After US high court ruling, more evidence suppression work could be coming for defense attorneys

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A recent U.S. Supreme Court decision has left some Wisconsin criminal-law practitioners to question just how far law enforcement and prosecutors can push an exception to the Fourth Amendment.

Last week’s decision stems from a criminal case in Utah in which a Salt Lake City police detective detained Edward Strieff after seeing him exit, but not enter, a home that was under surveillance for possible drug trafficking. Before the arrest, the detective had told Strieff who he was, asked Strieff what he was doing at the home, asked for Strieff’s identification and learned from a dispatcher that Strieff was the subject of an arrest warrant issued in response to a traffic violation.

The detective arrested him, searched him and found drugs. Strieff was charged with unlawful possession and later pleaded guilty to reduced charges, although he reserved his right to appeal the decision to let the drug evidence be brought into court.

A Utah trial court and appeals court both found that the drugs could be admitted. The decisions were reversed, though, by the state’s Supreme Court. The prosecutors responded by filing an appeal in federal court. The state courts’ interpretations were affirmed last week, when the U.S. Supreme Court agreed, in a 5-3 decision, that the drugs were indeed admissible.

Robert Donohoo, a former Milwaukee County prosecutor who had been watching the case closely, said the Supreme Court decision clears up an area of law that had once been muddy in Wisconsin.

“In some cases,” he said, “we’ll be able to use evidence where we couldn’t have before.”

The Fourth Amendment’s exclusionary rule prevents the government from using evidence obtained by unreasonable searches or seizures. A number of exceptions exist, though.

One is the good-faith exception. This allows evidence stemming from an invalid search warrant to be admitted as long as the officers conducting the search could show they had reasonable expectations that the warrant would prove acceptable.

Still another exception comes from the independent-source doctrine. This allows the admission of evidence that was initially obtained through an unreasonable search but later obtained using constitutional means.

Strieff’s case. for its part, concerned an exception known as the attenuation doctrine. This allows evidence obtained from an unconstitutional stop to be admitted if the connection between the evidence and the unconstitutional means can be shown to be remote.

In last week’s ruling, the Supreme Court justices found that the detective who had arrested Strieff appeared to be acting in good faith. Because of that, the warrant brought to the detective’s attention by a dispatcher was deemed sufficient to keep the initial, unreasonable stop from tainting the drugs the detective later found on Strieff’s person.

Some states had already allowed the admission of evidence gleaned from unlawful stops similar to the one seen in Strieff’s case. The Supreme Court’s conclusion in Strieff, for instance, was supported by legal interpretations maintained by the 7th Circuit since 1997, Donohoo said.

“This is not new,” he said. “I’ve been encouraging DAs to argue this position at the trial court level. Many jurisdictions in the U.S. have ruled this way. “

The country’s highest court essentially stood by those rulings last week. That will mean more work for defense lawyers, particularly in hearings concerning the suppression of evidence.

“Criminal defense attorneys have to be aware of it and push hard,” said Ray Dall’Osto, a Milwaukee criminal-defense attorney.

He said the decision is just one of many that have eroded the Fourth Amendment over the years.

Dall’Osto said that he, like the justices who dissented in the Strieff case — Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan — is worried the decision will encourage police to try more often to justify unconstitutional stops after the fact.

“You have a right not to be stopped for no reason at all,” Dall’Osto said. “And Strieff impinges on that.”

His concern about Strieff’s effect on the Fourth Amendment is shared by Sheboygan County District Attorney Joe DeCecco, who has been a prosecutor for 27 years.

“For years we’ve been telling (law enforcement) you can’t just stop someone and just hope something will happen afterwards,” he said. “But that’s what this case suggests.”

Even worse, Dall’Osto said, is the Supreme Court’s suggestion that a warrant stemming from a minor traffic violation is enough to prevent evidence obtained in an unconstitutional stop from being deemed inadmissible. The warrant in question in Strieff’s case, he noted, was something that might have been issued after a person had forgotten to pay a speeding ticket or failed to appear in court.

“These exceptions are eating up the Fourth Amendment, and it’s truly troubling,” Dall’Osto said.

But DeCecco and Wisconsin Attorney General Brad Schimel said Strieff will have little effect on law-enforcement training.

For one, DeCecco said it would be tough to defend an officer who took the same actions as the detective in Strieff.

“I wouldn’t point to this case to any officer to say, ‘Let’s do this,’” he said. “We never do this.”

Schimel noted that the circumstances in Strieff were unusual and will not recur often, meaning very little need change in the way Wisconsin law-enforcement officers go about their business.

“We are still going to advise them that it’s not OK to violate people’s rights, and we should not rely on a case like this,” Schimel said. “The case might be useful for us to drive home the importance of acting in good faith. It does make a difference when you are doing your job right. Nobody’s getting a free pass.” Follow @erikastrebel