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Supreme Court allows suppression of evidence

By: dmc-admin//June 9, 2008//

Supreme Court allows suppression of evidence

By: dmc-admin//June 9, 2008//

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In a landmark ruling June 4, the Wisconsin Supreme Court reversed decades of precedent, and held that suppression of evidence may be a remedy for a statutory violation, even in the absence of a constitutional violation, or express statutory authority.

Writing for the majority, Chief Justice Shirley S. Abrahamson explained, “The proposition of law that wrongfully or illegally obtained evidence may not be suppressed except when the evidence was obtained in violation of an individual’s constitutional rights or in violation of a statute that expressly requires suppression of evidence as a sanction has been carried expressly or impliedly from case to case without any support or reasoning (emphasis in original).”

Abrahamson continued, “We do more damage to the rule of law by refusing to admit error than by correcting an erroneous proposition of law. The instant case presents an opportunity to correct an error of law that has been repeated in numerous cases, and we do so.”

The specific statute at issue was 968.135, which requires police to show probable cause to obtain a subpoena for bank documents. The statute states, “motions to the court, including, but not limited to, motions to quash or limit the subpoena, shall be addressed to the court which issued the subpoena.”

In the course of a theft investigation, the Minocqua Police Department obtained a subpoena for the bank records of Michelle R. Popenhagen. However, they did not rely on sec. 968.135, nor did they make a showing of probable cause to the court.

Having obtained the records, they confronted Popenhagen with them, and she made incriminating statements.

Faced with a theft charge, she moved to suppress both the records and her statements.

Prosecutors did not dispute that police failed to show probable cause and they used improper procedures to obtain the subpoena and the records. Only the remedy was at issue.

Oneida Circuit Court Judge Mark A. Mangerson granted the motion to suppress, but the Court of Appeals reversed, in a published decision. State v. Popenhagen, 2007 WI App 16, 298 Wis.2d 388, 728 N.W.2d 45.

The Supreme Court granted review and reversed the Court of Appeals.

The court first found that a motion to suppress the bank records is sufficiently similar to a motion to quash, so that the statute itself does provide suppression as a remedy for the violation.

The court also found that a motion to suppress bank records is germane to the objectives of the statute. Thus, not allowing suppression would “emasculate the clear directives of [the statute].”

The court also concluded that the statements obtained from Popenhagen by confronting her with the records also must be suppressed.

The circuit court had relied on the “fruit of the poisonous tree doctrine” in suppressing the statements, but the Supreme Court relied on other grounds.

Instead, the court concluded that Popenhagen’s motion to suppress her statements is also included within the statute’s reference to “motions … including, but not limited to, motions to quash or limit the subpoena.”

The court reasoned, “If a person were permitted to bring a motion to quash the subpoena for bank documents unlawfully obtained but not permitted to bring a motion to suppress incriminating statements derived directly from the unlawfully obtained bank documents, the person would not get the full benefit of the protections of the statute, and the underlying objectives of the statute would be defeated.”

But the court did not stop there.

Instead, it went on to overrule prior precedents limiting suppression as a remedy to constitutional violations, and violations of statutes that expressly provide for suppression as a remedy.

The seminal case is State ex rel. Arnold v. County Court of Rock County, 51 Wis.2d 434, 187 N.W.2d 354 (1971). The court found that, for decades, Arnold has been cited for the holding above.

However, on re-examination of Arnold, the majority court concluded, “Arnold, correctly read, stands for the proposition that evidence obtained in violation of a statute (or not in accordance with the statute) may be suppressed under the statute to achieve the objectives of the statute, even though the statute does not expressly provide for the suppression or exclusion of the evidence. This correct reading of Arnold has been lost in succeeding cases.”

Accordingly, the court held that a circuit court has discretion to suppress or allow evidence obtained in violation of a statute, even when the statute does not specifically require suppression of evidence obtained contrary to it.

Concurrence

Justice David T. Prosser wrote a concurrence, finding that suppression was warranted, in light of the state’s “total disregard[]” of the proper procedures.

However, he concluded that the state could still subpoena the records pursuant to sec. 885.01 for use at trial.

The incriminating statements, he agreed, must not be used at trial: “The [s]tate can do over the subpoenas of the bank records. It cannot do over its blunders in obtaining Popenhagen’s statements.”

Dissents

Justice Annette Kingsland Ziegler also wrote separately, concurring that the bank records can be suppressed under the court’s inherent authority to administer justice, but disagreeing that it can be suppressed under these facts.

Ziegler wrote, “The proper remedy in a case like this, where no bad faith exists, is to permit the judge — when the error is discovered — to quash the subpoena and require the [s]tate to subsequently seek the documents through a properly enforced subpoena. In finding that Wis. Stat. sec. 968.135 calls for suppression of the documents — and ultimately the statements —— the majority weaves a remedy that unravels years of precedent.”

Justice Patience Drake Roggenack was even more adamant in her dissent: “[B]ecause more than 20 years of precedent of the appellate courts of this state have required that the statute specifically authorize suppression as a remedy for a statutory violation before suppression may be employed, and because the [L]egislature has not done so here, I conclude that the circuit court erroneously exercised its discretion when it suppressed Popenhagen’s bank records.”

Roggensack added, “[T]he majority opinion’s analysis of the issue is not well reasoned; it ignores the procedures that occurred before the trial court in Arnold and does not identify any compelling interest that is served by overturning more than 20 years of well established precedent.”

Attorney James B. Connell, of Crooks, Low & Connell, S.C., Wausau, who argued on behalf of Popenhagen, does not read the opinion as broadly as the dissenters.

Connell stated in an interview, “I don’t think it is as sweeping as the dissent does. The majority opinion cites Arnold, and Arnold allows suppression as a remedy.”

Connell also cited public policy: “What would prevent completely ignoring the statute other than this remedy. If suppression is not available as a remedy, police would just ignore
the statute.”

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