Warrant Case Analysis

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The decision is a good candidate for review in the Wisconsin Supreme Court for two reasons: it is the first Wisconsin case to address a search warrant for the home from which controlled substances were mailed, rather than an anticipatory warrant for their destination; and the court’s “good faith” analysis is radically different than that employed in federal courts in the Seventh Circuit.

The issuance of search warrants after controlled substances are discovered in a package sent via the U.S. Post Office, UPS, or FedEx is common.

The usual procedure, however, is to obtain an “anticipatory warrant,” authorizing search of the destination, once the package is delivered.

Obtaining a warrant to search the return address is highly unusual, and frequently impossible, because the return address is frequently fictitious. In fact, a fictitious return address is a commonly cited factor in justifying a search warrant for the package itself.

As a general rule, in light of the decision in this case, police can’t obtain warrants for the return address, absent some further investigation.

That general rule may not always apply, however. The court noted that there was nothing in the affidavit regarding prior police reports of drug sales or other suspicious activity at the return address, nor any evidence of prior drug activity on Sloan’s part.

Perhaps, if Sloan was a convicted drug trafficker, or the return address was a known drug house, that information would support probable cause for a warrant, coupled with the discovery of drugs.

More significant, however, is that the court found the good faith exception inapplicable.

Were this case to have been charged in federal court, Seventh Circuit precedent would require that the evidence be admitted, even if the court found probable cause lacking, because the Leon good faith exception to the exclusionary rule would apply. U.S. v. Leon, 468 U.S. 897 (1984).

The Seventh Circuit recently stated its criteria for when the good faith exception should not apply: if the affiant provided false information to the magistrate or provided the information with reckless disregard as to its truth or falsity; if the issuing judge wholly abandoned his judicial role; if the officer did not act in objective good faith, evidenced by an affidavit so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable; or if the warrant is so facially deficient that the officer could not presume it to be valid. U.S. v. Harju, 466 F.3d 602, 606-07 (7th Cir. 2006).

The case at bar would not fit any of these criteria.

The court of appeals’ analysis was much different. After finding that the trial court applied the incorrect law, it examined only whether the record supported a finding of probable cause, and finding that it did not, held that the exclusionary rule bars admission of the evidence.

However, the trial court’s analysis, while cursory, seems to apply the correct law.

Applying the good faith exception, the trial court remarked, “If I were confronted with this affidavit, I think I would have issued the warrant.” Implicitly, this means the issuing judge did not wholly abandon his judicial role. It is also an implicit holding that the officer acted in good faith, and the affidavit does not lack any indicia of probable cause. There is no plausible contention that false information was provided to the issuing judge.

Thus, were this search to be challenged in a Wisconsin federal court or the Seventh Circuit, the exclusionary rule would clearly not apply, and the evidence would be admissible, pursuant to the good faith exception..

	Related Article Good faith exception inapplicable

Although the good faith exception has existed in federal courts since 1984, it (or rather a similar exception) has only existed in Wisconsin since State v. Eason, 2001 WI 98, 245 Wis.2d 206, 629 N.W.2d 625, and few published cases apply it.

Specifically, in Wisconsin, if a search warrant is found to lack probable cause, besides meeting the federal Leon requirements, the State must show that “the process used in obtaining the search warrant included a significant investigation and a review by either a police officer trained and knowledgeable in the requirements of probable cause and reasonable suspicion, or a knowledgeable government attorney.” Eason, 629 N.W.2d at 627-28.

The court of appeals’ opinion, however, does not mention Eason (presumably because it found not even Leon was satisfied).

Perhaps on review in the Supreme Court, the court would find that the officer engaged in insufficient investigation to meet Wisconsin’s extra requirement for the good faith exception. But unless the interpretation of Leon itself is radically different in Wisconsin and federal courts, the court of appeals’ decision incorrectly applies Leon.

For these reasons, this case would provide an excellent vehicle for the Wisconsin Supreme Court to define the differences between the state and federal good faith exceptions.

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David Ziemer can be reached by email.