State v. Gary Monroe Scull

2015 WI 22SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2956-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Gary Monroe Scull,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 352 Wis. 2d 733, 843 N.W.2d 859)
(Ct. App. 2014 – Published)
PDC No.: 2014 WI App 17OPINION FILED: March 5, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 2, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: David Borowski
JUSTICES:
CONCURRED: ROGGENSACK, CROOKS, ZIEGLER, GABLEMAN, JJJJ.,
concur (Opinion filed).
ZIEGLER, CROOKS, GABLEMAN, JJJ., concur (Opinion
filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Basil M. Loeb, Wauwatosa, and oral argument by Basil M.
Loeb(?).
For the plaintiff-respondent, the cause was argued by Nancy
A. Noet (?), assistant attorney general, with whom on the brief
was J.B. Van Hollen, attorney general.
An amicus curiae brief was filed by legal intern Nolan A.
Jensen, Eileen Henak and Henak Law Office, S.C., Milwaukee; and
Melinda A. Swartz and Law Office of Melinda Swartz LLC,
Milwaukee, and intern Nolan A. Jenson behalf of the Wisconsin
Association of Criminal Defense Lawyers.
An amicus curiae brief was filed by Kelli S. Thompson,
state public defender, and Jefren E. Olsen, assistant state
public defender, on behalf of the Wisconsin State Public
Defender.
2
2015 WI 22NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2956-CR
(L.C. No. 2010CF337)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
MAR 5, 2015
Gary Monroe Scull,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANN WALSH BRADLEY, J. Petitioner, Gary Monroe Scull,
seeks review of a published decision of the court of appeals
that affirmed the denial of his motion to suppress evidence.1
The court of appeals determined that the evidence obtained from
a search of his home was admissible because the officers
conducted the search in good faith reliance on a search warrant.
1
State v. Scull, 2014 WI App 17, 352 Wis. 2d 733, 843
N.W.2d 859 (affirming judgment of the circuit court of Milwaukee
County, David L. Borowski, J.).
No. 2011AP2956-CR
¶2 Scull contends that the warrant was invalid because it
was based on information gained from a prior illegal search.
More specifically, he asserts that an alert by a drug sniffing
dog outside his home constituted a prior illegal search in
violation of his Fourth Amendment rights because the officers
needed, but did not have, a warrant to conduct the dog sniff.
Accordingly, he argues, because the warrant relied on an
affidavit detailing the dog's alert to the presence of drugs,
the warrant was invalid and the evidence seized pursuant to that
warrant must be suppressed.
¶3 Like the court of appeals, we resolve this case with a
straight-forward application of our good faith jurisprudence
governing police reliance on a warrant. It provides that the
good faith exception to the exclusionary rule applies to
evidence obtained in objectively reasonable reliance on a search
warrant issued by a detached and neutral magistrate that is
ultimately found to be defective. State v. Eason, 2001 WI 98,
¶3, 245 Wis. 2d 206, 629 N.W.2d 625. Reliance on a warrant is
objectively reasonable when: the warrant was preceded by a
substantial investigation, the affidavit supporting the warrant
was reviewed by either a police officer trained and
knowledgeable in the requirements of probable cause and
reasonable suspicion, or a knowledgeable government attorney,
and a reasonably well-trained officer would not have known that
the search was illegal despite the magistrate's authorization.
Id.2
No. 2011AP2956-CR
¶4 In this case we determine that the good faith
exception to the exclusionary rule applies because the evidence
Scull seeks to suppress was obtained in objectively reasonable
reliance on a warrant issued by a detached and neutral
magistrate. Accordingly, we conclude that the evidence should
not be suppressed and affirm the court of appeals.
I
¶5 For purposes of our review, the facts of this case are
undisputed. A confidential informant told Officer Wiesmueller
that an individual named Gary M. Scull was involved in the
distribution of cocaine base within the City of Milwaukee. The
informant further identified the defendant by providing an
address where he thought Scull possibly resided. Indicating
that he had personally witnessed Scull distributing the cocaine
base throughout the City, the informant stated that Scull
conducts narcotics trafficking from his vehicle, a 1990s Ford
Bronco, license plate 792-NYG.
¶6 After receiving the information from the informant
Officer Wiesmueller conducted a follow-up investigation. He
discovered that an individual named Gary M. Scull, born March
28, 1981, was on probation at the time. The address on file for
Scull matched the address provided by the informant. Officer
Wiesmueller further confirmed with the Wisconsin Department of
Transportation that a vehicle with the license plate number and
description matching the information provided by the informant
was registered to Scull.
3
No. 2011AP2956-CR
¶7 Officer Wiesmueller asked Detective Ederesinghe to
take his dog to Scull's address. Detective Edersinghe and his
dog, Voden, are a drug detection team certified in the detection
of the odor of marijuana, cocaine, heroin, and methamphetamine.
When Voden detects the presence of controlled substances he will
"alert" by aggressively scratching at the object.
¶8 In response to Officer Weismueller's request,
Detective Edersinghe took Voden to Scull's house. As he
approached, a woman exited the house with two small children.
He decided to come back at another time when he would not be
observed. When Detective Edersinghe returned with Voden, they
were on the premises for less than 20 seconds. He took the dog
on the sidewalk to the side entrance of the home and then they
followed the walkway to the front door. They left the premises
after Voden alerted at the front door.
¶9 Based on Voden's alert and the information provided by
the informant, Officer Wiesmueller sought a warrant to search
Scull's home. The affidavit for the search warrant detailed
Detective Edersinghe's and Voden's training and explained how
Voden "alerts" to the presence of a narcotic. It then stated
that "within the past seventy two (72) hours, his canine, VODEN,
made an 'Alert' on the front entry door to [Scull’s residence].
Detective Christopher Ederesinghe states that the 'Alert' of
VODEN is a positive indication that controlled substances are
contained in said apartment unit."
¶10 The affidavit further detailed how the information
from the confidential informant resulted in the dog sniff. It
4
No. 2011AP2956-CR
explained that the confidential informant was in a position to
identify cocaine because the confidential informant had
previously been involved in cocaine trafficking and that the
informant was reliable because the informant had provided
information in the past that had been confirmed by subsequent
searches and arrests. The affidavit stated that the
confidential informant told Officer Wiesmueller that "Gary M.
Scull, b/m, 04-28-1981" was "involved in the distribution of
cocaine base within the City of Milwaukee," which he had
personally witnessed. The affidavit included the informant's
description of Scull's vehicle and its license plate, and the
address he provided for Scull.
¶11 The steps Officer Wiesmueller took to follow up on the
information he received from the informant were likewise
identified. The affidavit stated that Officer Wiesmueller had
ascertained that "Gary M. Scull, b/m, 04-28-1981, is currently
on probation" and that the Department of Corrections gave the
same address for Scull as the informant had provided.
Additionally, the affidavit stated that Officer Wiesmueller had
confirmed with the Wisconsin Department of Transportation that a
vehicle with the license plate number and description matching
the information provided by the informant was registered to
Scull.
¶12 An assistant district attorney reviewed and approved
the affidavit for the search warrant. It was subsequently
submitted to a circuit court commissioner. After reviewing the
affidavit, the commissioner determined that the affidavit
5
No. 2011AP2956-CR
submitted by Officer Wiesmueller showed probable cause to
believe that there were controlled substances in Scull's home.
The commissioner granted the search warrant to search Scull's
home for those substances. Upon executing the warrant, officers
found 53.85 grams of crack cocaine, 102.41 grams of marijuana,
and drug-trafficking paraphernalia including digital scales, a
razor blade, and numerous clear plastic baggies of various
sizes. Based on this evidence, the State charged Scull with
possession with intent to deliver cocaine, possession with
intent to deliver THC, and keeping a drug house.
¶13 Scull moved to suppress the evidence obtained from his
home. Scull asserted that the warrant was unlawfully obtained.
He contended that the grounds for the warrant were insufficient
because the dog sniff of his home was a warrantless search and
information from an unlawful search cannot be used as a basis
for a warrant justifying a subsequent search.
¶14 The circuit court denied the motion. It recognized
that there was no case directly addressing the use of a drug-
sniffing dog at the entrance of a home. However, it agreed with
the State that the cases addressing dog sniffs in other
circumstances established that dog sniffs were not searches and
that police are lawfully on an individual's property when
approaching the front door of a residence by means of a walkway.
Accordingly, it determined that the dog was brought to the door
of the residence "in a valid manner, not in a manner that
violated the Fourth Amendment." After his motion was denied,
6
No. 2011AP2956-CR
Scull pled guilty to possession with intent to deliver more than
forty grams of cocaine and to keeping a drug house.
¶15 Scull appealed.2 While his appeal was pending, the
United States Supreme Court issued Florida v. Jardines, 569 U.S.
__, 133 S. Ct. 1409 (2013), in which it determined that using a
drug-sniffing dog on a homeowner's porch to investigate the
contents of the home constitutes a search under the Fourth
Amendment. Based on Jardines, the court of appeals determined
that the police violated Scull's Fourth Amendment rights when
they brought a drug-sniffing dog to his home without a search
warrant. State v. Scull, 2014 WI App 17, ¶1, 352 Wis. 2d 733,
843 N.W.2d 859. Nevertheless, the court affirmed Scull's
conviction because the police subsequently obtained a search
warrant upon which they relied in good faith. Id., ¶¶1, 22.
II
¶16 We are asked to determine whether the evidence
obtained through the execution of a search warrant on Scull's
home must be suppressed. Generally, in reviewing motions to
suppress, we apply a two-step standard of review. Eason, 245
Wis. 2d 206, ¶9. First, we review the circuit court's findings
of fact, and uphold them unless they are clearly erroneous. Id.Second, we independently review the application of
constitutional principles to those facts. Id.2
Although a defendant generally waives all non-
jurisdictional defects when entering a guilty plea, Wis. Stat.
§ 971.31(10) creates an exception to this rule for appellate
review of an order denying a suppression motion.
7
No. 2011AP2956-CR
¶17 In this case, however, the facts are undisputed. It
is further undisputed that the dog sniff of Scull's house which
served as part of the basis for the warrant violated Scull's
Fourth Amendment right to be secure from unreasonable searches
and seizures. Thus, we are left to address whether the
exclusionary rule applies or whether the evidence from Scull's
home is admissible under the good faith exception to the rule.
The application of the good faith exception to the exclusionary
rule is an issue of law which we review independently of the
decisions rendered by the circuit court and court of appeals.
State v. Hess, 2010 WI 82, ¶19, 327 Wis. 2d 524, 785 N.W.2d 568.
III
¶18 We begin our analysis by setting forth the
constitutional right at issue, the Fourth Amendment to the
United States Constitution. It provides the right of citizens
to be secure against unreasonable searches and seizures:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const., Amend. IV.3
3
Article I, Section 11 of the Wisconsin Constitution
contains substantially the same language:
The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures shall not be violated; and no
warrant shall issue but upon probable cause, supported
(continued)
8
No. 2011AP2956-CR
¶19 The Supreme Court has declared that Fourth Amendment
rights are "indispensable to the 'full enjoyment of personal
security, personal liberty and private property.'" Gouled v.
United States, 255 U.S. 298, 304 (1921). Courts have long
extolled the importance of the home, noting that the amendment
was drafted in part to codify "the overriding respect for the
sanctity of the home that has been embedded in our traditions
since the origins of the Republic." Payton v. New York, 445
U.S. 573, 601 (1980); Holt v. State, 17 Wis. 2d 468, 477, 117
N.W.2d 626 (1962) ("A home is entitled to special dignity and
special sanctity.").
¶20 The Court first applied the exclusionary rule to
protect against violations of Fourth Amendment rights in Weeks
v. United States, 232 U.S. 383 (1914). Under the exclusionary
rule, evidence obtained in violation of the Fourth Amendment is
generally inadmissible in court proceedings. Mapp v. Ohio, 367
U.S. 643, 655 (1961). The court has explained that "[t]he
exclusionary rule operates as a judicially created remedy
designed to safeguard against future violations of Fourth
by oath or affirmation, and particularly describing
the place to be searched and the persons or things to
be seized.
Ordinarily, we interpret Article I, Section 11 of the Wisconsin
Constitution consistent with the Fourth Amendment of the United
States Constitution. However, in State v. Eason, 2001 WI 98,
¶63, 245 Wis. 2d 206, 629 N.W.2d 625, we required additional
safeguards.
9
No. 2011AP2956-CR
Amendment rights through the rule's general deterrent effect."
Arizona v. Evans, 514 U.S. 1, 10 (1995).
¶21 Wisconsin has adopted the exclusionary rule and
applied it to exclude evidence obtained in violation of the
Wisconsin Constitution as well. It was first applied in Hoyer
v. State, 180 Wis. 407, 193 N.W. 89 (1923). There, after
declaring that the provisions of the Bill of Rights embodied in
the constitutions are "of substance rather than mere tinsel,"
the Wisconsin Supreme Court determined that the evidence
obtained in an unlawful search and seizure should have been
suppressed. Id. at 415.
¶22 This court has cited two rationales in support of its
application of the exclusionary rule: assurance of judicial
integrity and deterrence of unlawful police conduct. State v.
Felix, 2012 WI 36, ¶39, 339 Wis. 2d 670, 811 N.W.2d 775; Hess,
327 Wis. 2d 524, ¶47; State v. Artic, 2010 WI 83, ¶65, 327 Wis.
2d 392, 786 N.W.2d 430; State v. Knapp, 2005 WI 127, ¶79, 285
Wis. 2d 86, 700 N.W.2d 899; State v. Noble, 2002 WI 64, ¶31, 253
Wis. 2d 206, 646 N.W.2d 38; Eason, 245 Wis. 2d 206, ¶31 n.10;
State v. Ward, 2000 WI 3, ¶47, 231 Wis. 2d 723, 604 N.W.2d 517;
State v. McMorris, 213 Wis. 2d 156, 177, 570 N.W.2d 384 (1997);
State v. Whitrock, 161 Wis. 2d 960, 988, 468 N.W.2d 696 (1991);
Conrad v. State, 63 Wis. 2d 616, 635, 218 N.W.2d 252 (1974). In
furtherance of judicial integrity, we have explained that
"[c]ourts and judges should not sanction violations of the
constitution. The integrity of the judicial process must be
10
No. 2011AP2956-CR
inviolate and free from reliance upon transgressions against the
constitution." Conrad, 63 Wis. 2d at 635.4
¶23 "Unlawful police conduct is deterred when evidence
recovered in unreasonable searches is not admissible in courts."
State v. Tompkins, 144 Wis. 2d 116, 133-34, 423 N.W.2d 823(1988); State v. Gums, 69 Wis. 2d 513, 516-17, 230 N.W.2d 813(1975). However, when police action was pursued in good faith
"the deterrence rationale loses much of its force." Gums, 69
Wis. 2d at 517 (quoting Michigan v. Tucker, 417 U.S. 433, 447
(1974)). Such is the case where officers act in reliance on
clear and well-settled law that is subsequently changed, State
v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, and
where officers act in objectively reasonable reliance on a
subsequently invalidated search warrant, Eason, 245 Wis. 2d 206.
¶24 In this case, the parties frame the question regarding
the application of the good faith exception as whether the
officers could have acted in reliance on clear and well-settled
law that was subsequently reversed. Both parties agree that
Jardines, 133 S. Ct. 1409, rendered the dog sniff of Scull's
home illegal at the time it was conducted. They dispute whether
4
We are not asserting that judicial integrity is a stand-
alone basis for the exclusion of evidence. The protection of
judicial integrity goes hand-in-hand with deterrence of police
misconduct. As this court has explained, "[t]he protection of
rights and the preservation of judicial integrity depend in
reality on the deterrent effect of the exclusionary rule."
State v. Tompkins, 144 Wis. 2d 116, 133, 423 N.W.2d 823 (1988).
11
No. 2011AP2956-CR
the officers could have acted in reliance on the law at the time
of the search such that the good faith exception should apply.
¶25 We need not address this argument because a straight-
forward application of our good faith jurisprudence governing
police reliance on a warrant resolves our inquiry. Here, the
officers ultimately obtained a warrant to search Scull's home
and that warrant was issued by a detached and neutral
commissioner. The commissioner's decision to grant the warrant
was a reasonable application of the unsettled state of the law
at the time the warrant issued.
¶26 Two Wisconsin cases had addressed the validity of a
dog sniff. The first, State v. Miller, 2002 WI App 150, 256
Wis. 2d 80, 647 N.W.2d 348, addressed a warrantless dog sniff of
a vehicle. In addressing the defendant's Fourth Amendment
rights, the court observed that a dog sniff is much less
intrusive than a typical search. Id., ¶6. Further, dog sniffs
reveal only illegal conduct to which there is no legitimate
privacy interest. Id., ¶9. Accordingly, the court concluded
that the dog sniff of the vehicle did not constitute a search
and thus there was no Fourth Amendment violation. Id., ¶10.
¶27 In the second case, State v. Arias, 2008 WI 84, 311
Wis. 2d 358, 752 N.W.2d 748, this court likewise considered a
dog sniff of a vehicle in a public place. We agreed with
Miller's statements that there is no constitutionally protected
interest in possessing contraband, and that a dog sniff is much
less intrusive than activities that have been held to be
searches. Id., ¶¶22-24. Accordingly, we determined that a dog
12
No. 2011AP2956-CR
sniff of a vehicle located in a public place was not a search
for purposes of the Wisconsin Constitution. Id., ¶24.
¶28 Both Wisconsin cases are consistent with the United
States Supreme Court precedent issued prior to Jardines. In
Illinois v. Caballes, 543 U.S. 405 (2005), the Court assessed
whether a dog sniff of a vehicle stopped for speeding violated
the Fourth Amendment. The defendant had argued that the sniff
was impermissible because the officers lacked reasonable
suspicion to justify it. Id. at 407. The court was not
persuaded. Like Miller and Arias, it focused on the fact that
there is no protected privacy interest in having an illegal
substance and the non-intrusive nature of a dog sniff. The
court observed that "[o]fficial conduct that does not
'compromise any legitimate interest in privacy' is not a search
subject to the Fourth Amendment." Id. at 408 (quoting United
States v. Jacobsen, 466 U.S. 109, 123 (1984)). Therefore, it
concluded that "[a] dog sniff conducted during a concededly
lawful traffic stop that reveals no information other than the
location of a substance that no individual has any right to
possess does not violate the Fourth Amendment." Id. at 409.
¶29 In United States v. Place, 462 U.S. 696, 707 (1983),
the Court considered a dog sniff in the context of an
individual's luggage. After an airline passenger's conduct
aroused suspicion, the officers seized his luggage and subjected
it to a "sniff test" by a trained narcotics detection dog. Id.
at 699. The Court noted that although a person possesses a
privacy interest in the contents of their personal luggage, a
13
No. 2011AP2956-CR
dog sniff does not require opening the luggage. Id. at 707.
Thus, the Court concluded that the dog sniff of the luggage did
not constitute a search within the meaning of the Fourth
Amendment. Id.¶30 In sum, at the time the commissioner issued the
warrant in this case, there was Wisconsin and United States
Supreme Court precedent stating there is no search when a dog
sniffs a vehicle. There was also precedent stating that there
is no search when a dog sniffs luggage at an airport. However,
it was unsettled whether the same analysis would apply to a dog
sniff of a home.5 Given the precedent, the commissioner's
decision to grant the warrant appears to be a reasonable
application of the unsettled law at the time the warrant issued.
Accordingly, we turn to our case law addressing the application
of the good faith exception to evidence obtained in reliance on
a warrant.
¶31 The seminal Wisconsin case on the application of the
good faith exception to the exclusionary rule in circumstances
involving a search warrant is Eason, 245 Wis. 2d 206. In that
case a court commissioner issued a no-knock search warrant based
on an affidavit submitted by police. Id., ¶4. When the
5
Notably, at the time the warrant was issued, had the
commissioner reviewed other states' jurisprudence on this
question, he would have discovered the appellate decision in
State v. Jardines, 9 So. 3d 1 (Fla. Dist. Ct. App. 2008), which
held that a dog's sniff of a home was not a Fourth Amendment
search.
14
No. 2011AP2956-CR
officers executed the warrant they discovered narcotics at the
defendant's home. Id., ¶5. At trial, however, the circuit
court granted the defendant's motion to suppress the narcotics
because it determined that the affidavit in support of the
warrant failed to allege the requisite reasonable suspicion to
justify the issuance of the no-knock search warrant. Id., ¶7.
¶32 On appeal, this court acknowledged that in United
States v. Leon, 468 U.S. 897 (1984), the United States Supreme
Court formulated a good faith exception to the exclusionary rule
where a police officer acts in objectively reasonable reliance
on a search warrant issued by a detached and neutral magistrate.
Id., ¶27. In that situation, there would be little deterrent
effect from suppression because the "officer is acting as a
reasonable officer would and should act in similar
circumstances." Id., ¶32 (quoting Leon, 468 U.S. at 920).
¶33 Leon cautioned that the existence of a warrant does
not necessarily mean that the good faith exception to the
exclusionary rule will apply. Leon, 468 U.S. at 922. It will
not apply where "a reasonably well trained officer would have
known that the search was illegal despite the magistrate's
authorization." Id. at 922 n.23. An officer "cannot reasonably
rely upon a warrant that was based upon a deliberately or
recklessly false affidavit, or, a bare bones affidavit that she
or he reasonably knows could not support probable cause or
reasonable suspicion." Eason, 245 Wis. 2d 206, ¶36 (citing
Leon, 468 U.S. at 923). Further, "[t]he officer cannot
reasonably rely upon a warrant 'so facially deficient' that she
15
No. 2011AP2956-CR
or he could not 'reasonably presume it to be valid'" or "upon a
warrant issued by a magistrate that 'wholly abandoned his [or
her] judicial role.'" Id. (quoting Leon, 468 U.S. at 923).
¶34 The Eason court observed that Leon is consistent with
this court's prior statements that application of the
exclusionary rule requires a weighing of the pertinent
interests. Eason, 245 Wis. 2d 206, ¶43. It concluded that the
good faith exception should apply to the situation where an
officer acts in objectively reasonable reliance on a warrant by
a detached and neutral magistrate because in that scenario, the
exclusionary rule has no deterrent effect. Id., ¶52.
¶35 However, rather than adopting Leon outright, this
court added to the test. It determined that Article I, Section
11 of the Wisconsin Constitution required additional protection.
Id., ¶63. Thus, in order for the good faith exception to apply
to scenarios involving a warrant, 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." Id., ¶74.
¶36 In applying this test to the facts of the case, the
Eason court determined that the officers had conducted a
significant investigation before seeking the warrant. Id., ¶70.
The court explained that the officers had worked with a
confidential informant, researched the suspects in police
records, and researched utility records for the premises. Id.
16
No. 2011AP2956-CR
The Eason court also determined that the warrant application had
been reviewed by a government attorney. Id., ¶71. To reach
this conclusion, it relied on the fact that "[t]he warrant and
affidavit reflect advanced legal training, beyond that given to
a well-trained police officer." Id.
¶37 The application section of Eason's analysis also
reflects that the court considered whether a reasonably well-
trained officer would have known that the search was illegal
despite the magistrate's authorization, which would render the
officers' reliance on the warrant unreasonable. Id., ¶66. The
court observed that "[t]here have been no allegations that the
warrant was so facially deficient that a reasonable, well-
trained officer would not have relied upon it." Id. Further,
there were "no contentions that there [were] technical or other
glaring deficiencies with the warrant" and "[t]he affidavit
[was] not sketchy or bare-boned." Id. Accordingly, the court
determined that the officers' reliance on the warrant was
objectively reasonable and the evidence obtained from execution
of the warrant should not have been suppressed.
IV
¶38 Turning to the facts of this case, we follow the test
laid out in Eason. First, we determine whether officers
conducted a significant investigation prior to obtaining the
warrant. Second, we assess whether the affidavit supporting the
warrant was reviewed by either a police officer trained and
knowledgeable in the requirements of probable cause and
reasonable suspicion, or a knowledgeable government attorney.
17
No. 2011AP2956-CR
Lastly, we consider whether a reasonably well-trained officer
would have known that the search was illegal despite the
magistrate's authorization, rendering the officers' reliance on
the warrant unreasonable.
¶39 In terms of the first factor, we determine that
Officer Wiesmueller conducted a significant investigation before
obtaining the warrant. It appears the investigation into Scull
began when a confidential informant told Officer Wiesmueller
that Scull was selling cocaine base. Officer Wiesmueller
determined that the informant would be in a position to know
that the substance Scull distributed was cocaine because the
informant had been involved in cocaine trafficking in the past.
Further, he deemed the informant reliable because the informant
had provided information in the past that had been confirmed by
subsequent searches and arrests.
¶40 Upon investigating further, Officer Wiesmueller
discovered that there was an individual named Scull, matching
the informant's description, who was on probation at the time
for robbery and recklessly endangering safety in Milwaukee
County. From the Department of Corrections records, Officer
Wiesmueller confirmed that the home address the informant had
given him was Scull's address. Officer Wiesmueller also
obtained records from the Wisconsin Department of Transportation
from which he was able to confirm that a vehicle matching the
description and license plate number provided by the informant
was registered to Scull.
18
No. 2011AP2956-CR
¶41 After verifying the information from the informant,
Officer Wiesmueller had Detective Edersinghe take his drug-
sniffing dog to Scull's address. The dog alerted to the
presence of drugs at Scull's front door. With this information,
combined with the information from the informant, Officer
Wiesmueller sought a warrant. The multiple steps taken by
Officer Wiesmueller to investigate the allegations of drug
trafficking were reasonable at the time and sufficient to
satisfy the investigation requirement for purposes of the good
faith exception under Eason. Therefore, we conclude that the
State met its burden of showing that a significant investigation
was conducted prior to the warrant.
¶42 The State also met its burden with regard to the
second factor, review of the affidavit by a knowledgeable
government attorney. In this case, we need look only at the
face of the affidavit for the search warrant to make this
determination. The affidavit states that it was "reviewed and
approved by ADA Christopher Ladwig on 07-02-2010." Thus, it is
evident that the affidavit was reviewed by a knowledgeable
government attorney. See State v. Marquardt, 2005 WI 157, ¶46,
286 Wis. 2d 204, 705 N.W.2d 878 (testimony that an experienced
district attorney had met with the officers and drafted the
warrant established that it had been reviewed by a knowledgeable
government attorney); Eason, 245 Wis. 2d 206, ¶71 (determining
that warrant had been reviewed by a knowledgeable government
attorney based on the language in the warrant which "reflect[ed]
advanced legal training.").
19
No. 2011AP2956-CR
¶43 Lastly, we turn to consider whether a reasonably well
trained officer would have known that the search was illegal
despite the magistrate's authorization, rendering the officers'
reliance on the search warrant unreasonable. As in Eason, it is
not contended and we see nothing to suggest that the warrant in
this case was so facially deficient that a reasonable, well-
trained officer would not have relied upon it, that there were
technical or other glaring deficiencies with the warrant, or
that the affidavit was sketchy or bare-boned. Accordingly, we
conclude that at the time the officers executed the warrant on
Scull's home, a reasonable officer would not have known that a
search was illegal despite the warrant.
¶44 From the record presented in this case it appears that
the officers did everything they were required to do. With the
assistance of a knowledgeable government attorney they obtained
a warrant from a detached and neutral magistrate, which they
relied on to search Scull's home. Suppressing evidence obtained
in objectively reasonable reliance on that warrant would have no
deterrent effect. In such circumstances it is inappropriate to
apply the exclusionary rule. Therefore we determine that the
good faith exception to the rule applies.
V
¶45 In sum, the good faith exception to the exclusionary
rule applies to evidence obtained in objectively reasonable
reliance on a search warrant issued by a detached and neutral
magistrate that is ultimately found to be defective. Reliance
on a warrant is objectively reasonable when: the warrant was
20
No. 2011AP2956-CR
preceded by a substantial investigation, the affidavit
supporting the warrant was reviewed by either a police officer
trained and knowledgeable in the requirements of probable cause
and reasonable suspicion, or a knowledgeable government
attorney, and a reasonably well-trained officer would not have
known that the search was illegal despite the magistrate's
authorization.
¶46 In this case we determine that the good faith
exception to the exclusionary rule applies because the evidence
Scull seeks to suppress was obtained in objectively reasonable
reliance on a warrant issued by a detached and neutral
magistrate. Accordingly, we conclude that the evidence should
not be suppressed and we affirm the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
21
No. 2011AP2956-CR.pdr
¶47 PATIENCE DRAKE ROGGENSACK, J. (concurring). I join
the majority opinion's conclusions that the officers conducted
their search in reasonable reliance on a search warrant that
they believed was valid and that the good faith exception to the
exclusionary rule precludes suppression.1 I write in concurrence
to clarify that the "assurance of judicial integrity," standing
alone, is not a sufficient basis upon which to employ the
exclusionary rule to preclude the prosecution's use of evidence
seized when there is no underlying finding of police misconduct.
Accordingly, the majority opinion is not to be read as setting a
new standard that permits the exclusion of evidence without
police misconduct.
¶48 The exclusionary rule is a judicially created remedy
that may be applied to certain violations, including those of
the Fourth Amendment of the United States Constitution and
Article I, Section 11 of the Wisconsin Constitution. Davis v.
United States, __ U.S. __, 131 S. Ct. 2419, 2423 (2011); State
v. Ward, 2000 WI 3, ¶¶46, 58, 231 Wis. 2d 723, 604 N.W.2d 517.
The exclusionary rule was developed as a safeguard of Fourth
Amendment rights by requiring police to comply with the Fourth
Amendment's reasonableness requirements as a precondition to the
prosecution's use of evidence that police seized. Weeks v.
United States, 232 U.S. 383, 398 (1914); Hoyer v. State, 180
Wis. 407, 417, 193 N.W. 89 (1923).
1
Majority op., ¶1.
1
No. 2011AP2956-CR.pdr
¶49 As Fourth Amendment and Article I, Section 11
jurisprudence developed, the exclusionary rule has become
subject to exceptions. Both the United States Supreme Court's
and our own decisions have established good faith as an
exception to the exclusionary rule that permits prosecution's
use of evidence even though police have transgressed the Fourth
Amendment and Article I, Section 11. United States v. Leon, 468
U.S. 897, 916, 920 (1984); State v. Eason, 2001 WI 98, ¶2, 245
Wis. 2d 206, 629 N.W.2d 625; Ward, 231 Wis. 2d 723, ¶3. These
decisions are grounded in judicial assessment of the
reasonableness of police actions under the totality of the
circumstances. Davis, 131 S. Ct. at 2427-28; Eason, 245 Wis. 2d
206, ¶3.
¶50 As the parameters of the good faith exception to the
exclusionary rule have developed both in the Supreme Court's and
in our jurisprudence, so too have the judicial expressions of
the policies that underlie the exclusionary rule. For example,
in its recent decision in Davis, the Supreme Court expended
considerable effort explaining the policies that must be
considered with regard to the exclusionary rule and what facts
are necessary before exclusion of evidence is even an option for
courts to consider.
¶51 Davis involved the search of the passenger compartment
of Stella Owens' vehicle, in which Willie Davis was a passenger,
after both Owens and Davis were placed under arrest and secured.
Davis, 131 S. Ct. at 2425-26. A gun was found in Davis' jacket;
Davis was a convicted felon. Id. The search occurred before
2
No. 2011AP2956-CR.pdr
the Court's decision in Arizona v. Gant, 556 U.S. 332 (2009),
which Alabama agreed set out new concerns relative to the search
of Davis' jacket under the Fourth Amendment if Gant were applied
to that search. Davis, 131 S. Ct. at 2431. However, while Gant
provided a "newly announced rule of substantive Fourth Amendment
law as a basis for seeking relief," Gant did not determine the
remedy, i.e., whether suppression applies. Id.¶52 The ultimate question presented in Davis was whether
the good faith exception to the exclusionary rule permitted the
prosecution to present evidence obtained in a search that
complied with appellate precedent that pre-dated Gant. In
deciding this question, the Court examined whether police had
proceeded in objectively reasonable reliance on then-controlling
precedent in conducting the search. Davis, 131 S. Ct. at 2423-
24. After concluding that police had done so, the Court held
that "searches conducted in objectively reasonable reliance on
binding appellate precedent are not subject to the exclusionary
rule." Id.¶53 Although the Court's conclusion settled an important
area of Fourth Amendment law, what is equally interesting about
Davis is the Court's detailed descriptions of the showing that
is required before the exclusionary rule can be considered. For
example, the Court reaffirmed its holding in Herring v. United
States, 555 U.S. 135 (2009), that the exclusionary rule's sole
purpose is to deter future Fourth Amendment violations by
3
No. 2011AP2956-CR.pdr
police. Davis, 131 S. Ct. at 2426 (citing Herring, 555 U.S. at
141).2
¶54 The Court explained, "[r]eal deterrent value is a
necessary condition for exclusion, but it is not a sufficient
one. . . . The analysis must also account for the substantial
social costs generated by the rule. . . . For exclusion to be
appropriate, the deterrence benefits of suppression must
outweigh its heavy costs." Id. at 2427 (cited and quoted cases
omitted). When the error that leads to a Fourth Amendment
violation is not that of police but that of a magistrate or
judge who issues the warrant, the exclusionary rule does not
apply. "[P]unish[ing] the errors of judges is not the office of
the exclusionary rule." Id. at 2428 (cited and quoted cases
omitted). And finally, the Court explained, "in 27 years of
practice under Leon's good-faith exception, we have 'never
applied' the exclusionary rule to suppress evidence obtained as
a result of nonculpable, innocent police conduct." Id. at 2429
(quoting Herring, 555 U.S. at 144).
¶55 Our decision in Eason discussed the development of the
exclusionary rule. We began by reviewing Hoyer, which addressed
the Fourth Amendment's requirements, and we also considered the
exclusionary rule as developed within the parameters of Article
I, Section 11 of the Wisconsin Constitution. Eason, 245 Wis. 2d
2See also State v. Hess, 2010 WI 82, ¶¶79-84, 327 Wis. 2d
524, 785 N.W.2d 568 (Gableman, J., dissenting), for a thorough
discussion of Herring v. United States, 555 U.S. 135 (2009), and
Herring's explanation of the considerations that courts must
address when asked to apply the exclusionary rule.
4
No. 2011AP2956-CR.pdr
206, ¶¶41, 47 (citing Hoyer v. State, 180 Wis. 407, 193 N.W. 89(1923). We noted that at least since confirmed in State v.
Tompkins, 144 Wis. 2d 116, 423 N.W.2d 823 (1988), "the
exclusionary rule has been a remedy, not a right" under Article
I, Section 11 of the Wisconsin Constitution, as well as the
Fourth Amendment. Eason, 245 Wis. 2d 206, ¶48. We also cited
Ward as explaining that without police misconduct, evidence was
admissible because "exclusion . . . would serve no remedial
objective." Id., ¶49 (quoting Ward, 231 Wis. 2d 723, ¶63).
Therefore, just as with the Fourth Amendment, Article I, Section
11 of the Wisconsin Constitution requires police misconduct as a
necessary predicate to consideration of whether the exclusionary
rule should be applied. Id.¶56 So how does the above discussion fit within my concern
set out in the first paragraph of this concurrence? It provides
the necessary foundation to understand that the lead opinion in
Hess cannot be combined with certain narrations of the majority
opinion herein to conclude that the protection of judicial
integrity, standing alone without underlying police misconduct,
is sufficient to permit courts to suppress relevant evidence.3
3
Majority op., ¶22, citing the lead opinion in Hess, 327
Wis. 2d 524, ¶47, in which there was no underlying police
misconduct.
5
No. 2011AP2956-CR.pdr
Let me explain further, beginning with the problem set up by the
lead opinion in Hess.4
¶57 First, while protection of judicial integrity was
mentioned in Supreme Court decisions and in our decisions that
preceded Leon's 1984 decision on good faith, protection of
judicial integrity is no longer part of the Supreme Court's
analysis. In that regard, the Supreme Court has unequivocally
held that before the exclusionary rule may be employed as a
remedy for a Fourth Amendment violation two conditions are
required: (1) police misconduct and (2) a reviewing court's
conclusion that "the deterrence benefits of suppression []
outweigh its heavy costs." Davis, 131 S. Ct. at 2427.
Protection of judicial integrity is not part of the Supreme
Court's Fourth Amendment analysis when the remedy sought is
suppression of evidence. We came to the same conclusion in
Eason as we addressed Article I, Section 11 of the Wisconsin
Constitution. Eason, 245 Wis. 2d 206, ¶48. Accordingly, when
an opinion relies on case law that has been refined through
years of consideration by many courts without discussing current
4
In Hess, the court sat six because Justice Crooks did not
participate. Hess, 327 Wis. 2d 524, ¶70. The lead opinion,
authored by Justice Prosser, was joined by Chief Justice
Abrahamson and Justice Bradley. Justice Ziegler joined the
result reached by the lead opinion, but on a very limited basis.
Id., ¶71 (Ziegler, J., concurring). Justice Gableman wrote a
thoughtful dissent that took issue with the lead opinion's
conclusion that application of the exclusionary rule could stand
on a foundation of judicial integrity when there had been no
police misconduct. Id., ¶¶75-97 (Gableman, J., dissenting).
6
No. 2011AP2956-CR.pdr
jurisprudence on the issues presented, it does not accurately
articulate the state of the law and may confuse the reader.
¶58 Second, the protection of judicial integrity was
spoken of only in regard to its connection to police misconduct.
See Conrad v. State, 63 Wis. 2d 616, 635, 218 N.W.2d 252 (1974)
(explaining that judicial integrity could be compromised if
unlawful police conduct was sanctioned by the use of evidence
obtained in violation of the Fourth Amendment); Elkins v. United
States, 364 U.S. 206, 222-23 (1960) (explaining that "[i]f the
Government becomes a law-breaker, it breeds contempt for law").
¶59 Third, the lead opinion in Hess is the only Wisconsin
Supreme Court decision, or United States Supreme Court decision,
that I could locate that employs protection of judicial
integrity as a stand-alone basis for employing the exclusionary
rule. Justice Gableman tried to point out this concern, but the
lead opinion in Hess did not heed his thoughtful dissent.
¶60 Fourth, because the majority opinion herein cites the
lead opinion in Hess in a manner that could permit the reader to
erroneously conclude that police misconduct is not a necessary
predicate to the application of the exclusionary rule under both
United States Supreme Court precedent and our own precedent, I
have chosen to bring this issue forward. It is my hope that my
colleagues both on the bench and at the bar will take heed of
this trap for the unwary and recognize that the majority opinion
is not setting a new standard that permits the exclusion of
evidence without police misconduct. Accordingly, I respectfully
concur.
7
No. 2011AP2956-CR.pdr
¶61 I am authorized to state that Justices N. PATRICK
CROOKS, ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join
this opinion.
8
No. 2011AP2956-CR.akz
¶62 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
Justice Roggensack's concurrence because I believe that the
"assurance of judicial integrity" is not a stand-alone basis for
suppressing evidence under the exclusionary rule. Although the
case at issue centers on the Fourth Amendment, I write to
clarify that the exclusionary rule can apply to violations of
constitutional provisions other than the Fourth Amendment.1 The
exclusionary rule requires suppression of evidence that was
obtained in violation of the Constitution, unless suppression
would not deter police misconduct or the error in admitting the
evidence was harmless beyond a reasonable doubt. United States
v. Leon, 468 U.S. 897, 906, 916 (1984); Arizona v. Fulminante,
499 U.S. 279, 309-12 (1991); Chapman v. California, 386 U.S. 18,
21-22 (1967); State v. Armstrong, 223 Wis. 2d 331, 368, 588
N.W.2d 606 (1999).
¶63 Because this is a Fourth Amendment case, the majority
opinion's discussion of the exclusionary rule focuses on that
constitutional provision. Specifically, the majority opinion
states that, "[t]he [United States Supreme Court] first applied
the exclusionary rule to protect against violations of Fourth
Amendment rights in Weeks v. United States, 232 U.S. 383 (1914).
Under the exclusionary rule, evidence obtained in violation of
the Fourth Amendment is generally inadmissible in court
1
Because this case involves a discussion of the
exclusionary rule, I do not address circumstances unrelated to
constitutional violations, which may otherwise warrant the
exclusion of evidence.
1
No. 2011AP2956-CR.akz
proceedings." Majority op., ¶20 (citation omitted). Similarly,
this court has previously discussed the origins of the
exclusionary rule as it relates to the Fourth Amendment because
the focus of the case was the Fourth Amendment. See State v.
Hess, 2010 WI 82, ¶¶38-52, 327 Wis. 2d 524, 785 N.W.2d 568(explaining the history of the Fourth Amendment exclusionary
rule in federal courts and Wisconsin). I write to clarify that
the history of the exclusionary rule is not limited to Fourth
Amendment violations——it applies to other constitutional
violations as well.
¶64 The Supreme Court created the exclusionary rule to
deter constitutional violations, but did not limit the
exclusionary rule to the Fourth Amendment right against
unreasonable searches and seizures. The exclusionary rule, if
warranted, results in the suppression of evidence so that it may
not be introduced to prove a defendant's guilt in the
prosecution's case-in-chief. See Leon, 468 U.S. at 906, 916.
The exclusionary rule, for example, may apply to deter
violations of the Fourth Amendment,2 Fifth Amendment,3 or Sixth
Amendment.4
2
Weeks v. United States, 232 U.S. 383, 398 (1914),
overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961);
State v. Tye, 2001 WI 124, ¶24, 248 Wis. 2d 530, 636 N.W.2d 473.
3
Blackburn v. Alabama, 361 U.S. 199, 205 (1960); Bram v.
United States, 168 U.S. 532, 542, 548 (1897); Rudolph v. State,
78 Wis. 2d 435, 441-42, 254 N.W.2d 471 (1977).
4
United States v. Wade, 388 U.S. 218, 237-39 (1967);
Massiah v. United States, 377 U.S. 201, 203-04, 206-07 (1964);
State v. McMorris, 213 Wis. 2d 156, 178, 570 N.W.2d 384 (1997).
2
No. 2011AP2956-CR.akz
¶65 The origins of the exclusionary rule further
demonstrate that it was designed to apply to evidence obtained
in violation of constitutional provisions beyond the Fourth
Amendment. The United States Supreme Court applied the
exclusionary rule for the first time in Boyd v. United States,
116 U.S. 616 (1886). See Christopher Slobogin, The Exclusionary
Rule: Is It on Its Way Out? Should It Be?, 10 Ohio St. J. Crim.
L. 341, 343-44 (2013). In Boyd the Supreme Court held that the
evidence at issue was inadmissible because it was obtained in
violation of the Fourth and Fifth Amendments. Boyd, 116 U.S. at
621-22, 633-35, 638. Ten years later, the Supreme Court held
that the exclusionary rule applied, in federal criminal cases,
to confessions obtained in violation of the Fifth Amendment.
Wilson v. United States, 162 U.S. 613, 623 (1896); see also Bram
v. United States, 168 U.S. 532, 542, 548 (1897). Nearly 20
years later, in 1914, the Supreme Court held for the first time
that the exclusionary rule applied, in federal criminal cases,
to evidence obtained in violation of the Fourth Amendment.
Weeks v. United States, 232 U.S. 383, 398 (1914), overruled on
other grounds by Mapp v. Ohio, 367 U.S. 643 (1961); see also
Mapp, 367 U.S. at 648 (explaining that Weeks was the first case
in which the Supreme Court "held that 'in a federal prosecution
the Fourth Amendment barred the use of evidence secured through
an illegal search and seizure'" (quoted source omitted)). Thus,
the Fourth Amendment was not the only driving force behind the
Supreme Court's adoption of the exclusionary rule, which
occurred decades before Weeks.
3
No. 2011AP2956-CR.akz
¶66 Furthermore, the exclusionary rule does not always
require suppression of evidence, even if it was obtained through
unconstitutional means. In fact, the exclusionary rule does not
apply when suppression would not deter police misconduct. Davis
v. United States, 564 U.S. ___, 131 S. Ct. 2419, 2426-28 (2011);
State v. Dearborn, 2010 WI 84, ¶35, 327 Wis. 2d 252, 786
N.W.2d 97. For example, evidence may not be suppressed under
the good faith exception5 because suppression would not serve the
exclusionary rule's purpose of deterring police misconduct.
Evidence obtained after a constitutional violation may otherwise
be admissible if the discovery of the evidence was sufficiently
attenuated from the police misconduct,6 the evidence was
discovered through a source independent from the police
misconduct,7 or the evidence would have been inevitably
discovered through lawful means.8 In addition, evidence that is
suppressed because of a constitutional violation may nonetheless
5
United States v. Leon, 468 U.S. 897, 922-25 (1984); State
v. Dearborn, 2010 WI 84, ¶¶35-49, 327 Wis. 2d 252, 786
N.W.2d 97; State v. Eason, 2001 WI 98, ¶3, 245 Wis. 2d 206, 629
N.W.2d 625.
6
Brown v. Illinois, 422 U.S. 590, 603-04 (1975); Wong Sun
v. United States, 371 U.S. 471, 488 (1963); State v. Phillips,
218 Wis. 2d 180, 204-06, 577 N.W.2d 794 (1998).
7
Murray v. United States, 487 U.S. 533, 537 (1988); Nix v.
Williams, 467 U.S. 431, 443 (1984); State v. Carroll, 2010 WI 8,
¶¶43-55, 322 Wis. 2d 299, 778 N.W.2d 1.
8
Murray, 487 U.S. at 539; Nix, 467 U.S. at 446-50; State v.
Weber, 163 Wis. 2d 116, 140-44, 471 N.W.2d 187 (1991); State v.
Schwegler, 170 Wis. 2d 487, 499-500, 490 N.W.2d 292 (Ct. App.
1992).
4
No. 2011AP2956-CR.akz
be admitted for certain purposes. For example, suppressed
evidence may be used collaterally for impeachment purposes,
outside of the prosecution's case-in-chief.9
¶67 Some potential confusion surrounding the exclusionary
rule could stem from the fact that evidence may be properly
excluded for a variety of reasons. But the mere fact that
evidence is being excluded does not mean that it is excluded
under the exclusionary rule. "There are judicially created
exclusionary rules and legislatively created exclusionary rules.
There are constitutional exclusionary rules and statutory
exclusionary rules." Sun Kin Chan v. State, 552 A.2d 1351, 1355
(Md. Ct. Spec. App. 1989). A careful reader will keep in mind
that courts may inaccurately refer to "the exclusionary rule"
when a constitutional violation is not the basis for exclusion.
Cf. Oregon v. Elstad, 470 U.S. 298, 306-08 (1985) (explaining
the differences between the "Fourth Amendment exclusionary rule"
9
Kansas v. Ventris, 556 U.S. 586, 593-94 (2009) (holding
that defendant's statement obtained in violation of Sixth
Amendment right to counsel was inadmissible to prove guilt but
admissible to impeach defendant's inconsistent testimony); State
v. Pickett, 150 Wis. 2d 720, 727-30, 442 N.W.2d 509 (Ct. App.
1989) (same); United States v. Havens, 446 U.S. 620, 627-28
(1980) (holding that evidence obtained in violation of Fourth
Amendment was inadmissible to prove guilt but admissible to
impeach defendant's inconsistent testimony); State v. Thompson,
142 Wis. 2d 821, 833 & n.8, 419 N.W.2d 564 (Ct. App. 1987)
(same); Oregon v. Hass, 420 U.S. 714, 722-24 (1975) (holding
that defendant's statement made without warnings required by
Miranda v. Arizona, 384 U.S. 436 (1966), was inadmissible to
prove guilt but admissible to impeach defendant's inconsistent
testimony); State v. Mendoza, 96 Wis. 2d 106, 118-19, 291
N.W.2d 478 (1980) (same).
5
No. 2011AP2956-CR.akz
and the "Miranda10 exclusionary rule"). Because the Fourth
Amendment is at issue in the present case, the majority
opinion's discussion of the exclusionary rule focuses on the
Fourth Amendment.
¶68 With the foregoing clarification, I join Justice
Roggensack's concurrence, and I concur.
¶69 I am authorized to state that Justices N. PATRICK
CROOKS and MICHAEL J. GABLEMAN join this concurrence.
10
Miranda v. Arizona, 384 U.S. 436 (1966).
6
No. 2011AP2956-CR.akz
7