Investigation Case Analysis

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It should be expected that the most frequent applications of this decision will not be in civil rights actions in federal court, like this case, but in state court, where defendants attempt to use it to suppress evidence against them.

A number of hurdles await defendants who attempt to do so. First and foremost is whether Wisconsin courts, which are not bound by the decision, will agree with the Seventh Circuit that the statute is unconstitutional.

A second question is whether, even if the Wisconsin Supreme Court were to agree that it is unconstitutional, that decision would benefit the defendant who successfully makes the argument.

Presumably, the answer is “yes.” The general rule is that the exclusionary rule is not applicable where governmental officials act pursuant to a presumptively valid statute.

However, the U.S. Supreme Court, in Michigan v. DeFillippo, 443 U.S. 31, 39-40 (1979), and the Wisconsin Supreme Court, in State v. Princess Cinema of Milwaukee, Inc., 96 Wis.2d 646, 649, 292 N.W.2d 807, 809 (1980), have both drawn distinctions between statutes that authorize searches without a warrant or probable cause, and those statutes where the only relevance to the validity of the arrest and search is as it pertains to the “facts and circumstances” constituting probable cause.

Here, the statute falls into the former category, and thus, the exclusionary rule should be applicable even to seizures occurring before the issue is settled in Wisconsin courts.

Third, a defendant raising the issue must have standing to do so. While the decision here concerned a private school, the court made clear that it extends to searches on all private property.

However, it is questionable whether a defendant could challenge evidence gathered pursuant to an unlawful investigation on property in which neither the defendant nor the child has a reasonable expectation of privacy.

In one limited situation, a defendant can seek suppression of evidence based on unconstitutional police conduct towards a third party. In State v. Samuel, 2002 WI 34, 252 Wis.2d 26, 42-43, 643 N.W.2d 423, 431, the Wisconsin Supreme Court held that, when a defendant seeks to suppress witness statements as the product of coercion, the police misconduct must be so egregious that it produces statements that are unreliable as a matter of law.

In Samuel, however, the police failed to give Miranda warnings to a witness, although they should have. In child abuse investigations, the decision would not be directly applicable, but depending on the egregiousness of the investigation, the principles and holding could be reasonably extended to such cases.

	Links Seventh Circuit Court of Appeals Related Article Child abuse investigation held unconstitutional

Another consideration is the relationship of the defendant to the child. Arguably, a child’s parent could seek exclusion of evidence based on a violation of the child’s rights, where a nonparent could not.

However, although the court held, “Greendale and John Jr. have stated cognizable claims against the defendants under the Fourth Amendment,” it did not find any violation of the parents’ Fourth Amendment rights.

Nevertheless, the court stated at another point, “it is entirely reasonable for parents who place their children in private schools … to expect that the parents’ express delegation of parental authority to school officials will be both acknowledged and respected by government actors.”

As noted, the court did not hold that the parents’ Fourth Amendment rights were violated, but the above statement suggests a basis for arguing that they were in subsequent cases.

Finally, there is the question whether the exclusionary rule would apply where the constitutional violation is not based on the Fourth
Amendment, but the right to familial relations.

If a caseworker interviewed a child on private property, without the parent’s consent, and without reasonable suspicion of abuse, the parent’s right to familial relations would be violated, and suppression of any statements by the child would arguably be the appropriate remedy.

– David Ziemer

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David Ziemer can be reached by email.