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  • WisBar News
    July 19, 2018

    Exclusionary Rule Applies to Police Misconduct Only, Not Judicial Integrity

    Joe Forward


    July 19, 2018 – Police found drugs while arresting a man on a bench warrant for an unpaid $298 municipal fine. Recently, the Wisconsin Supreme Court rejected the man’s argument that the warrant was invalid, requiring suppression of the drug evidence.

    Christopher Kerr failed to appear for hearing on a municipal citation for disorderly conduct, and the judge entered a default judgment. He had 60 days to pay the fine.

    After 60 days, a circuit court judge in Ashland County issued a warrant to arrest and jail Kerr for 90 days, or until he paid the fine. Wis. Stat. section 800.095(1)(b)1-2 say a defendant can be jailed for failure to pay a fine, but only if a hearing is held to determine the defendant’s ability to pay or the defendant has failed to attend such hearing.

    About a week later, police in Bayfield County caught up to Kerr after a dispatcher received a 9-1-1 phone call from Kerr’s phone.

    Police visited Kerr’s residence knowing he had an active warrant from Ashland County. Officers determined the 9-1-1 call was an accident but arrested him on the bench warrant. A police search revealed a baggie of methamphetamine in Kerr’s pocket.

    Kerr moved to suppress the drug evidence that police found when they arrested him, arguing that his due process rights were violated when the Ashland County judge issued the arrest warrant without determining his ability to pay.

    The Bayfield County judge sided with Kerr, concluding suppression of evidence was warranted because the warrant did not comply with statutory requirements and violated Kerr’s due process rights. The judge said “’judicial integrity’ is vital enough to justify exclusion of evidence when the issuing court’s arrest warrant was invalid ab initio.”

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    The case bypassed the appeals court on certification and in State v. Kerr, 2018 WI 87 (July 6, 2018), the Wisconsin Supreme Court (4-3) reversed the circuit court, concluding that the “exclusionary rule” does not apply because there was no police misconduct.

    That is, the “exclusionary rule” prohibits the use of evidence obtained illegally, in violation of the Fourth Amendment right against unreasonable searches and seizures.  But the majority clarified that the rule only applies when there’s police misconduct.

    “We conclude that suppression is not appropriate because the sole purpose of the exclusionary rule is to deter police misconduct, and there is no police misconduct here,” wrote Justice Annette Ziegler, joined by three other justices. “Neither judicial integrity nor judicial error is a standalone basis for suppression under the exclusionary rule.”

    Kerr argued that the judge should have held a hearing to determine his ability to pay before issuing the arrest warrant. And since the warrant led to the arrest – and the discovery of drugs – he moved to suppress the evidence on due process grounds.

    The majority rejected Kerr’s argument. “Supreme Court precedent establishes that the manner in which the warrant was issued by the court and executed by law enforcement in this case does not afford suppression under the exclusionary rule,” Ziegler wrote.

    Justice Ziegler said the “singular purpose of the exclusionary rule is to deter police misconduct” and the officers in the case “did not engage in any misconduct that renders the evidence suppressible under the exclusionary rule.”

    Concurrence and Dissent

    Justice Ann Walsh Bradley dissented, joined by Justice Shirley Abrahamson, concluding that “judicial integrity remains an independent basis for the application of the exclusionary rule.” The dissenters said the evidence should have been suppressed.

    “There is ample support in our prior case law for maintaining judicial integrity as an independent basis for applying the exclusionary rule pursuant to the Wisconsin Constitution,” wrote Justice A.W. Bradley, noting the warrant was issued in error.

    The dissent said the judge issued the warrant against Kerr for failing to pay the fine without following the procedures outlined under Wis. Stat section 800.95, presenting the “unusual circumstance” that justifies exclusion of evidence based on judicial integrity.

    Justice Rebecca Bradley wrote a separate dissent, concluding evidence seized under invalid warrants must be suppressed, under Wisconsin law.

    “For nearly a century, this court deemed unauthorized warrants to be void ab initio and required any evidence recovered under such warrants to be suppressed, a rule this court reaffirmed just eight years ago,” Justice R. Bradley wrote.

    Justice R. Bradley said the majority ignored long-standing Wisconsin law against allowing the admission of evidence under warrants with no basis in law.

    Justice Ziegler wrote the majority opinion but also wrote a concurrence – joined by Chief Justice Patience Roggensack, Justice Michael Gableman, and Justice Daniel Kelly (concurring in a single footnote only) – “to address issues that three of the four members of the majority conclude are also relevant.”

    For instance, Ziegler said the Bayfield County Circuit Court granted the suppression motion, in part because Ashland County regularly issues warrants for unpaid fines.

    “Even assuming, however, that there were facts of record to support the reviewing court’s conclusion that arrest warrants in civil forfeiture cases were regularly issued in this manner, and that doing so fails to comply with Wis. Stat. § 800.095(1)(b)2., that procedural defect does not render the warrant ‘void ab initio,’” Justice Ziegler wrote.

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