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State v. Scott

Court of Appeals of Wisconsin, District IV

April 4, 2019

State of Wisconsin, Plaintiff-Appellant,
v.
Michael J. Scott, Lori M. Scott, Ally Financial, Inc. a/k/a C T Corporation System, A Black 1966 Oldsmobile Automobile VIN #338676M362750, A Brown 2015 Chevrolet Silverado VIN #1GC1KWE81FF631314, A 2008 Polaris Ranger Serial #4XARB50A482701431, A 2008 Sea Doo "Jet Ski" Hull #YDV13580E808, A 2008 Sea Doo "Jet Ski" Hull #YDV24947C808, Approximately 55 lbs. of Tetrahydrocannabinols (THC) and $22, 955.00 in United States Currency, Defendants-Respondents.

          APPEAL from the order of the circuit court for Green County: No. 2016CV74 THOMAS J. VALE, Judge.

          Before Lundsten, P.J., Sherman, and Blanchard, JJ.

          BLANCHARD, J.

         ¶1 The State of Wisconsin appeals the circuit court's summary judgment order dismissing the State's civil forfeiture complaint naming Michael Scott, Lori Scott, one car, one pickup, one all-terrain vehicle, two personal watercraft, cash, and marijuana. The State seeks a judgment awarding the non-drug property to the State. Police seized the property from in or around the Scotts' residence during the execution of a search warrant as part of a criminal investigation. The State pursued criminal cases against the Scotts and, separately, this forfeiture action based on Wis.Stat. §§ 961.55 and 961.555 (2015-16).[1]These statutes create a process for civil forfeiture of property that has allegedly been used in violation of, or derived from violations of, Chapter 961 of the Wisconsin Statutes, the Controlled Substances Act.

         ¶2 In the criminal cases, the circuit court excluded all of the evidence seized by the State based on a determination that the State violated the Fourth Amendment in obtaining the search warrant, based on a lack of probable cause in the warrant affidavit. In this forfeiture action, the Scotts moved for summary judgment based on the Fourth Amendment violation in the criminal cases. The court granted the summary judgment motion, based on a determination that all of the seized evidence must be excluded at trial under One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965) (Fourth Amendment exclusionary rule applies to state civil forfeiture proceedings that are of a "quasi-criminal nature").

         ¶3 The State argues that we should "decline to extend" Plymouth Sedan to civil forfeiture actions, such as this one, that are brought under Wis.Stat. §§ 961.55 and 961.555. We disagree. As we explain below, the exclusionary rule applies to civil forfeiture actions of this type because, under Plymouth Sedan, they are "quasi-criminal" actions intended to penalize criminal conduct.

         ¶4 The State makes an alternative argument in the event that the exclusionary rule applies. Specifically, the State argues that it is entitled to raise a new argument that would defeat suppression, namely, that the good-faith exception to the exclusionary rule applies. The Scotts fail to address this argument, which the State did not make in the criminal cases. In the absence of adversarial briefing, we do not resolve as a general matter whether the State may, in a civil forfeiture action, make arguments against the application of the exclusionary rule that were not made in a related, prior criminal action. Rather, we treat the lack of a response by the Scotts as a concession and, on that basis, remand to the circuit court for further proceedings in which the State may attempt to pursue an argument based on the good-faith exception.

         ¶5 Accordingly, we reverse the order granting summary judgment and remand for the court to consider whether the State may proceed with a good-faith exception argument.[2]

         BACKGROUND

         ¶6 The following allegations are made in the forfeiture complaint in this civil action. The complaint was filed by a district attorney and supported by an accompanying affidavit of a sheriff's office deputy. There is no dispute about any of these facts for purposes of summary judgment. Police executed a search warrant issued by a circuit court judge authorizing a search of the Scotts' residence "for evidence of the manufacture and possession of tetrahydrocannabinols with intent to deliver." The property listed in the caption of this case was seized during the search. Michael and Lori Scott are alleged to have used the property to facilitate drug crimes. The Scotts are represented by the same attorneys and have filed a single appellate brief that draws no distinction between the two of them that matters to issues we resolve.

         ¶7 The complaint alleges that the car, pickup, and all-terrain vehicle are subject to seizure and forfeiture under Wis.Stat. § 961.55(1)(d), (2), and should "be condemned as forfeited to the Green County Sheriff's Department, for the official use of the Green County Sheriff's Department," pursuant to § 961.55(5)(a), (b), because they were used to commit violations of Chapter 961. The complaint further alleges that all of the seized motorized vehicles are subject to seizure and forfeiture under § 961.55(1)(f), (2), because they are proceeds derived directly or indirectly from the commission of a violation of Chapter 961, and that the currency and personal watercraft must be forfeited pursuant to § 961.55(5)(e)1., "as property and monies, directly or indirectly derived from or realized through the commission of any crime specified in Chapter 961 Wisconsin Statutes, in accordance with provisions of [Wis. Stat. §] 961.555."[3]

         ¶8 Separate from this civil forfeiture action, the Scotts were individually charged in criminal cases alleging marijuana-related offenses. The proceedings in the criminal cases were conducted separately from those in the forfeiture action. However, it is undisputed that the criminal complaints and the forfeiture complaint relied on the same police investigation, and that the alleged factual bases for the forfeiture involved the same conduct that was alleged in the criminal cases.

         ¶9 The criminal cases proceeded ahead of the forfeiture case. See Wis. Stat. § 961.555(2)(a) (court "shall" grant request by defendant in forfeiture proceeding "that the forfeiture proceedings be adjourned until after adjudication of any charge concerning a crime which was the basis for the seizure of the property"). In the criminal cases, the court determined that the deputy submitted an inadequate statement of probable cause in the affidavit for a search warrant. As a result, the court concluded that police had seized the evidence in violation of the Fourth Amendment, and granted defense motions to suppress all of the seized evidence. The State did not appeal the court's suppression ruling and voluntarily moved for dismissal of the criminal charges, which the court granted. The State does not, in this civil action, purport to challenge the court's determination that the affidavit lacked probable cause.

         ¶10 The suppression ruling in the criminal cases provided the Scotts with the basis for the summary judgment motion in the forfeiture case that is the focus of this appeal. The Scotts contended that, under Plymouth Sedan, the exclusionary rule applies in the forfeiture action, and therefore no evidence obtained as a result of the unlawful search and seizures can be admitted in this action to prove that drug crimes were committed. It follows, according to the Scotts, that suppression of this evidence necessarily prevents proof that the seized items were used in, or derived from, drug crimes and therefore dismissal of this action is required.

         ¶11 The State opposed this motion on various grounds. This included an argument that the State did not make in the criminal case: even if the exclusionary rule would otherwise bar admission of the seized property as evidence, the good-faith exception applies to permit admission in this civil action.

         ¶12 Relying on Plymouth Sedan, the circuit court granted the Scotts' motion for summary judgment based on exclusion of the evidence and dismissed the forfeiture complaint. Separately, with little discussion and without permitting an evidentiary hearing, the court rejected the State's argument that it was entitled to try to prove that the good-faith exception to the exclusionary rule applies to save the action. The State appeals.

         DISCUSSION

         ¶13 We review a circuit court's summary judgment decision using the same methodology as the circuit court. Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶21, 241 Wis.2d 804, 623 N.W.2d 751. Summary judgment is appropriate when there are no genuine issues of material fact and a party is entitled to judgment as a matter of law. Wis.Stat. § 802.08(2). The interpretation and application of case law and constitutional principles to a set of facts present issues of law that we decide de novo. See Meyers v. Bayer AG, 2007 WI 99, ¶22, 303 Wis.2d 295, 735 N.W.2d 448.

         ¶14 Determinations of the United States Supreme Court on issues of federal law bind state courts. State v. Mechtel, 176 Wis.2d 87, 94, 499 N.W.2d 662 (1993).

         ¶15 The State does not argue that summary judgment is inappropriate if the seized evidence is excluded. This leaves two potential issues. The first is whether, as the Scotts argue, the exclusionary rule applies to this type of civil forfeiture action. If so, the second issue is whether, as the State contends, it is entitled to attempt to show that the good-faith exception to the exclusionary rule applies.

         ¶16 On the first issue, we conclude that Plymouth Sedan is good law that applies here, because it establishes that statutes that require the forfeiture of property as effective penalties for criminal law violations create quasi-criminal proceedings and therefore Fourth Amendment protections apply to such proceedings. On the second issue, "good faith," we do not decide the merits and instead remand based on the absence of developed arguments. On remand, we discern no reason why the State could not at least attempt to establish that it is entitled to an evidentiary hearing on whether the good-faith exception to the exclusionary rule applies. However, we take no position as to any argument that either party may make on this topic.

         I. ...


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