Evidence from warrantless search allowed by ‘good faith’ exception

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Convicted murderer Jack E. Johnson asked the Wisconsin Court of Appeals to find that a warrantless search conducted in Mexico, which violated U.S. Fourth Amendment protections, should also be viewed as a bad search by Wisconsin courts.

But a three-judge appellate panel in November ruled evidence from the warrantless search was admissible as long as American law enforcement officials received reasonable assurance from Mexican officials at the time that the warrantless search was valid, even if it was not.

American law enforcement officials’ decision to move forward with the search was “objectively reasonable,” the 2nd District appellate court ruled in State of Wisconsin v. Jack E. Johnson, 2012AP 837, because they relied on “the requirements of Mexican law and conducted the search in accordance with those directions.”

Case history

On Oct. 1, 2009, Kimberly A. Smith was found dead in her Oconomowoc home, the victim of a homicide in which she had been bound and stabbed. Her boyfriend, Steven McMickle, discovered her body after Smith had dropped her son off at daycare but failed to show up for work at the Waukesha Department of Human Services.

Police found a butcher knife and latex glove in a nearby storm sewer. DNA evidence would later tie Justin Welch, a friend of Smith’s ex-boyfriend Darren Wold, to the crime.

Smith and Wold had been involved in an extensive child custody battle over their 4-year-old son. A social worker was scheduled to submit her custody and visitation recommendations to the court the same day Smith’s body was discovered.

Further investigation revealed extensive phone calls, emails and phone communications between Welch, Wold and another friend of theirs, Jack Johnson, just before and after Smith’s Oct. 1 death.

Waukesha County authorities and the FBI tracked Johnson to a rental home in Rosarito, Mexico, where Welch also had stayed.

FBI Special Agent Michael Ecker was the primary liaison with Mexican officials in the region. After explaining to a liaison from the Baja California State Attorney General’s Office that Johnson possibly was connected to Smith’s death, Ecker was told that as long as Johnson’s landlord agreed to the search, the warrantless search was legal under Mexican law.

Johnson’s Mexican residence was searched March 25, 2011, by officials from the United States, San Diego, Mexican, Waukesha County and Oconomowoc.

Rosarito law enforcement first entered the house to secure the premises. American officials had provided their Mexican counterparts with a list of Johnson’s belongings to seize, which included “computers, some photos, some pieces of paper with different names on them, and some money grams.”

At trial, evidence presented by the prosecution suggested that Johnson was significantly involved with Smith’s death. This was proven through emails, text messages and phone communications. Money indirectly funneled to Welch for Smith’s murder totaled $7,000.

Johnson purchased a plane ticket for Welch from San Diego to Milwaukee, as well as a ticket back to San Diego. The prosecution also showed that Johnson assisted Welch in crossing both in and out of the U.S. from Mexico before and after the murder.

Johnson was later charged with a single count of first-degree murder, as a party to the crime under Wis. Stat. 940.01(1)(a) and sect. 935.05. He filed an immediate motion to suppress evidence unlawfully obtained from the Mexican search.

At the court

During the suppression hearing before Judge James Kieffer, counsel for Johnson produced evidence suggesting that the search warrant not only skirted the edges of legality, but may have been outright unlawful.

Johnson’s counsel produced further evidence that a typical Mexican search warrant under these conditions could take from four months to two years to obtain. If American law enforcement had conducted “further inquiry,” they likely would have realized that the information from the Baja AG’s offices was flawed, thus the warrantless search was flawed and could never stand up in a U.S. or Mexican court.

The circuit court denied Johnson’s motion to suppress, finding that American law enforcement acted reasonably, however, in relying upon what they believed was correct information about a warrantless search. A jury later convicted Johnson of first-degree murder and sentenced him to life without the possibility of supervision.

The appellate court acknowledged there was no real indication that the Mexican search warrant was valid, and assumed the search was, in fact, illegal.

However, pursuant to the U.S. Supreme Court’s 1984 decision in US v. Leon, 468 US 897, and the Wisconsin court in State v. Eason, 2001 WI 98, there still were strong reasons to admit the computer and other evidence seized from Johnson’s house.

The exclusionary rule to the Fourth Amendment will not bar evidence if the “good faith exception” applies, where U.S. authorities “reasonably rely on the foreign interpretation of legality and search.”

Both U.S. v. Leon and State v. Eason instruct that courts need to look at whether suppressing improperly seized evidence would have an actual deterrent effect on future Fourth Amendment violations.

Here, the appellate court reasoned that the decision by a circuit court judge in the U.S. would have little or no impact on how law enforcement in Mexico would conduct its business, or how courts in Mexico would look at similar warrantless searches in the future.

Placing an obligation of “strict liability” on American law enforcement when their foreign counterparts fail, in the presence of reasonable information presented by the foreign country, the appellate court wrote, would be even more egregious than holding U.S. law enforcement officers to a strict liability standard for domestic warrants, quoting U.S. v. Peterson, 812 F.2nd 486 (9th Cir. 1987).

It also was reasonable for American law enforcement to “believe in the legality” of a joint Mexican, American, San Diego, Oconomowoc and Waukesha County search under Mexican control, the appellate court wrote in its opinion, “after the U.S. liaison contacted the head of the law enforcement department in Baja, California.”

It would have been unreasonable to expect U.S. law enforcement to conduct any kind of “separate inquiry” as requested by Johnson’s counsel, according to the court.

“We presume a high ranking Mexican law enforcement personnel will know their own laws,” the appellate court concluded, affirming the lower court’s decision.