                                                        2017 WI 29

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2014AP2603-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Glenn T. Zamzow,
                                 Defendant-Appellant-Petitioner.

                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                                366 Wis. 2d 562, 874 N.W.2d 328
                                  (Ct. App. 2016 – Published)
                                     PDC No: 2016 WI App 7

OPINION FILED:         April 6, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         October 13, 2016

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Fond du Lac
   JUDGE:              Gary R. Sharpe

JUSTICES:
   CONCURRED:
   DISSENTED:          ABRAHAMSON, J. joined by BRADLEY, A. W., J.
                       dissent (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there was a brief
and oral argument by Thomas B. Aquino, assistant state public
defender.


       For the plaintiff-respondent the cause was argued by Warren
D. Weinstein, assistant attorney general, with whom on the brief
was Brad D. Schimel, attorney general.
                                                                                    2017 WI 29
                                                                            NOTICE
                                                            This opinion is subject to further
                                                            editing and modification.   The final
                                                            version will appear in the bound
                                                            volume of the official reports.
No.       2014AP2603-CR
(L.C. No.    2011CT145)

STATE OF WISCONSIN                                      :                IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,                                             FILED
      v.                                                                    APR 6, 2017
Glenn T. Zamzow,                                                              Diane M. Fremgen
                                                                           Clerk of Supreme Court
              Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                           Affirmed.



      ¶1      REBECCA      GRASSL    BRADLEY,          J.     We    review      a    published

opinion of the court of appeals,1 which determined that use of a

deceased police officer's recorded statements at a suppression
hearing2     did    not    violate    Glenn       T.    Zamzow's         rights     under    the

Confrontation Clause of the Sixth Amendment or the Due Process

Clause      of     the    Fourteenth        Amendment        to     the     United       States

Constitution.           We hold that the Confrontation Clause protects a

      1
       State       v.    Zamzow,     2016    WI   App       7,     366    Wis. 2d 562,       874
N.W.2d 328.
      2
       The Honorable Gary R. Sharpe, Fond du Lac County Circuit
Court, presiding.
                                                                     No.     2014AP2603-CR



defendant's      right     to      confrontation       at     trial        but     not     at

suppression hearings, and admission of the deceased officer's

recorded     statements       during      the   suppression        hearing        did     not

deprive Zamzow of due process.              We therefore affirm.

                                   I.    BACKGROUND

      ¶2     Officer      Craig    Birkholz     of    the     Fond    du     Lac       Police

Department stopped Zamzow's car early on a Sunday morning after

observing     the   car    cross    the    center     line.        During        the    stop,

Zamzow smelled of intoxicants and admitted to drinking alcohol.

Officer Curt Beck arrived on the scene with a third officer to

assist Birkholz.          The officers arrested Zamzow, and the State

charged him with operating while intoxicated and operating with

a   prohibited      alcohol     concentration,        both    as     third       offenses.3

Zamzow filed a motion to suppress all evidence obtained during

the stop, claiming Birkholz lacked reasonable suspicion.                               Before

the court could hold a suppression hearing, Birkholz died.

      ¶3     With      Birkholz         unavailable     to         testify        at      the

suppression hearing, the State instead relied on a recording of
the stop, as well as testimony by Beck and a computer forensic

specialist from the police department, to establish reasonable

suspicion.       The    computer        forensic    specialist       first       testified

about recordings from cameras mounted                   on the two squad cars

involved in the stop.               He testified that he prepared a DVD

containing the dashboard camera video from each car.                         Next, Beck


      3
          See Wis. Stat. § 346.63(1)(a)-(b) (2011-12).


                                            2
                                                                   No.     2014AP2603-CR



explained his role in assisting with the stop.                      He acknowledged

watching      the    DVD   with    the    dashboard      camera    videos,     and    he

confirmed that the recording produced by his own car's camera

fairly and accurately depicted the stop as he remembered it.

Additionally, he confirmed that the dashboard camera video from

Birkholz's car fairly and accurately depicted the events Beck

personally observed, and verified that the video consisted of a

continuous and uninterrupted segment.

       ¶4     Based on the two officers' testimony——and over defense

counsel's       objection    to     the   impossibility       of    cross-examining

Birkholz about his reasons for initiating the stop——the circuit

court allowed the State to introduce the video from Birkholz's

car,    which    the    court     viewed.        After   hearing    arguments       from

Zamzow's      counsel      and    from    the     State,    the    court     took    the

suppression motion under advisement in order to further review

the video.          While watching the video again in chambers, the

circuit      court     discovered    that       the   recording    included     audio,

which had not accompanied the video at the suppression hearing.
The court ordered a second suppression hearing so the audio

accompanying the video could be played on the court record.

       ¶5     At the second suppression hearing, the court heard the

initial statement Birkholz made to Zamzow after initiating the

stop:       "Officer Birkholz, city police.              The reason I stopped you

is you were crossing the center line there coming at me and then

again when I turned around and got behind you."                     The court also




                                            3
                                                               No.    2014AP2603-CR



heard audio in which Birkholz explained his basis for the stop

to     the   arriving       officers.4         Zamzow's   counsel    objected   to

admission of both audio statements, arguing that the inability

to cross-examine Birkholz denied Zamzow his right to confront a

witness against him.

       ¶6        The circuit court denied Zamzow's suppression motion

and made the following findings of fact:

       [O]n Sunday night, March 13th, at 3:04 a.m. or
       thereabouts, the officer in this case, deceased
       Officer Birkholz, did make an observation that the
       defendant had crossed the center line on Johnson
       Street as he was approaching the Johnson street bridge
       from the east traveling west.      The officer turned
       around, stopped the vehicle, and has testified that
       the vehicle crossed the center line again as it was
       going over the Johnson Street bridge.
From       the     video,    the   court       could   not   "discern    in     any

fashion . . . whether a cross of the center line occurred prior

to the two vehicles crossing paths," and the court added that it

was "difficult from the video to discern whether the defendant's

vehicle actually crossed the center line as it was going over

the bridge."         Focusing instead on the statement Birkholz made to
Zamzow,      the    court    concluded,    "[T]he . . . testimony       that    the

vehicle did, in fact, cross the center line twice in that short

amount of time" provided a "sufficient basis for the officer to

have made a stop for further inquiry."




       4
       In its reasonable suspicion determination, the court did
not rely on Birkholz's statement to the arriving officers.


                                           4
                                                                         No.     2014AP2603-CR



       ¶7    On Zamzow's motion for reconsideration, the circuit

court clarified its decision.                  Relying on State v. Frambs, 157

Wis. 2d 700, 460 N.W.2d 811 (Ct. App. 1990), the court concluded

that the Confrontation Clause does not apply at a suppression

hearing.     The court added that, even if the Confrontation Clause

does    apply      at   suppression         hearings,      Birkholz's          statement    to

Zamzow was nontestimonial and therefore admissible.

       ¶8    Zamzow proceeded to trial, and a jury convicted him on

both    counts.         At   trial,     the       jury    did     not    hear     the     audio

recording     of    Birkholz's       statement.           After       the    circuit      court

denied Zamzow's motion for postconviction relief, he appealed

and the court of appeals affirmed.                     State v. Zamzow, 2016 WI App

7, ¶1, 366 Wis. 2d 562, 874 N.W.2d 328.                          The court of appeals

agreed with the circuit court that "the Confrontation Clause

simply      does    not      apply    to     pretrial       hearings          such   as    the

suppression        hearing     at     issue       in     this     case."         Id.,      ¶11.

Emphasizing United States Supreme Court precedent suggesting the

right to confrontation is a trial right, the court rejected
Zamzow's contention that Crawford v. Washington, 541 U.S. 36

(2004), undermined Frambs and extended the confrontation right

to pretrial proceedings.              Id., ¶¶10-11.         Additionally, the court

of     appeals     rejected       Zamzow's        claim,        first       raised   in     his

postconviction          motion,      that     admitting         the     audio    statements

denied him due process of law.                    Id., ¶16.           In particular, the

court of appeals relied on United States v. Matlock, 415 U.S.

164 (1974), and United States v. Raddatz, 447 U.S. 667 (1980),
to conclude that "the Supreme Court has, at a minimum, intimated
                                              5
                                                                      No.      2014AP2603-CR



that    admission        at    a   pretrial     suppression       hearing      of   hearsay

statements where the declarant cannot be cross-examined does not

present a due process problem."                     Zamzow, 366 Wis. 2d 562, ¶13.

       ¶9     Zamzow filed a petition for review, which we granted.

                                II.    STANDARD OF REVIEW

       ¶10    Ordinarily, the decision whether to admit evidence is

within the circuit court's discretion.                      State v. Griep, 2015 WI

40,    ¶17,       361    Wis. 2d 657,         863    N.W.2d 567    (citing       State   v.

Deadwiller, 2013 WI 75, ¶17, 350 Wis. 2d 138, 834 N.W.2d 362).

Whether the admission of evidence violates a defendant's rights

under the Confrontation Clause of the Sixth Amendment presents a

question of law, which this court reviews de novo.                          Id. (citing

Deadwiller, 350 Wis. 2d 138, ¶17).                     "Whether a defendant's right

to due process was violated also presents a question of law that

we review de novo."                 State v. McGuire, 2010 WI 91, ¶26, 328

Wis. 2d 289, 786 N.W.2d 227.

                                      III.     ANALYSIS

                              A.    The Confrontation Right
       ¶11    The Sixth Amendment to the United States Constitution

provides:          "In    all      criminal    prosecutions,       the   accused      shall

enjoy       the    right . . . to        be     confronted     with      the     witnesses

against him . . . ."               In Pointer v. Texas, 380 U.S. 400 (1965),

the Supreme Court held that the Sixth Amendment's Confrontation




                                                6
                                                              No.     2014AP2603-CR



Clause applies to the states through the Due Process Clause of

the Fourteenth Amendment.          Id. at 403, 405.5

    ¶12      Zamzow     contends     the      Sixth   Amendment        right     to

confrontation    "[i]n     all     criminal    prosecutions"        guarantees    a

right   to   confront    the     witnesses    against   him    at     suppression

hearings.     Although he acknowledges the Supreme Court has never

directly addressed the question, he argues the Court assumed the

Confrontation Clause applies at a suppression hearing in McCray

v. Illinois, 386 U.S. 300 (1967).6              He also draws analogies to

the Court's decisions regarding other Sixth Amendment rights,

noting the Public Trial Clause applies at suppression hearings,

    5
       Zamzow has not raised any argument that his right to
confrontation differs under the Wisconsin Constitution, which
provides that "[i]n all criminal prosecutions the accused shall
enjoy the right . . . to meet the witnesses face to face." Wis.
Const. art. I, § 7.   "We have observed that [the Confrontation
Clause   and   Wis.   Const.   art. I,   § 7]  are   'generally'
coterminous . . . ."   State v. Rhodes, 2011 WI 73, ¶28, 336
Wis. 2d 64, 799 N.W.2d 850 (citing State v. Hale, 2005 WI 7,
¶43, 277 Wis. 2d 593, 691 N.W.2d 637).
    6
       In support of this argument, Zamzow directs us to
Professor LaFave's Search and Seizure, which asserts, "It should
not be assumed that the right of confrontation has no
application at a Fourth Amendment suppression hearing, for such
is not the case."      6 Wayne R. LaFave, Search and Seizure
§ 11.2(d), at 92 (5th ed. 2012). But see 3 Wayne R. LaFave et
al., Criminal Procedure § 10.5(e), at 618 (4th ed. 2015)
("[D]efendant's right of cross-examination at the suppression
hearing may be substantially narrower than that available at
trial." (citing McCray v. Illinois, 386 U.S. 300 (1967))); cf.
Nancy Hollander et al., Wharton's Criminal Procedure § 8:10, at
8-28 (14th ed. 2015) ("At the federal level, the defendant's
right to confront a witness, embodied in the Sixth Amendment of
the Constitution, was early held not to apply to the preliminary
hearing." (footnote omitted)).


                                        7
                                                                     No.     2014AP2603-CR



Waller v. Georgia, 467 U.S. 39, 46-47 (1984), and the Counsel

Clause applies at preliminary hearings, Coleman v. Alabama, 399

U.S. 1, 9-10 (1970).                Emphasizing the Court's relatively recent

overhaul of its Confrontation Clause jurisprudence in Crawford,

Zamzow asserts that evidence presented at suppression hearings

should also be subject to the Confrontation Clause's guaranteed

procedural mechanism for scrutinizing witness testimony.

    ¶13        In recent years, Crawford and its progeny initiated a

reassessment         of    the      nature     of     the    Confrontation        Clause's

protections.          See Crawford, 541 U.S. at 61 ("To be sure, the

Clause's ultimate goal is to ensure reliability of evidence, but

it is a procedural rather than a substantive guarantee.").                              By

contrast, Zamzow presents a different question here, asking not

what the Confrontation Clause protects but when its protections

apply.     To answer Zamzow's question, we begin with the text of

the Sixth Amendment and, building on the historical analyses in

Crawford, examine the Confrontation Clause's meaning at the time

of its adoption.
    ¶14        On its face, the Sixth Amendment's introductory phrase

"[i]n all criminal prosecutions" seems to speak in broad terms,

and early English dictionaries provide little guidance regarding

the scope of "prosecutions" during the Framing era.                                 Samuel

Johnson's       dictionary          defined    a     "prosecution"     as     a    "[s]uit

against    a       man,   in    a   criminal       cause."     2   Samuel    Johnson,    A

Dictionary of the English Language (London 1756).                           Noah Webster

provided       a    more       comprehensive        definition:     "the     process    of
exhibiting formal charges against an offender before a legal
                                               8
                                                                      No.      2014AP2603-CR



tribunal, and pursuing them to final judgment."                         2 Noah Webster,

An American Dictionary of the English Language (New York, S.

Converse 1828).         Although both definitions contemplate a formal

process for pursuing criminal charges, neither delineates the

specific      procedures     used        to   determine       guilt      or     innocence.

Consequently, the Sixth Amendment's text does not alone provide

precise      insights   into      the    applicability        of   the      Confrontation

Clause during particular stages of a criminal proceeding.

       ¶15    Accordingly,        because         "[t]he     founding         generation's

immediate       source       of         the       [right     to       confront       one's

accusers] . . . was the common law," Crawford, 541 U.S. at 43,

we also look to the common law to guide our understanding of the

Confrontation Clause's meaning.                    See Mattox v. United States,

156    U.S.    237,    243   (1895)       ("We      are    bound   to    interpret      the

Constitution in the light of the law as it existed at the time

it was adopted . . . .").                Blackstone extolled the virtues of

confrontation in his discussion of "the nature and method of the

trial by jury."         3 William Blackstone, Commentaries on the Laws
of    England    349    (Philadelphia         1772)       (emphasis     omitted).        He

explained that "the confronting of adverse witnesses" affords an

"opportunity of obtaining a clear discovery" of the underlying

truth of the matter at issue.                     Id. at 373.      Unlike a "private

and secret examination taken down in writing before an officer"

and later read at trial, the                      "examination of witnesses            viva




                                              9
                                                           No.   2014AP2603-CR



voce"7 provides a superior mechanism for achieving the trial's

primary aim:     "the clearing up of truth" in the presence of the

jury.      Id.    Absent   from    Blackstone's     commentary       was   any

indication the common law right to confront witnesses existed at

any stages preceding the trial.       See 4 id. at 317-57.

     ¶16   In Mattox v. United States, 156 U.S. 237 (1895), one

of   the   Supreme    Court's     earliest     opinions    discussing      the

Confrontation Clause, the Court described the common law right

in a manner consistent with Blackstone's articulation:

          The   primary   object   of  the    constitutional
     provision in question was to prevent depositions or ex
     parte affidavits . . . being used against the prisoner
     in   lieu  of   a  personal  examination   and   cross-
     examination of the witness in which the accused has an
     opportunity, not only of testing the recollection and
     sifting the conscience of the witness, but of
     compelling him to stand face to face with the
     jury . . . .
Id. at 242.      Like Blackstone, the Court emphasized the trial-

oriented protection afforded by the right to confrontation of

witnesses,    which   guarantees    the   "personal       presence   of    the

witness before the jury."       Id. at 243.8


     7
       "By word of mouth; orally. . . . In reference to the
examination of witnesses, the term means that oral rather than
written testimony was taken." Viva Voce, Black's Law Dictionary
1804 (10th ed. 2014).
     8
       We make no pretense of replicating Crawford's encyclopedic
review of the Sixth Amendment's history, but the dissent faults
the depth and breadth of our inquiry into the common law right
of confrontation and the original public meaning of the
Confrontation Clause.   See Dissent ¶41 n.7, ¶49.     As contrary
evidence of historical meaning, however, the dissent cites two
twenty-first century law review articles about confrontation at
                                                      (continued)
                                    10
                                                           No.   2014AP2603-CR



      ¶17    As criminal procedure evolved over the past century to

include      various     pretrial   proceedings,     the    Supreme      Court

addressed questions about non-trial criminal hearings and their

relationship        to   procedural     guarantees    mandated      by    the

Constitution.       In particular, suppression hearings have become

an important stage in many criminal cases since the Supreme

Court adopted the exclusionary rule in Weeks v. United States,

232   U.S.    383   (1914).9    When    examining    the   intersection     of

constitutional requirements and non-trial proceedings, the Court

identified a "difference in standards and latitude allowed in

passing upon the distinct issues of probable cause and guilt."

Brinegar v. United States, 338 U.S. 160, 174 (1949).                     At a

criminal trial, traditionally before a jury, "[g]uilt . . . must

be proved beyond a reasonable doubt and by evidence confined to

that which long experience in the common-law tradition, to some

sentencing, two modern treatises, a 1924 case from this court,
contradictory separate writings in Gannet Co. v. DePasquale, 443
U.S. 368 (1979), and a non-precedential 1974 dissent from denial
of certiorari. Only the dissent's quotation from Joseph Chitty,
A Practical Treatise on the Criminal Law (5th ed. 1847), even
begins to offer any persuasive insight into common law practice
at the time of the Sixth Amendment's framing.       Although the
dissent's authorities assuredly provide thoughtful commentary
for any court reconciling the Sixth Amendment's protections with
modern criminal procedure, after-the-fact analysis is no
substitute for contemporaneous evidence when examining original
meaning.
      9
       Although the exclusionary rule originally applied only in
federal criminal cases, the Supreme Court later held in Mapp v.
Ohio, 367 U.S. 643 (1961), that the exclusionary rule also
applies in state criminal cases through the Due Process Clause
of the Fourteenth Amendment.


                                       11
                                                                              No.     2014AP2603-CR



extent embodied in the Constitution, has crystallized into rules

of    evidence         consistent   with       that       standard."            Id.     (emphasis

added).        Probable        cause,    in    contrast,           implicates          only       "the

factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act."                                     Id. at

175.

       ¶18    When       discussing      the    government's             privilege          not       to

reveal the identity of a confidential informant, the Supreme

Court relied on this distinction between proof at trial——where a

defendant's         guilt   or    innocence         is    at     stake——and          proof       at    a

suppression         hearing.        In   McCray          v.    Illinois,        386     U.S.       300

(1967),       the      Court     explained      it        never        held     that,        as       an

evidentiary principle, "an informer's identity need always be

disclosed         in    a   federal      criminal             trial,     let        alone     in       a

preliminary hearing to determine probable cause for an arrest or

search."      Id. at 312.         Faced with an undeveloped challenge to an

unidentified informant's absence from a suppression hearing, the

Court succinctly noted, "Petitioner also presents the contention
here that he was unconstitutionally deprived of the right to

confront      a     witness      against      him,       because       the     State       did     not

produce the informant to testify against him.                                 This contention

we     consider        absolutely     devoid        of        merit."         Id.     at     313-14

(emphasis added) (quoting Cooper v. California, 386 U.S. 58, 62

n.2 (1967)).            Where testimony by the arresting officers at the

suppression hearing was sufficient to establish probable cause

for     the       arrest    and     resultant            search,        id.     at     304,        the


                                               12
                                                           No.   2014AP2603-CR



confidential   informant's    absence    did    not   violate    the    Sixth

Amendment.10

      ¶19   Elsewhere, the Court made more explicit the connection

between criminal trials and the Sixth Amendment's guarantee of

confrontation and cross-examination.           Four members of the Court

endorsed a concise statement on the matter in Pennsylvania v.

Ritchie, 480 U.S. 39 (1987):        "[T]he right to confrontation is a

trial right . . . ."     Id. at 52 (plurality).         In California v.

Green, 399 U.S. 149 (1970), the Court declared, "[I]t is [the]

literal right to 'confront' the witness at the time of trial

that forms the core of the values furthered by the Confrontation

Clause . . . ."    Id. at 157.       Earlier, in Barber v. Page, 390

U.S. 719 (1968), the Court described a clear connection between

the   confrontation   right   and   particular    stages    of   a   criminal

case:

      The right to confrontation is basically a trial right.
      It includes both the opportunity to cross-examine and
      the occasion for the jury to weigh the demeanor of the
      witness.   A preliminary hearing is ordinarily a much
      less searching exploration into the merits of a case
      than a trial, simply because its function is the more
      limited one of determining whether probable cause
      exists to hold the accused for trial.
Id. at 725.


      10
       A few years later, the Court confirmed the Sixth
Amendment implications of its decision in McCray, observing that
it had "specifically rejected the claim that defendant's right
to confrontation under the Sixth Amendment and Due Process
Clause of the Fourteenth Amendment had in any way been
violated." United States v. Matlock, 415 U.S. 164, 175 (1974).


                                    13
                                                                  No.        2014AP2603-CR



       ¶20   Consistent    with      the    Supreme       Court's       implicit      and

explicit     characterizations       of    the    Confrontation         Clause,      this

court recently held that "[o]ur caselaw establishes that the

Confrontation       Clause      does        not     apply         to         preliminary

examinations."        State     v.    O'Brien,       2014    WI        54,    ¶30,    354

Wis. 2d 753, 850 N.W.2d 8 (first citing State ex rel. Funmaker

v. Klamm, 106 Wis. 2d 624, 634, 317 N.W.2d 458 (1982)); then

citing State v. Oliver, 161 Wis. 2d 140, 146, 467 N.W.2d 211

(Ct.     App.   1991);    and   then       citing    State    v.        Padilla,      110

Wis. 2d 414, 422, 329 N.W.2d 263 (Ct. App. 1982)).                           The primary

case on which this court relied explained that the "purpose of a

preliminary hearing is quite different from a trial" because

"the defendant's guilt need not be proven beyond a reasonable

doubt."      Funmaker, 106 Wis. 2d at 634.

       ¶21   Wisconsin     is     not       alone     in      interpreting            the

Confrontation Clause as protecting a trial right; numerous state

and federal courts agree.               Peterson v. California, 604 F.3d

1166, 1169-70 (9th Cir. 2010) ("[T]he right to confrontation is
basically a trial right. . . .               Accordingly, Crawford does not

affect       the . . . Supreme       Court        cases     holding           that    the

Confrontation Clause is primarily a trial right."); Whitman v.

Superior Court, 820 P.2d 262, 271 (Cal. 1991) ("[T]he United

States Supreme Court has repeatedly stated that '[t]he right to

confrontation is basically a trial right.'" (quoting Barber, 390

U.S. at 725)); Blevins v. Tihonovich, 728 P.2d 732, 734 (Colo.

1986) (en banc); Leitch v. Fleming, 732 S.E.2d 401, 404 (Ga.
2012); People v. Blackman, 414 N.E.2d 246, 247–48 (Ill. App. Ct.
                                           14
                                                                       No.   2014AP2603-CR



1980); State v. Sherry, 667 P.2d 367, 376 (Kan. 1983) ("The

Sixth       Amendment    right    of    confrontation       is    a    protection         that

exists at the trial of the defendant."); Oakes v. Commonwealth,

320 S.W.3d 50, 55 (Ky. 2010) ("[T]he U.S. Supreme Court has

never held that the right to confront witnesses applies to pre-

trial hearings.           In fact, to the contrary, it has repeatedly

described the right as a trial right."); State v. Daly, 775

N.W.2d 47,       66     (Neb.    2009)      ("[I]t    is   well       established         that

Confrontation Clause rights are trial rights that do not extend

to    pretrial        hearings    in        state    proceedings.");         Sheriff        v.

Witzenburg, 145 P.3d 1002, 1004 (Nev. 2006) ("[C]onfrontation

has historically been described as a trial right."); State v.

Lopez,       2013-NMSC-047,       ¶2,       314     P.3d   236    ("[T]he         right     of

confrontation . . . applies only at a criminal trial where guilt

or innocence is determined."); Commonwealth v. Tyler, 587 A.2d

326, 328 (Pa. Super. Ct. 1991) ("[T]he right to confrontation is

a    trial    right.");     State      v.    Timmerman,    2009       UT   58,    ¶11,     218

P.3d 590 ("Barber, Green, and Ritchie establish Supreme Court
precedent confining the Sixth Amendment Confrontation Clause to

trial.").

       ¶22     Although we now address, for the first time, whether

the     Confrontation       Clause       applies      at   suppression           hearings,11

       11
       In State v. Frambs, 157 Wis. 2d 700, 460 N.W.2d 811 (Ct.
App. 1990), the court of appeals observed that it saw "no
evidence that the Supreme Court intended the protection of the
confrontation   clause   to   be  available   to   a   defendant
in . . . pretrial situations." Id. at 704. The statement arose
during an analysis based on Ohio v. Roberts, 448 U.S. 56 (1980),
                                                     (continued)
                                              15
                                                                      No.    2014AP2603-CR



courts in other states have already tackled the question in the

post-Crawford       era.      The New Mexico Supreme Court presents a

representative example, holding that "the Confrontation Clause

does not apply to preliminary questions of fact elicited at a

suppression hearing."              State v. Rivera, 2008-NMSC-056, ¶13, 192

P.3d 1213.          That    court     relied      on     Ritchie     and    Barber    when

explaining, "[T]he United States Supreme Court has held that a

defendant's right to confront witnesses against him is primarily

a trial right, not a pretrial right."                     Id., ¶¶13-14.       The court

added, "A trial focuses on the ultimate issue of an accused's

guilt or innocence, whereas in a pretrial hearing the focus is

generally      on    the     admissibility          of    evidence."         Id.,     ¶15.

Recognizing      the       continued       validity      of   that    distinction       in

Supreme Court jurisprudence, the court emphasized that "recent

cases continue to focus on the protections afforded a defendant

at trial."      Id., ¶18 (first citing Giles v. California, 554 U.S.

353, 357-58 (2008); then citing Crawford, 541 U.S. at 68).

    ¶23       Other courts reached similar conclusions.                      See, e.g.,
People   v.    Felder,       129    P.3d    1072,      1073-74     (Colo.    App.    2005)

(observing that "[n]othing in Crawford suggests that the Supreme

Court intended to alter its prior rulings allowing hearsay at



which the Supreme Court overruled in Crawford v. Washington, 541
U.S. 36 (2004).     Any effect on Frambs following Crawford's
overruling of Roberts is irrelevant for our purposes here, as we
conduct   an   independent,    comprehensive   review   of   the
applicability of the Confrontation Clause at suppression
hearings.


                                             16
                                                                          No.    2014AP2603-CR



pretrial proceedings, such as a hearing on a suppression motion

challenging the sufficiency of a search warrant," and reasoning

that "had the Court intended the rule of Crawford to apply at

the pretrial stage, it would have revisited its prior decisions

refusing      to    recognize       a    Sixth         Amendment       right    of    pretrial

confrontation"); State v. Woinarowicz, 2006 ND 179, ¶11, 720

N.W.2d 635 ("In Crawford, the United States Supreme Court did

not    indicate         it   intended        to    change     the   law    and       apply     the

Confrontation           Clause   to      pretrial        hearings. . . .           The    Sixth

Amendment right to confrontation is a trial right, which does

not    apply       to    pretrial       suppression          hearings.");       Vanmeter        v.

State, 165 S.W.3d 68, 74-75 (Tex. App. 2005) ("Crawford did not

change prior law that the constitutional right of confrontation

is     a   trial        right,   not     a        pretrial    right . . . .          We   hold,

therefore, that Crawford does not apply at pretrial suppression

hearings."); see also Ebert v. Gaetz, 610 F.3d 404, 414 (7th

Cir.       2010)    ("[T]he      court        considered         the     statement        at    a

suppression hearing, not . . . trial; the Confrontation Clause
was not implicated." (citing United States v. Harris, 403 U.S.

573, 584 (1971) (plurality))); State v. Watkins, 190 P.3d 266,

270-71 (Kan. Ct. App. 2007); State v. Harris, 2008-2117 (La.

12/19/08), 998 So. 2d 55 (per curiam); State v. Williams, 960

A.2d 805, 819-20 (N.J. Super. Ct. App. Div. 2008); People v.

Mitchell,      2    N.Y.S.3d 207,         209-10        (App.    Div.     2015);      State     v.

Brown,      2016-Ohio-1258,         61    N.E.3d 922,           ¶¶13-15    (Ct.       App.,     2d

Dist.); State v. Fortun-Cebada, 241 P.3d 800, ¶41 (Wash. Ct.
App. 2010).
                                                  17
                                                                      No.     2014AP2603-CR



       ¶24   We agree with those jurisdictions in concluding that

the    Confrontation          Clause   does       not    apply     during   suppression

hearings.          At   common     law,   the      right    to     confront      witnesses

developed as a mechanism for assessing witness reliability in

the presence of the fact-finder, and several decisions by the

Supreme      Court       indicate      the        confrontation       right       protects

defendants at trial——when guilt or innocence is at stake.                                See

Ritchie, 480 U.S. at 52 (plurality); Green, 399 U.S. at 157;

Barber,      390    U.S.      at   725;      Brinegar,       338    U.S.    at     174-75.

Presenting live witnesses at a suppression hearing undoubtedly

strengthens testimony offered by the State,12 but when cross-

examination of a witness becomes impossible, the Confrontation

Clause does not prohibit use of valuable evidence, such as the

video at issue here.

       ¶25   It is important to recognize the dissimilarity between

the inquiry at trial and the inquiry at suppression hearings:

while the purpose of a trial is to ascertain a defendant’s guilt

or    innocence,        the   function    of      a     suppression    hearing      is   to


       12
       We therefore do not share the concern, articulated by the
dissents both here and at the court of appeals, that our holding
will reduce suppression hearings "to a paper review in which
trial courts read police reports and review evidence such as
dash cam videos to determine whether a warrantless search or
seizure was nevertheless lawful." Dissent, ¶85 (quoting Zamzow,
366 Wis. 2d 562, ¶22 (Reilly, J., dissenting)). Because of the
weight live testimony carries when it emerges intact from the
gauntlet of cross-examination, a prosecutor has no incentive to
intentionally weaken the State's own case by failing to bring an
available witness before the court to defend against a
defendant's suppression motion.


                                             18
                                                              No.       2014AP2603-CR



determine      whether       the     police     violated     the        defendant's

constitutional rights.             In McCray, the Supreme Court explained

that the suppression hearing implicates a lesser concern than

the trial itself:

         We must remember . . . that we are not dealing
    with the trial of the criminal charge itself.    There
    the need for a truthful verdict outweighs society's
    need for the informer privilege.    Here, however, the
    accused seeks to avoid the truth. The very purpose of
    a motion to suppress is to escape the inculpatory
    thrust of evidence in hand, not because its probative
    force is diluted in the least by the mode of seizure,
    but rather as a sanction to compel enforcement
    officers to respect the constitutional security of all
    of us under the Fourth Amendment.     If the motion to
    suppress is denied, defendant will still be judged
    upon the untarnished truth.
386 U.S. at 307 (citation omitted) (quoting State v. Burnett,

201 A.2d 39, 44 (N.J. 1964)).              The proceedings here reveal the

gulf between these inquiries.              Although the circuit court did

consider      Birkholz's       statement      when    evaluating         reasonable

suspicion,     the    jury    that   actually   convicted     Zamzow      at   trial

never heard the audio recording.                Birkholz's statement itself
played   no    part    in    the   determination     of   guilt    or    innocence.

Zamzow was "judged upon the untarnished truth."               Id.

    ¶26       While the Supreme Court has applied the Public Trial

and Counsel Clauses of the Sixth Amendment to certain pretrial

hearings, Waller v. Georgia, 467 U.S. 39 (1984);                        Coleman v.

Alabama, 399 U.S. 1 (1970), tellingly, it has not done so with

respect to the Confrontation Clause.                 Cases holding that the

Public     Trial      and    Counsel    Clauses      apply    during       pretrial
proceedings base their conclusions on the nature of the rights

                                         19
                                                                       No.     2014AP2603-CR



those clauses protect.             See Waller, 467 U.S. at 46-47; Coleman,

399     U.S.    at    9-10     (plurality);        id.   at     11-12        (Black,     J.,

concurring).         Here, elevating suppression hearings to a level of

constitutional significance on par with trials would contravene

the clear distinction the Supreme Court has described between

pretrial hearings and the trial itself for Confrontation Clause

purposes.           The    Court   never       nullified       that    distinction       in

Crawford or any subsequent Confrontation Clause case, and we

will not adopt such a construction here.                      Because the Court has

made clear that the interests protected by the confrontation

right       specifically       target     the      determination         of     guilt     or

innocence, the justifications underpinning application of the

Public      Trial    and     Counsel    Clauses     of   the    Sixth        Amendment    to

pretrial       proceedings         do     not      logically          attach      to     the

Confrontation Clause.13

       ¶27     In    light    of   the     longstanding         principle        that    the

Confrontation Clause protects a trial right, we conclude the

Confrontation Clause does not require confrontation of witnesses
at    suppression         hearings.      By    relying   on     Birkholz's        recorded

       13
       Accusing us of placing form ahead of substance, the
dissent insists that "the temporal factor does not control"
whether the Confrontation Clause applies. Dissent, ¶¶51-52. We
agree. As demonstrated by our review of historical evidence and
Supreme Court decisions, we choose to join other jurisdictions
in holding that the confrontation right is a trial right not out
of "cursor[y] rel[iance] on . . . references to 'at trial' in
United States Supreme Court cases," dissent, ¶48, but because we
are persuaded that the confrontation right applies to testimony
before a finder of fact weighing the ultimate question of a
defendant's guilt or innocence.


                                              20
                                                                             No.   2014AP2603-CR



audio statement to make a reasonable suspicion determination,

the circuit court did not deny Zamzow his right to confrontation

under the Sixth Amendment.14

                                      B.    Due Process

       ¶28     The     Fourteenth          Amendment           to     the     United       States

Constitution provides:             "No state shall . . . deprive any person

of     life,       liberty,      or     property,            without        due    process      of

law . . . ."          As   an    alternative            to   his     Confrontation        Clause

argument,         Zamzow   contends        the        circuit       court    denied      him   due

process of law at the suppression hearing by relying on the

audio recording of Birkholz's statements without any possibility

of cross-examination, quoting Goldberg v. Kelly, 397 U.S. 254,

269 (1970): "[i]n almost every setting where important decisions

turn on questions of fact, due process requires an opportunity

to confront and cross-examine adverse witnesses."

       ¶29     We    agree      with       the    court        of     appeals      that    clear

precedent from the Supreme Court undermines Zamzow's due process

argument.         In many of the Confrontation Clause cases discussed
above,      the     Supreme     Court      also       addressed       alleged      due    process

violations.          Drawing those cases together, the Court explained

that     the      distinction      between            trials    and     pretrial         hearings

applies in the due process context, too:

               This Court . . . has noted that the interests at
       stake     in a suppression hearing are of a lesser
       14
       Because we conclude the Confrontation Clause did not
require confrontation at the suppression hearing, we need not
determine whether Birkholz's statement was testimonial.


                                                 21
                                                                             No.    2014AP2603-CR


       magnitude than those in the criminal trial itself. At
       a suppression hearing, the court may rely on hearsay
       and other evidence, even though that evidence would
       not be admissible at trial. United States v. Matlock,
       415 U.S. 164, 172-174 (1974); Brinegar v. United
       States, 338 U.S. 160, 172-174 (1949).      Furthermore,
       although the Due Process Clause has been held to
       require the Government to disclose the identity of an
       informant at trial, provided the identity is shown to
       be relevant and helpful to the defense, Roviaro v.
       United States, 353 U.S. 53, 60-61 (1957), it has never
       been held to require the disclosure of an informant's
       identity at a suppression hearing.           McCray v.
       Illinois, 386 U.S. 300 (1967).    We conclude that the
       process due at a suppression hearing may be less
       demanding and elaborate than the protections accorded
       the defendant at the trial itself.
United States v. Raddatz, 447 U.S. 667, 679 (1980) (citation

omitted).          Any   right    to     confrontation               and    cross-examination

implicated by the Due Process Clause is therefore relaxed at a

suppression hearing.

       ¶30    Ultimately,        "due    process          is    flexible      and    calls   for

such    procedural          protections             as    the        particular       situation

demands."      State v. Chamblis, 2015 WI 53, ¶54, 362 Wis. 2d 370,

864 N.W.2d 806 (alteration omitted) (quoting Gilbert v. Homar,

520 U.S. 924, 930 (1997)).                   Here, Birkholz's death rendered him

unavailable         to   testify        at        the    suppression         hearing.        But

testimony      by    Beck    established               that    the    recording       from   the

dashboard      camera       on    Birkholz's              squad       car    accurately      and

continuously documented the portions of the stop observed by

Beck.        The    audio   portion          of    that       same    continuous      recording

captured a statement made by Birkholz to Zamzow before Beck's

arrival on the scene.               The circuit court's reliance on that



                                                  22
                                                                      No.     2014AP2603-CR



hearsay statement did not offend the reduced standard for due

process of law required at a suppression hearing.

                                    IV.     CONCLUSION

       ¶31    The right to confrontation arose at common law as a

tool to test witness reliability at trial.                        With the advent of

pretrial evidentiary hearings during the twentieth century, the

Supreme      Court       has    signaled    that    the   right    to       confrontation

persists      as     a    trial    protection      and    does    not       apply   during

pretrial proceedings.               The Sixth Amendment guarantees that a

defendant whose guilt or innocence is at stake at trial may

employ       the   "greatest        legal    engine       ever    invented       for    the

discovery of truth."               Green, 399 U.S. at 158 (quoting 5 John

Henry Wigmore, Evidence § 1367 (3d ed. 1940)).                          But the Sixth

Amendment      does       not    mandate    that    statements     considered          at   a

suppression hearing face the crucible of cross-examination.                             Nor

does   the     Due       Process   Clause     demand      this.       Accordingly,          we

conclude that the circuit court did not deny Zamzow his rights

under the Sixth and Fourteenth Amendments to the Constitution by
relying on an audio recording of a deceased officer's statement

at the suppression hearing.

       By    the   Court.—The       decision       of   the   court     of    appeals       is

affirmed.




                                             23
                                                             No.    2014AP2603-CR.ssa


     ¶32    SHIRLEY S. ABRAHAMSON, J.               (dissenting).          The Sixth

Amendment    to   the    United     States        Constitution      enumerates     an

accused's   rights      "in   all   criminal       prosecutions."          Glenn   T.

Zamzow, convicted of drunk driving, asserts that he was denied

his Sixth Amendment enumerated right "to be confronted with the

witnesses    against     him"    during       a   hearing    on    his    motion   to

suppress    evidence.         The   majority       opinion    declares,      without

equivocation, that no such right exists.

     ¶33    The   United      States   Supreme       Court    has    not    squarely

addressed the issue presented in the instant case.                         Thus, to

decide the instant case the majority opinion must predict, on

the basis of case law tackling other questions, what the United

States Supreme Court will do when it has the opportunity to

decide the issue presented in the instant case.

     ¶34    The Sixth Amendment to the United States Constitution

states:

     In all criminal prosecutions, the accused shall enjoy
     the right to a speedy and public trial, by an
     impartial jury of the State and district wherein the
     crime shall have been committed, which district shall
     have been previously ascertained by law, and to be
     informed of the nature and cause of the accusation; to
     be confronted with the witnesses against him; to have
     compulsory process for obtaining witnesses in his
     favor, and to have the Assistance of Counsel for his
     defence. (Emphasis added.)
     ¶35    The   instant       case      involves      a     Fourth       Amendment

suppression hearing,1 not a preliminary examination.                     The two are

     1
       The defendant asserts that the stop of his vehicle was
unlawful and therefore that all evidence derivative of the stop
should be suppressed.


                                          1
                                                                     No.   2014AP2603-CR.ssa


very different.            Cases cited by the majority opinion relating to

preliminary examinations are not relevant to the instant case.2

     ¶36      To     put     the   instant       case    in    context,          the    Sixth

Amendment      Confrontation             Clause     is     implicated            when     the

declarant's statement is testimonial.                     Crawford v. Washington,

541 U.S. 36 (2004).            Majority op., ¶27 n.14.                The circuit court

found that some of the declarant's (here Officer Birkholz's)

statements         were    testimonial      and    some       were     not.        Silently

assuming that all the evidence at issue is testimonial, the

court    of   appeals        and   the   majority       opinion      do    not    determine




     2
       Neither a constitutional nor a statutory right of
confrontation exists in a preliminary examination in Wisconsin.
Wis. Stat. § 970.038; State v. O'Brien, 2014 WI 54, ¶¶30-31, 354
Wis. 2d 753, 850 N.W.2d 8.

     In a preliminary examination, the question is whether there
is probable cause to hold the accused for trial.    See majority
op., ¶17.

     The United States Supreme Court has held that a probable
cause determination for the sole purpose of pretrial detention
does not require the full panoply of adversarial safeguards,
including confrontation. This type of pretrial proceeding does
not impair the accused's defense on the merits. Gerstein v.
Pugh, 420 U.S. 103, 119 (1975); United States v. Green, 670 F.2d
1148, 1154 n.8 (D.C. Cir. 1981).

     In a suppression hearing, the question is what evidence
will be admitted at trial to determine guilt.    A suppression
hearing is a more searching exploration into the merits of the
case than a preliminary examination.


                                             2
                                                                 No.   2014AP2603-CR.ssa


whether the evidence is testimonial under Crawford.3                      Apparently,

it   is       easier    for   the    majority          opinion     to     answer    the

constitutional         confrontation       question       regarding       suppression

hearings than to answer whether the evidence of Zamzow's driving

and law enforcement's stop is testimonial.                   I take on the same

question the majority opinion does.

     ¶37      I   conclude    that   the       Sixth    Amendment       confrontation

right applies at suppression hearings.                  My analysis will proceed

as follows:

         I.   The text and history of the Sixth Amendment
              enumerating the confrontation right "in all
              criminal prosecutions" informs the interpretation
              of the confrontation right at a suppression
              hearing.   Cross-examination is the core of the
              confrontation right.

         II. The phrase "in all criminal prosecutions" in the
             Sixth Amendment is not limited to what occurs at
             trial. In any event, at the time of the adoption

     3
       "Testimonial statements of witnesses absent from trial"
violate a defendant's confrontation right unless "the declarant
is unavailable, and . . . the defendant has had a prior
opportunity to cross-examine." Crawford v. Washington, 541 U.S.
36, 59 (2004).      Whether statements of different types and
contexts are testimonial has been progressively defined by the
Court since Crawford: "[T]o rank as 'testimonial,' a statement
must have a 'primary purpose' of 'establish[ing] or prov[ing]
past events potentially relevant to later criminal prosecution."
Bullcoming v. New Mexico, 564 U.S. 647, 659 n.6 (2011) (quoting
Davis v. Washington, 547 U.S. 813, 822 (2006)).

     Court of Appeals Judge Paul Reilly concluded that Officer
Birkholz's statement that Zamzow crossed the center line prior
to the stop was testimonial, as it described a past event with
the purpose of establishing or proving that event in a later
criminal prosecution and was made by an officer who intended to
bear testimony in that prosecution.    State v. Zamzow, 2016 WI
App 7, ¶17, 366 Wis. 2d 562, 874 N.W.2d 328.


                                           3
                                                   No.   2014AP2603-CR.ssa

           of the Sixth Amendment, suppression hearings were
           generally conducted at trial.

     III. The United States Supreme Court's interpretation
          of   the   textual   phrase   "in   all    criminal
          prosecutions" in applying an enumerated Sixth
          Amendment right other than the confrontation
          right informs the interpretation of the Sixth
          Amendment   confrontation   right.      The   Sixth
          Amendment   Counsel,   Compulsory   Process,    and
          Confrontation Clauses are structurally identical.

           A. Enumerated Sixth Amendment rights attach to
           non-trial    critical stages  in   a   criminal
           prosecution.

           B. The purpose and function of a proceeding in a
           criminal prosecution determines the application
           of an enumerated Sixth Amendment right.
                                  I

     ¶38   I start where the majority opinion starts——with the

text of the Sixth Amendment enumerating rights "in all criminal

prosecutions."    The   text   informs   the   interpretation    of   the

confrontation right.    Majority op., ¶13.

     ¶39   The constitutional text alone might not resolve the

instant case, but it helps a great deal.4      The very words "in all

criminal prosecutions" signify that the confrontation right is

guaranteed in proceedings before, during, and after the trial.5
Unfortunately, the majority opinion does not seriously engage

with the text of the Sixth Amendment.


     4
       In writing Crawford, a seminal Confrontation Clause case,
Justice Scalia acknowledged that the Sixth Amendment's text
alone does not resolve how to apply the Confrontation Clause.
Crawford, 541 U.S. at 42-43.
     5
       Coleman v. Alabama, 399 U.S. 1, 14 (1970) (Douglas, J.,
concurring).


                                  4
                                                                 No.   2014AP2603-CR.ssa


    ¶40    The   majority      opinion       in    the    instant      case,       without

careful   attention     to   Justice     Scalia's         historical        analyses    of

confrontation in      Crawford,    looks to history.                   It limits its

historical research and its originalist view of "in all criminal

prosecutions"     and    the    Confrontation             Clause       to     some     old

dictionaries,    Blackstone's      Commentaries,           and     one      1895    United

States Supreme Court case.6         See majority op., ¶¶14-16.                     As the

majority opinion correctly acknowledges, its historical analysis

is not illuminating.

    ¶41    Justice      Scalia's       and        Chief     Justice         Rehnquist's

historical analyses of the Confrontation Clause in Crawford are

helpful in the instant case.            To understand the meaning of the

Sixth Amendment Confrontation Clause, Justice Scalia turned to

the historical background of the Clause, devoting a significant

part of his opinion to this endeavor.                       The Justice examined

details of English common law, colonial American practice, and

American cases.       He used diverse sources such as English and

    6
       Mattox v. United States, 156 U.S. 237 (1895).         The
majority opinion, ¶15, cites Mattox for the proposition that the
Constitution is interpreted in light of the law existing when it
was adopted. In ¶16, the majority opinion quotes from Mattox to
emphasize the trial-oriented protections of the confrontation
right.    The Mattox language quoted by the majority opinion
states that the "primary object" of the Confrontation Clause is
to prevent convictions based on depositions and ex parte
affidavits.   Applying the Confrontation Clause at a suppression
hearing may result in the suppression of the use of depositions
and ex parte affidavits at trial.

     Justice Scalia explains Mattox's holding to be that prior
trial or preliminary hearing testimony is admissible at trial
only if the defendant had an adequate opportunity to cross-
examine the witness before trial. Crawford, 541 U.S. at 57.


                                         5
                                                                No.     2014AP2603-CR.ssa


American cases; histories of English law; histories of the Sixth

Amendment; evidence, criminal law, and constitutional law texts;

law review articles; and nineteenth-century treatises.                               Chief

Justice    Rehnquist's        concurrence         in    the     Crawford        judgment

proffered its own extensive view of historical evidence on the

meaning of the Confrontation Clause.7

     ¶42    These       analyses     are    edifying      for   purposes        of     this

writing.          The     history        demonstrates      that        the     right     of

confrontation was very important in Roman, English, and American

legal history.          From this history, the following precepts can be

drawn from Crawford about the confrontation right:

          • The     English       common-law      tradition       is     one    of     live

            testimony in court subject to adversarial testing.8

          • "Nothing        can     be     more   essential       than       the     cross

            examining       [of]    witnesses,      and    generally         before     the

            triers of the facts in question . . . ."9



     7
       For additional historical analyses of the Confrontation
Clause, see Benjamin C. McMurray, Challenging Untested Facts at
Sentencing:   The Applicability of Crawford at Sentencing After
Booker, 37 McGeorge L. Rev. 589, 605-08 (2006); Shaakirrah R.
Sanders, Unbranding Confrontation as Only a Trial Right, 65
Hastings L.J. 1257, 1261-66 (2014).

     Cf. California v. Green, 399 U.S. 149, 173-74 (1970)
(Harlan, J., concurring) ("[T]he Confrontation Clause comes to
us on faded parchment.   History seems to give us very little
insight into the intended scope of the Sixth Amendment
Confrontation Clause.").
     8
         Crawford, 541 U.S. at 43.
     9
         Crawford, 541 U.S. at 49 (quoted source omitted).


                                            6
                                                          No.   2014AP2603-CR.ssa


         • Many     early        American      cases      demonstrate           that

           prosecutions are carried on to conviction by witnesses

           confronted    by      the   accused    and     subjected       to    the

           accused's personal examination.10

         • "[T]he common law in 1791 [when the Sixth Amendment

           was adopted] conditioned admissibility of an absent

           witness's examination on unavailability and a prior

           opportunity      to   cross-examine.         The    Sixth    Amendment

           therefore incorporates those limitations."11

         • The    historical     sources    do   not     say    "that    a     prior

           opportunity to cross-examine was merely a sufficient,

           rather than a necessary, condition for admissibility

           of    testimonial     statements.      They    suggest       that    this

           requirement was dispositive."12

         • The Confrontation Clause reflects the judgment that

           reliability of evidence is tested "in the crucible of

           cross-examination."13

    10
         Crawford, 541 U.S. at 49-50 (citations omitted).
    11
         Crawford, 541 U.S. at 54.
    12
         Crawford, 541 U.S. at 55.
    13
       Crawford, 541 U.S. at 61. "Where testimonial statements
are at issue, the only indicium of reliability sufficient to
satisfy constitutional demands is the one the Constitution
actually prescribes: confrontation." Crawford, 541 U.S. at 68-
69.

     "Dispensing   with  confrontation   because  testimony   is
obviously reliable is akin to dispensing with jury trial because
a defendant is obviously guilty.    This is not what the Sixth
Amendment prescribes." Crawford, 541 U.S. at 62.


                                       7
                                                                      No.    2014AP2603-CR.ssa


     ¶43    In    sum,    the    text     and    historical            analyses       of     the

Confrontation      Clause        lead     to         the     conclusion             that    the

confrontation right is of great significance in Anglo-American

jurisprudence     and    that    the     significance            of    the    confrontation

right lies in the accused's right to cross-examine a witness.

                                          II

     ¶44    The    majority      opinion        rests       its       conclusion      on     its

certitude that the accused's right of confrontation is limited

to the trial.      Majority op., ¶¶17-21.                  This purported certitude

has no basis in the text of the Sixth Amendment.                                The text of

the Sixth Amendment does not use the word "trial" in stating the

accused's    confrontation        right.        In    comparison,            the     accused's

Sixth Amendment right to "enjoy the right to a speedy and public

trial"    explicitly     refers    to     "speedy          and    public"       as    a    trial

right.

     ¶45    Indeed,      the    United    States        Supreme         Court       has    never

explicitly held that the Confrontation Clause is an accused's

right at trial only.14




     14
       In McCray v. Illinois, 386 U.S. 300, 305 (1967), the
Court tacitly assumed that the Confrontation Clause applies to a
suppression hearing.   In that case, the Court concluded that a
defendant could not ask for the name of a confidential informant
during cross-examination at a suppression hearing, citing the
confidential informant privilege.    McCray held that the Clause
was not violated by limiting cross-examination; it did not hold
that the Clause was inapplicable to a suppression hearing. The
McCray Court distinguished between suppression hearings and
trials (in which guilt is determined) in balancing the
application of an informer privilege. McCray, 386 U.S. at 307.

                                                                                   (continued)
                                           8
                                              No.   2014AP2603-CR.ssa


     ¶46    True, the Court has referred to confrontation as a

trial right or a right at trial in its discussion of the Sixth

Amendment.     But these references have been in the context of

cases involving trials.15    It makes good sense to confine an

opinion's discussion to the facts presented——which, in each of

the Court's cases referenced by the majority opinion, was a

trial.     It does not make good sense to extrapolate from these

decisions that the confrontation right is exclusively a right at

trial.16




     Recognizing a Sixth Amendment confrontation right at a
suppression hearing does not mean that the confrontation right
at the suppression hearing has no limits. Indeed the limits on
the right to confrontation at a suppression hearing and at trial
are not necessarily the same. The majority opinion misses this
point when it implies that Professor LaFave's writings are
inconsistent on the question whether a right to confrontation
exists at a suppression hearing. See majority op., ¶12 n.6.
     15
       See, e.g., California v. Green, 399 U.S. 149, 157 (1970)
("it is this literal right to 'confront' the witness at the time
of trial that forms the core of the values furthered by the
Confrontation Clause"); Barber v. Page, 390 U.S. 719, 725-26
(1968) (the confrontation right encompasses "the opportunity to
cross-examine and the occasion for the jury to weigh the
demeanor of the witness").
     16
       Indeed the Court has recently indicated that the "trial
right" reading of the Confrontation Clause may be erroneous.
See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S. 305, 315
(2009) (in discussing a paradigmatic historical example of a
violation of the Confrontation Clause, the Court noted that the
rejection of ex parte affidavits at trial is "the core of the
right to confrontation, not its limits.").

     I   conclude   that   although   an   accused's right   of
confrontation at a suppression hearing may not be the "core" of
the Confrontation Clause, it is within its limits.


                                9
                                                                     No.     2014AP2603-CR.ssa


      ¶47   A   suppression          hearing       affects       the        trial    and     the

ultimate    question    of     a    defendant's          guilt       or    innocence.         If

evidence is not suppressed at the suppression hearing, it can be

introduced at trial.              An issue not discussed by the majority

opinion but of importance is the defendant's ability to raise

the   suppression      issue       again      at   trial.17           If     the     right    of

confrontation     is    not        available        to     the       defendant        at     the

suppression     hearing,       but       is   available         at        trial,    will     the

defendant have the right to relitigate the suppression ruling at

trial when the constitutional guarantee of confrontation is in

effect?     If so, what is the purpose of the suppression hearing?

If the defendant pleads guilty, does he or she waive the right

to raise the confrontation issue on appeal?                                 If so, is the

Wisconsin statute allowing a defendant to appeal the denial of a

motion to suppress effective?                  See majority op., ¶26 n.13; see

also Curry v. Texas, 228 S.W.3d 292, 298 (Tex. Ct. App. 2007).

      ¶48   Nevertheless,          the    majority       opinion          joins     courts    in

other jurisdictions cursorily relying on these references to "at
trial" in United States Supreme Court cases to eliminate the

confrontation    right       at    a     suppression       hearing.18              See,    e.g.,

majority op., ¶21 (collecting cases).

      17
       See 6 Wayne R. LaFave et                          al.,    Search        and    Seizure
§ 11.2(f), at 110-22 (5th ed. 2012).
      18
       See e.g., State v. Rivera, 192 P.3d 1213, ¶14 (N.M. 2008)
("[T]he United States Supreme Court has held that a defendant's
right to confront witnesses against him is primarily a trial
right . . . ."); State v. Woinarowicz, 720 N.W.2d 635, 641 (N.D.
2006) ("The Sixth Amendment right to confrontation is a trial
right, which does not apply to pretrial suppression hearings.").


                                              10
                                                        No.    2014AP2603-CR.ssa


    ¶49   Not    only   is   this   conclusion   devoid       of     substantial

analysis and support in the cases cited, it is also devoid of

historical     support.19       Historically,     the         suppression     of

unconstitutionally obtained evidence occurred during the trial.20

"Indeed, the modern suppression hearing, unknown at common law,

is a type of objection to evidence such as took place at common

law . . . in    open    court . . . ."       Gannett          Co.,     Inc.   v.

DePasquale, 443 U.S. 368, 437 (1979) (Blackmun, J., concurring

in part and dissenting in part).21        See also I Joseph Chitty, A

    19
       By contrast, see 6 Wayne R. LaFave et al., Search and
Seizure § 11.2(d), at 92 (5th ed. 2012), concluding that the
right of confrontation applies at a Fourth Amendment suppression
hearing.
    20
       See, e.g., 3 Wayne R. LaFave, Criminal Procedure
§ 10.1(a) (4th ed. 2016) ("At one time, it was not uncommon for
states to treat objections to illegally obtained evidence as
subject to the usual principle that the admissibility of
evidence is determined when it is tendered and not in advance of
trial.       A    few    jurisdictions    still   follow   [this
approach] . . . .") (internal quotation marks omitted).

     See, e.g., State v. Allen, 183 Wis. 323, 197 N.W. 808
(1924) (motion to suppress illegally obtained evidence brought
during trial, when prosecution seeks to use the evidence).
    21
       See also Gannett Co., Inc. v. DePasquale, 443 U.S. 368,
395-96 (1979) (Burger, C.J., concurring) ("When the Sixth
Amendment was written, and for more than a century after that,
no one could have conceived that the exclusionary rule and
pretrial motions to suppress evidence would be part of our
criminal jurisprudence.").

     See also North Carolina v. Wrenn, 417 U.S. 973 (1974)
(White, J., dissenting from denial of certiorari) ("Evidence
used against [the defendant] at trial was seized under a search
warrant issued by a magistrate on an affidavit which was
sustained at trial after an evidentiary hearing out of the
presence of a jury.").


                                     11
                                                       No.   2014AP2603-CR.ssa


Practical Treatise on the Criminal Law 571 (5th ed. 1847) ("The

practice . . . at present, is for the prosecutor's counsel, on

his examination of his own evidence in chief, to inquire of the

witnesses all the facts, so as to satisfy the jury that the

confession was voluntarily made, and duly taken.").

     ¶50    As   the   years   passed,   however,   courts   began   hearing

suppression motions before trial instead of at trial.                 Moving

the suppression hearing up in time in a criminal prosecution to

precede    the   trial   offered   greater    judicial   convenience      and

efficiency, and it prevented delay while a jury was sitting.22

Indeed, federal and Wisconsin rules of criminal procedure now

generally require that defendants bring a motion to suppress

evidence before trial.23

     22
       Jones v. United States, 362 U.S. 257, 264 (1960),
overruled on other grounds by United States v. Salvucci, 448
U.S. 83 (1980):

     In the interest of normal procedural orderliness, a
     motion to suppress, under Rule 41(e), must be made
     prior to trial, if the defendant then has knowledge of
     the grounds on which to base the motion. . . . This
     provision of Rule 41(e), requiring the motion to
     suppress to be made before trial, is a crystallization
     of decisions of this Court requiring that procedure,
     and is designed to eliminate from the trial disputes
     over police conduct not immediately relevant to the
     question of guilt.
     23
       See, e.g., Federal Rule of Criminal Procedure Rule 12(e);
United States v. White, 584 F.3d 935, 948 (10th Cir. 2009):

     Rule 12(b)(3)(C) of the Federal Rules of Criminal
     Procedure requires that a party raise a motion to
     suppress before trial.   A party who fails to do so
     "waives any Rule 12(b)(3) defense, objection, or
     request," although "[f]or good cause, the court may
     grant relief from the waiver."     Fed. R. Crim. P.
                                                   (continued)
                               12
                                                                 No.    2014AP2603-CR.ssa


      ¶51    That    a   suppression          hearing      has    changed      temporal

location does not detract from its ultimate goal of excluding

illegally obtained evidence at trial and should not influence

the    application          of   the        accused's      confrontation            right.

Interpreting the accused's constitutional confrontation right on

the basis of when it is asserted is contrary to the general rule

that form is not placed over substance and is contrary to tenets

of constitutional law.           "A rule of practice must not be allowed

for   any    technical      reason     to    prevail    over      a     constitutional

right."      Gouled v. United States, 255 U.S. 298, 313 (1921);

abrogated     on    other    grounds     by      Warden,    Md.       Penitentiary     v.

Hayden, 387 U.S. 294 (1967).

      ¶52    Justice Blackmun got it right.                He concluded that "for

purposes of applying the public-trial provision of the Sixth

Amendment" to a suppression hearing, the temporal factor does

not control the analysis.              Gannett Co., Inc. v. DePasquale, 443

U.S. at 436-37 (Blackmun, J., concurring in part and dissenting

in part).
      ¶53    In sum, the broad text of the Sixth Amendment in the

phrase      "in    all   criminal      prosecutions"        and        the   fact    that

suppression hearings were conducted at trial at the time of the

      12(e).    This waiver rule applies not only when a
      defendant fails to file any pretrial motion to
      suppress, but also when a defendant fails to assert a
      particular argument in a pretrial suppression motion
      that he did file.

     See also Wis. Stat. § 971.31(2) ("[O]bjections based
on . . . the use of illegal means to secure evidence shall be
raised before trial by motion or be deemed waived. . . .")


                                            13
                                                             No.   2014AP2603-CR.ssa


adoption of the Sixth Amendment lead to the conclusion that the

accused's Sixth Amendment confrontation right may be asserted at

the suppression hearing.

                                          III

     ¶54     I   next   examine     the    United       States    Supreme   Court's

interpretations of the Sixth Amendment text "in all criminal

prosecutions" in applying an enumerated Sixth Amendment right

other     than   the    confrontation          right.     These    interpretations

inform the interpretation of the Sixth Amendment confrontation

right because the Sixth Amendment Counsel, Compulsory Process,

and Confrontation Clauses are structurally identical.

                                           A

     ¶55     In its cases interpreting and applying the enumerated

Sixth Amendment right to counsel, the Court has interpreted the

Sixth Amendment text "in all criminal prosecutions" to mean at

"critical    stages"     of   the   criminal        prosecution.       Coleman   v.

Alabama, 399 U.S. 1, 7 (1970).24



     24
       See Coleman v. Alabama, 399 U.S. 1, 7 (1970) (an accused
"requires the guiding hand of counsel at every step in the
proceedings against him") (quoting Powell v. Alabama, 287 U.S.
45, 69 (1932)); United States v. Wade, 388 U.S. 218, 336 (1967)
("It is central to that principle that in addition to counsel's
presence at trial, the accused is guaranteed that he need not
stand alone against the State at any stage of the prosecution,
formal or informal, in court or out, where counsel's absence
might derogate from the accused's right to a fair trial.")
(emphasis added).

     Coleman involved a pretrial hearing to determine whether
there was sufficient evidence against the accused to warrant
proceeding with the criminal prosecution.


                                          14
                                                                            No.    2014AP2603-CR.ssa


      ¶56    A     critical          stage         is     any       stage     in       a    criminal

prosecution,          "formal       or    informal,            in    court        or   out,      where

counsel's absence might derogate from the accused's right to a

fair trial . . . as affected by his right to meaningfully cross-

examine     the    witnesses         against        him. . . ."              United        States    v.

Wade, 388 U.S. 218, 226-27 (1967) (emphasis added) (relating to

counsel at post indictment line-up).25                           In applying the right to

counsel and determining the critical stage, a court scrutinizes

the   pretrial            proceeding          to    determine         whether          counsel      is

"necessary to preserve the defendant's basic right to a fair

trial as affected by his right meaningfully to cross-examine the

witnesses        against      him    and       to       have    effective          assistance       of

counsel at the trial itself."                           Coleman, 399 U.S. at 7.                     The

efficacy of an accused's right to counsel is diminished without

an accused's confrontation right.                              Examining witnesses is an

area of counsel's expertise.

      ¶57    The Court's focus on giving a defendant the right to

counsel     at    a       pretrial       proceeding        to       ensure    the      defendant's
constitutional            right   to      a    fair      trial       and     cross-examination

implies     that      a    suppression         hearing         (inherently         tied     to    fair


      25
       The Sixth Amendment right to counsel applies at "critical
stages" of the criminal prosecution when there is "potential
substantial   prejudice    to  [the]  defendant's   rights"  that
"confrontation   and    the   ability  of   counsel   [helps  to]
avoid. . . ." Wade, 388 U.S. at 227.

     See also State v. Curry, 147 P.3d 483, 485-86 (Utah Ct.
App. 2006) (concluding that the suppression hearing is a
critical stage where counsel must be present to cross-examine
the prosecution's witness).


                                                   15
                                                              No.   2014AP2603-CR.ssa


trial and cross-examination) is a critical stage in criminal

prosecutions.26

       ¶58   The Wisconsin supreme court has long recognized that

the    confrontation    right       "is    an     essential     and    fundamental

requirement for a fair trial."             State v. Bauer, 109 Wis. 2d 204,

208, 325 N.W.2d 857 (1982) (citation omitted).

       ¶59   Courts    in    several           jurisdictions        recognize     the

applicability     of   the   Sixth    Amendment       confrontation       right    at

suppression hearings on the ground that the suppression hearing

is    a critical stage in       a    criminal prosecution            that requires

cross-examination to ensure a fair trial.27               The Seventh Circuit
       26
       "The security of that right is as much the aim of the
right to counsel as it is of the other guarantees of the Sixth
Amendment . . . [including] his right to be confronted with the
witnesses against him . . . ." United States v. Wade, 388 U.S.
218, 226–27 (1967).
       27
       See, e.g., Curry v. State, 228 S.W.3d 292, 297 (Tex. Ct.
App. 2007) (the Confrontation Clause applies at a suppression
hearing because it is a "critical stage" of the criminal
prosecution); State v. Sigerson, 282 So. 2d 649, 651 (Fla. App.
1973) ("The hearing on the motion to suppress, while not
deciding the guilt or innocence of the appellee, is clearly a
critical stage of the prosecution and the confrontation clause
of the Sixth Amendment to the United States constitution
guarantees an accused in a criminal case the right to confront
the witnesses against him."); United States v. Hodge, 19
F.3d 51, 53 (D.C. Cir. 1994) (a suppression hearing is a
critical stage of the prosecution and "any limitations on the
right of cross-examination . . . must be justified by weighty
considerations")   (internal   quotation  marks   and  citations
omitted). See also United States v. Clark, 475 F.2d 240, 246-47
(2d Cir. 1973) (the defendant has a right to be present at a
pretrial   suppression    hearing   "held   to   determine   the
constitutionality of a seizure of evidence from an accused";
defendant was "entitled to assist his counsel in cross-examining
[the prosecution's] witnesses and in developing [ ] matters
further at the suppression hearing.").

                                                                        (continued)
                                          16
                                                                 No.   2014AP2603-CR.ssa


Court         of   Appeals   has    declared       that   "a   pretrial   suppression

hearing is a critical stage."                      United States v. Johnson, 859

F.2d 1289, 1294 (7th Cir. 1988).28

         ¶60       Judge Harry Edwards wrote that the suppression hearing

is   a        critical   stage     of   the   prosecution      because    it   "affects

substantial rights of an accused person; the outcome of the


     Professor LaFave in 6 Search & Seizure, § 11.2(d), at 93 n.
217, cites the following cases in support of a confrontation
right at suppression hearings:

              • United States v. Mejia, 69 F.3d 309 (9th Cir. 1995)
                (where suppression hearing aborted because of illness
                of judge and new hearing held before another judge, it
                error for that judge merely to read transcript of some
                prosecution witnesses' testimony at aborted hearing;
                continuance should have been granted "so that the
                government's two main witnesses would testify in
                person and be cross-examined in front of the judge who
                would be required to assess their credibility").

              • People v. Levine, 585 N.W.2d 770 (Mich. App. 1998)
                (citing cases from other states in support of
                conclusion that "the protections of the Confrontation
                Clause extend to a pretrial suppression hearing") (the
                Michigan Supreme Court vacated this decision on other
                grounds, and did not address the appellate court's
                decision that the Confrontation Clause applies at
                suppression hearings).

              • State v. Ehtesham, 309 S.E.2d 82 (W. Va. 1983)
                (suppression hearing should be "a meaningful hearing,
                at which both the state and the defendant should be
                afforded the opportunity to produce evidence and to
                examine and cross-examine witnesses"; defendant's
                right denied where judge refused defense opportunity
                to cross examine officer who obtained search warrant).
         28
       See also People v. Strothers, 928 N.Y.S.2d 28 (N.Y. App.
Div. 2011) (the suppression hearing is a critical stage and
trial judge's decision to proceed without defendant's counsel,
who was running late, was reversible error).


                                              17
                                                                    No.    2014AP2603-CR.ssa


hearing——the          suppression      vel        non     of      evidence——may           often

determine       the    eventual      outcome       of   conviction        or     acquittal."

United States v. Green, 670 F.2d 1148, 1154 (D.C. Cir. 1981).

The Green        court declared that because of the historical and

practical       importance      of    the    right      of      cross-examination,          any

limitations on the right at the suppression hearing must be

justified by weighty considerations.                      Green, 670 F.2d at 1154.29

I agree.

      ¶61       In    interpreting     the        Sixth      Amendment      Confrontation

Clause, the majority opinion errs in failing to consider the

right      to   a    fair   trial     and    the    significant           role      of   cross-

examination.

      ¶62       A federal court of appeals has written of the right of

cross-examination as follows:                "So basic is the right [to cross-

examine witnesses] that the Supreme Court has held that its

denial, 'without waiver . . . would be constitutional error of

the   first         magnitude   and    no    amount        of    showing       of    want   of

prejudice would cure it.'"                  Proffitt v. Wainwright, 685 F.2d




      29
       A limitation on the right of confrontation                                         at a
suppression hearing is an informer's privilege.        See                               United
States v. Green, 670 F.2d 1148, 1154 (D.C. Cir. 1981).


                                             18
                                                                      No.    2014AP2603-CR.ssa


1227, 1251 (11th Cir. 1982) (quoting Smith v. Illinois, 390 U.S.

129, 131 (1968)).30

          ¶63     In sum, the United States Supreme Court has indicated

that       the     Sixth     Amendment    text       "in   all     criminal      proceedings"

includes a pretrial proceeding that lays the groundwork for a

fair trial and enables the accused to cross-examine witnesses.

Thus the Court's cases have kept the door open for an accused's

Sixth Amendment confrontation right to apply at a suppression

hearing.           Looking to the critical stage analysis, I conclude

that       the      confrontation        right       should      apply      at   suppression

hearings          to   permit    cross-examination,           which      promotes     a    fair

trial.

                                                 B

          ¶64     In   its    cases   interpreting           and    applying       enumerated

Sixth Amendment rights, the Court has interpreted and applied

the       Sixth     Amendment     text    "in        all   criminal      prosecutions"      by

examining the purpose and function of the particular criminal

proceeding.            Whether the Court applies a Sixth Amendment right
in    a        pretrial    proceeding     requires         comparing     the     purpose    and




          30
       See also Davis v. Alaska, 415 U.S. 308, 315 (1974)
(holding that adequate cross-examination is required by the
Sixth Amendment and stating that "[c]ross-examination is the
principal means by which the believability of a witness and the
truth of his testimony are tested."); Douglas v. Alabama, 380
U.S. 415, 418 (1965) (stating that "[o]ur cases construing the
[confrontation] clause hold that a primary interest secured by
it is the right of cross-examination . . . .").


                                                19
                                                                       No.       2014AP2603-CR.ssa


function      of    the    pretrial          proceeding        with        the       purpose     and

functions of the enumerated right and the trial.31

      ¶65     For    example,         the    United      States       Supreme          Court     has

declared that an accused's Sixth Amendment right to a public

trial      grants    an    accused       the     right    to     a    public          suppression

hearing.      In Waller v. Georgia, 467 U.S. 39 (1984), the Court

described the function of the accused's Sixth Amendment public

trial right as "ensuring that judge and prosecutor carry out

their      duties    responsibly,"           "encourag[ing]           witnesses            to   come

forward," and "discourage[ing] perjury."                             Waller, 467 U.S. at

46.

      ¶66     The    Waller      Court      reasoned      that       the     accused's          Sixth

Amendment's        right    to    a    public         trial   extends           to    a   pretrial

suppression         hearing      because          "[t]hese       aims           and       interests

[protected     at    trial]      are        no   less    pressing          in    a    hearing     to

suppress wrongfully seized evidence."                     Waller, 467 U.S. at 46.

      31
       See Shaakirrah R. Sanders, Unbranding Confrontation as
Only a Trial Right, 65 Hastings L.J. 1257 (2014) (arguing that a
defendant's right to confrontation at a non-trial proceeding is
determined by analogizing the protection afforded by the Sixth
Amendment at trial).

     Although I do not further discuss these cases in the
instant dissent, I note that other Sixth Amendment rights apply
in criminal prosecutions beyond the trial.     See, e.g., United
States v. Bowe, 698 F.2d 560, 565 (2d Cir. 1983) (the Compulsory
Process Clause applies at a suppression hearing, unless that
witness invoked the Fifth Amendment); Mempa v. Riley, 389 U.S.
128, 136-37 (1967) (Counsel Clause applies at sentencing in
Washington state probation revocation proceeding); Apprendi v.
New Jersey, 530 U.S. 466, 476 (2000) (Jury Clause applies at
sentencing fact-finding); Alleyne United States, 133 S. Ct. 2151
(2013) (Jury Clause applies at sentencing for fact-finding for a
fact that increases the penalty).


                                                 20
                                                                    No.   2014AP2603-CR.ssa


       ¶67   Furthermore, the pretrial suppression hearing has in

many    instances       supplanted          the   trial.          The      Waller        Court

recognized that for many defendants the suppression hearing is

"the    only       trial,    because      the     defendants        [will]       thereafter

plead[]      guilty . . . ."              Waller,     467      U.S.       at     47.       The

suppression        hearing       resembles    a   bench     trial:         witnesses       are

called; the defendant has a right to counsel who can question

witnesses; the judge must find facts and apply legal principles

to the facts found; the conduct of law enforcement officials is

often   reviewed       at    a    suppression      hearing.         The        Waller    Court

elaborated as follows:

       [A] suppression hearing often resembles a bench trial:
       witnesses are sworn and testify, and of course counsel
       argue their positions. The outcome frequently depends
       on a resolution of factual matters.    The need for an
       open proceeding may be particularly strong with
       respect to suppression hearings.   A challenge to the
       seizure of evidence frequently attacks the conduct of
       police and prosecutor. . . . [S]trong pressures are
       naturally at work on the prosecution's witnesses to
       justify the propriety of their conduct in obtaining
       the evidence.
Waller,      467     U.S.    at     46-47     (internal        quotation         marks     and

citations omitted).

       ¶68   In      effect,        the      Waller       court       recognized          that

suppression hearings are tantamount to trials, in both form and

importance.

       ¶69   The     purpose        and   function        of   an     accused's          Sixth

Amendment right to a public trial echo the purpose and function

of the exclusionary rule.             The exclusion of evidence at trial is
an accused's objective in a suppression hearing.                           The Wisconsin

Supreme Court first adopted and applied the exclusionary rule in
                               21
                                                                  No.   2014AP2603-CR.ssa


Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923).                          Since then,

evidence    has   been      excluded     as    a   check     on    law    enforcement.

"Unlawful police conduct is deterred when evidence recovered in

unreasonable searches is not admissible in courts."32                          State v.

Tompkins, 144 Wis. 2d 116, 133–34, 423 N.W.2d 823 (1988); State

v. Gums, 69 Wis. 2d 513, 516–17, 230 N.W.2d 813 (1975).                                See

also Conrad v. State, 63 Wis. 2d 616, 635, 218 N.W.2d 252 (1974)

(explaining    that     judicial        integrity      could      be    compromised    if

unlawful police conduct were sanctioned by the use of evidence

obtained in violation of the Fourth Amendment).

      ¶70    Both the Public Trial Clause and the exclusionary rule

are aimed at deterring unlawful conduct.                    This deterrent effect

would be weakened if the Sixth Amendment right to public trial

did   not    apply     to   a     suppression       hearing       or    the   right    to

confrontation        were   not     recognized       in    suppression        hearings.

Without an accused's confrontation right, the state's evidence

will not be examined adequately at the suppression hearing.

      ¶71    In determining whether the Sixth Amendment right to a
public trial applies to render a suppression hearing public,

Justice     Blackmun     compared       the    purpose     and     function     of    the

suppression hearing to the purpose and function of a trial.

Justice Blackmun reasoned that the pretrial suppression hearing

"resembles     and    relates      to    the    full      trial    in    almost      every


      32
       See also 1 Wayne R. LaFave et al., Search & Seizure
§ 1.1(f) (5th ed. 2012) ("[T]he deterrence of unreasonable
searches and seizures is a major purpose of the exclusionary
rule.").


                                          22
                                                             No.    2014AP2603-CR.ssa


particular," and therefore the Sixth Amendment right to a public

trial requires a public suppression hearing.                       "[T]he pretrial

suppression hearing . . . must be considered part of the trial."

Gannett, 443 U.S. at 434, 436-37 (Blackmun, J., concurring in

part and dissenting in part).        The following characteristics of

a suppression hearing led the Justice to this conclusion:

       • "Evidence    is    presented     by       means    of     live    testimony,

         witnesses are sworn, and those witnesses are subject

         to cross-examination."

       • "Determination of the ultimate issue depends in most

         cases    upon     the   trier   of    fact's       evaluation        of    the

         evidence, and credibility is often crucial."

       • "[T]he pretrial suppression hearing often is critical,

         and   it   may     be   decisive,     in     the    prosecution           of    a

         criminal case.          If the defendant prevails, he will

         have dealt the prosecution's case a serious, perhaps

         fatal,     blow;    the    proceeding         often        then    will        be

         dismissed    or     negotiated       on    terms    favorable        to    the
         defense.     If the prosecution successfully resists the

         motion to suppress, the defendant may have little hope

         of success at trial (especially where a confession is




                                    23
                                                   No.    2014AP2603-CR.ssa


            in issue), with the result that the likelihood of a

            guilty plea is substantially increased."33

          • "The suppression hearing often is the only judicial

            proceeding of substantial importance that takes place

            during a criminal prosecution."

Gannett, 443 U.S. 434-36 (Blackmun, J., concurring in part and

dissenting in part).

     ¶72    For   Justice   Blackmun,   these   factors    led    him   to

conclude that the suppression hearing——so much like a trial——

must, like a trial, be public under the Sixth Amendment.

     ¶73    These factors lead me to conclude that the suppression

hearing——so much like a trial——must, like a trial, afford an

accused the confrontation right.34

     33
       "[A] decision on the motion to suppress is often outcome
determinative if it is adverse to the government.    Thus, from
the prosecution's viewpoint, if evidence is suppressed, at
worst, the case will be dismissed; at best, valuable evidence
will be lost and the defendant will be in an enhanced plea
bargaining position."   Elizabeth Phillips Marsh, Does Evidence
Law Matter in Criminal Suppression Hearings?, 25 Loy. L.A. L.
Rev. 987, 996 (1992).
     34
       The Fifth Circuit Court of Appeals stated that "we
safeguard the right to cross-examination at the suppression
hearing because the aims and interests involved in a suppression
hearing are just as pressing as those in the actual trial."
United States v. Stewart, 93 F.3d 189, 192 n.1 (5th Cir. 1996).

     Justice Blackmun offered a similar approach in Kentucky v.
Stincer, 482 U.S. 730 (1987), and Pennsylvania v. Ritchie, 480
U.S. 39 (1987). Justice Blackmun was persuaded that "there are
cases in which a state rule that precludes a defendant from
access to information before trial may hinder that defendant's
opportunity for effective cross-examination at trial, and thus
that such a rule equally may violate the Confrontation Clause."
Kentucky v. Stincer, 482 U.S. at 738 n.9.

                                                             (continued)
                                  24
                                                                  No.    2014AP2603-CR.ssa


       ¶74    The most striking aspect of the suppression hearing

that leads me to this conclusion is that the suppression hearing

is   the     turning    point    in    many       criminal      prosecutions.35          The

majority      opinion     concedes          (as    it   must)     that        "suppression

hearings have become an important stage in many criminal cases

since the Supreme Court adopted the exclusionary rule . . . ."

Majority op., ¶17.          Yet the majority opinion strangely suggests

that    guilt   or     innocence      is    not    at   stake    in     the    suppression

hearing.      The majority opinion asserts that its conclusion that

the confrontation right does not apply at suppression hearings

is     compelled       because        the     "confrontation          right         protects

defendants      at     trial——when      guilt      or   innocence       is     at    stake."

Majority op., ¶24; see also majority op., ¶29.



     Justice Blackmun raised the same point in his separate
writing in Ritchie, in which he faulted the majority for
limiting its confrontation analysis to whether cross-examination
is available and not inquiring into the "effectiveness of cross-
examination."   Ritchie, 480 U.S. at 62; see also Ritchie, 480
U.S. at 71 (Brennan, J., dissenting) ("The creation of a
significant impediment to the conduct of cross-examination thus
undercuts the protections of the Confrontation Clause, even if
that impediment is not erected at the trial itself.") (emphasis
added).

     In Ritchie, 480 U.S. at 54 n.10, Justice Powell, however,
observed in his plurality opinion that the Court has not yet
recognized a Confrontation Clause violation prior to trial.
       35
       The significance of a decision in a suppression case is
seen in Wis. Stat. § 808.03(3)(b), providing: "An order denying
a motion to suppress evidence or a motion challenging the
admissibility of a statement of a defendant may be reviewed upon
appeal from a judgment or order notwithstanding the fact that
the judgment or order was entered upon a plea of guilty or no
contest to the information or criminal complaint."


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                                                                         No.     2014AP2603-CR.ssa


     ¶75       But    guilt       or        innocence        is      often       at    stake    at

suppression          hearings.         In     drug       offenses        and       drunk-driving

prosecutions,         for    instance,            the     result      of     the      suppression

hearing is often determinative of the case.36                                    Often, when a

defendant's      motion       to   suppress             fails,     the      defendant     pleads

guilty.        "Something in the neighborhood of 85 percent of all

criminal       charges      are    resolved             by   guilty        pleas,     frequently

after . . . motions to suppress evidence have been ruled upon."

Gannett Co., 443 U.S. at 397 (1979) (Burger, C.J., concurring).37

The United States Supreme Court has recognized that because our

criminal justice system has become "'for the most part a system

of pleas, not a system of trials,' it is insufficient simply to

point     to   the    guarantee        of     a   fair       trial    as     a   backstop      that

     36
       See, e.g., Vill. of Granville v. Graziano, 858 N.E.2d
879, 882 (Ohio Mun. 2006) (applying the confrontation clause at
a suppression hearing because the distinction between trial and
pretrial suppression hearings has become particularly blurred in
drunk driving cases, in which defendants must raise issues of
the admissibility of test results in a pretrial motion to
suppress); Curry v. State, 228 S.W.3d 292, 297 (Tex. Ct. App.
2007) ("In drug possession cases like the one before us, the
outcome of the suppression hearing often determines the outcome
of the trial itself."); Olney v. United States, 433 F.2d 161,
163 (9th Cir. 1970) ("We think that a motion to suppress
evidence can well be [a critical] stage of prosecution,
particularly in narcotics cases, where the crucial issue may
well be the admissibility of narcotics allegedly found in the
possession of the defendant.").
     37
       By all accounts, this statistic is up:    "In fiscal year
2015 the vast majority of offenders (97.1%) pleaded guilty."
United States Sentencing Commission,       Overview of Federal
Criminal     Cases     Fiscal     Year     2015     4      (2016),
http://www.ussc.gov/sites/default/files/pdf/research-and-
publications/research-
publications/2016/FY15_Overview_Federal_Criminal_Cases.pdf


                                                  26
                                                                        No.    2014AP2603-CR.ssa


inoculates any errors in the pretrial process."                                   Missouri v.

Frye,      566       U.S.    133,    143-44       (2012)       (internal       citations      and

quotation marks omitted).38

      ¶76        Because the suppression hearing is frequently outcome-

determinative,          involves         adversarial       and    trial-like          practices,

and requires the circuit court to weigh testimony as a fact-

finder     and       apply    the    law    to    the    facts,       the     Sixth   Amendment

compels       the      conclusion          that    an    accused's          Sixth     Amendment

confrontation right applies.

      ¶77        I   conclude       on   the     basis    of    the    text     of    the   Sixth

Amendment, the history of the suppression hearing as a trial

proceeding, the purpose and function of the suppression hearing,

and     the      United      States        Supreme       Court's       interpretation        and

application of the enumerated Sixth Amendment rights to non-

trial proceedings, that Zamzow has a Sixth Amendment right to

confront witnesses at the suppression hearing.




      38
           Missouri v. Frye, 566 U.S. 133, 143-44 (2012):

      The reality is that plea bargains have become so
      central to the administration of the criminal justice
      system that defense counsel have responsibilities in
      the plea bargain process, responsibilities that must
      be met to render the adequate assistance of counsel
      that the Sixth Amendment requires in the criminal
      process at critical stages. Because ours 'is for the
      most part a system of pleas, not a system of trials,'
      it is insufficient simply to point to the guarantee of
      a fair trial as a backstop that inoculates any errors
      in the pretrial process (internal citations omitted).


                                                  27
                                                             No.   2014AP2603-CR.ssa


      ¶78    The    majority     opinion     nullifies     the   accused's    Sixth

Amendment's        confrontation     right    at    suppression      hearings    by

adopting an absolute, no-exceptions-allowed holding.

                                        * * * *

      ¶79    To    conclude      briefly,    the   Sixth    Amendment    right   to

confrontation applies at suppression hearings.

      ¶80    Suppression hearings are historically and functionally

a   part    of    the   trial.      Indeed,    a   suppression     hearing    often

supplants the trial.             The suppression hearing is a critical

stage of the "criminal prosecution"; a defendant's right to a

fair trial is dependent on counsel's ability to cross-examine

adverse witnesses.          The deterrence effect of the exclusionary

rule will not be realized if the right to confrontation does not

exist at the suppression hearing.

      ¶81    Because the suppression hearing involves adversarial

and trial-like practices, is frequently outcome-determinative,

and requires the circuit court to weigh testimony as fact-finder

and apply the law to the facts, the Sixth Amendment, in my
opinion, compels a court to recognize that defendants have a

right to confrontation at a suppression hearing.                   By refusing to

give Zamzow a confrontation right at the suppression hearing in

the   instant      case,   the    majority    opinion      nullifies    the   Sixth




                                        28
                                                              No.    2014AP2603-CR.ssa


Amendment's guarantee that the "accused" shall have the right to

confrontation "in all criminal prosecutions."39

      ¶82   Finally, the majority opinion seems to pose a serious

problem for future suppression hearings.                     The State generally

has   the   burden   of   proof      at   a    suppression     hearing      that    the

evidence    is   admissible     at    the      hearing.       Rules    of   evidence

apparently are not fully applicable at a suppression hearing.

See Wis. Stat. §§ 901.04(1), 911.01(4)(a); State v. Jiles, 2003

WI 66, ¶¶25-30, 262 Wis. 2d 457, 663 N.W.2d 798.40

      ¶83   In the future, according to the majority opinion, the

State may offer hearsay evidence in a suppression hearing.                         As a

practical    matter,      the   defendant        may   not    ever     be   able     to

effectively cross-examine the witness.                 Isn't the result of the



      39
       Christine Holst, in The Confrontation Clause and Pretrial
Hearings: A Due Process Solution, 2010 U. Ill. L. Rev. 1599,
1624, proposes that the best avenue to protect a defendant's
right to confrontation is under the Due Process Clause, rather
than the Confrontation Clause.        She concludes that "[a]
restriction on confrontation at a pretrial hearing would then be
unconstitutional if it denied the defendant his or her right to
fundamentally fair procedure in the criminal prosecution
process."
      40
       See also United States v. Matlock, 415 U.S. 164, 172–74
(1974) ("[T]he rules of evidence normally applicable in criminal
trials do not operate with full force at hearings before the
judge to determine the admissibility of evidence.") (discussing
Brinegar v. United States, 338 U.S. 160 (1949); Fed. R. Evid.
104(a) & 1101(d)(1); and citing 5 J. Wigmore, Evidence § 1385
(3d ed. 1940); C. McCormick, Evidence § 53 n.91 (2d ed. 1972));
see also United States v. Raddatz, 447 U.S. 667, 679 (1980) ("At
a suppression hearing, the court may rely on hearsay and other
evidence, even though that evidence would not be admissible at
trial.").


                                          29
                                                               No.   2014AP2603-CR.ssa


suppression     hearing       that   the        unsuppressed    evidence     may    be

introduced at trial?          See ¶47, supra.

     ¶84    Court of Appeals Judge Paul Reilly, dissenting from

the court of appeals decision in the instant case, posed the

problem as follows:           A paper review in which trial courts read

police reports and review evidence such as dash cam videos to

determine whether evidence should be suppressed may become the

norm.    The possible effect of the court of appeals decision (and

the majority opinion in the instant case), according to Judge

Reilly, is that hearsay and double hearsay testimony may be used

at   a     suppression        hearing   to        support    the     constitutional

reasonableness    of      a    search      and     seizure     and   therefore     the

admissibility of contraband, for example, when the same hearsay

would likely not be admitted at trial.

     ¶85    Judge Reilly wrote as follows:

     The effect of the majority's decision is that
     evidentiary hearings are no longer necessary to the
     determination of whether a warrantless search and/or
     seizure was constitutional.   Suppression hearings may
     be reduced to a paper review in which trial courts
     read police reports and review evidence such as dash
     cam videos to determine whether a warrantless search
     or seizure was nevertheless lawful.       The majority
     mistakes us for a civil law country rather than
     recognizing our common law foundation.

            . . . .

     The majority provides no guidance in how it expects
     courts to protect the Fourth Amendment rights of a
     criminal defendant such as Zamzow absent the Sixth
     Amendment's   "crucible   of   cross-examination"   in
     evaluating the government's accusations.    By relying
     on Frambs, the majority disregards the Crawford
     Court's lament over the legacy of Roberts as one of
     "fail[ure] to provide meaningful protection from even

                                           30
                                                     No.   2014AP2603-CR.ssa

    core confrontation violations." . . . As I fear this
    case continues that unfortunate legacy, I dissent.
State v. Zamzow, 2016 WI App 7, ¶¶22, 23, 366 Wis. 2d 562, 874

N.W.2d 328 (Reilly, J., dissenting).

    ¶86   For the reasons set forth, I dissent.

    ¶87   I   am   authorized   to    state   that   Justice   ANN   WALSH

BRADLEY joins this dissenting opinion.




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