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Constitution Case Analysis

The greatest impact of the two decisions is not the particular holdings themselves, but that, in criminal cases, the Wisconsin Constitution will no longer be interpreted in lock-step with the U.S. Constitution.

Suppression motions that previously would have been patently meritless, because of how the U.S. Supreme Court has ruled on a particular issue, can now be made with some hope of success — if not on the circuit court level, then, eventually, on further review.

The court notes that this is not the first time it has adopted an interpretation of the Wisconsin Constitution that differs from the U.S. Supreme Court’s interpretation of a parallel provision in the U.S. Constitution Nevertheless, the decisions in these cases represent a marked change that can’t be minimized that easily.

For example, the court notes that, in State v. Hansford, 219 Wis.2d 226, 580 N.W.2d 171 (1998), it held that misdemeanor criminal defendants have a right to a 12-person jury, even though the U.S. Supreme Court had held that a 6-person jury is constitutional.

This is not comparable precedent, however. In Hansford, the court delved into the unique history of the Wisconsin Constitution, and long-standing precedent interpreting it prior to Mapp v. Ohio (1961). On an issue of that sort — whether the Wisconsin Constitution requires a 12-person jury in all criminal cases — unique history of the Wisconsin Constitution is relevant.

But the court did not — nor could it have even if it wished — do the same in the cases at bar. One cannot look at the history of the Wisconsin Constitution, and find anything concerning when a show-up identification may be unduly suggestive, or whether the exclusionary rule should be applied in a given case. The exclusionary rule is a 20th century creation to which "unique history" is nonexistent.

Likewise, suppose a future case before the court concerns the automobile exception, or wiretaps, or the extent of a citizen’s expectation of privacy in his home’s curtilage. There were no automobiles or telephone wires in 1848; nothing in the "unique history" of the Wisconsin Constitution would provide any basis for a departure from federal precedent on issues such as this.

The only other instance of departing from federal precedent in the criminal arena that the court cites is State v. Eason, 245 Wis.2d 206, 629 N.W.2d 625 (2001), in which the court adopted a modified version of the good faith exception to the exclusionary rule adopted in U.S. v. Leon, 468 U.S 897 (1984). However, even the most experienced judge or criminal law attorney would be hard-pressed to cite an actual example of a search that passed muster under the standard of Leon, but not of Eason.

Thus, the decisions are a very significant break from past interpretation. The question is whether this break will extend to search and seizure law.

In Eason, even though the court deviated slightly from federal precedent, it stated that to do so in the Fourth Amendment area would be inappropriate, because "search and seizure law is marked by hair-splitting distinctions and a complexity masked by simple formulations." Eason, 629 N.W.2d at 642.

Instead, in the search and seizure realm, article I, sec. 11 of the Wisconsin Constitution has been coextensive with the Fourth Amendment. State v Fry, 131 Wis.2d 153, 388 N.W.2d 565 (1986); State v. Brady, 130 Wis.2d 443, 388 N.W.2d 151 (1986).

The decision could be read as overruling this precedent. The best support to be found, however, is not in the lead opinion, but in Justice Crooks’ concurrence in Knapp. In his discussion of the "new federalism" that the court is now embracing, many of the cases he cites concern the Fourth Amendment: State v. Cardenas-Alvarez, 25 P.3d 225 (N.M. 2001); State v. Randolph, 74 S.W.3d 330 (Tenn.2002).

The inclusion of Fourth Amendment cases in an opinion that could easily have limited its citation to due process cases should be considered an invitation to defense attorneys to challenge the continued validity of Fry and Brady.

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State, U.S. constitutions are not coextensive

The actual holding in Dubose is not without significance, either. The court held that show-up identifications are impermissible unless the police lack probable cause for arrest. In borderline cases, this will cause police officers a dilemma.

If they guess incorrectly that they do have probable cause, and arrest the suspect unlawfully, they risk suppression of evidence on that ground; if they guess incorrectly that they don’t have probable cause, and use a show-up identification as a means to establish probable cause, they risk suppression of the identification on that ground.

Before this decision, to conduct a show-up identification was to err on the side of caution, avoiding the consequences of a potentially unlawful arrest; now, conducting a show-up carries perils of its own, and risking the unlawful arrest may be the lesser of two evils in borderline cases.

– David Ziemer

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David Ziemer can be reached by e

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