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Suppression Hearing – State’s Waiver

State v. Harold C. Mikkelson, 2002 WI App 152
For Mikkelson: Michael Yovovich, SPD, Madison Appellate

Issue: Whether the state waived an appellate argument in opposition to suppression by not raising it at the suppression hearing.


¶14 “The waiver rule serves several important objectives. Raising issues at the [circuit] court level allows the …. court to correct or avoid the alleged error in the first place, eliminating the need for appeal.” State v. Huebner, 2000 WI 59, ¶12, 235 Wis. 2d 486, 611 N.W.2d 727. It also gives both parties and the … judge notice of the issue and a fair opportunity to address the objection. Id.” Furthermore, the waiver rule encourages attorneys to diligently prepare for and conduct trials.” Id.” Finally, the rule prevents attorneys from sandbagging errors, or failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal.” Id. For all of these reasons, the waiver rule is essential to the efficient and fair conduct of our adversary system of justice.”Id.¶15 By only arguing at the suppression hearing that Mikkelson’s parents had given consent to enter the house, the State obviated any need for Mikkelson to present witnesses about probable cause and hot pursuit. Further, without being put on notice that the State was relying on more exceptions than just consent, the court did not have an opportunity to clarify the record regarding those exceptions. It would be unfair to the court and to Mikkelson to allow the State to rely exclusively on a different exception to the warrant requirement than what was argued at the suppression hearing. The waiver rule is applied equally to both a defendant and the State when they are the appellants. State v. Bollig, 222 Wis. 2d 558, 564, 587 N.W.2d 908 (Ct. App. 1998).

¶16 Further, the State has not filed a reply brief refuting Mikkelson’s waiver argument. An argument asserted by a respondent on appeal and not disputed by the appellant in the reply brief is taken as admitted. Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994). Accordingly, we conclude that the State has failed to preserve for appeal its probable cause and hot pursuit arguments.

Note: The defendant prevailed below.

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