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Suppression Case Analysis

It has long been assumed that an unlawful extrajurisdictional action by a police officer is grounds for suppressing the evidence found as a result. Keith would not have challenged the stop otherwise, nor would the defendants in the leading cases on the issue – State v. Slawek; 114 Wis.2d 332, 338 N.W.2d 120 (Ct.App.1983) and City of Waukesha v. Gorz, 166 Wis.2d 243, 479 N.W.2d 221 (Ct.App.1991).

As a result of the decision, however, it will be pointless for defendants to make challenges based on an extrajudicial arrest, unless they intend to preserve the issue for possible review by the Wisconsin Supreme Court.

Any attempt to do so, however, will run into a fairly abundant amount of persuasive authority from other states that supports the court of appeals’ holding: State v. Weideman, 764 N.E.2d 997 (Ohio 2002); People v. Hamilton, 638 N.W.2d 92 (Mich. 2002); People v. Wolf, 635 P.2d 213 (Colo.1981).

Oddly, although the issue here was one of first impression, and the State’s supplemental brief cited the above cases, the court’s analysis was very cursory, and did not cite any of that authority as support.

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Wisconsin Court of Appeals

Related Article

Suppression not remedy for arrest

Although those opinions all support the court’s holding, they do provide some persuasive value to defendants, as well. In the Weideman case, Justice Pfeifer wrote a dissent, making the compelling argument, "The fact that [the stop] was unlawful is enough to show that it was unreasonable. … Certainly, being stopped and detained by a governmental agent who has no authority to do so violates the Fourth Amendment prohibition against unreasonable searches and seizures." Weideman, 764 N.E.2d at 1002-1003 (Pfeifer, dissenting).

Also, the Wolf case suggests that, although an unlawful extrajurisdictional arrest is not grounds for suppression of the evidence pursuant to the Fourth Amendment, in a case where the officers’ conduct is egregious, the evidence could be suppressed pursuant to the courts’ supervisory authority. Wolf, 635 P.2d at 217-218.

In Keith’s case, the court stated, "Here, the State correctly points out, Keith has failed to identify a constitutional or statutory violation requiring suppression."

To make a constitutional argument, further development of the argument made in the Weideman likely offers defendants their strongest opportunity around this decision.

– David Ziemer

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David Ziemer can be reached by email.

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