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Exclusionary Rule – Good-Faith Rule – Void ab initio Warrant

State v. Michael R. Hess, 2010 WI 82  affirming 2009 WI App 105; for Hess: George M. Tauscheck; BiC; Resp.; Reply

Exclusionary Rule – Good-Faith Rule – Void ab initio Warrant

¶2   We conclude that the good-faith exception to the exclusionary rule does not apply to a situation in which: (1) no facts existed that would justify an arrest without a warrant; (2) the civil arrest warrant issued by a circuit judge was void ab initio[1] because (a) it did not comply with any statute authorizing the court to issue a warrant; and (b) it was not supported by an oath or affirmation; and (3) the court issued the warrant without the benefit of verification of the facts or scrutiny of the procedure to ensure that the judge acted as a detached and neutral magistrate.

¶3   The warrant here was defective on its face.  Nonetheless, we cannot reasonably attribute fault to the law enforcement officer who executed the warrant. Thus, suppressing evidence obtained as a result of the unauthorized, defective warrant is necessary to preserve the integrity of the judicial process. Consequently, we affirm the decision of the court of appeals, State v. Hess, 2009 WI App 105, 320 Wis. 2d 600, 770 N.W.2d 769.

Hess, waiting sentence, skipped out on his PSI interview, so the judge issued a “civil bench warrant” for his arrest. When the deputy picked up Hess under authority of that warrant, he found evidence of bail jumping. The court of appeals decision ordering that evidence suppressed is now upheld, largely under the same rationale: no authority to issue the warrant exists, and suppression furthers the interests of judicial integrity. That is, the judge not the constable  blundered, so deterrent effect on police misconduct would be utterly lost. But the court of appeals elegantly reminds us that deterrence of police misconduct isn’t the only purpose served by the exclusionary rule: “judicial integrity” is an equally important value, and “judicial integrity is threatened not only when a judge condones police misconduct, but also when the judge acts outside of the law,” ¶25. All in all, a remarkable discussion by the court. The trial judge, to be perfectly blunt, acted aberrantly in ordering a citizen’s lockup. This wasn’t, as the court of appeals’ discussion conclusively demonstrates, a close call. If the judge had thought that there would be a consequence to this plainly extralegal conduct, he might well have thought twice and exercised a bit more discretion.

The State conceded the warrant’s invalidity, but the supreme court undertakes a detailed analysis anyway.

¶22  The warrant in this case suffered from two primary defects: (1) the circuit court did not have statutory authority to issue a warrant for failure to meet with a PSI investigator; and (2) the warrant was not supported by an oath or affirmation.

¶24  Under appropriate circumstances, a circuit court has statutory authority to issue a (1) civil bench warrant, (2) a criminal bench warrant, or (3) a contempt warrant. To illustrate, had the circuit court ordered Hess to comply with the requests of the PSI writer or made his cooperation a condition of bond, the court might have ordered the defendant arrested for contempt (Wis. Stat. §§ 785.03(1)(b), 785.04(1)) or issued a criminal bench warrant (Wis. Stat. § 968.09(1)) after Hess failed to follow up with the PSI writer. Had Hess failed to appear before the court on a civil matter, a civil bench warrant would have been appropriate (Chapter 818). Under the facts of this case, however, the warrant cannot be supported by any of these various statutes. The court issued what purported to be a civil bench warrant in a criminal case on the basis of Hess’s failure to comply with an order the court never gave.

Thus, it is possible that local judges will now order the defendant’s cooperation with the PSI, failure to abide by which would subject him to a coercive process. Nothing in this opinion precludes a judge from doing so. In any event, this judge issued an indefensible order, and any evidence seized as a result of activity under authority of such a warrant is suppressible. Note that the warrant was issued not only without statutory authority, but also was not “supported by oath or affirmation.” This, the court strongly suggests, is a separate defect, if one that equally supports the idea the warrant was void:

¶37  Without an affidavit accompanied by oath or affirmation, the warrant failed to meet a basic constitutional requirement and was void ab initioSee Tye, 248 Wis. 2d 530, ¶13. The absence of any affidavit should have put both the court and the sheriff’s department on notice of a problem.


¶66  The consideration of judicial integrity must take into account the nature of the defects in the warrant. The defects in the warrant here were not technical irregularities or errors of judgment: The defendant’s failure to cooperate with the agent in preparing a PSI was not a crime.  It did not violate a court order, and it did not violate a condition of his bond.  He could not have been arrested without a warrant because the defendant did not commit a crime. See Wis. Stat. § 968.07(1)(d); State v. Lange, 2009 WI 49, ¶19, 317 Wis. 2d 383, 766 N.W.2d 551 (“A warrantless arrest is not lawful except when supported by probable cause.”). The bench warrant civil that the court issued was void ab initio because it did not comply with any statute authorizing the court to issue a warrant. It was defective on its face because it was a civil warrant in a criminal case. It was not supported by a constitutionally required oath or affirmation. This should have been obvious because there was no affidavit at all. No law enforcement officer or agency made a significant investigation to support an affidavit; no government attorney or informed officer scrutinized the warrant for probable cause. In short, the warrant was void ab initio because it was unauthorized and defective in nearly every respect.

¶67  While it is easy to understand why a clerk’s failure to remove a warrant from the computer system does not threaten the integrity of our judicial system, see Arizona v. Evans, 514 U.S. at 4-5, a warrant issued without statutory authority in the complete absence of the basic constitutional requirement of oath or affirmation raises more serious questions. As stated by the Sixth Circuit, “Leonpresupposed that the warrant was issued by a magistrate or judge clothed in the proper legal authority . . .  Indeed, Leon noted that it left ‘untouched . . . the various requirements for a valid warrant.'” Scott, 260 F.3d at 515 (internal quotes and citations omitted).  When fundamental constitutional and statutory requirements for issuing a warrant are completely absent, the good-faith exception cannot save the resulting unconstitutionally obtained evidence.

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