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Warrants – Good-faith Exception – “Indicia” of Probable Cause, Generally

State v. Bill P. Marquardt, 2005 WI 157, on certification; prior history: 2001 WI App 219
For Marquardt: John Brinckman; Patricia A. Fitzgerald

Issue/Holding: The good-faith exception is inapplicable when indicia of probable cause are so lacking as to render official belief in its existence unreasonable. This inquiry is distinct from the question of whether the supporting facts are clearly insufficient.

¶33      Under Leon‘s rationale, sufficient “indicia” of probable cause refers to more than the fact that one or more judges have approved and signed the warrant. “[I]t is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.” Leon, 468 U.S. at 922-23 (footnote omitted). The exclusionary rule will apply when “a reasonably well trained officer would have known that the search warrant was illegal despite the magistrate’s authorization.” Id. at 922 n.23.

¶34      In short, the very point of the third Leon circumstance is that the good faith exception will not apply when the warrant is based on an affidavit so lacking in indicia of probable cause that a law enforcement officer——who ordinarily should not be expected to second-guess the warrant-issuing judge——can be said to have unreasonably relied on the warrant.

Three other potential circumstances also avoid the exception under the Leon test (see ¶25), but insufficient indicia of probable cause is the only one raised by Marquardt or discussed by the opinion. As construed by this decision, the test appears to be less than exacting. The prior court of appeals decision held that the warrant lacked probable cause; this isn’t enough: “an ‘indicia’ of probable cause is not the same as a probable cause determination. Rather, the standard for ‘indicia’ is less demanding. It requires sufficient signs of probable cause, not probable cause per se,” ¶37. Wisconsin imposes two other requirements before good faith is triggered, State v. Eason, 2001 WI 98, ¶74, 245 Wis. 2d 206, 629 N.W.2d 625, but only one is at issue in this case: that the warrant was based on a “significant investigation.”


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