State v. Scull
State v. Scull
Dissenting Opinion
¶ 23. (dissenting). I agree with the
¶ 24. The Majority contends that Officer Wiesmueller submitted a detailed affidavit to the court commissioner, in which he explained the reliability of the confidential informant and the credentials of the Police Narcotic Detection Team. See Majority, ¶¶ 18-20. A close examination of the search warrant, however, establishes that there was no probable cause to search Scull's house without the dog alert— something all of the parties and the Majority recognize as a clear Fourth Amendment violation under Jardines. Nothing in the search warrant connects drugs to Scull's home. The warrant states that the confidential informant knew Scull as a drug dealer, possibly residing at 4506 North 42nd Street. The informant connects drugs to Scull's vehicle, but Scull's vehicle was not searched. There was no surveillance of either the vehicle or Scull's home. In essence, nothing in the search warrant, aside from the evidence barred by Jardines, even hinted that drugs were present at Scull's home.
¶ 25. An analysis of what is missing from the search warrant (probable cause) is relevant because the good-faith exception only applies if the State can show that the process of obtaining the relied-upon warrant involved a significant investigation and review by a government attorney or police officer trained and knowledgeable about probable cause requirements. See State v. Hess, 2010 WI 82, ¶ 51, 327 Wis. 2d 524, 785 N.W.2d 568. I agree with the Majority that the latter requirement was met, but disagree that the State showed that the warrant resulted from a significant
Opinion of the Court
¶ 1. Gary Monroe Scull appeals from a judgment of conviction entered following his
BACKGROUND
¶ 2. The following facts are undisputed by the parties for purposes of this appeal.
¶ 3. In the summer of 2010, a previously reliable confidential informant advised Milwaukee Police Officer John Wiesmueller that Scull was "involved in the distribution of cocaine base within the City of Milwaukee" and "conducts his narcotics trafficking from ... a green early nineties Ford Bronco bearing Wisconsin registration plates of 792-NYG." The confidential informant reported to Officer Wiesmueller that Scull "possi
¶ 4. Officer Wiesmueller followed up on the confidential informant's tip. He was able to verify Scull's address and car as the ones described by the confidential informant. He also learned that Scull had been convicted of robbery with threat of force and first-degree recklessly endangering safety in 2000, and was currently on probation.
¶ 5. Relying on the information from the confidential informant, Milwaukee Police Detective Chris Edersinghe took "Voden," a trained drug-sniffing dog, to Scull's residence. Detective Edersinghe initially walked with Voden to the side door of the residence and then walked to the front door where Voden "alerted." Detective Edersinghe stayed on the walkways to both the side and front doors and did not walk on the grass. The entire episode took less than twenty seconds.
¶ 6. Based upon the information obtained from the confidential informant and Voden's alert, police applied for and obtained a search warrant for Scull's residence. Upon executing the warrant, police found drugs and drug-trafficking paraphernalia.
¶ 7. The State filed a complaint, charging Scull with one count of possession with intent to deliver more than forty grams of cocaine, one count of possession with intent to deliver less than 200 grams of tetrahydrocannabinols (marijuana), and one count of keeping a drug house. The complaint was based upon the evidence obtained during the execution of the search warrant at Scull's residence.
¶ 8. Scull filed a motion to suppress the evidence obtained by the police at his home, arguing that when Detective Edersinghe walked Voden to his front door to see if Voden would alert, the police "invade[d] the
¶ 9. Scull pled guilty to one count of possession with intent to deliver more than forty grams of cocaine and to one count of keeping a drug house.
DISCUSSION
¶ 10. On appeal, Scull asks us to determine whether the act of bringing a drug-sniffing dog to the front door of his residence, without a warrant or probable cause, violated his Fourth Amendment rights.
¶ 11. In Jardines, the police received an unverified tip that the defendant was growing marijuana in his home. Id., 133 S. Ct. at 1413. Based on the tip, police approached the front door of the defendant's home with a trained drug-sniffing dog. Id. After sniffing the base of the front door, the dog sat, as it was trained to do upon detecting illegal drugs. Id. The police and the dog immediately left the scene. Id. Relying on the dog's detection of drugs at the residence, police then received and executed a search warrant on the defendant's home. Id. Upon execution of the warrant, the police discovered marijuana plants in the residence. Id.
¶ 12. The United States Supreme Court held that "[t]he government's use of trained police dogs to investigate the home and its immediate surroundings is a 'search' within the meaning of the Fourth Amendment." Id. at 1417-18. In so holding, the Court relied on the special protections afforded to the home and the area immediately surrounding the home, that is, a home's curtilage. Id. at 1414-15. The Court noted that the front porch is a classic example "of an area adjacent to the home" to which Fourth Amendment protections extend. See id. at 1415 (citing Oliver v. United States, 466 U.S. 170, 182 n.12 (1984)). The Court went on to explain that while " 'the knocker on the front door is treated as an invitation or license to attempt entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds,'" see id. (citation omitted), that traditional invitation does not extend to "a trained police dog to explore the area around the home in hopes of discovering incriminating evidence," id. at 1416.
¶ 13. The parties all agree that Jardines controls in this case and invalidates the search warrant upon which the police premised their search of Scull's home. Therefore, the question in this case shifts to whether the exclusionary rule should act to exclude the evidence obtained during the improper search of Scull's home or whether the evidence is saved by the good-faith exception.
¶ 14. The exclusionary rule, of course, "is a judicially created remedy that prohibits the government from introducing at the defendant's trial evidence of guilt obtained through violations of the Fourth Amendment." United States v. Ienco, 182 F.3d 517, 526 (7th Cir. 1999). However, "just because a Fourth Amendment violation has occurred does not mean the exclusionary rule applies." Dearborn, 327 Wis. 2d 252, ¶ 35. Rather, we are to apply the exclusionary rule only as a "last resort," when doing so will "deter police misconduct and
¶ 15. The good-faith exception to the exclusionary rule dictates that the exclusionary rule "is not to be applied when the officers conducting an illegal search 'acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment.'" Id., ¶ 33 (citing United States v. Leon, 468 U.S. 897, 918 (1984)). The exception encompasses situations in which "police officers act in objectively reasonable reliance upon [a search] warrant, which ha[s] been issued by a detached and neutral magistrate." State v. Eason, 2001 WI 98, ¶ 74, 245 Wis. 2d 206, 629 N.W.2d 625. "[T]he burden is upon the State to 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.
¶ 16. The search warrant in this case was signed by a Milwaukee County Court Commissioner, and the affidavit in support of the search warrant notes that it had been reviewed by an assistant district attorney prior to its submission. Scull does not argue that the court commissioner in this case was not "detached and neutral," nor does he argue that the assistant district attorney who reviewed the affidavit was not "a knowledgeable government attorney." See id.
¶ 17. The search warrant was based upon the affidavit of Officer Weismueller, who averred that he had nineteen years of experience as a police officer. Officer Wiesmueller based his search warrant applica
¶ 18. Officer Wiesmueller explained to the court commissioner in his affidavit that he believed that the confidential informant was reliable because he had provided reliable information to police officers in the past, resulting in at least five arrests and two felony convictions. Furthermore, Officer Wiesmueller had been able to verify the confidential informant's tips regarding both the vehicle Scull drove and his home address.
¶ 19. Officer Wiesmueller also detailed for the court commissioner the credentials of both Detective Edersinghe and Voden, and the requirements they had met to designate them as a Police Narcotic Detection Team. Officer Wiesmueller told the court commissioner that Voden had alerted to the presence of controlled substances over 200 times, and in each alert, police had either recovered drugs or a drug nexus.
¶ 20. In short, Officer Wiesmueller's detailed affidavit is sufficient to demonstrate "that the process used in obtaining the search warrant included a significant investigation." See Eason, 245 Wis. 2d 206, ¶ 74.
¶ 21. Relevant caselaw at the time the search warrant was signed also convinces us that the police acted reasonably in objectively relying on the search warrant in this case. As the State points out, prior to Jardines, dog-sniff searches of the type presented in this case had been held lawful in many jurisdictions.
By the Court. — Judgment affirmed.
Generally, a defendant who pleads guilty waives all non-jurisdictional defects and defenses. See County of Racine v. Smith, 122 Wis. 2d 431, 434, 362 N.W.2d 439 (Ct. App. 1984). However, Wis. Stat. § 971.31(10) (2011-12) creates an exception to this rule, allowing appellate review of an order denying a motion to suppress evidence, notwithstanding a guilty plea. Smith, 122 Wis. 2d at 434-35.
All references to the Wisconsin Statutes are to the 2011-12 version.
While Scull originally filed his notice of appeal in December 2011, our decision in this case has been delayed by the United States Supreme Court's decision in Florida v. Jardines, 569 U.S. _, 133 S. Ct. 1409 (2013), and our subsequent request that the parties supplement their briefs following the Court's decision in that case.
Scull argues that the State forfeited its right to argue that the good-faith exception applies because it did not raise the issue before the circuit court. We disagree. First, we may affirm a circuit court's decision on any grounds. See State v. Milashoski, 159 Wis. 2d 99, 108-09, 464 N.W.2d 21 (Ct. App. 1990). Second, the good-faith exception never came up before the circuit court because the circuit court ruled on the issue prior to the United States Supreme Court's decision in Jardines and concluded that the dog sniff was not a search. Therefore, the circuit court did not need to explore the contours of the exclusionary rule in this case.
See United States v. Brock, 417 F.3d 692, 696 (7th Cir. 2005) (holding that a drug sniff outside defendant's locked bedroom door was not a Fourth Amendment search "because it detected only the presence of contraband and did not provide any information about lawful activity over which [the defen
At the time the court commissioner signed the search warrant in this case, there was no case directly addressing this issue in the state courts of Wisconsin; although, as previously mentioned, the 7th Circuit Court of Appeals had addressed the
Reference
- Full Case Name
- State of Wisconsin, Plaintiff-Respondent v. Gary Monroe Scull
- Cited By
- 3 cases
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- Published