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Search & Seizure – Applicability of Exclusionary Rule – Violation of Statutory Right: § 968.135, Subpoena Procedure for Production of Documents – Suppressibility of Documents Themselves

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

Issue: Whether documents produced in violation of § 968.135 subpoena procedure are suppressible.


¶30 The State concedes, and properly so, that contrary to the requirements of Wis. Stat. § 968.135 no showing of probable cause was made to the circuit court before the circuit court issued the subpoenas. We must therefore consider whether suppression of the bank documents is an appropriate remedy for the violation of § 968.135. …

¶37 By its plain terms, Wis. Stat. § 968.135 provides that subpoenas issued under its terms may be reviewed by the circuit court upon “[m]otions to the court, including, but not limited to, motions to quash or limit the subpoena.”

¶38 The question presented is the meaning of the statutory language “[m]otions to the court, including, but not limited to, motions to quash or limit the subpoena.” More specifically, the question presented is: Does the class of motions that may be brought in response to a subpoena issued under Wis. Stat. § 968.135 include a motion to suppress documents obtained pursuant to a subpoena issued in violation of Wis. Stat. § 968.135? Although the answer to this question is not explicitly set forth in the statute, the answer is evident upon close examination of the text of the statute.

¶56 In applying each of the three rules for interpreting the word “includes” we have concluded that under each rule the defendant’s motion to suppress the documents at issue in the present case was properly granted.

Detailed statutory construction analysis omitted: it only matters where you end up, not how you got there, right? Speaking of which …. A majority of 4 signs on to the foregoing. A total of 6 vote for suppression of the documents, which makes it 6-1 in favor of that relief. However, the two concurrences, for different reasons, take a much narrower view of the remedy. (Justice Prosser stresses the extreme nature of the violation on the particular facts, ¶¶127-29; Justice Ziegler, similarly, stresses “the unique facts of this case,” ¶136.) This makes the outcome, in effect, 4-3.

And what about the court of appeals decision, which said that no 4th amendment violation had occurred? The supreme court mandate “reversed” the court of appeals “decision,” but it did not specifically reverse the 4th amendment holding. Instead, the court merely held that question open. The general rule is that a published court of appeals’ decision holding that is reviewed but not specifically reversed by the supreme court retains its precedential value, State v. Jones, 2002 WI App 196, ¶40. Does the court of appeals decision in this case, then, retain its precedential effect? Possibly so: State v. Gary M.B., 2003 WI App 72, ¶13 (court of appeals holding in a case reversed by the supreme court on other grounds, so that holding neither “overruled, withdrawn, or modified,” continues to bind court of appeals), affirmed on other grounds (but of course!), 2004 WI 33.


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