2010 WI 82
Supreme Court of
Michael R. Hess,
REVIEW OF A DECISION OF THE COURT OF APPEALS
2009 WI App 105
Reported at 320
(Ct. App. 2009-Published)
July 15, 2010
Submitted on Briefs:
March 2, 2010
Source of Appeal:
James L. Carlson
ZIEGLER, J., concurs (opinion filed).
GABLEMAN, J., dissents (opinion filed).
ROGGENSACK, J., joins dissent.
CROOKS, J., did not participate.
For the plaintiff-respondent-petitioner the cause was argued by Aaron R. O’Neil, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.
For the defendant-appellant there was a brief by George M. Tauscheck,
2010 WI 82
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
IN SUPREME COURT
Michael R. Hess,
JUL 15, 2010
A. John. Voelker
Acting Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DAVID T. PROSSER, J. The issue presented in this case is whether the good-faith exception to the exclusionary rule permits the use of evidence obtained by a law enforcement officer in his execution of an arrest warrant that was void from the beginning because the warrant had no basis in fact or law. The State contends that suppression of evidence from a warrant issued solely as a result of judicial error would not further the purposes of the exclusionary rule.
¶2 We conclude that the good-faith exception to the exclusionary rule does not apply to a situation in which: (1) no facts existed that would justify an arrest without a warrant; (2) the civil arrest warrant issued by a circuit judge was void ab initio because (a) it did not comply with any statute authorizing the court to issue a warrant; and (b) it was not supported by an oath or affirmation; and (3) the court issued the warrant without the benefit of verification of the facts or scrutiny of the procedure to ensure that the judge acted as a detached and neutral magistrate.
¶3 The warrant here was defective on its face. Nonetheless, we cannot reasonably attribute fault to the law enforcement officer who executed the warrant. Thus, suppressing evidence obtained as a result of the unauthorized, defective warrant is necessary to preserve the integrity of the judicial process. Consequently, we affirm the decision of the court of appeals, State v. Hess, 2009 WI App 105, 320 Wis. 2d 600, 770 N.W.2d 769.
I. BACKGROUND AND PROCEDURAL HISTORY
¶4 In mid-2005 the defendant, Michael R. Hess, was arrested in Walworth County for operating a motor vehicle under the influence of an intoxicant, in violation of Wis. Stat. § 346.63(1)(a) (2007-08). Hess was released on a $1,000 cash bond, which included various conditions including requirements that he "appear on all court dates" and "not possess or consume alcohol."
¶5 Hess subsequently pled guilty to the offense——a felony——and on January 12, 2007, the court ordered a presentence investigation (PSI). The order stated: "The Department of Corrections (Department) shall conduct a presentence investigation and prepare a report based on this investigation." It also set March 28, 2007, as the sentencing date. The court adjusted Hess's bond to a $10,000 signature bond with conditions of release similar to those in the original bond.
¶6 On February 8, 2007, the PSI author, a Department of Corrections agent, sent a letter to the circuit court. The letter explained that the agent had contacted Hess to schedule a meeting for February 1. Hess appeared at the meeting. The agent then reviewed a questionnaire that she had sent to Hess, noticing that portions of it were incomplete. When asked why he had not completed the questionnaire, Hess responded that it incorrectly listed the offense as his fifth OWI. The agent then asked Hess to return to the lobby to complete the questionnaire, after which the interview would begin. Hess then left, which the agent presumed was because Hess was feeling ill.
¶7 The agent was unable to contact Hess after this meeting. She left a message with Hess's mother asking Hess to contact the agent by 4 p.m. that day. Hess did not respond, although he left a message with the agent's supervisor complaining about the agent. The agent's supervisor contacted Hess and directed him to return to complete the interview on February 6. He did not comply. The agent also was unable to contact Hess's attorney. Thus, the agent concluded her letter to the court with the following paragraph:
It should be noted that to date, Mr. Hess has not attempted to contact this agent or [the agent's supervisor]. Therefore, due to the current situation and Mr. Hess' failure to cooperate, as outlined above, this agent does not foresee, at this time, that the Pre-Sentence Investigation ordered by the Court will be completed as requested. However, it is respectfully requested that Mr. Hess be placed in custody, which would allow the Pre-Sentence Investigation to be completed. Should the Court concur with this request, please notify our office of such.
¶8 On February 14, 2007, Circuit Judge John Race issued a "Bench Warrant Civil." This warrant directed "any law enforcement officer" to "[a]rrest and deliver to the sheriff the above named person because this person: . . . failed to: Meet with the Agent assigned to complete his Pre-Sentence Investigation." The warrant specified that Hess could be released upon "Completion of the Presentence Investigation Interview with the Agent assigned."
¶9 On March 7, 2007, Deputy Gilbert Maas of the Walworth County Sheriff's Department went to Hess's address, understanding that he "had a criminal felony arrest warrant for Michael Hess." When he arrived, Deputy Maas encountered Hess's father at the front door. After a brief conversation with Hess's father, Deputy Maas spoke with Hess himself and advised him that he had an arrest warrant for failure to appear in court. As the two men were walking to the squad car, Deputy Maas smelled the odor of intoxicants coming from Hess. He placed Hess under arrest, handcuffed him, did a pat-down search, and placed Hess in the back of the squad car.
normal procedure, Deputy Maas requested the dispatch center to check if Hess
was on any conditions of bond. He was
advised by the dispatch center that Hess was on bond for a sixth offense drunk
driving with a minor in the vehicle and that one of the conditions of his bond was
that he not possess or consume alcohol.
Deputy Maas then transported Hess to
was thereafter charged with felony bail jumping, in violation of Wis. Stat. § 946.49, for violating the bond requirement
that he not possess or consume alcohol. He
in turn filed a motion to suppress any evidence obtained as a result of the civil
warrant. This included Deputy
¶12 The circuit court, Judge James Carlson presiding, held a hearing on the motion to suppress. The court declined to take testimony at the hearing because it deemed the legality of the warrant an issue of law. It then denied the motion, reasoning that the warrant was valid under either (1) the court's inherent power to issue warrants; or (2) the court's general statutory powers under Wis. Stat. § 757.01. The circuit court also stated that even if the warrant were not valid, the evidence was admissible under the good-faith exception to the exclusionary rule.
¶13 The case proceeded to a jury trial, at which Deputy Mass testified regarding his observations on March 7. The jury found Hess guilty. The court withheld sentence and placed Hess on three years probation. Hess appealed.
court of appeals reversed and remanded after suppressing the evidence. Hess, 320
court next examined the applicability of the exclusionary rule. The court noted that the primary purpose of
the rule was to deter unlawful police conduct while also preserving judicial
integrity. Hess, 320
court of appeals next turned to the good-faith exception to the exclusionary
rule. It reasoned that the good-faith
exception, as set out in United States v. Leon, 468 U.S. 897 (1984), and
State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629
N.W.2d 625, "allow[s] the admission of evidence when law enforcement
officers did what they were supposed to . . . but someone
made an accidental clerical or technical error or the judge erred in concluding
that the law enforcement's application fulfilled the requirements for a
warrant." Hess, 320
court declared that the purpose of the good-faith exception is not simply to
deter police misconduct, id., ¶23,
but also to preserve judicial integrity, meaning that courts must ensure
"that our judicial process does not sanction, approve and be party to
constitutional violations," id., ¶25. Finally, the court examined cases in several
different jurisdictions to conclude that "the good faith exception does
not apply when a judge acts outside the law by issuing a warrant he or she had
no authority whatsoever to issue."
¶18 The State petitioned this court for review, which we granted.
II. STANDARD OF REVIEW
review a motion to suppress in two steps.
State v. Matejka, 2001 WI 5, ¶16, 241
¶20 The State concedes that the arrest warrant was invalid. As a result, the State's evidence of Hess's consumption and possession of alcohol——the evidence used to convict Hess of felony bail jumping——was obtained in violation of the Fourth Amendment to the United States Constitution and Article I, § 11 of the Wisconsin Constitution. Thus, the issue in this case is whether exclusion of that evidence is appropriate, or whether the court should permit use of the evidence on grounds that law enforcement obtained the evidence while acting in good-faith reliance on an arrest warrant that was void.
resolving this issue, we begin by examining the statutory and constitutional
warrant requirements and the deficiencies of the warrant at issue in this
case. We then consider the historical
development of the exclusionary rule and its good-faith exception in the
federal courts as well as the parallel developments in
¶22 The warrant in this case suffered from two primary defects: (1) the circuit court did not have statutory authority to issue a warrant for failure to meet with a PSI investigator; and (2) the warrant was not supported by an oath or affirmation.
1. Lack of Statutory Authority
¶23 The defendant contends and the State concedes that the arrest warrant was issued without authority.
¶24 Under appropriate circumstances, a circuit court has statutory authority to issue a (1) civil bench warrant, (2) a criminal bench warrant, or (3) a contempt warrant. To illustrate, had the circuit court ordered Hess to comply with the requests of the PSI writer or made his cooperation a condition of bond, the court might have ordered the defendant arrested for contempt (Wis. Stat. §§ 785.03(1)(b), 785.04(1)) or issued a criminal bench warrant (Wis. Stat. § 968.09(1)) after Hess failed to follow up with the PSI writer. Had Hess failed to appear before the court on a civil matter, a civil bench warrant would have been appropriate (Chapter 818). Under the facts of this case, however, the warrant cannot be supported by any of these various statutes. The court issued what purported to be a civil bench warrant in a criminal case on the basis of Hess's failure to comply with an order the court never gave.
arrests are governed by Wis. Stat. ch. 818. In a civil action, arrests are to be made
only "as prescribed by this chapter."
¶26 Nothing in the record suggests that any of the circumstances authorizing a civil bench warrant under § 818.02 existed. No affidavit was provided to the circuit court demonstrating the existence of any of those circumstances, and consequently no affidavit accompanied the order for arrest delivered to the sheriff. Equally important, the matter pending before the court was criminal, not civil. Therefore, the court was without authority to issue a civil bench warrant.
court may issue a warrant for the arrest of a defendant when a judge determines
that there is probable cause to believe that a criminal offense has been
committed and that the accused has committed it.
Wis. Stat. ch. 785 permits a circuit court to order imprisonment as a
remedial sanction for contempt of court.
Such contempt is defined in relevant part as intentional "[m]isconduct
in the presence of the court" or "[d]isobedience, resistance or
obstruction of the authority, process or order of a court."
the circuit court had no authority to issue the warrant it did, exclusion is an
appropriate remedy for evidence obtained as a result of that warrant. This court held in Kriegbaum that
where a magistrate lacked authority to issue a warrant, the search conducted
and evidence seized resulted in a constitutional violation. Kriegbaum, 194
court of appeals has applied the principle articulated in Kriegbaum in
several cases. In these cases, the court
held that evidence must be suppressed when it was obtained pursuant to a
warrant issued by a court commissioner not authorized to issue search
warrants. State v. Loney, 110
basic principle is reinforced by State v. Popenhagen, 2008 WI 55, 309
¶32 These cases lead us to conclude that because the statutes did not authorize a warrant under these circumstances, the warrant was void ab initio. In such a situation, exclusion is an appropriate remedy. The State is no more entitled to the use of the evidence here than it would be had law enforcement placed Hess in custody without a warrant in circumstances where a warrant was required. The warrant had no basis in fact or law and was void from the moment it was issued; therefore, the evidence seized pursuant to Hess's arrest is subject to the exclusionary rule.
2. Lack of Oath or Affirmation
An oath is a matter of substance, not form, and it is an essential component of the Fourth Amendment and legal proceedings. The purpose of an oath or affirmation is to impress upon the swearing individual an appropriate sense of obligation to tell the truth. An oath or affirmation to support a search warrant reminds both the investigator seeking the search warrant and the magistrate issuing it of the importance and solemnity of the process involved. An oath or affirmation protects the target of the search from impermissible state action by creating liability for perjury or false swearing for those who abuse the warrant process by giving false or fraudulent information. An oath preserves the integrity of the search warrant process and thus protects the constitutionally guaranteed fundamental right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.
State v. Tye, 2001
WI 124, ¶19, 248
¶34 When a
warrant fails to comply with the constitutional oath or affirmation
requirement, we have considered it to be "invalid when issued."
the arrest warrant was not accompanied by an affidavit, sworn or unsworn. The absence of an affidavit violated Wis.
Stat. §§ 818.04 and 818.07. The
absence of a sworn affidavit violated the state and federal
constitutions and rendered evidence obtained as a result of the warrant
inadmissible. Tye, 248
oath or affirmation and probable cause requirements apply equally to arrest
warrants as well as search warrants. Giordenello
an affidavit accompanied by oath or affirmation, the warrant failed to meet a basic
constitutional requirement and was void ab initio. See Tye, 248
B. The Exclusionary Rule and Good-Faith Exception
we hold that the exclusionary rule applies because the warrant was void when
issued, the State asks us to
extend the good-faith exception to the exclusionary rule in
1. The Federal Exclusionary Rule
origin of the Fourth Amendment exclusionary rule can be traced to the Supreme
Court's decision in Weeks v. United States, in which the Court
considered a defendant's timely objection to the warrantless seizure of
evidence from his residence. Weeks v.
the exclusionary rule created in Weeks applied only to federal officers
and federal courts. In Wolf v.
Colorado, the Court acknowledged that the Fourth Amendment protections are applied
to the states through the Due Process Clause of the Fourteenth Amendment, but
it declined to extend the exclusionary rule to the states on grounds that the
rule was not required by the text of the Constitution or by virtue of
legislation. Wolf v.
years later, however, the Court reconsidered this view and overruled Wolf,
holding that "all evidence obtained by searches and seizures in violation
of the Constitution is . . . inadmissible
in a state court." Mapp v.
"[T]here is another consideration——the imperative of judicial integrity." The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.
Court elaborated on the purposes and functions of the exclusionary rule in the
context of police officer "stop and frisk" seizures in Terry v.
Ohio. In Terry the Court held
that excluding evidence seized in violation of the Fourth Amendment seeks to
deter unlawful police conduct while serving another "vital function——'the imperative of judicial integrity.'" Terry, 392
years later, the Supreme Court modified the exclusionary rule to provide a
good-faith exception when a police officer relies in good faith on a facially
valid warrant that was issued by a neutral and detached magistrate. Leon, 468
Court tempered the good-faith exception by identifying four circumstances in
which the good faith reliance of an officer will not save unconstitutionally obtained
evidence: (1) where the facially valid affidavit is based upon knowingly or
recklessly made false statements; (2) where the issuing judge or magistrate
"wholly abandoned his judicial role;" (3) where the affidavit was
insufficient to allow the magistrate to make a determination of probable cause;
and (4) where the officer cannot demonstrate objective good faith because the
affidavit supporting the warrant is "so lacking in indicia of probable
cause as to render official belief in its existence entirely
¶45 Since Leon,
the Court has continued to reexamine the boundaries of the good-faith
exception. In Illinois v. Krull
the Court extended the good-faith exception to allow evidence seized pursuant
to a state statute later deemed unconstitutional. Illinois v. Krull, 480
Exclusionary Rule in
Wisconsin, the exclusionary rule dates back to 1923, when this court held that,
for "the Bill of Rights as embodied in constitutions to be of substance
rather than mere tinsel," a conviction may not rest on unlawfully seized
evidence. Hoyer v. State, 180
subsequent cases, the court continued to follow the United States Supreme Court
in the development and application of the exclusionary rule. Echoing the Supreme Court's language in Elkins,
the court identified two rationales underlying the rule: deterrence of unlawful
police conduct and assurance of judicial integrity. Conrad v. State, 63
¶48 In State
v. Brady the court was asked to reconsider Hoyer in light of the
Supreme Court's decision in
It is not clear whether Leon . . . appl[ies] only to cases in which the magistrate has authority to issue a warrant but there was lack of probable cause or a technical error . . . or to cases such as this one in which the magistrate has no authority whatsoever to issue the warrant.
first decision of this court to recognize a good-faith exception did so in the
limited context in which law enforcement relied on controlling law at the time
of the search, although that law was subsequently overruled. State v. Ward, 2000 WI 3, 231
following year, in Eason, the court adopted the good-faith exception
court made clear that Eason did not mark the end of the exclusionary
long after Eason was decided, the state asked this court to extend the
good-faith exception in the context of affidavits lacking a sworn
affidavit. Tye, 248
3. Application of the Exclusionary Rule and Good-Faith Exception
¶53 Our historical overview of the exclusionary rule and good faith exception demonstrates how this court has followed the development and application of the exclusionary rule and good-faith exception articulated by the United States Supreme Court. Unfortunately, the facts of this case are not a neat fit with the traditional framework under the Fourth Amendment, the exclusionary rule, or the good-faith exception. The Supreme Court has never addressed whether the good-faith exception can save evidence seized pursuant to a warrant that the judge had no authority to issue. Applying the traditional principles of the exclusionary rule and the good-faith exception, we decline to extend the good-faith exception to the facts of this case.
federal and Wisconsin case law concerning the exclusionary rule and the
good-faith exception start from the presumption of a warrant issued by "a
detached and neutral magistrate." Leon,
have held that the "detached and neutral magistrate" requirement is
necessary to "interpose the impartial judgment of a judicial officer
between the citizen and the police and also between the citizen and the
prosecutor, so that an individual may be secure from an improper search or an
improper arrest." Walberg v.
¶56 In Eason the court required additional evidence of a serious and careful process for obtaining a search warrant before permitting the good-faith exception to be invoked. The State does not argue that the Eason requirements have been met; instead it asks us to find them inapplicable under the circumstances.
¶57 The dissent points out that the additional Eason requirements do not apply to bench warrants issued without police involvement. Dissent, ¶94. We acknowledge that the Eason requirements for the good-faith exception were crafted for search warrants and may not be applicable to all warrants for arrest, especially in situations where a law enforcement agency is not in the picture.
¶58 It is
true that bench warrants do not require police involvement. However, civil bench warrants, like the one
issued in this case, require an affidavit demonstrating the existence of the
requisite cause of action, and a person may not be arrested as a remedial
sanction for contempt without notice and hearing.
judge may issue an arrest warrant for failure to appear or may summarily
imprison a defendant as a punitive sanction for contempt in the "actual
presence of the court" without a sworn affidavit.
the Eason requirements do not necessarily control when applying the
good-faith exception to bench warrants, but they implicate relevant
considerations. A judge cannot act as a
detached and neutral magistrate without being presented with sufficient,
reliable facts. This basic principle is
why we take the oath or affirmation requirement so seriously. See Tye, 248
law on the good-faith exception generally proceeds from a warrant that was
valid when issued, but later determined to be lacking in probable cause. See, e.g., Leon, 468
holdings in Brady and Tye further underscore the importance, as a
preliminary matter, of meeting the constitutional requirements of oath or
affirmation and probable cause. Brady,
goal of judicial integrity warrants some clarification. The court of appeals concluded that
"[t]he act of issuing a warrant without any authority whatsoever to do
so . . . is not a 'judicial' act and the attempt to clothe
it as such is contrary to judicial integrity." Hess, 320
dissent postulates that the Supreme Court abandoned judicial integrity in Janis,
do not read recent cases such as Herring and Evans as withdrawing
the language from Janis and Leon suggesting that judicial
integrity is a secondary consideration that may come to the fore in unusual
cases. These cases simply refused to
exclude evidence based on judicial integrity in the specific facts of those
cases. None of the recent cases cited by
the dissent involved a warrant that was per se void ab initio because
the judge lacked statutory authority to issue it. Nor do they involve a fundamental defect like
the complete absence of a constitutionally required sworn affidavit, which
renders the warrant "invalid when issued." Tye, 248
consideration of judicial integrity must take into account the nature of the
defects in the warrant. The defects in
the warrant here were not technical irregularities or errors of judgment: The
defendant's failure to cooperate with the agent in preparing a PSI was not a
crime. It did not violate a court order,
and it did not violate a condition of his bond.
He could not have been arrested without a warrant because the defendant
did not commit a crime.
¶67 While it is easy to understand why a clerk’s
failure to remove a warrant from the computer system does not threaten the integrity
of our judicial system, see Arizona v. Evans, 514 U.S. at 4-5, a
warrant issued without statutory authority in the complete absence of the basic
constitutional requirement of oath or affirmation raises more serious
questions. As stated by the Sixth
¶68 We conclude that the good-faith exception to the exclusionary rule does not apply to a situation in which: (1) no facts existed that would justify an arrest without a warrant; (2) the civil arrest warrant issued by a circuit judge was void ab initio because (a) it did not comply with any statute authorizing the court to issue a warrant; and (b) it was not supported by an oath or affirmation; and (3) the court issued the warrant without the benefit of verification of the facts or scrutiny of the procedure to ensure that the judge acted as a detached and neutral magistrate.
¶69 The warrant here was defective on its face. Nonetheless, we cannot reasonably attribute fault to the law enforcement officer who executed the warrant. Thus, suppressing evidence obtained as a result of the unauthorized, defective warrant is necessary to preserve the integrity of the judicial process. Consequently, we affirm the decision of the court of appeals.
By the Court.—The decision of the court of appeals is affirmed.
¶70 N. PATRICK CROOKS, J., did not participate.
¶71 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join the majority opinion's conclusion that
the evidence here must be suppressed, see majority op., ¶32, but my conclusion is
based on the fact that this warrant was per se void ab initio. This warrant was per se void ab initio
because the circuit court absolutely lacked the authority to issue this
warrant, regardless of the presentence investigation (PSI) author's
request. See id., ¶7. That is, the circuit court issued what
purported to be a civil bench warrant in a criminal case on the basis that the
PSI author informed the court that Hess failed to stay and complete a PSI
interview. However, the circuit court
had never previously ordered Hess to participate in that interview, and no
statute or other authority requires a defendant to participate in such an
interview. I write separately to
emphasize that in this case, the circuit court's complete lack of authority to
issue this warrant under these circumstances is most akin to the magistrate's
lack of authority to issue the search warrant in State v. Kriegbaum, 194
Wis. 229, 232, 215
N.W. 896 (1927), and the
court commissioners' lack of authority to issue the search warrants in State
v. Loney, 110 Wis. 2d 256, 260, 328 N.W.2d 872 (Ct. App.
1982), and State v. Grawien, 123 Wis. 2d 428, 430-31, 367
N.W.2d 816 (Ct. App. 1985). In
those cases, the remedy was to exclude the evidence obtained based on the warrants
that were per se void ab initio. See Kriegbaum, 194
¶72 I continue to agree with the application of the good faith exception to the exclusionary rule regarding the defective warrants in United States v. Leon, 468 U.S. 897 (1984) (search warrant unsupported by probable cause), and State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625 (affidavit submitted in support of search warrant did not justify authorizing a no-knock entry).
a per se void ab initio warrant is always defective, a
defective warrant is not always per se void ab initio. The line must be drawn somewhere. I draw it in a case such as this one, in
which the warrant is not just defective, but rather, it is per se void ab initio. "
¶74 For the foregoing reason, I respectfully concur.
¶75 MICHAEL J. GABLEMAN, J. (dissenting). I part with the majority because it departs from the United States Supreme Court's well-articulated principles governing exclusion of evidence resulting from unlawful searches and seizures. First, the majority begins with a presumption of exclusion and looks for an exception to that presumption in contravention of the pronouncements of the United States Supreme Court. Second, it justifies its application of the exclusionary rule on the grounds of judicial integrity——a purpose long since discarded by the United States Supreme Court——while ignoring the singular animating purpose of exclusion: deterrence of police misconduct. Finally, the majority leaves confusion as to whether and when the Eason requirements are applicable to the issuance of bench warrants.
follow the dictates of the United States Supreme Court: I begin with a
presumption of admissibility and then address whether the remedy of exclusion
is appropriate. Herring v.
I. THE EXCLUSION EXCEPTION
¶77 One year ago, the United States Supreme Court issued a landmark
opinion summarizing and clarifying its prior case law regarding exclusion of
evidence resulting from unlawful searches and seizures. Exclusion, the Court explained, is an
"extreme sanction" that should only be applied as a "last
¶78 "[I]mportant principles  constrain
application of the exclusionary rule," the Court explained.
¶79 The United States Supreme Court has made clear that exclusion is
aimed at deterrence of police misconduct, not judicial misconduct.
¶80 The court went further, and stated that the exclusionary rule is
appropriate only in cases involving "intentional conduct that was patently
To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.
¶83 What says the majority about these developments? Not much. Not much at all. Instead, the majority states: "We have never expanded the good-faith exception nor limited the exclusionary rule in the absence of United States Supreme Court precedent, and we decline to do so here." Majority op., ¶53 n.6. If the majority is looking for United States Supreme Court precedent regarding exclusion and the good-faith exception, I respectfully suggest that it take a closer look at the most recent Supreme Court pronouncements.
¶84 The most troubling thing about the majority opinion is that it
completely ignores the development of the law in this area. For example, the majority spends two
paragraphs discussing this court's decision 83 years ago in State v.
Kriegbaum, 194 Wis. 229, 215 N.W. 896 (1927) (see majority
op., ¶¶29-30), and a mere two sentences referencing Herring, where it
states a cabined and fact-specific summary of its holding (see majority
op., ¶45). Commentators agree that the
logic and sweeping language in Herring is hard to ignore. See Michael Vitiello, Herring v.
¶85 The majority begins from the wrong starting point. While the nomenclature suggests an "exclusionary rule" and a "good-faith exception" to the rule, the law as it stands today is exactly the opposite. It would not be a stretch to say that the recent jurisprudence of the United States Supreme Court makes admission of unlawfully obtained evidence the rule, and authorizes an exclusionary exception in limited circumstances. See id.
II. THE PURPOSE OF EXCLUSION
¶86 The majority justifies applying the remedy of exclusion here on the grounds of "judicial integrity." Majority op., ¶¶63-67. But time and time again, the United States Supreme Court has reiterated that exclusion is not only unnecessary but inappropriate unless it will serve to deter knowing constitutional violations by police:
"[T]he exclusionary rule is designed to deter
police misconduct rather than to punish the errors of judges and magistrates."
"[E]vidence obtained from a search should
be suppressed only if it can be said that the law enforcement officer
had knowledge, or may properly be charged with knowledge, that the search was
unconstitutional under the Fourth Amendment." Leon, 468
"[W]here the officer's conduct is
objectively reasonable, 'excluding the evidence will not further the
ends of the exclusionary rule in any appreciable way.'"
"[A]pplication of the exclusionary rule
properly has been restricted to those situations in which its remedial
purpose is effectively advanced." Illinois
v. Krull, 480
"Where 'the exclusionary rule does not
result in appreciable deterrence, then, clearly, its use . . . is unwarranted.'" Arizona v. Evans, 514
"'[M]arginal or nonexistent benefits
produced by suppressing evidence obtained in objectively reasonable reliance on
a subsequently invalidated search warrant cannot justify the substantial
costs of exclusion.'"
"[The exclusionary rule is] applicable only
where its deterrence benefits outweigh its 'substantial social
costs.'" Pa. Bd. of Prob. &
Parole v. Scott, 524
¶87 Accordingly, evidence seized in violation of a defendant's right to
be free from unreasonable searches and seizures should not be excluded if the
police were acting in the objectively reasonable belief that their conduct did
not violate the constitution. See Leon, 468
¶88 The exclusionary rule applies, then, only when there is: (1) police
conduct that the police knew or should have known was in violation of the
Fourth Amendment (for simplicity's sake, "police misconduct"); and
(2) sufficient capability of deterring that conduct
worth the substantial societal cost of exclusion. Herring, 129
¶89 The majority rejects these rules from the United States Supreme Court and embraces the "judicial integrity" purpose for exclusion——a purpose long-since abandoned by our highest Court. See majority op., ¶3. The United States Supreme Court has explained "judicial integrity" as follows:
The primary meaning of "judicial integrity" in the context of evidentiary rules is that the courts must not commit or encourage violations of the Constitution. In the Fourth Amendment area, however, the evidence is unquestionably accurate, and the violation is complete by the time the evidence is presented to the court. The focus therefore must be on the question whether the admission of the evidence encourages violations of Fourth Amendment rights. As the Court has noted in recent cases, this inquiry is essentially the same as the inquiry into whether exclusion would serve a deterrent purpose. The analysis showing that exclusion in this case has no demonstrated deterrent effect and is unlikely to have any significant such effect shows, by the same reasoning, that the admission of the evidence is unlikely to encourage violations of the Fourth Amendment.
¶90 Thus, while early exclusion cases did discuss "judicial integrity" as a secondary purpose of the exclusionary rule, judicial integrity for Fourth Amendment violations has effectively been subsumed under the main goal of deterring police misconduct. See id. at 456 n.34. This explains why judicial integrity has received little treatment in the case law. Notably, in the five United States Supreme Court cases addressing the good-faith exception since Leon (Massachusetts v. Sheppard, 468 U.S. 981 (1984); Krull, 480 U.S. 340 (1987); Evans, 514 U.S. 1 (1995); Groh v. Ramirez, 540 U.S. 551 (2004); Herring, 129 S. Ct. 695 (2009)), not one of them even mentions judicial integrity; each focuses solely on whether exclusion would deter the police conduct giving rise to the constitutional violation. The majority now breathes new life into a legal theory put to rest long ago.
III. THE EASON REQUIREMENTS
¶91 I write further to address the appropriateness of applying the
additional requirements of Eason to bench warrants. This court, in State v. Eason, adopted
two additional requirements during the search warrant application process,
making them necessary in order to shield any seized evidence from suppression
if the search warrant is later deemed invalid.
2001 WI 98, ¶74,
¶92 These requirements are wholly inappropriate in the context of bench warrants, which normally need not involve any police investigation.
¶93 Bench warrants are available in criminal, civil, and contempt
¶94 Because of this, applying the Eason requirements to bench warrants makes no sense. How are officers to ensure a "significant investigation" has taken place preceding the issuance of a bench warrant that the police had no role in? And what sort of review should the arresting officer in this case have undertaken before acting on what he understood was a valid arrest warrant? The majority first suggests that the Eason requirements are not necessary in situations where police are not involved in seeking a bench warrant, see majority op., ¶57, but later implies that some investigation or review could have saved the evidence in this case from exclusion, see majority op., ¶60.
¶95 Applying the proper legal principles here is straightforward. Instead of starting with exclusion and attempting to fit this case into a recognized exception, I follow the dictates of the United States Supreme Court and begin with the presumption of admissibility and then address whether the remedy of exclusion is appropriate.
threshold question is whether the police engaged in deliberate, reckless, or
grossly negligent conduct, or whether these facts evince a recurring or
systemic negligence. Herring,
¶97 The majority, on the other hand, is enmeshed in an outdated analytical framework. The United States Supreme Court has recognized that its early approach to exclusion was too broad. It has since recast the exclusionary rule as a drastic remedy that is justified in only limited circumstances where exclusion will deter flagrant police misconduct. See id. at 700-02. Because the majority fails to appreciate and apply the clear instructions of the United States Supreme Court, I respectfully dissent.
¶98 I am authorized to state that Justice PATIENCE DRAKE ROGGENSACK joins this dissent.
 Ab initio is defined as "[f]rom the beginning." Black’s Law Dictionary 5 (8th ed. 2004).
 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.
 State v. Grawien
was decided after the United States Supreme Court had adopted a good-faith
exception to the exclusionary rule. State
v. Grawien, 123
In State v. Collins, the court of appeals
applied the good-faith exception to the exclusionary rule before this court
adopted it. State v. Collins, 122
 A concurring opinion
employed a somewhat different analysis and concluded: "A circuit court
cannot be denied the power to remedy an obvious and undisputed misuse of its
judicial authority by the district attorney." State v. Popenhagen, 2008 WI 55, ¶109, 309
 "Courts and judges should
not sanction violations of the constitution. The integrity of the judicial
process must be inviolate and free from reliance upon transgressions against
the constitution which every judge has taken the oath to uphold." Conrad v. State, 63
 See State v.
Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625 (following United States v. Leon,
468 U.S. 897 (1984), in recognizing a good-faith exception to the exclusionary
rule); State v. Ward, 2000 WI 3, ¶50, 231 Wis. 2d 723, 604 N.W.2d 517 (applying
the good-faith exception from Illinois v. Krull, 480 U.S. 340, 349
(1987) to law enforcement reliance on laws in existence at the time the warrant
was issued); State v. Brady, 130 Wis. 2d 443, 454,
388 N.W.2d 151 (1986) (relying on the categories
identified in Leon, 468 U.S. at 923, as being outside the scope of the
good-faith exception); Conrad, 63 Wis. 2d at 635 (citing Elkins v. United States, 364 U.S. 206, 222 (1960), for the importance of judicial
integrity); Hoyer v. State, 180 Wis. 407, 415-16, 193
N.W.2d 89 (1923) (following Bram v. U.S., 168 U.S. 532 (1897) and Weeks v. United States, 232 U.S. 383, 387-88 (1914)).
Eason represents the only case in which this court deviated from
the United States Supreme Court's jurisprudence by imposing two additional
requirements upon the state in order to admit evidence unlawfully
obtained. Popenhagen, 309
 Other courts have articulated
this same concern in terms of the court's jurisdiction, noting that "[a]ctions
by a police officer cannot be used to create jurisdiction, even when done in
good faith." State v.
 Justice Breyer, joined
by Justice Souter, dissented on the grounds that the unlawful search at issue
in Herring involved police error, and exclusion is appropriate when the
error resulting in a Fourth Amendment violation is the police's. Herring v. United States, 555
 See generally Robert W. Smith, Herring v. United States: The Continued Erosion of the Exclusionary Rule, 61 Mercer L. Rev. 663 (2010) (discussing the evolution of the exclusionary rule from a straightforward pseudo-right to a much more narrow rule applying in certain factual situations).
 See also Matthew Allan Josephson, To Exclude or Not to Exclude: The Future of the Exclusionary Rule After Herring v. United States, 43 Creighton L. Rev. 175, 176 (2009) (discussing the fact that Herring's logic is hard to ignore).
 This court has recognized the same principles:
The exclusionary rule is a judicially created remedy, not a right, and its application is restricted to cases where its remedial objectives will best be served. That means that just because a Fourth Amendment violation has occurred does not mean the exclusionary rule applies. Rather, exclusion is the last resort. The application of the exclusionary rule should focus on its efficacy in deterring future Fourth Amendment violations. Moreover, marginal deterrence is not enough to justify exclusion; the benefits of deterrence must outweigh the costs.
State v. Dearborn, 2010
WI 84, ¶35, ___ Wis. 2d ___, ___ N.W.2d ___
(internal citations removed); see also State v. Ward, 2000 WI 3,
¶46, 231 Wis. 2d 723, 604 N.W.2d 517
("Application of the [exclusionary] rule 'has been restricted to those
areas where its remedial objectives are thought most efficaciously
served.'") (quoting United States v. Calandra, 414
 This is termed the
"good faith exception" to the exclusionary rule. See
 The United States Supreme Court has categorically rejected the notion that the exclusionary rule was meant to (or even can) deter judges:
To the extent that proponents of exclusion rely on its behavioral effects on judges and magistrates in these areas, their reliance is misplaced. First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate.
United States v. Leon,
 Until now, this court had agreed. See State v. Knapp, 2005 WI 127, ¶¶79-81, 285 Wis. 2d 86, 700 N.W.2d 899 (noting that preserving judicial integrity refers to preventing the judicial process from being subverted by law enforcement officers' unconstitutional actions); State v. Eason, 2001 WI 98, ¶44, 245 Wis. 2d 206, 629 N.W.2d 625 (noting that the exclusionary rule protects judicial integrity by ensuring that "the judiciary would refuse to give its imprimatur to police misconduct by relying upon evidence obtained through that misconduct").
 The majority concludes
that "these cases simply refused to exclude evidence based on judicial
integrity on the specific facts of those cases." Majority op., ¶65. Not so. They never even applied a judicial integrity
test. The majority can point to no United
States Supreme Court case involving the good faith exception that even mentions
judicial integrity since
 Despite resting its holding on "judicial integrity," the majority does not tell us what this means. It states only that "judicial integrity is implicated when a judge issues a warrant that does not comply with statutory requirements and without the constitutionally required oath or affirmation." Majority op., ¶63.
 The Eason court's
reasoning for requiring these additional measures can charitably be described
as meager. Seeming to forget that
exclusion is not a constitutional right, but a judicial remedy, the Eason
court nonetheless asserted that these additional procedural safeguards were
required by the Wisconsin Constitution. Eason,
 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.