Appeals court allows warrant obtained on improper grounds

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Evidence that was obtained illegally does not immediately invalidate a search warrant, if the requesting officer believed he or she was acting lawfully at the time, the Wisconsin Court of Appeals ruled Tuesday.

In an opinion authored by Judge Kitty Brennan, the court decided that a drug conviction against Gary Scull should stand, despite the fact that a warrant obtained on improper grounds was used in the court case against him.

The warrant, according to the opinion, was obtained after Milwaukee police Officer John Wiesmueller and his dog, Voden, went to Scull’s house. When Wiesmueller and Voden went to Scull’s front door, the dog “alerted,” according to the opinion.

Based on this, Wiesmueller obtained a warrant and found drugs and paraphernalia in the house.

Scull, 32, later pleaded to possession with intent to deliver more than 40 grams of cocaine and keeping a drug house. Circuit Judge David Borowski sentenced him to 11 years in prison.

In his appeal, Scull maintained the warrant should be thrown out because the evidence that resulted in the warrant – the dog’s “alert” – was obtained while violating his Fourth Amendment rights.

The court acknowledged that Scull is correct. However, it stated in the opinion that there was other evidence in the warrant to back up the request, and that the officer had reason to believe he was acting in accordance to the law.

“Officer Wiesmueller explained to the court commissioner in his affidavit that he believed that the confidential informant was reliable because he had provided reliable information to police officers in the past, resulting in at least five arrests and two felony convictions,” the opinion reads. “Furthermore, Officer Wiesmueller had been able to verify the confidential informant’s tips …”

Department of Justice spokeswoman Dana Brueck said the department is “pleased with the court’s application of the good-faith doctrine to this fact situation.”

Basil Loeb, an attorney with Schmidlkofer, Toth & Loeb LLC who represented Scull, did not immediately return a message left Tuesday.

Judge Joan Kessler, in a dissent, stated that there was no probable cause for the warrant, absent the dog’s reaction.

“Without the illegal dog-sniff, the warrant had no basis in fact or law,” Kessler’s dissent reads. “If the warrant was based on solid facts connecting drugs to Scull’s home, not involving the dog-sniff, I would agree with the Majority that the good-faith exception applies here.” Follow @eheisigWLJ