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State, U.S. constitutions are not coextensive

The Wisconsin Supreme Court announced in two cases on July 14 that it will no longer interpret the Wisconsin Constitution in lock-step with parallel provisions in the U.S. Constitution.

State v. Dubose

In the first case, Tyrone L. Dubose was stopped for suspicion of armed robbery, after a canine unit tracked him from a robbery scene. The police officers placed him in the back of a squad car for a show-up procedure, and the victim identified him as one of the men who robbed him.

Ten to 15 minutes later, a second show-up occurred at the police station, where the victim again identified Dubose. A short time afterwards, the police showed the victim a mug shot of Dubose, and he identified him for a third time.

Dubose was charged, tried, and convicted of armed robbery, after the court denied his motion to suppress all identifications of him as suggestive. The court of appeals affirmed in an unpublished decision.

The Supreme Court accepted review, and reversed, in a decision by Justice N. Patrick Crooks. Justices Jon P. Wilcox, David T. Prosser, and Patience Drake Roggensack each wrote a dissent, and Justice Louis B. Butler, Jr., wrote a concurrence.

The court began with a history of when out-of-court identification procedures violate the defendant’s right to due process, examining Stovall v. Denno, 388 U.S. 293 (1967), U.S. v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), all decided the same day.

In Stovall, the court adopted a "totality of the circumstances" test, emphasizing the necessity of the show-up identifications in those cases.

Later, in Neil v. Biggers, 409 U.S. 188 (1972), and in Manson v. Brathwaite, 432 U.S. 98 (1977), the emphasis changed from necessity to reliability. Relying on Biggers and Brathwaite, the Wisconsin Supreme court held in State v. Wolverton, 193 Wis. 2d 234, 264, 533 N.W.2d 167 (1995), that if the defendant demonstrates that the show-up was impermissibly suggestive, the burden "shifts to the state to demonstrate that ‘under the "totality of the circumstances"’ the identification was reliable."

Returning to the issue, the majority abandoned that approach, in favor of the former test set forth in Stovall, with its emphasis on necessity.

The court found that, since it decided Wolverton, there have been extensive studies done showing that eyewitness identifications are often "hopelessly unreliable," and are "the single greatest source of wrongful convictions in the United States, and responsible for more wrongful convictions than all other causes combined."

The court wrote, "In light of such evidence, we recognize that our current approach to eyewitness identification has significant flaws. … that approach is unsound, since it is extremely difficult, if not impossible, for courts to distinguish between identifications that were reliable and identifications that were unreliable. … Because a witness can be influenced by the suggestive procedure itself, a court cannot know exactly how reliable the identification would have been without the suggestiveness."

Accordingly, the court adopted the following test: "We conclude that evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. A showup will not be necessary, however, unless the police lacked probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or photo array."

The court added that, if a showup is necessary, it should be made as non-suggestive as possible: "Showups conducted in police stations, squad cars, or with the suspect in handcuffs that are visible to any witness, all carry with them inferences of guilt, and thus should be considered suggestive."

Offering more guidance, the court wrote that witnesses should be instructed in non-suggestive fashion: "an eyewitness should be told that the real suspect may or may not be present, and that the investigation will continue regardless of the result of the impending identification procedure. Finally, it is important that a suspect be shown to the witness only once. If a suspect is identified, the police have no reason to conduct further identification procedures. Conversely, if the suspect is not identified by the witness, he or she should not be presented to that witness in any subsequent showups."

Applying the standard to the case at bar, the court found the showup was unnecessary, because the police had probable cause to arrest Dubose after the canine unit tracked him from the crime scene to where he was hiding in someone else’s backyard. The court found it was also unduly suggestive, because Dubose was seated in a squad car. Finally, the court found the two later identifications unnecessary.

The court concluded by citing for support, a law review article by former U.S. Supreme Court Justice William Brennan, State Constitutions and the Protection of Individual Rights, 90 Har. L.Rev. 489 (1977), which urged states to adopt greater protection than federal law provides, and Brown v. Board of Education, 347 U.S. 483 (1954), which relied on sociological studies in overruling Plessy v. Ferguson, 163 U.S. 537 (1896).

What the court held

Case: State of Wisconsin v. Matthew J. Knapp, 2000AP2590-CR, and State of Wisconsin v. Tyrone L. Dubose, No. 2003AP1690-CR.

Issue: Is physical evidence seized as a direct result of an intentional Miranda violation admissible?

Where police conducted a showup identification, even though they had probable cause to arrest, and conduct a lineup, is the identification admissible?

Holding: No. Where the Miranda violation was intentional, the physical evidence seized as a result must be
suppressed.

No. Where probable cause is present, a showup is unnecessary and suggestive.

Counsel: For the State, William L. Gansner, David H. Perlman; for Knapp, Robert G. LeBell, Milwaukee; for DuBose, Jefren E. Olsen.

Justice Butler wrote a concurrence, defending the court’s use of social science concerning eyewitness identifications in reaching its decision, concluding, "Unless, and until, we improve eyewitness identification procedures so that the likelihood of irreparable misidentification is significantly reduced, we can no longer proceed as though all is good in the land of Oz."

Justice Wilcox dissented, defending lock-step interpretation of parallel provisions of the U.S. and Wisconsin constitutions: "the majority fails to articulate a rationale for how identical language in the two documents can mean the same thing for a number of years and now suddenly mean something different. Simply stating that a majority of the court disagrees with a United States Supreme Court decision and has the power to construe our state constitution more broadly is not a principled basis for suddenly rejecting our long history of interpreting the due process clauses of the federal and state constitutions in concert."

Justice Prosser’s dissent criticized the majority’s application of the new standard to the facts, arguing, "The facts in this case are not sufficient to justify the majority’s conclusion that this defendant’s due process rights were violated. Nothing in these facts is so inherently unfair or suggestive that it justifies this court-ordered sea change in the law."

Roggensack’s dissent criticized the majority’s use of "disputed social science theory" to justify its holding, asserting, "I dissent because reliability, and not a disputed social science theory, must be the key to admissibility of all identification testimony in criminal trials and because I conclude that the totality of circumstances bearing on the identification in this case resulted in a reliable identification of Dubose as the perpetrator of the armed robbery of which he was convicted."

Roggensack also criticized the majority for citing Brown v. Board of Education for support: "the Brown holding was not made in reliance on a social science theory…

The reports in Brown were listed in one footnote and used without discussion to support one sentence in the entire opinion. Rather, Brown is preeminent because it judicially proclaimed that the enormity of suffering that generation after generation of African-Americans were forced to endure by the doctrine of ‘separate but equal’ simply because they were a different color, was unconstitutional. I object to the manner in which the majority opinion uses Brown because it trades on Brown’s prestigious position in American jurisprudence to support the majority opinion’s reliance on a disputed social science theory."

State v. Knapp

In the second case, a police officer deliberately failed to give Matthew J. Knapp, a murder suspect, his Miranda warnings, when he arrested him on a parole hold issued for unrelated activity. At one point, the officer asked Knapp what clothes he was wearing the night before.

The officer seized the clothing indicated by Knapp, and the sweatshirt he had worn contained blood determined to have come from the victim.

The circuit court denied Knapp’s suppression motion, but the Wisconsin Supreme Court reversed, holding that physical evidence obtained as the direct result of a Miranda violation should be suppressed when the violation was an intentional attempt to prevent the suspect from exercising his Fifth Amendment rights. State v. Knapp, 2003 WI 121, 265 Wis.2d 278, 666 NW.2d 881.

The U.S. Supreme Court vacated the decision, citing its holding to the contrary in U.S. v. Patane, 124 S.Ct. 2620 (2004). Nevertheless, on remand, the Wisconsin Supreme Court again held the sweatshirt inadmissible, notwithstanding Patane.

The court quoted with approval from the dissent of Justice Souter in Patane: "In closing their eyes to the consequences of giving an evidentiary advantage to those who ignore Miranda, the majority adds an important inducement for interrogators to ignore the rule in that case." Patane, 124 S.Ct. at 2631.

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Case Analysis

As in Dubose, the court cited Justice Brennan’s 1977 law review article for support in providing greater protection than federal law affords, even though the U.S. and Wisconsin provisions at issue are virtually identical.

The court reasoned, "It is not too much to expect law enforcement to respect the law and refrain from intentionally violating it. When law enforcement is encouraged to intentionally take unwarranted investigatory shortcuts to obtain convictions, the judicial process is systemically corrupted."

The court added, "We will not allow those we entrust to enforce the law to intentionally subvert a suspect’s constitutional rights. As it is undisputed that the physical evidence here was obtained as a direct result of an intentional violation of Miranda, it is inadmissible."

Justice Crooks wrote a concurrence, citing cases from around the country in which state courts have granted greater constitutional protection than the U.S. Sup
reme Court has afforded — a movement known as "new federalism."

Click here for Case Analysis.

David Ziemer can be reached by email.

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