A prior court’s ruling on a suppression motion does not prevent relitigation of the validity of a search in a later case, even though the facts, parties, and issues are all identical.
That holding by the Wisconsin Court of Appeals may be correct for this particular case, but not for the reason given by the court.
The court’s blanket holding fails to recognize that the key consideration should be whether there was an opportunity to appeal the suppression ruling.
The defendant, Heath N. Wasserman, was charged with possession of a firearm by a felon in 2003. Wasserman moved to suppress the gun, but after a two-day hearing, the circuit court denied the motion.
The case was later dismissed, without prejudice, upon the state’s motion, due to the unavailability of a witness.
The state then re-filed the charge, and again, Wasserman moved to suppress the gun.
The state argued that the admissibility of the gun had already been decided, and need not be relitigated. Milwaukee County Circuit Court Judge Jeffrey A. Kremers agreed.
After pleading no contest, Wasserman appealed the circuit court’s refusal to consider his suppression motion, and the Court of Appeals reversed, in an opinion by Judge Ted E. Wedemeyer, Jr.
Addressing issue preclusion, the extent of the court’s analysis was as follows:
“Because the first case was dismissed without prejudice, and there was no decision on the merits, [issue preclusion and other theories] do not preclude a second suppression hearing. … Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995)(‘Issue preclusion refers to the effect of a judgment in foreclosing relitigation in a subsequent action of an issue of law or fact that has been actually litigated and decided in a prior action.”)(emphasis added by court).
The problem with the court’s discussion of issue preclusion is that the doctrine of issue preclusion no longer requires that the holding on the issue be essential to a final judgment.
The suppression motion was “actually litigated” and “decided.” Based on the very standard set forth in the opinion, Wasserman should not be allowed to relitigate the issue, contrary to the conclusion.
Actually, the ultimate result is correct. For all practical purposes, Wasserman never had an opportunity to appeal the denial of the first suppression motion.
In addition to the core question in analyzing the issue preclusion doctrine — was the issue actually litigated and decided? — courts consider five other factors. Michelle T. v. Crozier, 173 Wis.2d 681, 689, 495 N.W.2d 327.
One of those is whether the party against whom preclusion is sought could have obtained review of the judgment. Id.
In the first case, Wasserman could theoretically have sought an interlocutory appeal after the suppression motion was denied, but anyone familiar with criminal law knows that is not a practical option.
Realistically, because the first case against him was dismissed on the state’s motion, he had no opportunity for meaningful review of the first court’s decision on his suppression motion.
Therefore, the court’s ultimate result is correct — Wasserman should have been allowed to relitigate the suppression motion.
In many cases, however, the result should be different, as numerous other opinions by the court suggest.
In State v. Dantuma, 2000 WI App 94, 234 Wis.2d 526, 611 N.W.2d 471 (Table), 2000 WL 298100 (Wis.App., Mar. 23, 2000), the court held that issue preclusion did apply against the state to a motion to suppress custodial statements.
In State v. Fellbaum, 2004 WI App 21, 269 Wis.2d 543, 674 N.W.2d 681 (Table), 2003 WL 22947506 (Wis.App., Dec. 16, 2003), the court held that, “under normal circumstances,” the doctrine would apply to a suppression motion, but because of “unusual procedural circumstances,” it would not apply in that case.
In State v. Griese, 2004 WI App 205, 276 Wis.2d 864, 688 N.W.2d 783 (Table), 2004 WL 2002492 (Wis.App., Sept. 9, 2004), the court held that doctrine applied, and therefore the court should have suppressed evidence in an OWI prosecution, that had previously been suppressed at a refusal hearing.
Each of these opinions includes a thoughtful discussion of issue preclusion as it applies in the suppression motion context, and concludes that the doctrine may be applied, at least in most circumstances.
Admittedly, in Jones v. State, 47 Wis.2d 642, 178 N.W.2d 42, 49-50 (1970), the Wisconsin Supreme Court held that the doctrine could not apply in a suppression motion.
The court thus held that a confession was admissible in a criminal prosecution, even though a previous judge, in a previous case, held that it was involuntary.
However, the law governing issue preclusion has changed significantly since 1970, and it is not clear that Jones survives Michelle T.
The discussion of issue preclusion in the case at bar is minimal, and what little there is, is suspect.
Accordingly, attorneys should continue to vigorously contest the applicability of issue preclusion in suppression motions, until the Supreme Court issues a definitive ruling on the matter.