BENCH BLOG: Good-faith exception to exclusionary rule

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In a hotly contested case about suppressing a dog’s sniff search of a residence, the Wisconsin Supreme Court unanimously decided that the good faith exception to the exclusionary rule applied.

State v. Scull began in Milwaukee when a confidential informant told police about Gary Scull, a drug dealer trafficking in cocaine base. The informant identified Scull by name and address and described his vehicle’s make, model, year and license-plate number.

The informant was known to police as a former cocaine trafficker. He had also previously provided reliable information confirmed by subsequent searches and arrests.

Investigation and search

The lead police officer began to investigate to confirm information provided by the informant. He learned that a man named Scull was on probation. The home address in Scull’s Department of Corrections file matched the one given by the informant. Moreover, Department of Transportation records corroborated the information about Scull’s vehicle.

A police detective then took his drug-detection dog to Scull’s apartment. In a matter of 20 seconds, the detective-dog team had gone up the sidewalk and to the side door. They followed the walkway to the front door, where the dog “alerted” — indicating the presence of illegal substances within.

Using what was learned in the investigation, the lead officer developed an affidavit to seek a search warrant. An assistant district attorney reviewed and approved the affidavit, and it was submitted to a court commissioner, who determined that the affidavit showed probable cause to believe that there were controlled substances in Scull’s home and granted the search warrant.

Upon executing the warrant, police recovered large amounts of crack cocaine and marijuana, together with drug-trafficking paraphernalia. The state later charged Scull with three drug-trafficking offenses.

Motion to suppress

Scull moved to suppress the evidence obtained during the in-home search. He argued that the dog’s sniffing of his home amounted to a warrantless search on protected curtilage. He also contended that information from an unlawful, warrantless search cannot form the grounds for a subsequent search warrant.

Milwaukee County Circuit Judge David Borowski acknowledged that there was no Wisconsin or U.S. Supreme Court case on point. But he accepted the state’s argument that, in other instances — such as when a dog sniffs a vehicle and luggage — the sniffing did not constitute a search.

Accordingly, he denied the motion to suppress. Scull appealed.

Intervening U.S. Supreme Court case

During the pendency of Scull’s appeal, the U.S. Supreme Court decided a Fourth Amendment residential dog-sniffing case with facts quite similar to Scull’s.

In Florida v. Jardines, the Court ruled that in the absence of a warrant, it is a trespassory violation for police to be on the curtilage of a home for the purpose of conducting a search with a drug-sniffing dog.

Therefore, the state conceded that the warrantless use of the dog at Scull’s front door was a Fourth Amendment violation.

The main question in the appeal therefore shifted to whether the good-faith exception to the exclusionary rule allowed the fruits of the in-home search to be used as evidence against Scull.

“The good-faith exception … dictates that the exclusionary rule is not to be applied when the officers conducting an illegal search acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment.”

In a published decision written by District 1 Court of Appeals Judge Kitty Brennan (with a short and thoughtful dissent by Judge Joan Kessler), the court concluded, given the uncertain state of the law, that the good faith exception applied.

Wisconsin Supreme Court’s analysis

By the time the case reached the Supreme Court, Scull’s brief was supported by amici curiae briefs from the Wisconsin State Public Defender and the Wisconsin Association of Criminal Defense Attorneys, adding to the vigor of the appeal.

Both amicus briefs argued that — amid unsettled state and federal law about whether dog sniffing at a home is a permissible Fourth Amendment search — the good faith exception should not apply.

In an opinion attributed to Justice Ann Walsh Bradley, the court relied on a three-factor test for the good-faith exception spelled out in the case of State v. Eason. First, did the state show that the police officers conducted a significant investigation before obtaining the warrant?

In contrast to the amicus briefs, the court determined that the police investigation, including the search by the drug-detection dog, was reasonable at the time because of the uncertain state of Fourth Amendment jurisprudence on dog sniffing. The court also found that the officers’ actions constituted a significant investigation.

The second factor is whether the affidavit in support of the search warrant request was reviewed “by … a knowledgeable government attorney.” This requirement was satisfied by a statement in the affidavit that a particular, named assistant district attorney had reviewed it.

The third factor is whether a reasonably well-trained officer would have known that the search was illegal despite the authorization of a neutral and detached magistrate, rendering the officers’ reliance on the warrant unreasonable.

Scull did not challenge the commissioner’s neutrality and detachment, nor the facial sufficiency of the warrant. There were no glaring technical deficiencies, nor was the warrant sketchy or bare-boned. The court therefore concluded that “a reasonable officer would not have known that a search was illegal despite the warrant.”

Concurrences

Justice Pat Roggensack wrote a concurrence to spell out that the exclusionary rule cannot be applied in the absence of police misconduct.

Justice Annette Ziegler wrote a separate concurrence to clarify that the exclusionary rule applies to violations of Constitutional provisions other than just the Fourth Amendment, including the Fifth and Sixth Amendments.

Commentary

This case establishes that police can conduct searches even in the absence of clear legal precedent declaring the searches permissible.

In other words, all things being equal, the good faith exception can apply even if the type of search has not been condoned explicitly by Wisconsin or U.S. Supreme Court case law.

In a way, this is as it’s always been. For example, thermal imaging of homes for heat patterns evincing marijuana plant growing was done until the Kyllo case ruled it an unconstitutional search. This is how Fourth Amendment jurisprudence develops.

Law enforcement doesn’t usually wait for a court pronouncement to indicate that it what proposes doing is acceptable. It asks for forgiveness rather than permission.