The decision lends support for defendants in Wisconsin state courts facing what is arguably an unsettled issue.
In State v. Longcore, 226 Wis.2d 1, 594 N.W.2d 412 (Ct.App.1999), the Wisconsin Court of Appeals held, as did the Seventh Circuit that, if a police officer erroneously applies the law to the to the facts and no law has been broken, the officer does not have probable cause for a traffic stop.
The Supreme Court granted review, and the decision was affirmed. However, it was not affirmed by a majority, but by an equally divided court, 2000 WI 23, 233 Wis.2d 278, 607 N.W.2d 620.
How the court would decide the issue if considered by a full seven-justice panel is thus uncertain.
Much of the reasoning in the court of appeals decision in Longcore is also not applicable any longer.
The focus of much of the courts opinion was that, at that time, Wisconsin had not yet adopted the good faith exception to the exclusionary rule that the U.S. Supreme Court adopted in U.S. v. Leon, 468 U.S. 897 (1984). Longcore, 594 N.W.2d at 415-417.
The court wrote, arguments that excuse an officers reasonable but misguided conduct are inapplicable to suppression motions based upon the Wisconsin Constitution. Id., at 416-17.
Since Longcore was decided, the Wisconsin Supreme Court has adopted the good-faith exception (or at least, a version of it). State v. Eason, 2001 WI 98, 245 Wis.2d 206, 629 N.W.2d 625. Thus, much of the court of appeals rationale is no longer applicable.
However, proponents of the result in Longcore have a new source of argument they did not have at that time the court of appeals decision in State v. Repenshek, 2004 WI App 229, 277 Wis.2d 780, 691 N.W.2d 369.
Repenshek was arrested for a nonexistent crime causing great bodily harm by reckless driving. When he was ultimately charged with actual crimes, he moved to suppress admission of his blood sample.
The court of appeals held that his arrest was not illegal, and that the exclusionary rule did not bar admission of evidence obtained as a result. Even though Repenshek was arrested for a nonexistent crime, there was probable cause for other charges, and thus, the arrest was lawful.
The court wrote, even when an officer acts under a mistaken understanding of the crime committed, an objective test is used to determine the legality of the arrest. Id., 691 N.W.2d at 373.
While not directly on point, the decision is relevant, because it represents the mirror image of case at bar.
In the case at bar, the defendant committed no offense, but the officer subjectively thought he did.
In Repenshek, the defendant did commit an offense, but the officer arrested him for a crime that does not exist.
The court in Repenshek found the officers subjective beliefs irrelevant, and concluded that the standard is purely objective. Id.
Thus, applying Repenshek to the case of a mistake of law compels a conclusion that the arrest is unlawful. Disregarding the officers subjective beliefs, no crime was committed when considered from a purely objective view, and thus, the exclusionary rule should preclude admission of the evidence.
– David Ziemer
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David Ziemer can be reached by email.