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State v. Kerr

Supreme Court of Wisconsin

July 6, 2018

State of Wisconsin, Plaintiff-Appellant,
v.
Christopher John Kerr, Defendant-Respondent.

          Oral Argument: April 11, 2018

          APPEAL from an order of the Circuit Court for Bayfield County L.C. No. 2015CF139, John P. Anderson, Judge.

          For the plaintiff-appellant, there were briefs by Misha Tseytlin, solicitor general, with whom on the briefs were Brad D. Schimel, attorney general, and Amy C. Miller, assistant solicitor general. There was an oral argument by Misha Tseytlin, solicitor general.

          For the defendant-respondent, there was a brief filed by Linda I. Coleman, John R. Carlson, and Sears, Carlson & Coleman, S.C., Washburn. There was an oral argument by John R. Carlson.

          ANNETTE KINGSLAND ZIEGLER, J.

         ¶1 This is a review of the Bayfield County circuit court's order granting Christopher John Kerr's ("Kerr") motion to suppress evidence discovered during a search incident to arrest on the basis that "'judicial integrity' is vital enough to justify exclusion of evidence when the issuing court's arrest warrant was invalid ab initio."[1] We reverse.

         ¶2 On September 27, 2015, two officers were dispatched to follow up on a 9-1-1 hang-up call from Kerr's residence. En route, they were advised by dispatch that there was an outstanding arrest warrant for Kerr in Ashland County. When the officers arrived at Kerr's residence, they discovered that the 9-1-1 call was in error, but arrested Kerr pursuant to the arrest warrant. In conducting a search incident to arrest, the officers discovered methamphetamine in Kerr's pants pocket. The State subsequently charged Kerr with one count of possession of methamphetamine in violation of Wis.Stat. § 961.41(3g)(g) (2015-16) .[2]

         ¶3 Kerr filed a pre-trial motion to suppress the evidence discovered during the search incident to arrest. He argued that, while a warrant had been issued, and law enforcement did not engage in any misconduct in executing the warrant, his constitutional rights were nonetheless violated because he was jailed without the issuing court first inquiring as to his ability to pay, without being given notice that his ability to pay is at issue, and without a meaningful opportunity to be heard. He argued that the warrant would not have been issued, and he would not have been arrested or searched incident to arrest, if he had been afforded due process in the forfeiture action.[3]

         ¶4 After extensive briefing and three hearings, the reviewing court granted Kerr's motion to suppress. It concluded that, although "[t]here is no question that the [issuing court], as a court of general jurisdiction, has the constitutional and statutory authority to hear and process municipal citations," the warrant was "not in compliance with the statutory requirements and clearly violated defendant's statutory due process rights." The reviewing court then concluded that suppression under the exclusionary rule was proper based on the "Wisconsin rule that 'judicial integrity' is vital enough to justify exclusion of evidence when the issuing court's arrest warrant was invalid ab initio." In so concluding, the reviewing court referenced the deterrent purpose of the exclusionary rule and how "[h]ere the conduct is not isolated and may be the rule, not the exception. Dete[r]rence certainly is a greater consideration under these facts."

         ¶5 The State sought interlocutory review and filed a petition to bypass the court of appeals, seeking immediate review from this court. We granted the State's petition to bypass.

         ¶6 Our overarching inquiry in this case is whether the reviewing court erred in granting Kerr's motion to suppress. Fundamental to our analysis is whether evidence discovered during a search incident to arrest is properly suppressed under the exclusionary rule when there is no 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. Neither judicial integrity nor judicial error is a standalone basis for suppression under the exclusionary rule.[4] We therefore conclude that the reviewing court's grant of Kerr's motion to suppress on the basis of judicial integrity is error.

         ¶7 Accordingly, we reverse the Bayfield County circuit court.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. The Warrant

         ¶8 A certified copy of the record for City of Ashland v. Kerr, No. 2015FO219, is included in the record before us, but it is particularly lean. This record reflects that, on June 16, 2015, Kerr was mailed a citation for disorderly conduct, in violation of City of Ashland ordinance 201.03.[5] This citation notified Kerr to appear, if he so chose, at 10:00 a.m. on July 21, 2015.[6] This record also reflects that, on July 21, 2015, when Kerr failed to appear, the issuing court entered a default judgment in the amount of $263.50 with 60 days to pay, and that on July 31, 2015, the clerk sent notice of the default judgment to Kerr (although neither the judgment nor the notice is in the record).[7] On September 22, 2015, 60 days after default judgment was entered, the court issued a commitment order/arrest warrant[8] for Kerr to "detain [him] in custody for 90 days or until $298.50[9] is paid, or until the person is discharged by due course of law." This warrant was issued on the basis that "[t]he balance due has not been paid within the period ordered by the court."

         B. The Arrest

         ¶9 On September 27, 2015, around midnight, 9-1-1 received a call from a phone number later-identified as Kerr's. When the 9-1-1 operator picked up the call, there was a female yelling, but the operator did not have the opportunity to discover the nature of her distress before the line went dead. When the operator called back, a male answered the phone and the operator heard him say "shut the fuck up." When the operator asked whom the male had been talking to, he responded that he was talking to his cat. He denied that there was a female there and said that there was no problem and that the call had been made by accident.

         ¶10 The operator ran the number and discovered it was registered to Kerr and that Kerr had an active arrest warrant in Ashland County. The operator then dispatched Officer Matt Ladwig of the City of Bayfield Police Department and Deputy Matt Leino of the Bayfield County Sheriff's Department to Kerr's residence to follow up on the 9-1-1 call, advising them both that Kerr had a warrant for his arrest in Ashland County. When they arrived, they spoke with Kerr and his girlfriend, R.E., and determined that, although the two had had an argument, the 9-1-1 call was an accidental dial. Officer Ladwig then informed Kerr that there was a warrant for his arrest in Ashland County for an unpaid judgment in the amount of $298.50 and placed Kerr under arrest. He conducted a search incident to arrest and discovered a plastic bag containing a white-colored rock in Kerr's pants pocket, which, after testing, was revealed to be methamphetamine.

         C. The Motion To Suppress

         ¶11 On October 7, 2015, the State filed its criminal complaint, charging one count of possession of methamphetamine in violation of Wis.Stat. § 961.41(3g)(g).[10]

         ¶12 On June 8, 2016, prior to trial, Kerr filed a motion to suppress the methamphetamine discovered during the search incident to his arrest.[11] The crux of Kerr's argument is that issuance of the civil municipal arrest warrant violated his due process rights because, contrary to the statutory requirements, "[t]here was no hearing that was noticed to provide [him] an opportunity to be heard on the issue of his ability to pay prior to the issuance of a warrant." Kerr argued that the warrant for this civil municipal ticket never should have been issued, Kerr never should have been arrested, and the methamphetamine never should have been discovered. Therefore, says Kerr, the evidence should be suppressed because it was discovered as a result of an unlawful arrest in violation of his constitutional and statutory rights.

         ¶13 On July 12, 2016, the reviewing circuit court held its first hearing on the motion, at which Officer Ladwig, Deputy Leino, and Kerr all testified. Officer Ladwig and Deputy Leino testified to the facts described above regarding the arrest. They also both testified that they had not attempted to look up the arrest warrant. Kerr testified that he had been unaware of any warrant from Ashland County, and that he had had no hearing about owing any money prior to his arrest on September 27, 2015.

         ¶14 On September 6, 2016, after further briefing, the reviewing court held its second hearing on the motion, hearing arguments from the parties. Kerr argued that the arrest warrant was facially invalid because, regardless of the statutory basis, the statutory procedures were not followed: defendants cannot be arrested and incarcerated for being poor-there must be some showing of ability to pay. The State argued that exclusion was improper because there was no police misconduct; officers should be able to rely on dispatch-they cannot be the arbiters of whether a court had authority to issue a warrant because they are never in a position to question a court order. The State further argued that, where a warrant is defective but there is no police misconduct, the proper remedy is either a writ of habeas corpus or a civil suit under 42 U.S.C. § 1983. After hearing these arguments, the reviewing court ordered further briefing on the issue of whether a circuit court has competency to proceed as a municipal court pursuant to Wis.Stat. §§ 66.0114, 800.09, and 800.095.

         ¶15 On October 5, 2016, the reviewing court held its third hearing on the motion, hearing argument from the parties on that issue. Kerr argued that a circuit court could proceed under Wis.Stat. ch. 800, but that, even if this is what the issuing court had done, it still had not adhered to the procedural requirements, and a police officer cannot reasonably rely on a warrant that has no statutory basis. The State informed the reviewing court that the arrest warrant was issued pursuant to Wis.Stat. § 778.09, [12] and argued that suppression is not designed to correct judicial misconduct and would have no deterrent effect here. Kerr responded that police officers cannot be allowed to avoid suppression on a hear-no-evil-see-no-evil basis by not looking at the warrant.

         ¶16 On October 31, 2016, the reviewing court issued its decision and order granting Kerr's motion to suppress. It concluded that the issuing court had authority to issue the warrant because it has general jurisdiction under Article VII, Section 8 of the Wisconsin Constitution and Wis.Stat. § 753.03 to impose and collect municipal forfeitures under Wis.Stat. §§ 66.0114 (1) (c), 800.09, 800.095, 345.47 (1) (a), and/or 778.10. It nonetheless concluded that the arrest warrant was defective because the issuing court did not comply with statutory procedural requirements in issuing the warrant. In this regard, the reviewing court took the issuing court to task for what it perceived to be "an institutional or administrative disregard for the law governing civil commitments."[13] The reviewing court then acknowledged that the officers engaged in no wrongdoing, also noting that "neither the defendant nor the State alleges even the slightest hint of misconduct or wrongdoing by law enforcement." It nonetheless concluded, after discussion of State v. Hess, 2010 WI 82, 327 Wis.2d 524, 785 N.W.2d 568, in light of State v. Scull, 2015 WI 22, 361 Wis.2d 288, 862 N.W.2d 562');">862 N.W.2d 562, that exclusion of the evidence was proper because the deterrent purpose of the exclusionary rule is served where the judicial misconduct is systemic.

         ¶17 On December 9, 2016, the State appealed.[14] On July 10, 2017, the State petitioned this court for bypass of the court of appeals. On October 17, 2017, the State's petition for bypass was granted.

         II. STANDARD OF REVIEW

         ¶18 "'Our review of an order granting or denying a motion to suppress evidence presents a question of constitutional fact.'" State v. Tullberg, 2014 WI 134, ¶27, 359 Wis.2d 421, 857 N.W.2d 120 (quoting State v. Robinson, 2010 WI 80, ¶22, 327 Wis.2d 302, 786 N.W.2d 463) . "When presented with a question of constitutional fact, this court engages in a two-step inquiry. First, we review the circuit court's findings of historical fact under a deferential standard, upholding them unless they are clearly erroneous. Second, we independently apply constitutional principles to those facts." Id., ¶27 (citations omitted).

         ¶19 The interpretation and application of a constitutional provision are questions of law that we review de novo. See, e.g., Black v. City of Milwaukee, 2016 WI 47, ¶21, 369 Wis.2d 272, 882 N.W.2d 333 (citing Appling v. Walker, 2014 WI 96, ¶17, 358 Wis.2d 132, 853 N.W.2d 888). "When interpreting constitutional provisions and amendments, we look to intrinsic as well as extrinsic sources." State v. Williams, 2012 WI 59, ¶15, 341 Wis.2d 191, 814 N.W.2d 460 (citing Buse v. Smith, 74 Wis.2d 550, 568, 247 N.W.2d 141 (1976)). In particular, we look to (1) the plain meaning of the words in the context used; (2) the historical analysis of the constitutional debates that the court may reasonably presume were known to the framers; (3) the prevailing practices when the provision was adopted; and (4) the earliest interpretation of the provision by the legislature, as manifested in the first law passed following its adoption. Id. III.

         ANALYSIS

         ¶20 There is no dispute that the exclusionary rule applies in Wisconsin See Mapp v Ohio, 367 U.S. 643 (1961); Conrad v State, 63 Wis.2d 616, 636, 218 N.W.2d 252 (1974) The parties before us, however, argue two competing views of when evidence must be suppressed under the exclusionary rule The State's view is that evidence is suppressed only where suppression will likely serve to deter future police misconduct This is, and has been, the view of the majority of this court See Scull, 361 Wis.2d 288, ¶¶47-61 (Roggensack, J, concurring, joined by Crooks, Ziegler, and Gableman, JJ.). Kerr's view is that evidence may be suppressed either where suppression serves to deter future police misconduct or where it serves to preserve "judicial integrity." The view that "judicial integrity" is a standalone justification for suppression under the exclusionary rule is error, as this view has not garnered favor among a majority of this court, nor of the United States Supreme Court.[15]

         ¶21 In fact, the Supreme Court recently reiterated that "[t]he rule's sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations." Davis v. United States, 564 U.S. 229, 236-37 (2011); see also Elkins v. United States, 364 U.S. 206, 217 (1960) ("Its purpose is to deter ... by removing the incentive to disregard it.") . And this purpose is punitive, not remedial. See, e.g., United States v. Calandra, 414 U.S. 338, 347 (1974) ("The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim . . . ."); Elkins, 364 U.S. at 217 ("The rule is calculated to prevent, not to repair.") . Thus, the singular purpose of the exclusionary rule is to deter police misconduct, [16]and the exclusionary rule does not apply in order to preserve judicial integrity or to correct judicial error.[17]

         ¶22 Moreover, 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. As noted above, see supra ¶21, for the exclusionary rule to apply, there must have been some police misconduct. Although Kerr argues that the officers' failure to look at the warrant itself constitutes such misconduct, this view is incorrect. As a practical matter, officers should be able to rely on dispatch in the same way they are able to rely on their computer records. See Arizona v. Evans, 514 U.S. 1, 14-16 (1995). Relatedly, absent some evidence in the record to the contrary, dispatch personnel are not "adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime." Id. at 15. Additionally, to the extent that looking at a warrant before executing it may be best practice, the officers' conduct here is at most negligent, and isolated negligence is not "misconduct" for the purposes of the exclusionary rule. Herring v. United States, 555 U.S. 135, 146-47 (2009) . Thus, the officers here did not engage in any misconduct that renders the evidence suppressible under the exclusionary rule.

         ¶23 The parties also make arguments regarding the good-faith exception, which applies when an "officer's conduct is objectively reasonable, [because] 'excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that . . . the officer is acting as a reasonable officer would and should act in similar circumstances.'" United States v. Leon, 468 U.S. 897, 919-20 (1984) (quoting Stone v. Powell, 428 U.S. 465, 539-40 (1976) (White, J., dissenting)) . In Wisconsin, we have adopted the good-faith exception. See State v. Eason, 2001 WI 98, ¶52, 245 Wis.2d 206, 629 N.W.2d 625 ("[A] good faith exception for objective, reasonable reliance upon a search warrant does not offend the Wisconsin Constitution [because in that situation, ] applying the exclusionary rule will have no deterrent effect.") . But, because the exclusionary rule applies to deter police misconduct, and there is no police misconduct here, the exclusionary rule does not apply; the good-faith exception thus, also need not be further analyzed and the evidence is not excluded.

         IV. CONCLUSION

         ¶24 Our overarching inquiry in this case is whether the circuit court erred in granting Kerr's motion to suppress. Fundamental to our analysis is whether evidence discovered during a search incident to arrest is properly suppressed under the exclusionary rule when there is no 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. Neither judicial integrity nor judicial error is a standalone basis for suppression under the exclusionary rule.[18] We therefore conclude that the circuit court's grant of Kerr's motion to suppress on the basis of judicial integrity is error.

         ¶25 Accordingly, we reverse the Bayfield County circuit court.

         The order of the circuit court is reversed, and the cause is remanded.

         ¶26 ANNETTE KINGSLAND ZIEGLER, J. (concurring).

         I, of course, join the opinion that I wrote for the majority. I write separately to address issues that three of the four members of the majority conclude are also relevant.

         ¶27 The reviewing circuit court in this case took issue with the manner in which the neighboring circuit court issued the warrant.[1] It concluded that the neighboring court issued this warrant contrary to statutory provisions, that the issuing court did so on a regular basis, that all such warrants were void ab initio, and that, therefore, this case represented "an institutional or administrative disregard for the law governing civil commitments." The reviewing court, thus, suppressed the evidence because of "judicial error on a wide administrative level," concluding that "'judicial integrity' is vital enough to justify exclusion of evidence when the issuing court's arrest warrant was invalid ab initio."

         ¶28 This case cannot be so easily resolved by relying on the issuing court's alleged statutory violation, because neither the facts of record nor the plain language of the applicable statutes support that conclusion. Relatedly, while it may be tempting to do so, this case cannot be resolved by relying on my concurrence in State v. Hess, 2010 WI 82, 327 Wis.2d 524, 785 N.W.2d 568');">785 N.W.2d 568, because the arrest warrant was not void ab initio here, where the issuing court had authority to issue it.[2]

         ¶29 Accordingly, I respectfully concur.

         I. FACTS OF RECORD

         ¶30 Recall that the record regarding the issuance of the warrant in this case is rather lean. This record reflects that, on June 16, 2015, Kerr was mailed a citation for disorderly conduct, in violation of City of Ashland ordinance 201.03. This citation notified Kerr to appear, if he so chose, at 10:00 a.m. on July 21, 2015. He did not. This record also reflects that, on July 21, 2015, when Kerr failed to appear, the court entered a default judgment in the amount of $263.50 with 60 days to pay, and that on July 31, 2015, the clerk sent notice of the default judgment to Kerr (although neither the judgment nor the notice is in the record). On September 22, 2015, 60 days after default judgment was entered, the circuit court issued an arrest warrant for Kerr to "detain [him] in custody for 90 days or until $298.50[3] is paid, or until the person is discharged by due course of law." This warrant was issued on the basis that "the balance due has not been paid within the period ordered by the court."

         ¶31 There is also very little in the record created by the reviewing court to support its conclusion that the issuing court issued warrants in a similar manner on a regular basis. In fact, the record regarding the review of this singular warrant reflects that it is largely the reviewing court's own opinion and personal belief, rather than fact finding, that this procedure reflects "an institutional or administrative disregard for the law governing civil commitments":

[A] s already known to this Court due to its familiarity with how [the issuing county] issues civil commitments, the error in this case results in several, or dozens or hundreds of arrest warrants being issued in complete disregard for the applicable law.
In isolated cases of judicial malfeasance, exclusion will not likely deter future conduct, as the conduct is often remarkably isolated. Here the conduct is not isolated and may be the rule, not the exception. Deter[r]ence certainly is a greater consideration under these facts. . . .
While there is no reason in this case to assume intentional malfeasance on the issuing court, the record from the [issuing county] case shows an institutional or administrative disregard for the law governing civil commitments. While the record does not reflect this, I am administratively aware that [the issuing county] follows the procedure that occurred in this case in almost all of its civil nonpayments. In [the issuing county], nonpayment of a civil forfeiture generally means summary issuance of a civil commitment. There may be hundreds of similar commitments of record.

         (Emphasis added.) Additionally, the record reflects that the reviewing court acknowledged that there is not "even the slightest hint of misconduct or wrongdoing by law enforcement in this matter," and that it concluded that the issuing court "had statutory authority to issue a bench warrant under Wis.Stat. § 800.095(1) (b) 1 for Kerr's arrest for failure to pay the fine imposed."

         ¶32 Thus, the reviewing court's decision to suppress the evidence was based solely on its view that the neighboring court issued this warrant without following statutory procedures, that the neighboring court did so on a regular basis, and that, because of that systemic failure, this warrant was "invalid ab initio." This view, however, is not supported by the facts of record; rather, it is based on the reviewing court's own understanding of a neighboring county's practice. 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., [4] that procedural defect does not render the warrant "void ab initio."

         II. DISTINGUISHING "VOID AB INITIO"

         ¶33 Warrants may be defective for a variety of reasons. Most typically, a warrant is later challenged because of a defect, for example, lack of probable cause or procedural irregularity, but not because it was issued without authority. And warrants are deemed "void ab initio" only when the person issuing the warrant lacks authority to ever issue that warrant in that type of case. Thus, when a judge has the authority to issue a warrant, as is the case here, but fails to properly adhere to prescribed requirements, [5] that warrant may be defective, but it is not void ab initio.

         ¶34 In other words, the type of defective warrant that issues when a judge fails to follow statutory procedural requirements in issuing it differs from the type of defective warrant that issues when a judge lacks authority to issue it: the former, although defective, is not void ab initio; the latter is per se void ab initio. The reality of this distinction is evident from the fact that, if there were no distinction, there would be no place for the exclusionary rule or its companion good-faith exception. In all exclusionary rule cases, the warrant is defective, but nonetheless the evidence discovered in a search incident to arrest is upheld unless there is police misconduct. Notably, the reviewing court stated that there is not "even the slightest hint of misconduct or wrong doing by law enforcement in this matter." Thus, although I assume without deciding that the reviewing court correctly concluded that the warrant was defective, it incorrectly used the term "invalid ab initio" because it is clear from the reviewing court's decision-which concluded that the issuing court "had statutory authority to issue a bench warrant under Wis.Stat. § 800.095 (1) (b)1"-that its grant of Kerr's motion to suppress was based upon the "institutional or administrative disregard for the law governing civil commitments," not a lack of court authority to issue this type of warrant.

         A. Authority To Issue

         ¶35 I agree with the reviewing court that the issuing court had the authority to issue this warrant under Wis.Stat. § 800.095. Chapter 753 of the Wisconsin Statutes governs the circuit courts. Under Wis.Stat. § 753.03, "circuit courts have power to hear and determine, within their respective circuits, all civil and criminal actions and proceedings unless exclusive jurisdiction is given to some other court . . . ." §753.03 (emphasis added); see also Wis. Const, art. VII, § 8 ("Except as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state . . . .") .

         ¶36 Chapter 755 of the Wisconsin Statutes governs municipal courts. Under Wis.Stat. § 755.045, a "municipal court has exclusive jurisdiction over an action in which a municipality seeks to impose forfeitures for violations of municipal ordinances of the municipality that operates the court . . . ." § 755.045(1) (emphasis added); see also Wis. Const, art. VII, § 14 ("All municipal courts shall have uniform jurisdiction limited to actions and proceedings arising under ordinances of the municipality in which established.").

         ¶37 Chapter 800 of the Wisconsin Statutes promulgates "Municipal Court Procedure[s]," and where, as here, Wis.Stat. § 800.095 operates to impose a forfeiture for violation of a municipal ordinance, authority to act under § 800.095 would be exclusive to a municipal court if a municipal court has been established under Wis.Stat. § 755.01. See Wis.Stat. ยง 755.045. However, where, as here, there is no municipal court, the circuit court of the county in which the municipality is ...


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