from the order of the circuit court for Green County: No.
2016CV74 THOMAS J. VALE, Judge.
Lundsten, P.J., Sherman, and Blanchard, JJ.
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).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.
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
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
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
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.
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.
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. §]
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.
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.
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
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
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.
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.
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).
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.
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.