fails to engage the real issue presented in the case, the supreme court holds that the good-faith exception to the exclusionary rule recognized in State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625, allows the admission of evidence seized using a search warrant that was based on information collected in violation of Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409, 1417-18 (2013).
Police got a tip that Scull was selling drugs, but lacking probable cause to get a warrant to search Scull’s home they took Voden, a drug-sniffing dog, to the front door to see if he might “alert” and indicate the presence of drugs. Voden did “alert,” and the police then used that fact and other information to get a search warrant for Scull’s home. (¶¶5-12). Scull unsuccessfully argued in the trial court that the warrant was invalid because the dog sniff was illegal. (¶¶13-14).
While his appeal was pending, the Supreme Court decided Jardines, which held that taking a drug sniffing dog to the front door of a home without a warrant violates the Fourth Amendment. (¶15). The parties agreed that Jardines rendered the use of Voden illegal, but they disputed whether the officers’ actions were covered by the good-faith exception to the exclusionary rule applicable to officers acting in reliance on the law as it stood at the time they used Voden. (¶24). The state pointed to Wisconsin case law holding that dog sniffs of cars are not searches and to case law from elsewhere upholding dog sniffs of homes, and based on that case law argued for the application of the good-faith exception for police officer reliance on case law adopted in State v. Dearborn, 2011 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97. The court of appeals agreed with this argument. The trouble with the argument, though, is that Dearborn‘s good-faith exception requires reliance on “clear and settled Wisconsin precedent,” id., ¶46, which is conspicuously lacking here.
The supreme court says “[w]e need not address this argument because a straight-forward application of our good faith jurisprudence governing police reliance on a warrant [i.e., Eason] resolves our inquiry.” (¶25). The lead opinion then applies the three Eason factors and finds them all satisfied: 1) police conducted a significant investigation prior to obtaining the warrant—including, of course, the illegal dog sniff; 2) the affidavit supporting the warrant was reviewed by a knowledgeable government attorney (an assistant DA); and 3) the police could reasonably rely on the warrant because it was not so facially deficient that a reasonable, well-trained officer would not have relied upon it (¶¶39-43). Because the evidence seized from Scull’s house “was obtained in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate,” it should not be suppressed. (¶46).
This is a baffling decision. For starters, the court says the case is governed by Eason, where the court commissioner erred in issuing a no-knock warrant because there was no reasonable suspicion to support a no-knock entry. 245 Wis. 2d 206, ¶26. But the error here is not the magistrate’s decision to issue the warrant; it is the police officers’ unlawful use of Voden. By analyzing this case under the good-faith exception adopted in Eason the court all but ignores the police conduct, treating it in a conclusory fashion and even then only through the prism of what the warrant-issuing commissioner should have made of the police conduct. Specifically, after saying it can resolve this case by applying Eason, the court gives a brief review of the case law on dog sniffs as searches prior to Jardines and then concludes:
¶30 In sum, at the time the commissioner issued the warrant in this case, there was Wisconsin and United States Supreme Court precedent stating there is no search when a dog sniffs a vehicle. There was also precedent stating that there is no search when a dog sniffs luggage at an airport. However, it was unsettled whether the same analysis would apply to a dog sniff of a home. Given the precedent, the commissioner’s decision to grant the warrant appears to be a reasonable application of the unsettled law at the time the warrant issued. Accordingly, we turn to our case law addressing the application of the good faith exception to evidence obtained in reliance on a warrant.
 Notably, at the time the warrant was issued, had the commissioner reviewed other states’ jurisprudence on this question, he would have discovered the appellate decision in State v. Jardines, 9 So. 3d 1 (Fla. Dist. Ct. App. 2008), which held that a dog’s sniff of a home was not a Fourth Amendment search.
Put aside the fact that the warrant-issuing process is a non-adversary, ex parte, virtually summary procedure during which the magistrate likely gives no thought whatever to how to apply unsettled law. The point for present purposes is that if the commissioner’s decision to issue the warrant “appears” to be reasonable, that just goes to show the commissioner didn’t err, which makes it even clearer that analyzing this case under Eason is inappropriate.
So Eason doesn’t fit here, both because there was no error by the magistrate and because the initial police illegality in using Voden was not undertaken in reliance on a warrant. Is there some other good-faith exception that excuses the police conduct? Because of its invocation of Eason the court doesn’t say. Unlike the court of appeals, though, the supreme court does not invoke Dearborn—and it was correct not to, because Dearborn‘s “clear and settled Wisconsin precedent” standard can’t save the police conduct here unless you stretch “clear and settled” to include “analogous decisions which might arguably be extended” or expand “Wisconsin” to cover “other jurisdictions.” On the other hand, the reasoning quoted above from ¶30 seems to create a new good-faith exception for unlawful police conduct that collected evidence that is then used to support a warrant when the magistrate could reasonably have applied unsettled law in a way that condones the unlawful conduct. What happens, then, if the magistrate’s application of unsettled law was not reasonable? Is the warrant invalid? Perhaps; but so what? The state can just invoke Eason‘s good-faith exception! And don’t think the magistrate’s unreasonable application of unsettled law will make it unreasonable for the police to rely on the warrant, for after all, we can’t expect the police to second-guess the magistrate when it comes to unsettled law.
The upshot, then, is that by focusing on the commissioner’s decision and misapplying Eason, the court allows the initial police illegality in this case to be laundered through the search warrant and effectively escape review. The court never gets near the actual issue in the case: The effect on the warrant of the underlying police illegality. The U.S. Supreme Court has not addressed this issue, and as we noted in our post on the court of appeals decision, courts have split on whether the good-faith exception applies to reliance on a warrant that is based in part on information seized as the result of a previous illegal search. United States v. Vasey, 834 F.2d 782, 789-90 (9th Cir. 1987), for instance, held that evidence seized using a search warrant based in part on evidence seized in a prior illegal search could not be rescued by the good-faith exception because the error was made by the officer, not the magistrate, and the good-faith exception makes it clear that the exclusionary rule should apply if the exclusion of evidence would deter 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.'” You’ll find no discussion of these cases anywhere in the supreme court’s decision.
The court’s failure to address the issue is all the more perplexing given the exchange between the lead opinion and a concurrence (Justice Roggensack, joined by Justices Crooks, Ziegler, and Gableman) about the purposes of the exclusionary rule. The concurrence argues that the exclusionary rule’s sole purpose is deterrence of police misconduct, and it takes issue with the lead opinion’s reference to “judicial integrity” as a possible rationale for exclusion. (¶¶47, 56-60). The lead opinion acknowledges that judicial integrity standing alone can’t be the rationale for exclusion. (¶22 n.4). So why the fuss? Well, the concurrence is aimed at State v. Hess, 2010 WI 82, 327 Wis. 2d 524, 785 N.W.2d 568, which declined to apply the good-faith exception to police conduct undertaken in reliance on a warrant that was void because the judge had no authority to issue it. Over a dissent (Justice Gableman joined by Justice Roggensack), Hess invoked judicial integrity as a rationale for exclusion because of the unique nature of the warrant’s defects, and it didn’t apply the good-faith exception because the facts were “not a neat fit” with Eason and similar cases. Id., ¶¶53, 61-67. That the concurrence here garnered four votes probably means judicial integrity as used in Hess is moribund, if not dead.
Regardless, the exchange about the purpose of exclusion is ultimately just a bizarre side-show in this case. No one invoked judicial integrity here. And if the justices agree the exclusionary rule is focused solely on errors by the police, why doesn’t anyone actually bother to address the undisputed police error in this case and explain why it doesn’t serve the purposes of the exclusionary rule to invalidate the warrant? True, like Hess, the facts of this case are “not a neat fit” with prior good-faith cases; but that’s all the more reason to tackle the issue. Instead, we get what ultimately seems to be a one-off decision addressing warrants based on Jardines violations, but no clear guidance for cases that will arise in the future. That is On Point’s take, at least. If anyone else has some insight into what this decision means, chime in; the comments are always open.