Court rules in 6 search, seizure cases

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July 15 was search and seizure day at the Wisconsin Supreme Court.

The court issued six opinions dealing with a variety of search and seizure issues; in only one did the defendant prevail.

In that case, State v. Hess, 2008AP2231-CR, the court held that where an arrest warrant was patently invalid, the exclusionary rule applies, and evidence obtained by law enforcement during its execution is inadmissible.

The court acknowledged that the officer who executed it acted in good faith, which would, in most circumstances, render the exclusionary rule inapplicable. But the court concluded that, because the warrant was defective on its face, “suppressing evidence obtained as a result of the unauthorized, defective warrant is necessary to preserve the integrity of the judicial process.”

But Hess was the only victory for the defense bar.

In two other cases, the court held that the exclusionary rule did not require suppression of illegally seized evidence, because the officers acted in good faith reliance on what was, at the time, binding precedent.

In State v. Dearborn, 2007AP1894-CR, and State v. Littlejohn, 2007AP900-CR, police officers conducted searches of motor vehicles after the drivers had been placed under arrest and placed in the back of a squad car.

At the time of those searches, they were lawful, pursuant to State v. Fry, 131 Wis.2d 153, 388 N.W.2d 565 (1986). But later, the U.S. Supreme Court held that, once the driver is secured, the car cannot be searched as an incident to the arrest. Arizona v. Gant, 129 S.Ct. 1710 (2009).

But the Wisconsin Supreme Court held the fruits from the searches in these two cases were admissible evidence. Justice Michael J. Gableman wrote, “We hold that the good faith exception precludes application of the exclusionary rule where officers conduct a search in objectively reasonable reliance upon clear and settled Wisconsin precedent that is later deemed unconstitutional by the United States Supreme Court.”

Rejecting the defendant’s argument that its ruling would dissuade defendants from challenging searches, the court observed, “criminal defendants are represented by a dedicated group of public defenders and private attorneys who genuinely care about the development of the law. Time and time again we have seen criminal defense attorneys take cases to this court, often without pay, in order to effect a particular change in the law. We doubt that our holding in this case will change this practice.”

Defendants also lost three cases involving warrantless searches of their homes.

In State v. Artic, 2008AP880-CR, police unlawfully entered the defendant’s home. Nevertheless, the majority held that the subsequent search was lawful, because it was sufficiently attenuated from the illegal entry to purge the taint of that entry.

The court found that the officers were not threatening and that the defendant’s consent to search was voluntary.

In State v. Pinkard, No. 2008AP1204-CR, officers received an anonymous tip that two persons were sleeping in a home, next to cocaine, money, and a digital scale, and the door to the residence was open.

The court held that the officers’ entry into the house was justified by their community caretaker function, because the residents did not respond to their knocking and announcing themselves; thus, the officers could reasonably be concerned that they had overdosed on drugs.

Finally, in State v. Robinson, No. 2008AP266-CR, the court upheld the entry under the exigent circumstances exception. When the officers knocked and announced their presence, they heard footsteps running from the door.

The court held that the warrantless entry was lawful to prevent the destruction of evidence.

Justice Ann Walsh Bradley wrote a dissent in Robinson, joined by Chief Justice Abrahamson that discussed all three of these cases.

Bradley wrote, “If the suspect opens the door, that suspect may be found have voluntarily consented to the search [Artic]. If the suspect refuses to open the door and officers hear movement inside, there may be exigent circumstances due to the possibility of the destruction of evidence [Robinson]. If no one answers the door, concern for the well-being of the occupants of what sounds like a drug house may justify entry under the community caretaker exception [Pinkard] (emphases in original).”

Bradley added, “I am concerned that this case, along with the other two cases decided today, dilute the Fourth Amendment by allowing the knock and talk procedure to justify warrantless entry. Both law enforcement officers and courts alike should be mindful that the knock and talk technique rests on constitutionally thin ice.”

David Ziemer can be reached at [email protected].