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Wisconsin Constitution – Construction – Construction – “New Federalism” – Art. I, § 11 Generally Follows Fourth Amendment Jurisprudence

State v. Ramon Lopez Arias, 2008 WI 84, on Certification
For Arias: Lora B. Cerone, SPD, Madison


¶20      Historically, we have interpreted Article I, Section 11 of the Wisconsin Constitution in accord with the Supreme Court’s interpretation of the Fourth Amendment. See, e.g., State v. Malone, 2004 WI 108, ¶15, 274 Wis. 2d 540, 683 N.W.2d 1; State v. Guzman, 166 Wis. 2d 577, 586-87, 480 N.W.2d 446 (1992); State v. Williams, 47 Wis. 2d 242, 249, 177 N.W.2d 611 (1970). Our coordination of Article I, § 11 with the Supreme Court’s Fourth Amendment jurisprudence began long before we were required to follow the Supreme Court’s Fourth Amendment jurisprudence by its decision in Mapp v. Ohio, 367 U.S. 643 (1961). For example, in Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923), we excluded evidence that was obtained in violation of Hoyer’s constitutional rights under Article I, § 11 of the Wisconsin Constitution, an interpretation consistent with the United States Supreme Court’s use of the exclusionary rule under the Fourth Amendment. Hoyer, 180 Wis. at 412 (citing Amos v. United States, 255 U.S. 313 (1921)). State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625, represents the only time we have departed from the Supreme Court’s construction of the Fourth Amendment in our interpretation of Article I, Section 11. [5]¶21      There are sound policy reasons for this consistency in our jurisprudence. By following the Supreme Court’s Fourth Amendment jurisprudence in interpreting Article I, Section 11, we impart certainty about what the law requires for those who will apply our decisions with respect to searches and seizures, and we provide distinct parameters to those who must enforce the law while maintaining the constitutionally protected rights of the people. Therefore, were we to conclude that a dog sniff of the exterior of a vehicle in a public place constitutes a search under Article I, Section 11, we would be undertaking a significant departure from the Supreme Court’s Fourth Amendment jurisprudence in interpreting the right to be free of unreasonable searches under the Wisconsin Constitution.

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