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Search & Seizure – Applicability of Exclusionary Rule – Violation of § 968.135, Standing to Assert

State v. Michelle R. Popenhagen, 2008 WI 54, reversing 2007 WI App 16
For Popenhagen: James B. Connell

Issue: Whether the person whose documents were produced by a bank pursuant to subpoena has standing to seek suppression of the documents.


¶24 A person has standing to seek judicial intervention when that person has “a personal stake in the outcome” [12] and is “directly affected by the issues in controversy.” [13] Under Wisconsin law, standing “should not be construed narrowly or restrictively,” but rather should be construed broadly in favor of those seeking access to the courts. [14]

¶25 The defendant meets the test for standing. In requiring a showing of probable cause and a court order, Wis. Stat. § 968.135 protects the interests of persons whose documents are sought in addition to protecting the interests of the person on whom a subpoena is served. The statute prevents unwarranted fishing expeditions.

Just to avoid any confusion: the court is not discussing standing in the fourth amendment sense of whether your own valid privacy interests have been invaded. In other words, despite language generously conferring standing, this holding doesn’t expand fourth amendment rights. (For that matter, the court takes pains, e.g., ¶5, to say that the decision is based purely on the statute, and that constitutional issues are left for another day.) Taking this one step farther: standing, as might be imagined, is similarly defined for purposes of appellate procedure, e.g., Ford Motor Credit Co. v. Mills, 142 Wis.2d 215, 217-18, 418 N.W.2d 14 (Ct. App. 1987) (“A person may not appeal from a judgment unless he or she is aggrieved by it. … A person is aggrieved if the judgment bears directly and injuriously upon his or her interests; the person must be adversely affected in some appreciable manner.”). Point is, standing for purposes of litigating a claim, whether trial or appeal, is “construed broadly in favor of those seeking access to the courts.”

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