                                                                     2015 WI 22

                     SUPREME COURT           OF     WISCONSIN
CASE NO.:                2011AP2956-CR
COMPLETE TITLE:          State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Gary Monroe Scull,
                                   Defendant-Appellant-Petitioner.



                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                          (Reported at 352 Wis. 2d 733, 843 N.W.2d 859)
                                    (Ct. App. 2014 – Published)
                                      PDC No.: 2014 WI App 17

OPINION FILED:           March 5, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           October 2, 2014

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Milwaukee
   JUDGE:                David Borowski

JUSTICES:
   CONCURRED:            ROGGENSACK, CROOKS, ZIEGLER, GABLEMAN, JJJJ.,
                         concur (Opinion filed).

                         ZIEGLER, CROOKS, GABLEMAN, JJJ., concur (Opinion
                         filed).
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Basil M. Loeb, Wauwatosa, and oral argument by Basil M. Loeb.


       For the plaintiff-respondent, the cause was argued by Nancy
A. Noet, assistant attorney general, with whom on the brief was
J.B. Van Hollen, attorney general.


       An amicus curiae brief was filed by legal intern Nolan A.
Jensen, Ellen Henak and Henak Law Office, S.C., Milwaukee; and
Melinda         A.    Swartz   and   Law   Office   of   Melinda   Swartz   LLC,
Milwaukee, and intern Nolan A. Jenson behalf of the Wisconsin
Association of Criminal Defense Lawyers.


    An amicus curiae brief was filed by Kelli S. Thompson,
state    public   defender,   and   Jefren   E.   Olsen,   assistant    state
public    defender,   on   behalf    of   the     Wisconsin   State    Public
Defender.




                                      2
                                                                         2015 WI 22
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.       2011AP2956-CR
(L.C. No.    2010CF337)

STATE OF WISCONSIN                            :            IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent,
                                                                     FILED
      v.
                                                                 MAR 5, 2015
Gary Monroe Scull,
                                                                   Diane M. Fremgen
             Defendant-Appellant-Petitioner.                    Clerk of Supreme Court




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



      ¶1     ANN WALSH BRADLEY, J.        Petitioner, Gary Monroe Scull,
seeks review of a published decision of the court of appeals

that affirmed the denial of his motion to suppress evidence.1

The court of appeals determined that the evidence obtained from

a   search    of   his    home   was   admissible     because      the     officers

conducted the search in good faith reliance on a search warrant.


      1
       State v. Scull, 2014 WI App 17, 352 Wis. 2d 733, 843
N.W.2d 859 (affirming judgment of the circuit court of Milwaukee
County, David L. Borowski, J.).
                                                                     No.     2011AP2956-CR



       ¶2   Scull contends that the warrant was invalid because it

was based on information gained from a prior illegal search.

More specifically, he asserts that an alert by a drug sniffing

dog    outside   his    home      constituted        a    prior    illegal    search       in

violation of his Fourth Amendment rights because the officers

needed, but did not have, a warrant to conduct the dog sniff.

Accordingly,      he    argues,        because      the     warrant       relied     on    an

affidavit detailing the dog's alert to the presence of drugs,

the warrant was invalid and the evidence seized pursuant to that

warrant must be suppressed.

       ¶3   Like the court of appeals, we resolve this case with a

straight-forward        application       of      our    good     faith    jurisprudence

governing police reliance on a warrant.                         It provides that the

good    faith    exception        to    the       exclusionary      rule     applies       to

evidence obtained in objectively reasonable reliance on a search

warrant issued by a detached and neutral magistrate that is

ultimately found to be defective.                    State v. Eason, 2001 WI 98,

¶3, 245 Wis. 2d 206, 629 N.W.2d 625.                       Reliance on a warrant is
objectively      reasonable       when:       the   warrant       was     preceded    by    a

substantial investigation, the affidavit supporting the warrant

was    reviewed        by    either       a       police       officer     trained        and

knowledgeable      in       the    requirements           of    probable      cause       and

reasonable suspicion, or               a knowledgeable government attorney,

and a reasonably well-trained officer would not have known that

the search was illegal despite the magistrate's authorization.

Id.


                                              2
                                                                       No.         2011AP2956-CR



       ¶4    In   this    case       we    determine            that   the     good      faith

exception to the exclusionary rule applies because the evidence

Scull seeks to suppress was obtained in objectively reasonable

reliance     on   a   warrant        issued        by     a     detached      and      neutral

magistrate.       Accordingly, we conclude that the evidence should

not be suppressed and affirm the court of appeals.

                                             I

       ¶5    For purposes of our review, the facts of this case are

undisputed.       A confidential informant told Officer Wiesmueller

that   an   individual       named    Gary       M.     Scull    was   involved        in   the

distribution of cocaine base within the City of Milwaukee.                                  The

informant     further     identified         the      defendant        by    providing       an

address where he thought Scull possibly resided.                                   Indicating

that he had personally witnessed Scull distributing the cocaine

base   throughout      the    City,       the     informant        stated      that      Scull

conducts narcotics trafficking from his vehicle, a 1990s Ford

Bronco, license plate 792-NYG.

       ¶6    After    receiving      the     information           from      the     informant
Officer     Wiesmueller      conducted       a    follow-up        investigation.            He

discovered that an individual named Gary M. Scull, born March

28, 1981, was on probation at the time.                       The address on file for

Scull matched the address provided by the informant.                                   Officer

Wiesmueller further confirmed with the Wisconsin Department of

Transportation that a vehicle with the license plate number and

description matching the information provided by the informant

was registered to Scull.


                                             3
                                                               No.    2011AP2956-CR



    ¶7      Officer   Wiesmueller      asked      Detective     Ederesinghe     to

take his dog to Scull's address.             Detective Edersinghe and his

dog, Voden, are a drug detection team certified in the detection

of the odor of marijuana, cocaine, heroin, and methamphetamine.

When Voden detects the presence of controlled substances he will

"alert" by aggressively scratching at the object.

    ¶8      In    response     to    Officer       Weismueller's         request,

Detective   Edersinghe    took      Voden    to   Scull's      house.      As   he

approached, a woman exited the house with two small children.

He decided to come back at another time when he would not be

observed.    When Detective Edersinghe returned with Voden, they

were on the premises for less than 20 seconds.                  He took the dog

on the sidewalk to the side entrance of the home and then they

followed the walkway to the front door.                They left the premises

after Voden alerted at the front door.

    ¶9      Based on Voden's alert and the information provided by

the informant, Officer Wiesmueller sought a warrant to search

Scull's home.      The affidavit for the search warrant detailed
Detective Edersinghe's and Voden's training and explained how

Voden "alerts" to the presence of a narcotic.                    It then stated

that "within the past seventy two (72) hours, his canine, VODEN,

made an 'Alert' on the front entry door to [Scull’s residence].

Detective   Christopher      Ederesinghe     states     that    the   'Alert'   of

VODEN is a positive indication that controlled substances are

contained in said apartment unit."

    ¶10     The   affidavit    further      detailed    how    the    information
from the confidential informant resulted in the dog sniff.                      It
                                       4
                                                                        No.     2011AP2956-CR



explained that the confidential informant was in a position to

identify      cocaine          because     the        confidential       informant         had

previously been involved in cocaine trafficking and that the

informant      was       reliable      because        the    informant        had    provided

information in the past that had been confirmed by subsequent

searches      and        arrests.         The        affidavit     stated           that   the

confidential informant told Officer Wiesmueller that "Gary M.

Scull, b/m, 04-28-1981" was "involved in the distribution of

cocaine      base    within      the     City       of    Milwaukee,"     which       he   had

personally witnessed.                The affidavit included the informant's

description of Scull's vehicle and its license plate, and the

address he provided for Scull.

       ¶11    The steps Officer Wiesmueller took to follow up on the

information         he    received       from       the     informant     were       likewise

identified.         The affidavit stated that Officer Wiesmueller had

ascertained that "Gary M. Scull, b/m, 04-28-1981, is currently

on probation" and that the Department of Corrections gave the

same     address         for    Scull     as        the     informant    had        provided.
Additionally, the affidavit stated that Officer Wiesmueller had

confirmed with the Wisconsin Department of Transportation that a

vehicle with the license plate number and description matching

the information provided by the informant was                             registered to

Scull.

       ¶12    An assistant district attorney reviewed and approved

the    affidavit         for   the   search      warrant.        It     was    subsequently

submitted to a circuit court commissioner.                         After reviewing the
affidavit,      the        commissioner         determined       that     the        affidavit
                                                5
                                                                       No.      2011AP2956-CR



submitted       by    Officer       Wiesmueller         showed      probable      cause     to

believe that there were controlled substances in Scull's home.

The commissioner granted the search warrant to search Scull's

home for those substances.                 Upon executing the warrant, officers

found 53.85 grams of crack cocaine, 102.41 grams of marijuana,

and drug-trafficking paraphernalia including digital scales, a

razor       blade,   and    numerous       clear      plastic       baggies     of     various

sizes.         Based on this evidence, the State charged Scull with

possession       with      intent     to    deliver      cocaine,         possession      with

intent to deliver THC, and keeping a drug house.

       ¶13     Scull moved to suppress the evidence obtained from his

home.       Scull asserted that the warrant was unlawfully obtained.

He contended that the grounds for the warrant were insufficient

because the dog sniff of his home was a warrantless search and

information from an unlawful search cannot be used as a basis

for a warrant justifying a subsequent search.

       ¶14     The circuit court denied the motion.                          It recognized

that there was no case directly addressing the use of a drug-
sniffing dog at the entrance of a home.                       However, it agreed with

the     State    that      the    cases     addressing        dog     sniffs      in     other

circumstances established that dog sniffs were not searches and

that    police       are   lawfully        on   an     individual's          property     when

approaching the front door of a residence by means of a walkway.

Accordingly, it determined that the dog was brought to the door

of    the    residence      "in   a   valid         manner,   not    in    a   manner     that

violated the Fourth Amendment."                      After his motion was denied,


                                                6
                                                                     No.     2011AP2956-CR



Scull pled guilty to possession with intent to deliver more than

forty grams of cocaine and to keeping a drug house.

      ¶15   Scull appealed.2              While his appeal was pending, the

United States Supreme Court issued Florida v. Jardines, 569 U.S.

__, 133 S. Ct. 1409 (2013), in which it determined that using a

drug-sniffing      dog    on    a   homeowner's       porch     to    investigate       the

contents    of    the    home    constitutes      a     search   under       the     Fourth

Amendment.        Based on Jardines, the court of appeals determined

that the police violated Scull's Fourth Amendment rights when

they brought a drug-sniffing dog to his home without a search

warrant.     State v. Scull, 2014 WI App 17, ¶1, 352 Wis. 2d 733,

843   N.W.2d      859.     Nevertheless,          the    court       affirmed        Scull's

conviction     because     the      police    subsequently       obtained        a    search

warrant upon which they relied in good faith.                    Id., ¶¶1, 22.

                                             II

      ¶16   We     are    asked      to    determine      whether          the   evidence

obtained through the execution of a search warrant on Scull's

home must be suppressed.               Generally, in reviewing motions to
suppress, we apply a two-step standard of review.                            Eason, 245

Wis. 2d 206, ¶9.         First, we review the circuit court's findings

of fact, and uphold them unless they are clearly erroneous.                             Id.

Second,      we      independently           review       the        application         of

constitutional principles to those facts.                  Id.

      2
       Although   a   defendant   generally   waives all  non-
jurisdictional defects when entering a guilty plea, Wis. Stat.
§ 971.31(10) creates an exception to this rule for appellate
review of an order denying a suppression motion.


                                             7
                                                                No.    2011AP2956-CR



      ¶17   In this case, however, the facts are undisputed.                     It

is further undisputed that the dog sniff of Scull's house which

served as part of the basis for the warrant violated Scull's

Fourth Amendment right to be secure from unreasonable searches

and   seizures.      Thus,      we   are       left   to   address    whether   the

exclusionary rule applies or whether the evidence from Scull's

home is admissible under the good faith exception to the rule.

The application of the good faith exception to the exclusionary

rule is an issue of law which we review independently of the

decisions rendered by the circuit court and court of appeals.

State v. Hess, 2010 WI 82, ¶19, 327 Wis. 2d 524, 785 N.W.2d 568.

                                       III

      ¶18   We    begin    our       analysis         by   setting     forth    the

constitutional     right   at    issue,        the    Fourth   Amendment   to   the

United States Constitution.           It provides the right of citizens

to be secure against unreasonable searches and seizures:

      The right of the people to be secure in their persons,
      houses, papers, and effects, against unreasonable
      searches and seizures, shall not be violated, and no
      Warrants shall issue, but upon probable cause,
      supported by Oath or affirmation, and particularly
      describing the place to be searched, and the persons
      or things to be seized.
U.S. Const., Amend. IV.3

      3
       Article I, Section 11 of the Wisconsin                         Constitution
contains substantially the same language:

      The right of the people to be secure in their persons,
      houses, papers, and effects against unreasonable
      searches and seizures shall not be violated; and no
      warrant shall issue but upon probable cause, supported
                                                      (continued)
                                           8
                                                                   No.    2011AP2956-CR



       ¶19    The Supreme Court has declared that Fourth Amendment

rights are "indispensable to the 'full enjoyment of personal

security,     personal       liberty    and      private    property.'"    Gouled       v.

United   States,      255    U.S.    298,       304   (1921).    Courts    have       long

extolled the importance of the home, noting that the amendment

was drafted in part to codify "the overriding respect for the

sanctity of the home that has been embedded in our traditions

since the origins of the Republic."                     Payton v. New York, 445

U.S. 573, 601 (1980); Holt v. State, 17 Wis. 2d 468, 477, 117

N.W.2d 626 (1962) ("A home is entitled to special dignity and

special sanctity.").

       ¶20    The    Court    first     applied       the   exclusionary       rule    to

protect against violations of Fourth Amendment rights in Weeks

v. United States, 232 U.S. 383 (1914).                      Under the exclusionary

rule, evidence obtained in violation of the Fourth Amendment is

generally inadmissible in court proceedings.                    Mapp v. Ohio, 367

U.S.   643,    655    (1961).        The    court     has   explained    that    "[t]he

exclusionary        rule     operates      as     a   judicially    created      remedy
designed      to    safeguard       against       future    violations    of     Fourth




       by oath or affirmation, and particularly describing
       the place to be searched and the persons or things to
       be seized.

Ordinarily, we interpret Article I, Section 11 of the Wisconsin
Constitution consistent with the Fourth Amendment of the United
States Constitution.   However, in State v. Eason, 2001 WI 98,
¶63, 245 Wis. 2d 206, 629 N.W.2d 625, we required additional
safeguards.


                                            9
                                                                        No.     2011AP2956-CR



Amendment rights through the rule's general deterrent effect."

Arizona v. Evans, 514 U.S. 1, 10 (1995).

       ¶21     Wisconsin      has      adopted       the    exclusionary            rule    and

applied it to exclude evidence obtained in violation of the

Wisconsin Constitution as well.                     It was first applied in Hoyer

v.    State,    180    Wis.     407,    193   N.W.     89       (1923).       There,       after

declaring that the provisions of the Bill of Rights embodied in

the constitutions are "of substance rather than mere tinsel,"

the    Wisconsin       Supreme      Court      determined          that       the    evidence

obtained in an unlawful search and seizure should have been

suppressed.       Id. at 415.

       ¶22     This court has cited two rationales in support of its

application      of    the    exclusionary          rule:       assurance      of    judicial

integrity and deterrence of unlawful police conduct. State v.

Felix, 2012 WI 36, ¶39, 339 Wis. 2d 670, 811 N.W.2d 775; Hess,

327 Wis. 2d 524, ¶47; State v. Artic, 2010 WI 83, ¶65, 327 Wis.

2d 392, 786 N.W.2d 430;                State v. Knapp, 2005 WI 127, ¶79, 285

Wis. 2d 86, 700 N.W.2d 899; State v. Noble, 2002 WI 64, ¶31, 253
Wis. 2d 206, 646 N.W.2d 38; Eason, 245 Wis. 2d 206, ¶31 n.10;

State v. Ward, 2000 WI 3, ¶47, 231 Wis. 2d 723, 604 N.W.2d 517;

State v. McMorris, 213 Wis. 2d 156, 177, 570 N.W.2d 384 (1997);

State v. Whitrock, 161 Wis. 2d 960, 988, 468 N.W.2d 696 (1991);

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

furtherance       of    judicial        integrity,         we    have     explained         that

"[c]ourts      and     judges    should       not    sanction       violations        of    the

constitution.          The integrity of the judicial process must be


                                              10
                                                              No.    2011AP2956-CR



inviolate and free from reliance upon transgressions against the

constitution."       Conrad, 63 Wis. 2d at 635.4

      ¶23      "Unlawful police conduct is deterred when evidence

recovered in unreasonable searches is not admissible in courts."

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). However, when police action was pursued in good faith

"the deterrence rationale loses much of its force." Gums, 69

Wis. 2d at 517 (quoting Michigan v. Tucker, 417 U.S. 433, 447

(1974)).       Such is the case where officers act in reliance on

clear and well-settled law that is subsequently changed, State

v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, and

where     officers   act   in    objectively    reasonable      reliance    on   a

subsequently invalidated search warrant, Eason, 245 Wis. 2d 206.

      ¶24      In this case, the parties frame the question regarding

the   application     of   the   good   faith   exception      as    whether   the

officers could have acted in reliance on clear and well-settled

law that was subsequently reversed.                 Both parties agree that
Jardines, 133 S. Ct. 1409, rendered the dog sniff of Scull's

home illegal at the time it was conducted.              They dispute whether



      4
        We are not asserting that judicial integrity is a stand-
alone basis for the exclusion of evidence.     The protection of
judicial integrity goes hand-in-hand with deterrence of police
misconduct.   As this court has explained, "[t]he protection of
rights and the preservation of judicial integrity depend in
reality on the deterrent effect of the exclusionary rule."
State v. Tompkins, 144 Wis. 2d 116, 133, 423 N.W.2d 823 (1988).


                                        11
                                                                No.        2011AP2956-CR



the officers could have acted in reliance on the law at the time

of the search such that the good faith exception should apply.

       ¶25    We need not address this argument because a straight-

forward application of our good faith jurisprudence governing

police reliance on a warrant resolves our inquiry.                          Here, the

officers ultimately obtained a warrant to search Scull's home

and    that    warrant      was    issued     by   a    detached       and     neutral

commissioner.        The commissioner's decision to grant the warrant

was a reasonable application of the unsettled state of the law

at the time the warrant issued.

       ¶26    Two Wisconsin cases had addressed the validity of a

dog sniff.         The first, State v. Miller, 2002 WI App 150, 256

Wis. 2d 80, 647 N.W.2d 348, addressed a warrantless dog sniff of

a   vehicle.        In    addressing   the    defendant's       Fourth       Amendment

rights,      the   court    observed   that    a     dog   sniff      is    much     less

intrusive than a typical search.              Id., ¶6.        Further, dog sniffs

reveal only illegal conduct to which there is no legitimate

privacy interest.           Id., ¶9.    Accordingly, the court concluded
that the dog sniff of the vehicle did not constitute a search

and thus there was no Fourth Amendment violation.                     Id., ¶10.

       ¶27    In the second case, State v. Arias, 2008 WI 84, 311

Wis. 2d 358, 752 N.W.2d 748, this court likewise considered a

dog sniff of a vehicle in a public place.                          We agreed with

Miller's statements that there is no constitutionally protected

interest in possessing contraband, and that a dog sniff is much

less   intrusive         than   activities    that     have    been    held     to    be
searches.      Id., ¶¶22-24.        Accordingly, we determined that a dog
                                        12
                                                                      No.       2011AP2956-CR



sniff of a vehicle located in a public place was not a search

for purposes of the Wisconsin Constitution.                     Id., ¶24.

      ¶28   Both Wisconsin cases are consistent with the United

States Supreme Court precedent issued prior to Jardines.                                  In

Illinois v. Caballes, 543 U.S. 405 (2005), the Court assessed

whether a dog sniff of a vehicle stopped for speeding violated

the Fourth Amendment.            The defendant had argued that the sniff

was     impermissible         because     the        officers       lacked      reasonable

suspicion       to   justify     it.      Id.       at   407.    The     court     was    not

persuaded.       Like Miller and Arias, it focused on the fact that

there is no protected privacy interest in having an illegal

substance and the non-intrusive nature of a dog sniff.                                    The

court     observed       that     "[o]fficial             conduct     that       does     not

'compromise any legitimate interest in privacy' is not a search

subject to the Fourth Amendment."                        Id. at 408 (quoting United

States v. Jacobsen, 466 U.S. 109, 123 (1984)).                              Therefore, it

concluded       that   "[a]     dog    sniff       conducted    during      a   concededly

lawful traffic stop that reveals no information other than the
location of a substance that no individual has any right to

possess does not violate the Fourth Amendment."                        Id. at 409.

      ¶29       In United States v. Place, 462 U.S. 696, 707 (1983),

the     Court    considered       a     dog     sniff      in   the    context       of   an

individual's         luggage.         After    an    airline    passenger's         conduct

aroused suspicion, the officers seized his luggage and subjected

it to a "sniff test" by a trained narcotics detection dog.                                Id.

at 699.         The Court noted that although a person possesses a
privacy interest in the contents of their personal luggage, a
                                              13
                                                                          No.          2011AP2956-CR



dog sniff does not require opening the luggage.                                        Id. at 707.

Thus, the Court concluded that the dog sniff of the luggage did

not    constitute          a    search       within      the    meaning       of       the    Fourth

Amendment.           Id.

       ¶30      In    sum,      at    the    time       the    commissioner            issued    the

warrant in this case, there was Wisconsin and United States

Supreme Court precedent stating there is no search when a dog

sniffs a vehicle.               There was also precedent stating that there

is no search when a dog sniffs luggage at an airport.                                     However,

it was unsettled whether the same analysis would apply to a dog

sniff      of   a     home.5         Given    the       precedent,      the     commissioner's

decision        to    grant      the    warrant         appears    to     be       a    reasonable

application of the unsettled law at the time the warrant issued.

Accordingly, we turn to our case law addressing the application

of the good faith exception to evidence obtained in reliance on

a warrant.

       ¶31      The seminal Wisconsin case on the application of the

good faith exception to the exclusionary rule in circumstances
involving a search warrant is Eason, 245 Wis. 2d 206.                                        In that

case a court commissioner issued a no-knock search warrant based

on    an   affidavit           submitted      by    police.       Id.,        ¶4.        When    the


       5
       Notably, at the time the warrant was issued, had the
commissioner reviewed other states' jurisprudence on this
question, he would have discovered the appellate decision in
State v. Jardines, 9 So. 3d 1 (Fla. Dist. Ct. App. 2008), which
held that a dog's sniff of a home was not a Fourth Amendment
search.


                                                   14
                                                                            No.     2011AP2956-CR



officers executed the warrant they discovered narcotics at the

defendant's home.                   Id., ¶5.         At trial, however, the circuit

court granted the defendant's motion to suppress the narcotics

because      it        determined      that    the     affidavit       in    support        of   the

warrant failed to allege the requisite reasonable suspicion to

justify the issuance of the no-knock search warrant.                                Id., ¶7.

       ¶32        On    appeal,      this     court    acknowledged          that      in    United

States v. Leon, 468 U.S. 897 (1984), the United States Supreme

Court formulated a good faith exception to the exclusionary rule

where a police officer acts in objectively reasonable reliance

on a search warrant issued by a detached and neutral magistrate.

Id., ¶27.              In that situation, there would be little deterrent

effect from suppression because the "officer is acting as a

reasonable             officer        would      and       should       act       in        similar

circumstances."               Id., ¶32 (quoting Leon, 468 U.S. at 920).

       ¶33        Leon cautioned that the existence of a warrant does

not    necessarily            mean     that    the    good     faith    exception           to   the

exclusionary rule will apply.                       Leon, 468 U.S. at 922.                  It will
not apply where "a reasonably well trained officer would have

known       that       the    search    was    illegal        despite       the   magistrate's

authorization."               Id. at 922 n.23.         An officer "cannot reasonably

rely       upon    a     warrant      that    was     based    upon     a    deliberately         or

recklessly false affidavit, or, a bare bones affidavit that she

or    he    reasonably          knows    could       not   support      probable        cause     or

reasonable suspicion."                   Eason,       245 Wis. 2d 206, ¶36 (citing

Leon,       468        U.S.    at    923).       Further,       "[t]he        officer        cannot
reasonably rely upon a warrant 'so facially deficient' that she
                                                 15
                                                                        No.        2011AP2956-CR



or he could not 'reasonably presume it to be valid'" or "upon a

warrant issued by a magistrate that 'wholly abandoned his [or

her] judicial role.'" Id. (quoting Leon, 468 U.S. at 923).

       ¶34   The Eason court observed that Leon is consistent with

this     court's       prior     statements            that     application              of     the

exclusionary        rule      requires       a       weighing      of        the     pertinent

interests.        Eason, 245 Wis. 2d 206, ¶43.                  It concluded that the

good faith exception should apply to the situation where an

officer acts in objectively reasonable reliance on a warrant by

a detached and neutral magistrate because in that scenario, the

exclusionary rule has no deterrent effect.                      Id., ¶52.

       ¶35   However,        rather    than        adopting     Leon      outright,           this

court added to the test.              It determined that Article I, Section

11 of the Wisconsin Constitution required additional protection.

Id., ¶63.       Thus, in order for the good faith exception to apply

to scenarios involving a warrant, the State must "show that the

process      used    in      obtaining       the      search     warrant           included      a

significant       investigation        and       a    review    by      either       a    police
officer      trained      and    knowledgeable           in     the     requirements            of

probable     cause     and     reasonable        suspicion,      or      a    knowledgeable

government attorney."           Id., ¶74.

       ¶36   In applying this test to the facts of the case, the

Eason     court     determined        that     the      officers       had     conducted         a

significant investigation before seeking the warrant.                                Id., ¶70.

The     court     explained     that     the         officers    had     worked          with    a

confidential        informant,        researched         the    suspects           in     police
records, and researched utility records for the premises.                                       Id.
                                             16
                                                                       No.      2011AP2956-CR



The Eason court also determined that the warrant application had

been reviewed by a government attorney.                          Id., ¶71.          To reach

this conclusion, it relied on the fact that "[t]he warrant and

affidavit reflect advanced legal training, beyond that given to

a well-trained police officer."                Id.

       ¶37    The     application       section       of    Eason's          analysis       also

reflects that the court considered whether a reasonably well-

trained officer would have known that the search was illegal

despite the magistrate's authorization, which would render the

officers' reliance on the warrant unreasonable.                            Id., ¶66.         The

court observed that "[t]here have been no allegations that the

warrant      was    so     facially     deficient      that      a    reasonable,          well-

trained officer would not have relied upon it."                              Id.     Further,

there were "no contentions that there [were] technical or other

glaring      deficiencies        with    the   warrant"         and    "[t]he       affidavit

[was] not sketchy or bare-boned."                    Id.        Accordingly, the court

determined         that    the     officers'       reliance      on   the      warrant      was

objectively reasonable and the evidence obtained from execution
of the warrant should not have been suppressed.

                                              IV

       ¶38    Turning to the facts of this case, we follow the test

laid   out     in     Eason.         First,    we     determine       whether        officers

conducted     a     significant       investigation         prior     to     obtaining       the

warrant.      Second, we assess whether the affidavit supporting the

warrant was reviewed by either                     a police officer trained and

knowledgeable         in     the     requirements          of    probable          cause    and
reasonable suspicion, or a knowledgeable government attorney.
                                              17
                                                                       No.        2011AP2956-CR



Lastly, we consider whether a reasonably well-trained officer

would    have     known       that     the    search    was    illegal       despite       the

magistrate's authorization, rendering the officers' reliance on

the warrant unreasonable.

       ¶39   In       terms    of     the    first   factor,      we    determine         that

Officer Wiesmueller conducted a significant investigation before

obtaining the warrant.                It appears the investigation into Scull

began   when      a    confidential         informant   told    Officer           Wiesmueller

that    Scull     was       selling     cocaine      base.      Officer       Wiesmueller

determined that the informant would be in a position to know

that the substance Scull distributed was cocaine because the

informant had been involved in cocaine trafficking in the past.

Further, he deemed the informant reliable because the informant

had provided information in the past that had been confirmed by

subsequent searches and arrests.

       ¶40   Upon           investigating       further,       Officer            Wiesmueller

discovered that there was an individual named Scull, matching

the informant's description, who was on probation at the time
for    robbery        and    recklessly       endangering      safety        in     Milwaukee

County.         From the Department of Corrections records, Officer

Wiesmueller confirmed that the home address the informant had

given     him     was       Scull's    address.         Officer    Wiesmueller            also

obtained records from the Wisconsin Department of Transportation

from which he was able to confirm that a vehicle matching the

description and license plate number provided by the informant

was registered to Scull.


                                              18
                                                                            No.        2011AP2956-CR



       ¶41    After verifying the information from the informant,

Officer      Wiesmueller         had    Detective          Edersinghe         take      his     drug-

sniffing      dog    to    Scull's          address.           The    dog     alerted       to      the

presence of drugs at Scull's front door.                             With this information,

combined      with     the    information               from    the     informant,          Officer

Wiesmueller        sought    a     warrant.             The    multiple       steps      taken       by

Officer      Wiesmueller         to     investigate            the    allegations          of      drug

trafficking         were    reasonable            at     the   time     and       sufficient         to

satisfy the investigation requirement for purposes of the good

faith exception under Eason.                       Therefore, we conclude that the

State met its burden of showing that a significant investigation

was conducted prior to the warrant.

       ¶42    The    State    also          met    its    burden       with       regard      to    the

second      factor,       review       of    the        affidavit      by     a    knowledgeable

government attorney.                  In this case, we need look only at the

face   of    the     affidavit         for    the       search       warrant      to    make       this

determination.         The affidavit states that it was "reviewed and

approved by ADA Christopher Ladwig on 07-02-2010."                                     Thus, it is
evident      that    the     affidavit            was    reviewed      by     a    knowledgeable

government attorney.             See State v. Marquardt, 2005 WI 157, ¶46,

286 Wis. 2d 204, 705 N.W.2d 878 (testimony that an experienced

district attorney had met with the officers and drafted the

warrant established that it had been reviewed by a knowledgeable

government attorney); Eason, 245 Wis. 2d 206, ¶71 (determining

that warrant had been reviewed by a knowledgeable government

attorney based on the language in the warrant which "reflect[ed]
advanced legal training.").
                                                   19
                                                       No.     2011AP2956-CR



       ¶43   Lastly, we turn to consider whether a reasonably well

trained officer would have known that the search was illegal

despite the magistrate's authorization, rendering the officers'

reliance on the search warrant unreasonable.         As in Eason, it is

not contended and we see nothing to suggest that the warrant in

this case was so facially deficient that a reasonable, well-

trained officer would not have relied upon it, that there were

technical or other glaring deficiencies with the warrant, or

that the affidavit was sketchy or bare-boned.           Accordingly, we

conclude that    at the time the officers executed the warrant on

Scull's home, a reasonable officer would not have known that a

search was illegal despite the warrant.

       ¶44   From the record presented in this case it appears that

the officers did everything they were required to do.             With the

assistance of a knowledgeable government attorney they obtained

a warrant from a detached and neutral magistrate, which they

relied on to search Scull's home.        Suppressing evidence obtained

in objectively reasonable reliance on that warrant would have no
deterrent effect.      In such circumstances it is inappropriate to

apply the exclusionary rule.        Therefore we determine that the

good faith exception to the rule applies.

                                    V

       ¶45   In sum, the good faith exception to the exclusionary

rule   applies   to   evidence   obtained   in   objectively   reasonable

reliance on a search warrant issued by a detached and neutral

magistrate that is ultimately found to be defective.              Reliance
on a warrant is objectively reasonable when: the warrant was
                                    20
                                                                   No.     2011AP2956-CR



preceded      by       a    substantial         investigation,       the        affidavit

supporting the warrant was reviewed by either a police officer

trained and knowledgeable in the requirements of probable cause

and     reasonable         suspicion,      or     a   knowledgeable         government

attorney, and a reasonably well-trained officer would not have

known    that     the      search    was   illegal    despite      the    magistrate's

authorization.

      ¶46    In    this      case     we   determine        that   the     good     faith

exception to the exclusionary rule applies because the evidence

Scull seeks to suppress was obtained in objectively reasonable

reliance     on    a       warrant    issued     by   a     detached      and     neutral

magistrate.        Accordingly, we conclude that the evidence should

not be suppressed and we affirm the court of appeals.

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

affirmed.




                                            21
                                                               No.     2011AP2956-CR.pdr


      ¶47       PATIENCE DRAKE ROGGENSACK, J. (concurring).                      I join

the majority opinion's conclusions that the officers conducted

their search in reasonable reliance on a search warrant that

they believed was valid and that the good faith exception to the

exclusionary rule precludes suppression.1                    I write in concurrence

to clarify that the "assurance of judicial integrity," standing

alone,     is    not   a   sufficient       basis    upon    which     to   employ   the

exclusionary rule to preclude the prosecution's use of evidence

seized when there is no underlying finding of police misconduct.

Accordingly, the majority opinion is not to be read as setting a

new   standard      that    permits    the       exclusion    of     evidence    without

police misconduct.

      ¶48       The exclusionary rule is a judicially created remedy

that may be applied to certain violations, including those of

the   Fourth      Amendment    of     the    United    States        Constitution    and

Article I, Section 11 of the Wisconsin Constitution.                            Davis v.

United States, __ U.S. __, 131 S. Ct. 2419, 2423 (2011); State

v. Ward, 2000 WI 3, ¶¶46, 58, 231 Wis. 2d 723, 604 N.W.2d 517.
The exclusionary rule was developed as a safeguard of Fourth

Amendment rights by requiring police to comply with the Fourth

Amendment's reasonableness requirements as a precondition to the

prosecution's use of evidence that police seized.                               Weeks v.

United States, 232 U.S. 383, 398 (1914); Hoyer v. State, 180

Wis. 407, 417, 193 N.W. 89 (1923).




      1
          Majority op., ¶1.


                                             1
                                                           No.     2011AP2956-CR.pdr


      ¶49   As    Fourth   Amendment         and    Article      I,    Section        11

jurisprudence      developed,     the       exclusionary      rule     has     become

subject to exceptions.         Both the United States Supreme Court's

and   our   own    decisions     have    established       good       faith    as     an

exception to the exclusionary rule that permits prosecution's

use of evidence even though police have transgressed the Fourth

Amendment and Article I, Section 11.               United States v. Leon, 468

U.S. 897, 916, 920 (1984); State v. Eason, 2001 WI 98, ¶2, 245

Wis. 2d 206, 629 N.W.2d 625; Ward, 231 Wis. 2d 723, ¶3.                            These

decisions    are     grounded      in       judicial     assessment           of    the

reasonableness     of   police    actions      under    the      totality     of    the

circumstances.     Davis, 131 S. Ct. at 2427-28; Eason, 245 Wis. 2d

206, ¶3.

      ¶50   As the parameters of the good faith exception to the

exclusionary rule have developed both in the Supreme Court's and

in our jurisprudence, so too have the judicial expressions of

the policies that underlie the exclusionary rule.                     For example,

in its recent decision in          Davis, the Supreme Court expended
considerable      effort   explaining        the     policies      that      must    be

considered with regard to the exclusionary rule and what facts

are necessary before exclusion of evidence is even an option for

courts to consider.

      ¶51   Davis involved the search of the passenger compartment

of Stella Owens' vehicle, in which Willie Davis was a passenger,

after both Owens and Davis were placed under arrest and secured.

Davis, 131 S. Ct. at 2425-26.           A gun was found in Davis' jacket;
Davis was a convicted felon.            Id.        The search occurred before

                                        2
                                                          No.   2011AP2956-CR.pdr


the Court's decision in Arizona v. Gant, 556 U.S. 332 (2009),

which Alabama agreed set out new concerns relative to the search

of Davis' jacket under the Fourth Amendment if Gant were applied

to that search.        Davis, 131 S. Ct. at 2431.          However, while Gant

provided a "newly announced rule of substantive Fourth Amendment

law as a basis for seeking relief," Gant did not determine the

remedy, i.e., whether suppression applies.               Id.

      ¶52    The ultimate question presented in Davis was whether

the good faith exception to the exclusionary rule permitted the

prosecution      to    present    evidence    obtained     in   a   search   that

complied    with      appellate   precedent    that   pre-dated      Gant.    In

deciding this question, the Court examined whether police had

proceeded in objectively reasonable reliance on then-controlling

precedent in conducting the search.              Davis, 131 S. Ct. at 2423-

24.   After concluding that police had done so, the Court held

that "searches conducted in objectively reasonable reliance on

binding appellate precedent are not subject to the exclusionary

rule."    Id.
      ¶53    Although the Court's conclusion settled an important

area of Fourth Amendment law, what is equally interesting about

Davis is the Court's detailed descriptions of the showing that

is required before the exclusionary rule can be considered.                  For

example, the Court reaffirmed its holding in Herring v. United

States, 555 U.S. 135 (2009), that the exclusionary rule's sole

purpose     is   to    deter   future   Fourth    Amendment     violations    by




                                        3
                                                               No.     2011AP2956-CR.pdr


police.     Davis, 131 S. Ct. at 2426 (citing Herring, 555 U.S. at

141).2

     ¶54    The   Court       explained,       "[r]eal   deterrent        value    is   a

necessary condition for exclusion, but it is not a sufficient

one. . . .     The analysis must also account for the substantial

social costs generated by the rule. . . .                      For exclusion to be

appropriate,      the     deterrence       benefits       of       suppression     must

outweigh its heavy costs."             Id. at 2427 (cited and quoted cases

omitted).      When     the    error   that     leads    to    a     Fourth   Amendment

violation is not that of police but that of a magistrate or

judge who issues the warrant, the exclusionary rule does not

apply.     "[P]unish[ing] the errors of judges is not the office of

the exclusionary rule."            Id. at 2428 (cited and quoted cases

omitted).     And finally, the Court explained, "in 27 years of

practice    under     Leon's     good-faith       exception,         we   have    'never

applied' the exclusionary rule to suppress evidence obtained as

a result of nonculpable, innocent police conduct."                        Id. at 2429

(quoting Herring, 555 U.S. at 144).
     ¶55    Our decision in Eason discussed the development of the

exclusionary rule.        We began by reviewing Hoyer, which addressed

the Fourth Amendment's requirements, and we also considered the

exclusionary rule as developed within the parameters of Article

I, Section 11 of the Wisconsin Constitution.                       Eason, 245 Wis. 2d

     2
       See also State v. Hess, 2010 WI 82, ¶¶79-84, 327 Wis. 2d
524, 785 N.W.2d 568 (Gableman, J., dissenting), for a thorough
discussion of Herring v. United States, 555 U.S. 135 (2009), and
Herring's explanation of the considerations that courts must
address when asked to apply the exclusionary rule.


                                           4
                                                           No.    2011AP2956-CR.pdr


206, ¶¶41, 47 (citing Hoyer v. State, 180 Wis. 407, 193 N.W. 89

(1923).      We noted that at least since confirmed in State v.

Tompkins,     144   Wis. 2d    116,    423      N.W.2d      823     (1988),   "the

exclusionary rule has been a remedy, not a right" under Article

I, Section 11 of the Wisconsin Constitution, as well as the

Fourth Amendment.        Eason, 245 Wis. 2d 206, ¶48.               We also cited

Ward as explaining that without police misconduct, evidence was

admissible    because    "exclusion     . . .      would    serve    no   remedial

objective."     Id.,     ¶49 (quoting      Ward, 231 Wis. 2d 723,             ¶63).

Therefore, just as with the Fourth Amendment, Article I, Section

11 of the Wisconsin Constitution requires police misconduct as a

necessary predicate to consideration of whether the exclusionary

rule should be applied.       Id.

    ¶56     So how does the above discussion fit within my concern

set out in the first paragraph of this concurrence?                   It provides

the necessary foundation to understand that the lead opinion in

Hess cannot be combined with certain narrations of the majority

opinion   herein    to   conclude     that   the    protection       of   judicial
integrity, standing alone without underlying police misconduct,

is sufficient to permit courts to suppress relevant evidence.3




    3
       Majority op., ¶22, citing the lead opinion in Hess, 327
Wis. 2d 524, ¶47, in which there was no underlying police
misconduct.


                                       5
                                                               No.      2011AP2956-CR.pdr


Let me explain further, beginning with the problem set up by the

lead opinion in Hess.4

     ¶57    First,      while    protection         of   judicial       integrity      was

mentioned in Supreme Court decisions and in our decisions that

preceded    Leon's      1984    decision       on    good   faith,      protection     of

judicial integrity is no longer part of the Supreme Court's

analysis.       In that regard, the Supreme Court has unequivocally

held that before the exclusionary rule may be employed as a

remedy    for    a   Fourth     Amendment      violation       two     conditions      are

required:       (1) police misconduct and (2) a reviewing court's

conclusion      that    "the    deterrence          benefits      of   suppression      []

outweigh     its     heavy     costs."         Davis,       131      S. Ct.   at    2427.

Protection of judicial integrity is not part of the Supreme

Court's    Fourth      Amendment   analysis         when    the    remedy     sought    is

suppression of evidence.            We came to the same conclusion in

Eason as we addressed Article I, Section 11 of the Wisconsin

Constitution.        Eason, 245 Wis. 2d 206, ¶48.                    Accordingly, when

an opinion relies on case law that has been refined through
years of consideration by many courts without discussing current




     4
       In Hess, the court sat six because Justice Crooks did not
participate.   Hess, 327 Wis. 2d 524, ¶70.    The lead opinion,
authored by Justice Prosser, was joined by Chief Justice
Abrahamson and Justice Bradley.     Justice Ziegler joined the
result reached by the lead opinion, but on a very limited basis.
Id., ¶71 (Ziegler, J., concurring).    Justice Gableman wrote a
thoughtful dissent that took issue with the lead opinion's
conclusion that application of the exclusionary rule could stand
on a foundation of judicial integrity when there had been no
police misconduct. Id., ¶¶75-97 (Gableman, J., dissenting).


                                           6
                                                        No.   2011AP2956-CR.pdr


jurisprudence on the issues presented, it does not accurately

articulate the state of the law and may confuse the reader.

       ¶58   Second,   the    protection   of    judicial     integrity     was

spoken of only in regard to its connection to police misconduct.

See 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 was sanctioned by the use of evidence

obtained in violation of the Fourth Amendment); Elkins v. United

States, 364 U.S. 206, 222-23 (1960) (explaining that "[i]f the

Government becomes a law-breaker, it breeds contempt for law").

       ¶59   Third, the lead opinion in Hess is the only Wisconsin

Supreme Court decision, or United States Supreme Court decision,

that    I    could   locate   that   employs     protection     of   judicial

integrity as a stand-alone basis for employing the exclusionary

rule.     Justice Gableman tried to point out this concern, but the

lead opinion in Hess did not heed his thoughtful dissent.

       ¶60   Fourth, because the majority opinion herein cites the

lead opinion in Hess in a manner that could permit the reader to
erroneously conclude that police misconduct is not a necessary

predicate to the application of the exclusionary rule under both

United States Supreme Court precedent and our own precedent, I

have chosen to bring this issue forward.           It is my hope that my

colleagues both on the bench and at the bar will take heed of

this trap for the unwary and recognize that the majority opinion

is not setting a new standard that permits the exclusion of

evidence without police misconduct.           Accordingly, I respectfully
concur.

                                     7
                                                    No.   2011AP2956-CR.pdr


    ¶61   I   am   authorized   to   state   that   Justices   N.   PATRICK

CROOKS, ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join

this opinion.




                                     8
                                                                   No.   2011AP2956-CR.akz


       ¶62       ANNETTE KINGSLAND ZIEGLER, J.                 (concurring).         I join

Justice         Roggensack's    concurrence          because    I    believe    that    the

"assurance of judicial integrity" is not a stand-alone basis for

suppressing evidence under the exclusionary rule.                          Although the

case       at   issue   centers      on   the       Fourth   Amendment,     I   write    to

clarify that the exclusionary rule can apply to violations of

constitutional provisions other than the Fourth Amendment.1                             The

exclusionary         rule   requires      suppression         of    evidence    that    was

obtained in violation of the Constitution, unless suppression

would not deter police misconduct or the error in admitting the

evidence was harmless beyond a reasonable doubt.                          United States

v. Leon, 468 U.S. 897, 906, 916 (1984); Arizona v. Fulminante,

499 U.S. 279, 309-12 (1991); Chapman v. California, 386 U.S. 18,

21-22      (1967);      State   v.   Armstrong,        223    Wis. 2d 331,      368,    588

N.W.2d 606 (1999).

       ¶63       Because this is a Fourth Amendment case, the majority

opinion's discussion of the exclusionary rule focuses on that

constitutional provision.                 Specifically, the majority opinion
states that, "[t]he [United States Supreme Court] first applied

the exclusionary rule to protect against violations of Fourth

Amendment rights in Weeks v. United States, 232 U.S. 383 (1914).

Under the exclusionary rule, evidence obtained in violation of

the     Fourth       Amendment       is   generally          inadmissible       in    court


       1
       Because  this   case involves  a   discussion   of  the
exclusionary rule, I do not address circumstances unrelated to
constitutional violations, which may otherwise warrant the
exclusion of evidence.


                                                1
                                                                  No.     2011AP2956-CR.akz


proceedings."           Majority op., ¶20 (citation omitted).                   Similarly,

this       court     has    previously          discussed       the     origins    of        the

exclusionary rule as it relates to the Fourth Amendment because

the focus of the case was the Fourth Amendment.                               See State v.

Hess,      2010    WI    82,    ¶¶38-52,        327     Wis. 2d 524,     785    N.W.2d 568

(explaining        the     history      of    the     Fourth    Amendment     exclusionary

rule in federal courts and Wisconsin).                         I write to clarify that

the history of the exclusionary rule is not limited to Fourth

Amendment          violations——it            applies      to    other     constitutional

violations as well.

       ¶64     The   Supreme         Court    created     the    exclusionary      rule        to

deter        constitutional           violations,        but    did     not     limit        the

exclusionary         rule       to     the     Fourth     Amendment       right        against

unreasonable searches and seizures.                       The exclusionary rule, if

warranted, results in the suppression of evidence so that it may

not     be     introduced        to     prove       a   defendant's       guilt        in     the

prosecution's case-in-chief.                    See Leon, 468 U.S. at 906, 916.

The     exclusionary           rule,    for      example,       may     apply     to        deter
violations of the Fourth Amendment,2 Fifth Amendment,3 or Sixth

Amendment.4

       2
       Weeks v. United States, 232 U.S. 383, 398 (1914),
overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961);
State v. Tye, 2001 WI 124, ¶24, 248 Wis. 2d 530, 636 N.W.2d 473.
       3
       Blackburn v. Alabama, 361 U.S. 199, 205 (1960); Bram v.
United States, 168 U.S. 532, 542, 548 (1897); Rudolph v. State,
78 Wis. 2d 435, 441-42, 254 N.W.2d 471 (1977).
       4
       United States v. Wade, 388 U.S. 218, 237-39 (1967);
Massiah v. United States, 377 U.S. 201, 203-04, 206-07 (1964);
State v. McMorris, 213 Wis. 2d 156, 178, 570 N.W.2d 384 (1997).


                                                2
                                                                 No.        2011AP2956-CR.akz


      ¶65   The     origins        of     the          exclusionary         rule      further

demonstrate that it was designed to apply to evidence obtained

in   violation    of    constitutional            provisions        beyond     the    Fourth

Amendment.        The    United         States         Supreme      Court     applied     the

exclusionary rule for the first time in Boyd v. United States,

116 U.S. 616 (1886).         See Christopher Slobogin, The Exclusionary

Rule: Is It on Its Way Out? Should It Be?, 10 Ohio St. J. Crim.

L. 341, 343-44 (2013).         In Boyd the Supreme Court held that the

evidence at issue was inadmissible because it was obtained in

violation of the Fourth and Fifth Amendments.                          Boyd, 116 U.S. at

621-22, 633-35, 638.          Ten years later, the Supreme Court held

that the exclusionary rule applied, in federal criminal cases,

to confessions obtained in violation of the Fifth Amendment.

Wilson v. United States, 162 U.S. 613, 623 (1896); see also Bram

v. United States, 168 U.S. 532, 542, 548 (1897).                                   Nearly 20

years later, in 1914, the Supreme Court held for the first time

that the exclusionary rule applied, in federal criminal cases,

to   evidence     obtained    in    violation            of   the    Fourth     Amendment.
Weeks v. United States, 232 U.S. 383, 398 (1914), overruled on

other grounds by Mapp v. Ohio, 367 U.S. 643 (1961); see also

Mapp, 367 U.S. at 648 (explaining that Weeks was the first case

in which the Supreme Court "held that 'in a federal prosecution

the Fourth Amendment barred the use of evidence secured through

an illegal search and seizure'" (quoted source omitted)).                               Thus,

the Fourth Amendment was not the only driving force behind the

Supreme     Court's     adoption        of       the     exclusionary         rule,     which
occurred decades before Weeks.

                                             3
                                                               No.      2011AP2956-CR.akz


     ¶66      Furthermore,       the   exclusionary        rule      does   not   always

require suppression of evidence, even if it was obtained through

unconstitutional means.           In fact, the exclusionary rule does not

apply when suppression would not deter police misconduct.                           Davis

v. United States, 564 U.S. ___, 131 S. Ct. 2419, 2426-28 (2011);

State    v.   Dearborn,      2010      WI   84,     ¶35,   327       Wis. 2d 252,    786

N.W.2d 97.      For example, evidence may not be suppressed under

the good faith exception5 because suppression would not serve the

exclusionary     rule's      purpose        of    deterring      police     misconduct.

Evidence obtained after a constitutional violation may otherwise

be admissible if the discovery of the evidence was sufficiently

attenuated      from   the       police      misconduct,6         the    evidence    was

discovered      through      a    source         independent      from      the   police

misconduct,7      or   the       evidence        would     have      been    inevitably

discovered through lawful means.8                 In addition, evidence that is

suppressed because of a constitutional violation may nonetheless


     5
       United States v. Leon, 468 U.S. 897, 922-25 (1984); State
v. Dearborn, 2010 WI 84, ¶¶35-49, 327 Wis. 2d 252, 786
N.W.2d 97; State v. Eason, 2001 WI 98, ¶3, 245 Wis. 2d 206, 629
N.W.2d 625.
     6
       Brown v. Illinois, 422 U.S. 590, 603-04 (1975); Wong Sun
v. United States, 371 U.S. 471, 488 (1963); State v. Phillips,
218 Wis. 2d 180, 204-06, 577 N.W.2d 794 (1998).
     7
       Murray v. United States, 487 U.S. 533, 537 (1988); Nix v.
Williams, 467 U.S. 431, 443 (1984); State v. Carroll, 2010 WI 8,
¶¶43-55, 322 Wis. 2d 299, 778 N.W.2d 1.
     8
       Murray, 487 U.S. at 539; Nix, 467 U.S. at 446-50; State v.
Weber, 163 Wis. 2d 116, 140-44, 471 N.W.2d 187 (1991); State v.
Schwegler, 170 Wis. 2d 487, 499-500, 490 N.W.2d 292 (Ct. App.
1992).


                                             4
                                                               No.    2011AP2956-CR.akz


be   admitted         for   certain   purposes.         For    example,     suppressed

evidence        may   be    used   collaterally    for    impeachment        purposes,

outside of the prosecution's case-in-chief.9

      ¶67       Some potential confusion surrounding the exclusionary

rule could stem from the fact that evidence may be properly

excluded for a variety of reasons.                      But the mere fact that

evidence is being excluded does not mean that it is excluded

under     the    exclusionary      rule.       "There    are    judicially     created

exclusionary rules and legislatively created exclusionary rules.

There     are     constitutional       exclusionary           rules   and   statutory

exclusionary rules."           Sun Kin Chan v. State, 552 A.2d 1351, 1355

(Md. Ct. Spec. App. 1989).              A careful reader will keep in mind

that courts may inaccurately refer to "the exclusionary rule"

when a constitutional violation is not the basis for exclusion.

Cf. Oregon v. Elstad, 470 U.S. 298, 306-08 (1985) (explaining

the differences between the "Fourth Amendment exclusionary rule"



      9
       Kansas v. Ventris, 556 U.S. 586, 593-94 (2009) (holding
that defendant's statement obtained in violation of Sixth
Amendment right to counsel was inadmissible to prove guilt but
admissible to impeach defendant's inconsistent testimony); State
v. Pickett, 150 Wis. 2d 720, 727-30, 442 N.W.2d 509 (Ct. App.
1989) (same); United States v. Havens, 446 U.S. 620, 627-28
(1980) (holding that evidence obtained in violation of Fourth
Amendment was inadmissible to prove guilt but admissible to
impeach defendant's inconsistent testimony); State v. Thompson,
142 Wis. 2d 821, 833 & n.8, 419 N.W.2d 564 (Ct. App. 1987)
(same); Oregon v. Hass, 420 U.S. 714, 722-24 (1975) (holding
that defendant's statement made without warnings required by
Miranda v. Arizona, 384 U.S. 436 (1966), was inadmissible to
prove guilt but admissible to impeach defendant's inconsistent
testimony); State v. Mendoza, 96 Wis. 2d 106, 118-19, 291
N.W.2d 478 (1980) (same).


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and   the    "Miranda10       exclusionary       rule").    Because      the     Fourth

Amendment        is    at    issue   in    the   present    case,      the     majority

opinion's discussion of the exclusionary rule focuses on the

Fourth Amendment.

      ¶68    With      the     foregoing    clarification,        I    join     Justice

Roggensack's concurrence, and I concur.

      ¶69    I    am    authorized    to    state    that   Justices      N.    PATRICK

CROOKS and MICHAEL J. GABLEMAN join this concurrence.




      10
           Miranda v. Arizona, 384 U.S. 436 (1966).


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