“Where there is no evidence of intentional or reckless misconduct on the part of law enforcement officers, a reconstructed warrant application may serve as a functional equivalent of the record of the original application. Such a reconstruction, when made appropriately, can protect the defendant’s right to a meaningful appeal, as well as the defendant’s ability to challenge the admission of evidence in a suppression hearing. …
“In the present case, we find enough evidence in the record to demonstrate that Raflik’s due process right and her right to a meaningful appeal have been protected. The length of the reconstructed section was relatively short and only one witness, Detective Kocher, was required to testify. Even though the entire application was unrecorded, the facts that provided probable cause were uncomplicated and easily remembered by Kocher. Many of the facts could be corroborated both by Kocher’s affidavit and by the warrant documents filled in separately but simultaneously by Detective Kocher and Judge Ziegler during the original telephonic application.
“Perhaps most importantly, the application was reconstructed only 18 hours after the actual application, when the events of the previous night were still fresh in the minds of all of the participants. …Finally, all the participants in the original warrant application were available to the trial court when it reconstructed the record.”
DISSENTING OPINION: Bradley, J., with whom Abrahamson, Ch. J., joins. “While I agree with the majority that there may be instances when a warrant application proceeding can be reconstructed, I cannot agree with the reconstruction procedure the majority has adopted. The majority’s approach fails to protect adequately a defendant’s right to meaningful review and undermines the warrant judge’s role as a neutral and detached decision maker.”
Washington County, Schlaefer, J., Wilcox, J.
For Appellant: Michael J. Fitzgerald, Dean A. Strang, Milwaukee
For Respondent: Stephen W. Kleinmaier, James E. Doyle, Madison