                                                                     2018 WI 87

                  SUPREME COURT                OF     WISCONSIN
CASE NO.:               2016AP2455-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Appellant,
                             v.
                        Christopher John Kerr,
                                  Defendant-Respondent.

                                 ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED:          July 6, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          April 11, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Bayfield
   JUDGE:               John P. Anderson

JUSTICES:
   CONCURRED:           ZIEGLER, J., concurs, joined by ROGGENSACK,
                        C.J., GABLEMAN, J., and KELLY, J., (joins
                        footnote 2) (opinion filed).
  DISSENTED:            A.W. BRADLEY, J., dissents, joined by
                        ABRAHAMSON, J. (opinion filed).
                        R.G. BRADLEY, J., dissents (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


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


       For the defendant-respondent, there was a brief filed by
Linda I. Coleman, John R. Carlson, and Sears, Carlson & Coleman,
S.C., Washburn.           There was an oral argument by John R. Carlson.
                                                                        2018 WI 87
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.    2016AP2455-CR
(L.C. No.   2015CF139)

STATE OF WISCONSIN                            :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Appellant,                                     FILED
       v.                                                        JUL 6, 2018
Christopher John Kerr,                                             Sheila T. Reiff
                                                                Clerk of Supreme Court
            Defendant-Respondent.




       APPEAL from an order of the Circuit Court for Bayfield

County, John P. Anderson, Judge.          Reversed and cause remanded.



       ¶1   ANNETTE KINGSLAND ZIEGLER, J.              This is a review of

the Bayfield County circuit court's order granting Christopher
John   Kerr's    ("Kerr")   motion   to    suppress      evidence       discovered

during a search incident to arrest on the basis that "'judicial

integrity' is vital enough to justify exclusion of evidence when
                                                                     No.     2016AP2455-CR



the issuing court's arrest warrant was invalid ab initio."1                              We

reverse.

      ¶2     On September 27, 2015, two officers were dispatched to

follow up on a 9-1-1 hang-up call from Kerr's residence.                                 En

route,     they     were      advised    by       dispatch    that        there   was    an

outstanding arrest warrant for Kerr in Ashland County.                            When the

officers arrived at Kerr's residence, they discovered that the

9-1-1     call    was   in    error,    but       arrested   Kerr    pursuant      to   the

arrest warrant.          In conducting a search incident to arrest, the

officers discovered methamphetamine in Kerr's pants pocket.                             The

State subsequently charged Kerr with one count of possession of

methamphetamine         in    violation       of     Wis.    Stat.    § 961.41(3g)(g)

(2015-16).2

      ¶3     Kerr filed a pre-trial motion to suppress the evidence

discovered during the search incident to arrest.                              He argued

that, while a warrant had been issued, and law enforcement did

not   engage      in    any   misconduct      in     executing      the    warrant,     his

constitutional rights were nonetheless violated because he was
jailed     without      the   issuing    court       first   inquiring       as    to   his

ability to pay, without being given notice that his ability to


      1
       The Honorable Robert E. Eaton of Ashland County issued the
warrant (the "issuing court"), but, because the arrest occurred
in Bayfield County, the Honorable John P. Anderson of Bayfield
County presided over the motion to suppress and reviewed the
warrant (the "reviewing court").
      2
       All references to the Wisconsin Statutes are to the 2015-
16 version unless otherwise noted.


                                              2
                                                              No.    2016AP2455-CR



pay is at issue, and without a meaningful opportunity to be

heard.     He argued that the warrant would not have been issued,

and he would not have been arrested or searched incident to

arrest, if he had been afforded due process in the forfeiture

action.3

      ¶4    After     extensive    briefing    and    three    hearings,      the

reviewing court granted Kerr's motion to suppress.                  It concluded

that, although "[t]here is no question that the [issuing court],

as a court of general jurisdiction, has the constitutional and

statutory authority to hear and process municipal citations,"

the   warrant    was     "not     in   compliance     with     the     statutory

requirements    and    clearly    violated     defendant's      statutory     due

process    rights."      The    reviewing     court   then    concluded      that

suppression under the exclusionary rule was proper based on the

"Wisconsin rule that 'judicial integrity' is vital enough to

justify exclusion of evidence when the issuing court's arrest

warrant was invalid ab initio."            In so concluding, the reviewing

      3
       At the reviewing court, Kerr's arguments were somewhat
different than the arguments he presented to this court.     He
asserted that the issuing court did not follow the requirements
of Wis. Stat. ch. 818 in issuing a civil bench warrant. He also
argued that, because there was no affidavit and there was no
contempt in the presence of the court, there was simply no
authority for this warrant to be issued.    The reviewing court
ordered further briefing on the issue of whether the issuing
court had authority to proceed as a municipal court pursuant to
Wis. Stat. §§ 66.0114, 800.09, 800.095. At the hearing on that
issue, the State informed the court that the arrest warrant was
issued pursuant to Wis. Stat. § 778.09, but, before this court,
both parties apparently agree that Wis. Stat. § 800.095 governs
the issuance of the warrant.


                                       3
                                                                    No.       2016AP2455-CR



court referenced the deterrent purpose of the exclusionary rule

and how "[h]ere the conduct is not isolated and may be the rule,

not   the     exception.           Dete[r]rence         certainly        is   a     greater

consideration under these facts."

      ¶5      The    State   sought    interlocutory            review    and      filed   a

petition    to      bypass   the    court       of    appeals,    seeking         immediate

review from this court.               We granted the State's petition to

bypass.

      ¶6      Our overarching inquiry in this case is whether the

reviewing court erred in granting Kerr's motion to suppress.

Fundamental      to    our   analysis       is       whether    evidence      discovered

during a search incident to arrest is properly suppressed under

the exclusionary rule when there is no police misconduct.                                  We

conclude that suppression is not appropriate because the sole

purpose of the exclusionary rule is to deter police misconduct,

and   there    is     no   police    misconduct         here.      Neither         judicial

integrity      nor     judicial      error       is    a   standalone         basis    for

suppression under the exclusionary rule.4                      We therefore conclude
that the reviewing court's grant of Kerr's motion to suppress on

the basis of judicial integrity is error.



      4
       In so concluding, we consider whether to overrule State v.
Hess, 2010 WI 82, 327 Wis. 2d 524, 785 N.W.2d 568. We conclude
that Hess need not be overruled because the lead opinion's view
in Hess of "judicial integrity" as a standalone justification
for suppression under the exclusionary rule did not garner the
support of a majority of the court; as such, it has no
precedential value that requires reconsideration in this case.


                                            4
                                                             No.   2016AP2455-CR



     ¶7    Accordingly, we reverse the Bayfield County circuit

court.

                  I.    FACTUAL AND PROCEDURAL BACKGROUND

                               A.   The Warrant
     ¶8    A certified copy of the record for City of Ashland v.

Kerr, No. 2015FO219, is included in the record before us, but it

is particularly lean.         This record reflects that, on June 16,

2015, Kerr was mailed a citation for disorderly conduct, in

violation of City of Ashland ordinance 201.03.5                  This citation

notified   Kerr    to    appear,    if   he   so   chose,   at   10:00 a.m.   on

July 21, 2015.6         This record also reflects that, on July 21,

2015, when Kerr failed to appear, the issuing court entered a

default judgment in the amount of $263.50 with 60 days to pay,

and that on July 31, 2015, the clerk sent notice of the default

judgment to Kerr (although neither the judgment nor the notice

is in the record).7       On September 22, 2015, 60 days after default



     5
       Disorderly conduct may also be prosecuted as a crime. See
Wis. Stat. § 947.01. Kerr was not charged with a crime; rather,
a civil municipal ticket was issued.
     6
       This ticket, unlike some, did not require a mandatory
appearance in court; instead, Kerr could avoid coming to court
by paying the citation.
     7
       In his brief before this court, Kerr alleges that the
notice of default judgment was not sent to him until "September
of 2016."   While the reviewing court decision did state that
"[t]he record of [2015FO219] indicates a notice of default
judgment on July 31, 2015, and then again on September 15,
2016," this is clearly in error.

                                                                   (continued)
                                         5
                                                 No.   2016AP2455-CR



judgment was entered, the court issued a commitment order/arrest

warrant8 for Kerr to "detain [him] in custody for 90 days or

until $298.50[9] is paid, or until the person is discharged by

due course of law."   This warrant was issued on the basis that



     The four-page record for 2015FO219, a certified copy of
which is in the record before this court, is devoid of any
indication of a notice sent in September of 2016, but it does
reference a notice of certification sent in September of 2015.
Thus, a simple review of the record reveals that such an
assertion must be mistaken. Additionally, Kerr filed his motion
to suppress on June 8, 2016, and in that motion did not dispute
this timeline: "The warrant that had been issued in Ashland
County was issued under case number [2015FO219], which was an
ordinance violation case in which default judgment was issued
against Mr. Kerr requiring him to pay a fine of $298.50 on
July 31, 2015." Moreover, Kerr was arrested on this non-payment
warrant on September   27, 2015; the criminal complaint for the
Possession of Methamphetamine charge was filed October 7, 2015;
and the Clerk of Court certification reflects that the reviewing
court was provided the record with respect to that motion in
July of 2016——all of which happened well before September of
2016.

     Clearly then, it is not as argued in Kerr's brief that "the
court failed to send Mr. Kerr any notice that default judgment
was entered until over a year later, and after the events giving
rise to this case."
    8
       The record indicates that "arrest warrant" and "commitment
order" are used interchangeably in this case.       This may not
always be the case and we decline to decide whether a commitment
order is always equivalent to an arrest warrant, as that issue
was not presented for our review or briefed by the parties. We
agree with the State, however, that any difference in this case
is not legally significant because the order here, like an
arrest warrant, required law enforcement to arrest the subject
of the order.
    9
       This total reflects a local forfeiture of       $263.50,   a
clerk's fee of $5.00, and a warrant fee of $30.00.


                                6
                                                              No.     2016AP2455-CR



"[t]he balance due has not been paid within the period ordered

by the court."

                                B.   The Arrest
    ¶9        On September 27, 2015, around midnight, 9-1-1 received

a call from a phone number later-identified as Kerr's.                   When the

9-1-1 operator picked up the call, there was a female yelling,

but the operator did not have the opportunity to discover the

nature of her distress before the line went dead.                       When the

operator called back, a male answered the phone and the operator

heard him say "shut the fuck up."             When the operator asked whom

the male had been talking to, he responded that he was talking

to his cat.         He denied that there was a female there and said

that there was no problem and that the call had been made by

accident.

    ¶10       The   operator   ran   the    number    and   discovered      it    was

registered to Kerr and that Kerr had an active arrest warrant in

Ashland      County.     The   operator     then     dispatched     Officer      Matt

Ladwig of the City of Bayfield Police Department and Deputy Matt
Leino   of    the   Bayfield   County      Sheriff's    Department     to   Kerr's

residence to follow up on the 9-1-1 call, advising them both

that Kerr had a warrant for his arrest in Ashland County.                        When

they arrived, they spoke with Kerr and his girlfriend, R.E., and

determined that, although the two had had an argument, the 9-1-1

call was an accidental dial.            Officer Ladwig then informed Kerr

that there was a warrant for his arrest in Ashland County for an
unpaid judgment in the amount of $298.50 and placed Kerr under


                                        7
                                                               No.     2016AP2455-CR



arrest.     He conducted a search incident to arrest and discovered

a plastic bag containing a white-colored rock in Kerr's pants

pocket,      which,     after      testing,          was    revealed         to   be

methamphetamine.

                        C.   The Motion To Suppress
      ¶11   On   October     7,   2015,       the   State   filed    its   criminal

complaint, charging one count of possession of methamphetamine

in violation of Wis. Stat. § 961.41(3g)(g).10

      ¶12   On June 8, 2016, prior to trial, Kerr filed a motion

to   suppress    the   methamphetamine         discovered    during    the    search

incident to his arrest.11          The crux of Kerr's argument is that

issuance of the civil municipal arrest warrant violated his due

process rights because, contrary to the statutory requirements,

"[t]here was no hearing that was noticed to provide [him] an

opportunity to be heard on the issue of his ability to pay prior

to the issuance of a warrant."            Kerr argued that the warrant for

this civil municipal ticket never should have been issued, Kerr

never should have been arrested, and the methamphetamine never
should have been discovered.         Therefore, says Kerr, the evidence

should be suppressed because it was discovered as a result of an


      10
       To be clear, these criminal charges were not the basis of
the arrest warrant, which issued after Kerr failed to pay a
civil municipal forfeiture ticket.
      11
       Kerr filed an amended motion to suppress on June 13,
2016.   The only revision made was to type (rather than hand-
write) the date and time at which the suppression motion would
be heard. Otherwise the motions are identical.


                                          8
                                                               No.   2016AP2455-CR



unlawful arrest in violation of his constitutional and statutory

rights.

    ¶13    On July 12, 2016, the reviewing circuit court held its

first hearing on the motion, at which Officer Ladwig, Deputy

Leino, and Kerr all testified.               Officer Ladwig and Deputy Leino

testified to the facts described above regarding the arrest.

They also both testified that they had not attempted to look up

the arrest warrant.      Kerr testified that he had been unaware of

any warrant from Ashland County, and that he had had no hearing

about owing any money prior to his arrest on September 27, 2015.

    ¶14    On     September   6,    2016,      after   further    briefing,   the

reviewing court held its second hearing on the motion, hearing

arguments from the parties.          Kerr argued that the arrest warrant

was facially invalid because, regardless of the statutory basis,

the statutory procedures were not followed:                 defendants cannot

be arrested and incarcerated for being poor——there must be some

showing of ability to pay.          The State argued that exclusion was

improper because there was no police misconduct; officers should
be able to rely on dispatch——they cannot be the arbiters of

whether a court had authority to issue a warrant because they

are never in a position to question a court order.                     The State

further argued that, where a warrant is defective but there is

no police misconduct, the proper remedy is either a writ of

habeas corpus or a civil suit under 42 U.S.C. § 1983.                       After

hearing   these    arguments,      the   reviewing     court     ordered   further

briefing on the issue of whether a circuit court has competency


                                         9
                                                                          No.    2016AP2455-CR



to     proceed          as   a    municipal      court     pursuant       to     Wis.        Stat.

§§ 66.0114, 800.09, and 800.095.

       ¶15        On October 5, 2016, the reviewing court held its third

hearing on the motion, hearing argument from the parties on that

issue.        Kerr argued that a circuit court could proceed under

Wis. Stat. ch. 800, but that, even if this is what the issuing

court       had    done,     it   still    had     not    adhered    to    the    procedural

requirements, and a police officer cannot reasonably rely on a

warrant that has no statutory basis.                         The State informed the

reviewing court that the arrest warrant was issued pursuant to

Wis.     Stat.          § 778.09,12   and     argued      that    suppression           is     not

designed          to    correct     judicial      misconduct        and   would     have        no

deterrent         effect     here.        Kerr    responded      that     police    officers

cannot be allowed to avoid suppression on a hear-no-evil-see-no-

evil basis by not looking at the warrant.

       ¶16        On October 31, 2016, the reviewing court issued its

decision          and    order    granting       Kerr's   motion     to    suppress.            It

concluded that the issuing court had authority to issue the

       12
            Wisconsin Stat. § 778.09 states as follows:

            Judgment, costs, commitment of defendant.   Where
       judgment is recovered pursuant to this chapter it
       shall include costs and direct that if the judgment is
       not paid the defendant, if an individual, shall be
       imprisoned in the county jail for a specified time,
       not exceeding 6 months, or until otherwise discharged
       pursuant to law.    The commitment shall issue, as in
       ordinary criminal actions, and the defendant shall not
       be entitled to the liberties of the jail.

§ 778.09.


                                                 10
                                                              No.      2016AP2455-CR



warrant because it has general jurisdiction under Article VII,

Section 8 of the Wisconsin Constitution and Wis. Stat. § 753.03

to impose and collect municipal forfeitures under Wis. Stat.

§§ 66.0114(1)(c), 800.09, 800.095, 345.47(1)(a), and/or 778.10.

It nonetheless concluded that the arrest warrant was defective

because       the   issuing   court     did   not    comply     with     statutory

procedural requirements in issuing the warrant.                 In this regard,

the reviewing court took the issuing court to task for what it

perceived to be "an institutional or administrative disregard

for the law governing civil commitments."13                The reviewing court

then acknowledged that the officers engaged in no wrongdoing,

also noting that "neither the defendant nor the State alleges

even    the    slightest    hint   of   misconduct    or   wrongdoing      by   law

enforcement."        It    nonetheless    concluded,    after    discussion      of

       13
       The reviewing court's written decision makes clear,
however, that, instead of relying on the facts of record, the
court rested its conclusions on its own familiarity with how the
issuing court "issues civil commitments [and how] the error in
this case results in several, or dozens or hundreds of arrest
warrants being issued in complete disregard for the applicable
law." The court stated:

       While there is no reason in this case to assume
       intentional malfeasance on the issuing court, the
       record from the [issuing county] case shows an
       institutional or administrative disregard for the law
       governing civil commitments.    While the record does
       not reflect this, I am administratively aware that
       [the issuing county] follows the procedure that
       occurred in this case in almost all of its civil
       nonpayments. In [the issuing county], nonpayment of a
       civil forfeiture generally means summary issuance of a
       civil commitment.   There may be hundreds of similar
       commitments of record.


                                         11
                                                                                No.   2016AP2455-CR



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

light      of   State     v.    Scull,         2015    WI     22,    361    Wis. 2d 288,          862

N.W.2d 562, that exclusion of the evidence was proper because

the deterrent purpose of the exclusionary rule is served where

the judicial misconduct is systemic.

      ¶17       On December 9, 2016, the State appealed.14                            On July 10,

2017, the State petitioned this court for bypass of the court of

appeals.        On October 17, 2017, the State's petition for bypass

was granted.

                                II.       STANDARD OF REVIEW
      ¶18       "'Our review of an order granting or denying a motion

to   suppress       evidence       presents            a    question       of     constitutional

fact.'"         State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421,

857 N.W.2d 120 (quoting State v. Robinson, 2010 WI 80, ¶22, 327

Wis. 2d 302, 786 N.W.2d 463).                     "When presented with a question

of   constitutional            fact,       this       court     engages         in    a    two-step

inquiry.         First,    we     review        the        circuit    court's         findings    of

historical        fact    under       a   deferential         standard,          upholding       them
unless they are clearly erroneous.                             Second, we independently

apply      constitutional         principles           to    those     facts."            Id.,    ¶27

(citations omitted).

      ¶19       The interpretation and application of a constitutional

provision are questions of law that we review de novo.                                           See,

e.g.,      Black     v.        City       of     Milwaukee,          2016        WI       47,    ¶21,

      14
       The reviewing court has suspended proceedings pending the
outcome of this appeal.


                                                  12
                                                                No.    2016AP2455-CR



369 Wis. 2d 272,         882    N.W.2d 333     (citing    Appling      v.   Walker,

2014 WI    96,    ¶17,    358    Wis. 2d 132,      853    N.W.2d 888).           "When

interpreting constitutional provisions and amendments, we look

to intrinsic as well as extrinsic sources."                   State v. Williams,

2012 WI 59, ¶15, 341 Wis. 2d 191, 814 N.W.2d 460 (citing Buse v.

Smith,     74    Wis. 2d 550,      568,     247   N.W.2d 141        (1976)).        In

particular, we look to (1) the plain meaning of the words in the

context used; (2) the historical analysis of the constitutional

debates that the court may reasonably presume were known to the

framers;    (3) the      prevailing      practices     when   the   provision      was

adopted; and (4) the earliest interpretation of the provision by

the legislature, as manifested in the first law passed following

its adoption.      Id.

                                  III.    ANALYSIS
    ¶20     There is no dispute that the exclusionary rule applies

in Wisconsin.       See Mapp v. Ohio, 367 U.S. 643 (1961); Conrad v.

State, 63 Wis. 2d 616, 636, 218 N.W.2d 252 (1974).                     The parties

before us, however, argue two competing views of when evidence
must be suppressed under the exclusionary rule.                        The State's

view is that evidence is suppressed only where suppression will

likely serve to deter future police misconduct.                       This is, and

has been, the view of the majority of this court.                       See Scull,

361 Wis. 2d 288, ¶¶47-61 (Roggensack, J., concurring, joined by

Crooks,    Ziegler,      and    Gableman,      JJ.).     Kerr's     view    is   that

evidence may be suppressed either where suppression serves to
deter future police misconduct or where it serves to preserve


                                          13
                                                                      No.   2016AP2455-CR



"judicial integrity."             The view that "judicial integrity" is a

standalone justification for suppression under the exclusionary

rule is error, as this view has not garnered favor among a

majority of this court, nor of the United States Supreme Court.15

      ¶21    In fact, the Supreme Court recently reiterated that

"[t]he rule's sole purpose, we have repeatedly held, is to deter

future Fourth Amendment violations."                       Davis v. United States,

564 U.S. 229, 236-37 (2011); see also Elkins v. United States,

364 U.S. 206, 217 (1960)              ("Its purpose is to deter . . . by

removing the incentive to disregard it.").                     And this purpose is

punitive, not remedial.              See, e.g., United States v. Calandra,

414 U.S. 338, 347 (1974) ("The purpose of the exclusionary rule

is   not    to   redress    the    injury     to     the    privacy    of   the   search

victim . . . .");          Elkins,     364        U.S.   at   217     ("The    rule   is

calculated to prevent, not to repair.").                        Thus, the singular



      15
       When "judicial integrity" has been discussed in relation
to the suppression of evidence, it has been tethered to the
taint of police misconduct.     See, e.g., Stone v. Powell, 428
U.S. 465, 485 (1976) (citation omitted) ("Although our decisions
often have alluded to the 'imperative of judicial integrity,'
they demonstrate the limited role of this justification in the
determination whether to apply the rule in a particular
context."); Terry v. Ohio, 392 U.S. 1, 12-13 (1968) (citation
omitted) ("The rule also serves another vital function——'the
imperative of judicial integrity.' . . . A ruling admitting
evidence in a criminal trial, we recognize, has the necessary
effect   of   legitimizing  the   conduct   which   produced the
evidence . . . ."); State v. Tompkins, 144 Wis. 2d 116, 133, 423
N.W.2d 823   (1988)   ("The   protection  of    rights   and the
preservation of judicial integrity depend in reality on the
deterrent effect of the exclusionary rule.").


                                             14
                                                 No.   2016AP2455-CR



purpose of the exclusionary rule is to deter police misconduct,16

and the exclusionary rule does not apply in order to preserve

judicial integrity or to correct judicial error.17

     16
       In so concluding we consider whether to overrule Hess,
327 Wis. 2d 524. The State argues that Hess should be overruled
because its view of "judicial integrity" as a standalone
justification for suppression is a significant departure from
United States Supreme Court precedent.     Kerr argues that Hess
should not be overruled because its discussion of judicial
integrity as a standalone justification for suppression was
correct.   We conclude that Hess need not be overruled because
the lead opinion's view of "judicial integrity" as a standalone
justification for suppression under the exclusionary rule did
not garner the support of a majority of the court.

     Justice Prosser authored the lead opinion, joined by then-
Chief Justice Abrahamson and Justice A.W. Bradley; Justice
Ziegler concurred and filed an opinion that did not adopt the
"judicial integrity" rationale of the lead opinion; Justice
Gableman dissented and filed an opinion that then-Justice
Roggensack   joined,   which  specifically   rejected   "judicial
integrity" as a standalone rationale; and Justice Crooks did not
participate in the case.         Justice Crooks did, however,
participate in State v. Scull, 2015 WI 22, 361 Wis. 2d 288, 862
N.W.2d 562, where he joined the concurring majority in rejecting
judicial integrity as a standalone rationale. Thus, Hess has no
precedential value that requires reconsideration in this case.
     17
       In fact, in general, the exclusionary rule does not even
apply to deter mistakes made by judicial employees:

     First, the exclusionary rule is designed to deter
     police misconduct rather than to punish the errors of
     judges and magistrates.      Second, there exists no
     evidence suggesting that judges and magistrates are
     inclined to ignore or subvert the Fourth Amendment or
     that   lawlessness   among    these   actors   requires
     application of the extreme sanction of exclusion.

          Third, and most important, we discern no basis,
     and are offered none, for believing that exclusion of
     evidence seized pursuant to a warrant will have a
     significant deterrent effect on the issuing judge or
                                                    (continued)
                               15
                                                                  No.    2016AP2455-CR



       ¶22   Moreover, Supreme Court precedent establishes that the

manner in which the warrant was issued by the court and executed

by law enforcement in this case does not afford suppression

under the exclusionary rule.             As noted above, see supra ¶21, for

the exclusionary rule to apply, there must have been some police

misconduct.      Although Kerr argues that the officers' failure to

look at the warrant itself constitutes such misconduct, this

view is incorrect.          As a practical matter, officers should be

able to rely on dispatch in the same way they are able to rely

on their computer records.               See Arizona v. Evans, 514 U.S. 1,

14-16 (1995).      Relatedly, absent some evidence in the record to

the contrary, dispatch personnel are not "adjuncts to the law

enforcement team engaged in the often competitive enterprise of

ferreting out crime."            Id. at 15.       Additionally, to the extent

that   looking    at   a   warrant       before   executing   it        may   be    best

practice, the officers' conduct here is at most negligent, and

isolated negligence is not "misconduct" for the purposes of the

exclusionary rule.         Herring v. United States, 555 U.S. 135, 146-
47   (2009).     Thus,     the    officers     here   did   not    engage      in    any

misconduct     that    renders     the    evidence    suppressible        under      the

exclusionary rule.


       magistrate. . . . Judges   and   magistrates are not
       adjuncts to the law enforcement team; as neutral
       judicial officers, they have no stake in the outcome
       of particular criminal prosecutions.

United States v. Leon, 468 U.S. 897, 916-17 (1984); see also
Herring v. United States, 555 U.S. 135, 142 (2009).


                                          16
                                                                             No.        2016AP2455-CR



       ¶23    The parties also make arguments regarding the good-

faith exception, which applies when an "officer's conduct is

objectively reasonable, [because] 'excluding the evidence will

not further the ends of the exclusionary rule in any appreciable

way;   for    it     is    painfully          apparent       that . . . the             officer    is

acting as a reasonable officer would and should act in similar

circumstances.'"               United States v. Leon, 468 U.S. 897, 919-20

(1984) (quoting Stone v. Powell, 428 U.S. 465, 539-40 (1976)

(White, J., dissenting)).                     In Wisconsin, we have adopted the

good-faith exception.                  See State v. Eason, 2001 WI 98, ¶52, 245

Wis. 2d 206,         629       N.W.2d 625       ("[A]       good     faith      exception         for

objective, reasonable reliance upon a search warrant does not

offend the Wisconsin Constitution [because in that situation,]

applying the exclusionary rule will have no deterrent effect.").

But,   because       the        exclusionary         rule     applies      to      deter     police

misconduct,        and         there     is    no        police     misconduct          here,     the

exclusionary rule does not apply; the good-faith exception thus,

also   need    not        be    further       analyzed       and     the   evidence         is    not
excluded.

                                        IV. CONCLUSION
       ¶24    Our overarching inquiry in this case is whether the

circuit      court      erred      in    granting          Kerr's    motion        to     suppress.

Fundamental        to     our     analysis          is    whether     evidence          discovered

during a search incident to arrest is properly suppressed under

the exclusionary rule when there is no police misconduct.                                          We
conclude that suppression is not appropriate because the sole


                                                17
                                                           No.    2016AP2455-CR



purpose of the exclusionary rule is to deter police misconduct,

and   there    is    no   police   misconduct    here.    Neither    judicial

integrity      nor    judicial     error    is   a   standalone   basis    for

suppression under the exclusionary rule.18            We therefore conclude

that the circuit court's grant of Kerr's motion to suppress on

the basis of judicial integrity is error.

      ¶25     Accordingly, we reverse the Bayfield County circuit

court.



      By the Court.—The order of the circuit court is reversed,

and the cause is remanded.




      18
       In so concluding, we consider whether to overrule Hess,
327 Wis. 2d 524.   We conclude that Hess need not be overruled
because the lead opinion's view of "judicial integrity" as a
standalone justification for suppression under the exclusionary
rule did not garner the support of a majority of the court; as
such, it has no precedential value that requires reconsideration
in this case.


                                       18
                                              No.   2016AP2455-CR.akz




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

course, join the opinion that I wrote for the majority.     I write

separately to address issues that three of the four members of

the majority conclude are also relevant.

    ¶27   The reviewing circuit court in this case took issue

with the manner in which the neighboring circuit court issued

the warrant.1   It concluded that the neighboring court issued

this warrant contrary to statutory provisions, that the issuing

court did so on a regular basis, that all such warrants were

void ab initio, and that, therefore, this case represented "an

institutional or administrative disregard for the law governing

civil commitments."   The reviewing court, thus, suppressed the

evidence because of "judicial error on a wide administrative

level," concluding that "'judicial integrity' is vital enough to

justify exclusion of evidence when the issuing court's arrest

warrant was invalid ab initio."

    ¶28   This case cannot be so easily resolved by relying on
the issuing court's alleged statutory violation, because neither

the facts of record nor the plain language of the applicable

statutes support that conclusion.     Relatedly, while it may be

tempting to do so, this case cannot be resolved by relying on my

concurrence in State v. Hess, 2010 WI 82, 327 Wis. 2d 524, 785

    1
       The Honorable Robert E. Eaton of Ashland County issued the
warrant (the "issuing court"), but, because the arrest occurred
in Bayfield County, the Honorable John P. Anderson of Bayfield
County presided over the motion to suppress and reviewed the
warrant (the "reviewing court").


                                  1
                                                             No.   2016AP2455-CR.akz


N.W.2d 568, because the arrest warrant was not void ab initio

here, where the issuing court had authority to issue it.2

      ¶29    Accordingly, I respectfully concur.

                            I.   FACTS OF RECORD
      ¶30    Recall that the record regarding the issuance of the

warrant in this case is rather lean.              This record reflects that,

on June 16, 2015, Kerr was mailed a citation for disorderly

conduct, in violation of City of Ashland ordinance 201.03.                     This

citation notified Kerr to appear, if he so chose, at 10:00 a.m.

on July 21, 2015.      He did not.           This record also reflects that,

on July 21, 2015, when Kerr failed to appear, the court entered

a default judgment in the amount of $263.50 with 60 days to pay,

and that on July 31, 2015, the clerk sent notice of the default

judgment to Kerr (although neither the judgment nor the notice

is in the record).      On September 22, 2015, 60 days after default

judgment was entered, the circuit court issued an arrest warrant

for   Kerr   to   "detain   [him]   in       custody   for   90    days   or   until



      2
        For an egregious example of abuse of power see State ex
rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, 363
Wis. 2d 1, 866 N.W.2d 165. The facts of this case, however, are
dramatically different.    And regardless, given the forward-
looking nature of the exclusionary rule, it is incapable of
functioning as a remedy. Here it cannot, and never has. While
it may be tempting to judicially create a remedy for these
wrongful searches and seizures, repurposing the exclusionary
rule to be a remedy, rather than a tool to deter police
misconduct, will not fix the problem and will, in fact, create
downstream problems of its own.   In fact, it would disband the
exclusionary rule in its entirety. Stated differently, it turns
a forward-facing pedagogical tool backward into a purported
remedy.


                                         2
                                                   No.   2016AP2455-CR.akz


$298.50[3] is paid, or until the person is discharged by due

course of law."    This warrant was issued on the basis that "the

balance due has not been paid within the period ordered by the

court."

      ¶31   There is also very little in the record created by the

reviewing court to support its conclusion that the issuing court

issued warrants in a similar manner on a regular basis.                 In

fact, the record regarding the review of this singular warrant

reflects that it is largely the reviewing court's own opinion

and   personal   belief,   rather   than   fact   finding,   that    this

procedure reflects "an institutional or administrative disregard

for the law governing civil commitments":

      [A]s already known to this Court due to its
      familiarity with how [the issuing county] issues civil
      commitments, the error in this case results in
      several, or dozens or hundreds of arrest warrants
      being issued in complete disregard for the applicable
      law.

           In   isolated   cases  of  judicial  malfeasance,
      exclusion will not likely deter future conduct, as the
      conduct is often remarkably isolated.        Here the
      conduct is not isolated and may be the rule, not the
      exception.     Deter[r]ence certainly is a greater
      consideration under these facts. . . .

      While there is no reason in this case to assume
      intentional malfeasance on the issuing court, the
      record from the [issuing county] case shows an
      institutional or administrative disregard for the law
      governing civil commitments.   While the record does
      not reflect this, I am administratively aware that
      [the issuing county] follows the procedure that
      occurred in this case in almost all of its civil

      3
       This total reflects a local forfeiture of             $263.50,   a
clerk's fee of $5.00, and a warrant fee of $30.00.


                                    3
                                                                    No.    2016AP2455-CR.akz

       nonpayments. In [the issuing county], nonpayment of a
       civil forfeiture generally means summary issuance of a
       civil commitment.   There may be hundreds of similar
       commitments of record.
(Emphasis added.)             Additionally, the record reflects that the

reviewing       court    acknowledged            that     there    is     not    "even     the

slightest hint of misconduct or wrongdoing by law enforcement in

this matter," and that it concluded that the issuing court "had

statutory authority to issue a bench warrant under Wis. Stat.

§ 800.095(1)(b)1 for Kerr's arrest for failure to pay the fine

imposed."

       ¶32     Thus, the reviewing court's decision to suppress the

evidence was based solely on its view that the neighboring court

issued this warrant without following statutory procedures, that

the    neighboring      court         did   so   on   a   regular    basis,       and    that,

because of that systemic failure, this warrant was "invalid ab

initio."       This view, however, is not supported by the facts of

record;       rather,    it      is    based     on     the   reviewing         court's    own

understanding       of       a    neighboring           county's    practice.             Even

assuming, however, that there were facts of record to support
the reviewing court's conclusion that arrest warrants in civil

forfeiture cases were regularly issued in this manner, and that

doing so fails to comply with Wis. Stat. § 800.095(1)(b)2.,4 that

procedural defect does not render the warrant "void ab initio."

                   II.       DISTINGUISHING "VOID AB INITIO"
       ¶33     Warrants may be defective for a variety of reasons.

Most       typically,    a    warrant       is   later     challenged      because        of   a

       4
           But see Part III.


                                                 4
                                                                       No.    2016AP2455-CR.akz


defect,     for     example,     lack       of       probable     cause       or    procedural

irregularity, but not because it was issued without authority.

And warrants are deemed "void ab initio" only when the person

issuing the warrant lacks authority to ever issue that warrant

in that type of case.             Thus, when a judge has the authority to

issue a warrant, as is the case here, but fails to properly

adhere      to     prescribed        requirements,5           that      warrant        may     be

defective, but it is not void ab initio.

      ¶34    In other words, the type of defective warrant that

issues      when     a   judge    fails      to       follow      statutory         procedural

requirements in issuing it differs from the type of defective

warrant that issues when a judge lacks authority to issue it:

the   former,       although     defective,           is   not   void        ab    initio;    the

latter      is     per   se   void     ab    initio.             The    reality       of     this

distinction is evident from the fact that, if there were no

distinction, there would be no place for the exclusionary rule

or its companion good-faith exception.                       In all exclusionary rule

cases, the warrant is defective, but nonetheless the evidence
discovered in a search incident to arrest is upheld unless there

is police misconduct.            Notably, the reviewing court stated that

there is not "even the slightest hint of misconduct or wrong

doing by law enforcement in this matter."                               Thus, although I

assume    without        deciding     that       the       reviewing      court      correctly


      5
       For the purposes of this section we assume without
deciding that the issuance of the arrest warrant failed to
follow the requirements of Wis. Stat. § 800.095(1)(b)2. But
see Part III.


                                                 5
                                                                        No.    2016AP2455-CR.akz


concluded that the warrant was defective, it incorrectly used

the   term    "invalid      ab      initio"        because       it   is      clear      from    the

reviewing     court's       decision——which              concluded       that    the      issuing

court "had statutory authority to issue a bench warrant under

Wis. Stat. § 800.095(1)(b)1"——that its grant of Kerr's motion to

suppress     was    based      upon     the    "institutional            or    administrative

disregard for the law governing civil commitments," not a lack

of court authority to issue this type of warrant.

                               A.      Authority To Issue
      ¶35     I    agree    with       the    reviewing         court    that    the      issuing

court had the authority to issue this warrant under Wis. Stat.

§ 800.095.         Chapter 753 of the Wisconsin Statutes governs the

circuit courts.          Under Wis. Stat. § 753.03, "circuit courts have

power to hear and determine, within their respective circuits,

all civil and criminal actions and proceedings unless exclusive

jurisdiction is given to some other court . . . ."                                       § 753.03

(emphasis added); see also Wis. Const. art. VII, § 8 ("Except as

otherwise provided by law, the circuit court shall have original

jurisdiction        in   all     matters       civil       and    criminal       within         this

state . . . .").

      ¶36     Chapter       755        of     the       Wisconsin        Statutes         governs

municipal     courts.          Under        Wis.       Stat.    § 755.045,      a     "municipal

court   has       exclusive     jurisdiction             over    an   action        in    which    a

municipality        seeks      to   impose         forfeitures          for    violations         of

municipal     ordinances          of    the     municipality            that    operates         the

court . . . ."           § 755.045(1)          (emphasis         added);       see    also      Wis.
Const. art. VII, § 14 ("All municipal courts shall have uniform

                                                   6
                                                                   No.    2016AP2455-CR.akz


jurisdiction limited to actions and proceedings arising under

ordinances of the municipality in which established.").

       ¶37    Chapter    800     of   the     Wisconsin      Statutes        promulgates

"Municipal Court Procedure[s]," and where, as here, Wis. Stat.

§ 800.095 operates to impose a forfeiture for violation of a

municipal ordinance, authority to act under § 800.095 would be

exclusive to a municipal court if a municipal court has been

established      under    Wis.        Stat.      § 755.01.          See      Wis.        Stat.

§ 755.045.       However,      where,       as   here,     there     is    no    municipal

court, the circuit court of the county in which the municipality

is located has authority vis-à-vis its general jurisdiction to

resolve violations of municipal ordinances pursuant to Chapter

800.

       ¶38    Thus, the reviewing court is correct that (1) "[t]here

is no question that the [issuing court], as a court of general

jurisdiction, has the constitutional and statutory authority to

hear and process municipal citations," and (2) the issuing court

"had statutory authority to issue a bench warrant under Wis.
Stat. § 800.095(1)(b)1 for Kerr's arrest for failure to pay the

fine imposed."

                            B.    Procedural Defects
       ¶39    The reviewing court errs, however, when it concludes

that the warrant here was "invalid ab initio" on the basis that

the    issuing   court    issued       the       warrant    in     violation        of    the

statutory      procedural      requirements         of     Wis.    Stat.     §    800.095.

Kerr,   who    agrees    with this conclusion, and the State, which
concedes this point, thus also err.                      In particular, the State

                                             7
                                                                         No.    2016AP2455-CR.akz


inaccurately cites my concurrence in Hess for the proposition

that         "[a]    warrant    can     be    void       ab    initio   when        the    judge   or

magistrate lacked legal authority to issue any warrant, or when

a   mandatory          condition       precedent         to    the    court's       authority      to

issue         a    warrant     was    not     met    from      the    outset."            Procedural

defects (the latter) are different from lack of authority to

issue         the    warrant     in    the     first      instance      (the    former).           To

conflate authority to issue with procedural defects is error,

and that error is aptly demonstrated in a case where, as here,

the alleged defect is procedural in nature, and not related the

issuing court's authority.                    Again, if lack of authority to issue

and procedural defect were both to result in a warrant being

deemed void ab initio, the exclusionary rule (and its good-faith

exception)            would     be     read     out      of     existence       because       every

exclusionary           rule     case    is     analyzed        in    light     of    a    defective

warrant, yet under the exclusionary rule the evidence discovered

in a search incident to arrest is not suppressed unless there is

police            misconduct    because       the       good-faith      exception         otherwise
applies.

    1.       Hess, 327 Wis. 2d 524, ¶¶71-74 (Ziegler, J., concurring)
         ¶40        In Hess, I concurred on the basis that exclusion of

the      evidence        was    proper        because         the    warrant    was       "void    ab

initio."6            I cited three cases for the principle that evidence

discovered as a result of a warrant void ab initio must be


         6
       The parties, and the reviewing court, have used the term
"void ab initio" rather loosely in this case.


                                                    8
                                                                 No.   2016AP2455-CR.akz


excluded.         See     Hess,    327   Wis. 2d 524,           ¶71    (Ziegler,    J.,

concurring) (citing State v. Kriegbaum, 194 Wis. 229, 215 N.W.

896    (1927),    State    v.     Grawien,    123    Wis. 2d 428,         430-31,   367

N.W.2d 816 (Ct. App. 1985), and State v. Loney, 110 Wis. 2d 256,

259-60, 328 N.W.2d 872 (Ct. App. 1982)).                     I continue to agree

with this principle.

       ¶41   In these three cases, however, the warrant was held

void    ab   initio     because    the   issuing         judicial      officer   lacked

authority to issue the warrant in question.                      See Kriegbaum, 194

Wis. at 231-32 (concluding that the warrant was void ab initio

because justices of the peace "can exercise only the judicial

power conferred upon [them] by the statutes" and the statutes

did not grant authority "to issue a warrant for the search of a

person"); Grawien, 123 Wis. 2d at 430-31 (concluding that the

warrant was void ab initio because "the state conceded that [the

commissioner]      was     not    authorized        to    issue       search   warrants

pursuant     to   sec.     757.69(1)");       Loney,      110     Wis. 2d at     259-60

(concluding that the warrant was void ab initio because the
power of the court commissioner to issue warrants, "must be

conferred by express delegation" and "the order appointing the

commissioner fails to delegate authority to issue warrants").

Here, these cases are inapplicable because, as noted above, see

supra ¶¶35-38, the issuing judge in this case had the authority

to issue the warrant.

       2.    Distinguishing authority to act from failure to act
       ¶42   I also noted in my Hess concurrence that "[w]hile a
per se void ab initio warrant is always defective, a defective

                                          9
                                                                      No.   2016AP2455-CR.akz


warrant is not always per se void ab initio." 327 Wis. 2d 524,

¶73 (Ziegler, J., concurring).                   As noted above, see supra ¶¶33-

34, a warrant issued by someone with authority that is later-

found defective for failure to fulfill a requirement such as

probable cause, or deficient oath or affirmation——both of which

are also requirements for a warrant to issue——does not render

the     warrant      void      ab   initio       and    require        exclusion      of     the

evidence.       Again, this is evident from the fact that, if it did,

there       would    be   no    need      for    the     exclusionary         rule    or     its

companion good-faith exception because every exclusionary rule

case involves a defective warrant.                     Similarly, a warrant that is

later-found          defective      for     failure       to     adhere      to     statutory

procedural      requirements         does       not    render    the    warrant       void    ab

initio.       Again, this is evident from the fact that there is a

difference between a lack authority to issue and a failure to

fulfill procedural requirements.

       ¶43     Thus, while it may be tempting to conclude that this

warrant is void ab initio by citing to cases which involved a
justice of the peace or court commissioners who had no authority

in    the    first     instance      to    issue       the     warrant,      that    line    of

reasoning       is    inapplicable        because        the    judge       here    did     have

authority to issue the warrant.                       Compare supra ¶41 (discussing

Kriegbaum, 194 Wis. 229, Grawien, 123 Wis. 2d 428, and Loney,

110   Wis. 2d 256)          with    supra       ¶¶35-38.         In    other       words,    the

warrants in Kriegbaum, Loney, and Grawien were void ab initio

because the person who issued the warrant could never issue the



                                                10
                                                                   No.   2016AP2455-CR.akz


warrant under any circumstances, but that is not what we have

here.

       ¶44   The   difference          between     failing    to    comply       with   the

provisions of Wis. Stat. § 800.095(1)(b)2. and lacking authority

to issue the warrant is a difference that is significant because

Kriegbaum and its progeny stand for the proposition that, when

the person issuing the warrant had no authority to do so, that

warrant is void ab initio and evidence may be excluded on that

basis.       See Hess, 327 Wis. 2d 524, ¶30 ("[Loney and Grawien]

together with Kriegbaum, support the conclusion that exclusion

is    an   appropriate        remedy    where      evidence    was       obtained   by   a

warrant [that] issued by a magistrate who lacked the authority

to issue the warrant."); id., ¶29 ("Because the circuit court

had no authority to issue the warrant it did, exclusion is an

appropriate remedy for evidence obtained as a result of that

warrant.").

       ¶45   Here, because the judge did have authority to issue

the    warrant,    the    warrant       cannot      be    deemed    void    ab    initio.
Instead, the type of defect at issue here is akin to the type of

defect that arises when a warrant is challenged post-search or

post-arrest       and    is    found     to    lack      probable    cause,      oath    or

affirmation, and/or particularity; in those circumstances, the

warrant is defective as a result of a judge's failure to adhere

to specific requirements before issuing a warrant.                          Such later-

discovered defects do not, however, render the warrant void ab

initio.



                                              11
                                                              No.    2016AP2455-CR.akz

            III. PLAIN LANGUAGE OF THE APPLICABLE STATUTES7
    ¶46     As discussed above, see supra ¶31, the reviewing court

concluded that       the issuing court "failed to comply with the

requirements       under    Wis.    Stat.        § 800.095(1)(b)2,"      and     that,

therefore,     "how        [the     neighboring        county]       issues      civil

commitments . . . results in several, or dozens or hundreds of

arrest   warrants       being     issued    in    complete   disregard        for   the

applicable    law."         Because    of       that   "systemic"     failure,      the

reviewing    court      determined     that      "[h]ere   the      conduct    is   not

isolated and may be the rule, not the exception.                       Deter[r]ence

certainly     is    a    greater      consideration        under     these     facts."

(Emphasis added.)          Thus, it suppressed the evidence discovered

incident to arrest because "'judicial integrity' is vital enough

to justify exclusion of evidence when the issuing court's arrest

warrant was invalid ab initio."



    7
       The interpretation and application of a statute present
questions of law that this court reviews de novo.      See, e.g.,
State v. Dorsey, 2018 WI 10, ¶23, 379 Wis. 2d 386, 906
N.W.2d 158 (citing State v. Alger, 2015 WI 3, ¶21, 360
Wis. 2d 193, 858 N.W.2d 346).    When interpreting a statute, we
begin with the language of the statute, and, "[i]f the meaning
of the statute is plain, we ordinarily stop the inquiry." State
ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45,
271 Wis. 2d 633, 681 N.W.2d 110.    If the meaning is not plain,
we look to the context in which the statute is used, "in
relation to the language of surrounding or closely-related
statutes," and may consult the scope and purpose of the statute
where they are ascertainable from the text and structure of the
statute itself.   Id., ¶¶46, 48.    Resort to legislative history
and other extrinsic sources is traditionally inappropriate "in
the absence of a finding of ambiguity," "although legislative
history is sometimes consulted to confirm or verify a plain-
meaning interpretation." Id., ¶51.


                                           12
                                                                         No.   2016AP2455-CR.akz


       ¶47   In       other    words,          the    circuit     court        granted       Kerr's

motion to suppress the evidence discovered incident to arrest

because      it    concluded            that    there       was    not       just       procedural

malfeasance with respect to this one warrant, but rather with

respect to "several, or dozens or hundreds of arrest warrants,"

and, therefore, a greater need for deterrence, considering the

pervasive systemic nature of the issuance of these warrants in

violation of the procedural requirements of the statute.                                     While

not fundamental to the conclusion that we reach today, I thus

also    consider       whether          the    plain    language        of     the      applicable

statutes      supports         the       strength       of      the      reviewing         court's

conviction that the issuing court's actions were a violation of

the statute.

                                   A.    Default Judgment
       ¶48   The       reviewing         court's       conclusion        that       the    issuing

court "may have failed to issue or render a written default

judgment in 2015" is subject to question.                                 Entry of default

judgment in civil forfeiture cases is governed by Wis. Stat.

§§ 800.08       and    800.09.           Section       800.08     provides,          in   relevant

part, as follows: "If a defendant does not appear at trial, the

court     may      enter       a     default          judgment         under       s.     800.09."

§ 800.08(5).           Section 800.09            provides,        in    relevant          part,   as

follows:     "If      the     defendant         is    not   present,         the     court   shall

ensure that the information is sent to the defendant by mail."

§ 800.09(1g).

       ¶49   Here, the parties do not dispute that Kerr did not
appear on July 21, 2015; thus, entry of default judgment was

                                                 13
                                                                      No.    2016AP2455-CR.akz


proper.           See    Wis.    Stat.    § 800.08(5).          As     noted     above,    the

certified record from the issuing court reflects that default

judgment was entered on July 21, 2015.                     Additionally, the record

is completely devoid of any indication that the notice sent on

July 31, 2015, was somehow deficient.                          Consequently, there is

nothing       in    the        record    to   indicate     that        the     notice      Kerr

presumably         received8       did     not      properly    advise         him    of   the

consequences            of    failure    to   timely    pay     or    appear,        including

"imprisonment" and that "the defendant should notify the court

if he or she is unable to pay the judgment because of poverty."9

See Wis. Stat. § 800.09(1g).                     The reviewing court concluded in

fact       that    the       standard    default     judgment        form    contained     the

information required to be given by statute.10                              Thus, there is

nothing       in        the    record    to      support   the        reviewing       court's

conclusion that the issuing court "may have failed to issue or

render a written default judgment in 2015."
       8
       The statute's language does not impose any requirement to
ensure that the defendant receive the notice; rather, the court
need only "ensure that the information is sent to the defendant
by mail." Wis. Stat. § 800.09(1g). In this regard, I note that
the record indicates that the address to which the ticket, and
presumably the notice of default judgment, was sent is different
from the address where Kerr was arrested. This difference does
not affect my analysis, however, as a court is not required to
verify that the address of record is accurate and there is
nothing in the record to indicate that the notices were not
mailed as required or that they were returned to the court.
       9
            Kerr never made any such request to the court.
       10
       The reviewing court said: "The standard default judgment
form, which was eventually used in this case, contains the
information required to be provided in writing to a defendant if
he or she is not in court when judgment is entered, pursuant to
§§ 345.47 and 800.09(1g)."

                                               14
                                                           No.    2016AP2455-CR.akz



                             B.    Arrest Warrant
    ¶50      The   reviewing      court's    conclusion    that     the   issuing

court "failed to comply with the requirements under Wis. Stat.

§ 800.095(1)(b)2." in issuing the arrest warrant is also subject

to question.       Issuance of an arrest warrant in civil forfeiture

cases   is   governed   by   Wis.    Stat.    § 800.095.         Section 800.095

provides, in relevant part, as follows:

         (1) If the defendant fails to pay                       a monetary
    judgment   ordered by the  court,  the                       court  may
    order . . .

          (b) 1.   That the defendant be imprisoned until
    the forfeiture, assessments, surcharge, and costs are
    paid.    If the court orders imprisonment under this
    subdivision, all of the following apply:

         a.   The maximum period of imprisonment shall be
    90 days for any one judgment, and the defendant shall
    receive credit against the amount owed at the rate of
    at least $50 for each day of imprisonment, including
    imprisonment following an arrest but prior to the
    court making a finding under subd. 2.

         b.   The court may impose a term             of imprisonment
    under this subdivision that is either             concurrent with
    or consecutive to any other term                 of imprisonment
    imposed at the same time or any term              of imprisonment
    imposed by any court.

         2. No defendant may be imprisoned under subd. 1.
    unless the court makes one of the following findings:

         a.   Either at sentencing of thereafter, that the
    defendant has the ability to pay the judgment within a
    reasonable time. If a defendant meets the criteria in
    s. 814.29(1)(d), the defendant shall be presumed
    unable to pay under this subsection and the court
    shall either suspend or extend payment of the judgment
    or order community service.

         b.   The defendant has failed, without good
    cause, to perform the community service authorized
    under this subsection or s. 800.09.
                                       15
                                                                          No.   2016AP2455-CR.akz

            c.   The defendant has failed to attend an
       indigency hearing offered by the court to provide the
       defendant with an opportunity to determine whether he
       or she has the ability to pay the judgment.

            d.   The defendant has failed, without good
       cause, to complete an assessment or treatment program
       related to alcohol or drugs that was ordered in lieu
       of a monetary forfeiture.
§ 800.095(1)(b)1.-2.

       ¶51      The     plain      language        of     this       statute         contemplates

imprisonment before a subd. (b)2. hearing is held when it states

that imprisonment may be imposed up to "90 days for any one
judgment, and the defendant shall receive credit against the

amount     owed       at   the   rate    of    at       least       $50   for     each       day    of

imprisonment,          including      imprisonment            following         an    arrest       but

prior      to     the      court     making        a      finding         under       subd.        2."

§ 800.095(1)(b)1.a.                (emphasis            added).                 Thus,         while

§ 800.095(1)(b)2. indeed provides that no defendant may continue

to    be   imprisoned        under      subd. (b)1.           unless       the       court    makes

certain findings, subd. (b)1. does seem to permit "imprisonment

following an arrest but prior to the court making a finding

under subd. 2."

       ¶52      As an initial matter, Kerr has not challenged Wis.

Stat. § 800.095(1)(b)1.a. in any way; rather, Kerr rests his

argument on the court's failure to determine his ability to pay

the forfeiture imposed prior to arrest.                              While that may be a

good practice, it is less than clear that the statutes require

it because, as noted above, see supra ¶¶50-51, this argument is

not     necessarily        borne     out      by        the   plain        language      of        the
applicable        statutes.         Additionally,             the    facts       of    this    case

                                              16
                                                                No.     2016AP2455-CR.akz


demonstrate precisely why an arrest and/or imprisonment prior to

the court making a finding under § 800.095(1)(b)2. may be both

necessary and prudent: Kerr was entirely absent.                         He was never

present     for    the   court    to   ask    him   whether     he    could    pay   the

forfeiture, nor did Kerr ever ask for an indigency hearing.

Nothing in the record indicates that the notice Kerr presumably

received was deficient in so advising him, and, in fact, the

reviewing court stated that he received proper notice.                               See

supra ¶49.         Thus, the issuing court's ability to resolve the

ticket by arrest and/or imprisonment under subd. (b)1., followed

by findings under subd. (b)2. is not definitively prohibited.

See Wis. Stat. § 800.095(1)(b)1.a.

      ¶53    In sum, even if the facts of record demonstrated that

the issuing court regularly proceeded in the manner described

above, it is not clear that such actions violated the plain

language of the applicable statutes.                     First, entry of default

judgment pursuant to Wis. Stat. § 800.09(5) was proper because,

although     the     ticket      issued      to   Kerr    did     not     require    his
appearance in court, failure to appear at the time designated on

the ticket endows the court with authority to enter default

judgment.         Second, the record reflects that notice of default

judgment was sent by mail pursuant to Wis. Stat. § 800.09(1g),

and the record is devoid of any indication that the notice might

have been lacking; in fact, the court stated that proper notice

was   given.         Third,      Kerr's      assertion     that       suppression     is

warranted because "no hearing was noticed to provide [him] with
an opportunity to be heard on the issue of ability to pay prior

                                          17
                                                             No.   2016AP2455-CR.akz


to the issuance of a warrant" is not clearly supported by the

statute;     rather,       Wis.     Stat.       § 800.095(1)(b)1.a.        permits

"imprisonment following an arrest but prior to the court making

a finding under subd. 2."               And this might make sense in cases

such as this one when no indigency hearing has been requested by

the defendant, and, where, at the only court appearance held,

the defendant did not appear.                  In such cases, the statute's

language does not appear to always place the onus on the court

to set an indigency hearing and ask questions of a non-appearing

defendant.11      It might also make sense to give notice again and

set an order to show cause, but the statute is less than clear

that that is always required.               We need not decide this today,

however, as it is not fundamental to our decision.

                                  IV.   CONCLUSION
     ¶54    I, of course, join the opinion that I wrote for the

majority.      I write separately to address issues that three of

the four members of the majority conclude are also relevant.

     ¶55    The reviewing circuit court in this case took issue

with the manner in which the issuing circuit court issued the

warrant.     It concluded that the neighboring court issued this

warrant contrary to statutory provisions, that the issuing court

did so on a regular basis, that all such warrants were void ab

initio,     and    that,    therefore,         this   case     represented      "an


     11
       The statute appears to place the onus on the defendant to
request that hearing.     See Wis. Stat. § 800.09(1g) ("[T]he
defendant should notify the court if he or she is unable to pay
the judgment because of poverty . . . .").


                                          18
                                                        No.   2016AP2455-CR.akz


institutional or administrative disregard for the law governing

civil commitments."         The reviewing court, thus, suppressed the

evidence because of "judicial error on a wide administrative

level," concluding that "'judicial integrity' is vital enough to

justify exclusion of evidence when the issuing court's arrest

warrant was invalid ab initio."

    ¶56     This case cannot be so easily resolved by relying on

the issuing court's alleged statutory violation, because neither

the plain language of the applicable statutes nor the facts of

record    support   the   conclusion    that   the    issuing   court     acted

wrongfully.    Relatedly, this case cannot be resolved by relying

on my concurrence in Hess, 327 Wis. 2d 524, because the arrest

warrant was not void ab initio here, where the issuing court had

authority to issue it.

    ¶57     Accordingly, I respectfully concur.

    ¶58     I am authorized to state that Chief Justice PATIENCE

DRAKE    ROGGENSACK   and    Justice   MICHAEL   J.    GABLEMAN    join    this

concurrence.    I am also authorized to state that Justice DANIEL
KELLY joins footnote 2.




                                       19
                                                                         No.   2016AP2455-CR.awb


      ¶59    ANN WALSH BRADLEY, J.                     (dissenting).            When a court

issues a warrant without regard for any legislatively mandated

statutory     safeguards,         the    use     of    evidence          discovered     through

execution of such a warrant calls into question the fairness of

the   process.          "Public       confidence        in    the     fair     and    honorable

administration         of     justice,      upon      which    ultimately        depends     the

rule of law," is a "transcending value at stake."                                    Sherman v.

United    States,       356     U.S.     369,        380     (1958)      (Frankfurter,      J.,

concurring).

      ¶60    As was explained in State v. Hess, 2010 WI 82, ¶¶64-

65, 327 Wis. 2d 524, 785 N.W.2d 568, even though the purpose of

the exclusionary rule is primarily to deter police misconduct, a

"secondary consideration" of the rule is to preserve judicial

integrity.         I    conclude        that     judicial        integrity        remains     an

independent basis for the application of the exclusionary rule

and, like the circuit court, I would apply it here.

      ¶61    For       well    over     a    half      century,          the    rationale    of

judicial      integrity         has      coursed           through       exclusionary       rule
jurisprudence in both this court and the United States Supreme

Court.      In the seminal case of Terry v. Ohio, the United States

Supreme     Court       wrote     that      in       addition       to    deterring      police

misconduct,     the      exclusionary          rule     "also    serves        another    vital

function——'the imperative of judicial integrity.'"                                392 U.S. 1,

12-13 (1968) (citing Elkins v. United States, 364 U.S. 206, 222

(1960)).

      ¶62    Subsequently,            the      Supreme        Court        reaffirmed       that
although the primary purpose of the exclusionary rule is to

                                                 1
                                                                       No.     2016AP2455-CR.awb


deter    police      misconduct,         judicial       integrity         is    a    "relevant,

albeit       subordinate      factor"       that        may        require      exclusion      of

evidence in "unusual circumstances."                          United States v. Janis,

428 U.S. 433, 458 n.35 (1976); United States v. Leon, 468 U.S.

897, 921 n.22 (1984).

       ¶63    Davis v. United States, 564 U.S. 229 (2011), altered

this    analysis.        In    Davis,       the    Supreme          Court      departed      from

judicial integrity and determined that pursuant to the federal

Constitution, the "sole purpose of the exclusionary rule is to

deter misconduct by law enforcement."                       Id. at 246.

       ¶64    However, this court need not follow the United States

Supreme Court's departure.                "[W]e retain the right to interpret

our constitution to provide greater protections than its federal

counterpart."           State       v.     Dubose,          2005     WI      126,     ¶41,     285

Wis. 2d 143, 699 N.W.2d 582.                This court "will not be bound by

the    minimums      which    are    imposed       by       the    Supreme     Court    of     the

United States if it is the judgment of this court that the

Constitution of Wisconsin and the laws of this state require
that    greater      protection      of     citizens'             liberties     ought     to    be

afforded."        State v. Knapp, 2005 WI 127, ¶59, 285 Wis. 2d 86,

700 N.W.2d 899 (quoting State v. Doe, 78 Wis. 2d 161, 172, 254

N.W.2d 210        (1977)).           To     provide           true        meaning      to      our

constitution's        protections         against       unreasonable            searches       and

seizures, it is appropriate to do so here.

       ¶65    There    is    ample       support       in    our     prior     case    law     for

maintaining       judicial      integrity         as    an        independent        basis     for
applying       the    exclusionary         rule        pursuant        to      the    Wisconsin

                                             2
                                                                   No.    2016AP2455-CR.awb


Constitution.         In State v. Felix, an opinion decided post-Davis

and based in part on the Wisconsin Constitution, this court

referenced the dual purposes of the exclusionary rule, including

judicial     integrity.           2012    WI   36,    ¶39,   339    Wis. 2d 670,         811

N.W.2d 775.        Similarly, in Hess we referenced both the Fourth

Amendment     to    the    United        States    Constitution          and   Article   I,

Section     11   of     the     Wisconsin      Constitution.1            See   Hess,     327

Wis. 2d 524, ¶¶20, 33.                Likewise, in State v. Eason, the court

referred to the exclusionary rule's dual purpose of deterring

police      misconduct          and    ensuring       judicial      integrity          while

explicitly basing its conclusion on the Wisconsin Constitution.

2001 WI 98, ¶¶3, 31 n.10, 245 Wis. 2d 206, 629 N.W.2d 625.

      ¶66    The      consideration         of     judicial      integrity        in     the

application        of     the     exclusionary        rule    also         fulfills      the

"important purposes" of "enabl[ing] the judiciary to avoid the

taint of partnership in official lawlessness" and "assur[ing]

the   people——all         potential         victims     of    unlawful         government


      1
       The Fourth Amendment to the United States Constitution
sets forth:

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

U.S. Const. amend. IV.  Article I, Section 11 of the Wisconsin
Constitution contains substantially the same language.     See
State v. Scull, 2015 WI 22, ¶18 n.3, 361 Wis. 2d 288, 862
N.W.2d 562.


                                               3
                                                                        No.   2016AP2455-CR.awb


conduct——that the government would not profit from its lawless

behavior,        thus    minimizing        the       risk   of    seriously       undermining

popular trust in government."                    See Herring v. United States, 555

U.S. 135, 152 (2009) (Ginsburg, J., dissenting) (quoting United

States      v.    Calandra,        414    U.S.    338,      357   (1957)      (Brennan,      J.,

dissenting)); see also Robert M. Bloom & David H. Fentin, "A

More Majestic Conception":                 The Importance of Judicial Integrity

in Preserving the Exclusionary Rule, 13 U. Pa. J. Const. L. 47

(2010).

      ¶67        Eight years ago, Hess provided an instructive analysis

of    the        judicial      integrity         consideration           in   applying       the

exclusionary           rule.        See     Hess,        327      Wis. 2d 524,       ¶¶63-67.

"[J]udicial           integrity     is    implicated         when    a    judge     issues    a

warrant that does not comply with statutory requirements and is

not    supported          by    the       constitutionally           required       oath     or

affirmation."            Id.,      ¶63.      Further,          "[t]he    consideration       of

judicial integrity must take into account the nature of the

defects in the warrant."                 Id., ¶66.
      ¶68        In   Hess,    a    civil    bench       warrant     issued       for   Hess's

arrest because he failed to meet with the agent assigned to

complete his pre-sentence investigation.                          Id., ¶8.       The defects

in Hess's warrant "were not technical irregularities or errors

of judgment:            The defendant's failure to cooperate with the

agent in preparing a PSI was not a crime.                           It did not violate a

court order, and it did not violate a condition of his bond."

Id., ¶66.



                                                 4
                                                                  No.   2016AP2455-CR.awb


      ¶69    Further we explained that "[t]he bench warrant civil

that the court issued was void ab initio because it did not

comply     with    any       statute     authorizing       the    court   to    issue   a

warrant.     It was defective on its face because it was a civil

warrant in a criminal case."                  Id.    "In short, the warrant was

void ab initio              because it was unauthorized and defective in

nearly every respect."             Id.     For this reason, we concluded that

"[w]hen     fundamental         constitutional       and    statutory     requirements

for   issuing      a    warrant    are    completely       absent,      the   good-faith

exception cannot save the resulting unconstitutionally obtained

evidence."        Id., ¶67.

      ¶70    This      case     turns    on   similar      concerns.      The   Ashland

County Circuit Court issued an arrest warrant for Kerr because

he had not paid a forfeiture imposed for disorderly conduct.

Majority op., ¶8.              Wisconsin Stat. § 800.095 provides specific

procedures for the filing of such a warrant.                      The Ashland County

Circuit Court followed none of them, yet issued the warrant

anyway.2
      ¶71    Accordingly, the Ashland County Circuit Court had no

authority to issue the warrant.                     It was, like the warrant in

Hess,     "void        ab     initio     because     it     was    unauthorized      and

      2
       The concurrence latches onto an argument not advanced by
either party, concluding that "neither the plain language of the
applicable statutes nor the facts of record support the
conclusion   that   the   issuing   court   acted   wrongfully."
Concurrence, ¶56.    Even the state concedes that "the arrest
order here was void ab initio." Rather than engage an argument
that was not briefed or argued, I determine that the State's
concession is reasonable and conclude the warrant was void ab
initio.


                                              5
                                                                  No.   2016AP2455-CR.awb


defective . . . ."        See Hess, 327 Wis. 2d 524, ¶66.                  As in Hess,

maintaining      the    integrity   of       the    judicial        process     demands

suppression of the evidence here.

       ¶72   The Bayfield County Circuit Court agreed in its ruling

suppressing the evidence.           In its thoughtful written decision,

the    circuit   court    stated:        "There      are    obvious       reasons    why

judicial integrity is a valid consideration.                      While there is no

reason in this case to assume intentional malfeasance on the

issuing court, the record from the Ashland County case shows an

institutional or administrative disregard for the law governing

civil commitments."

       ¶73   Using judicial integrity as the sole basis for the

application of the exclusionary rule is admittedly only proper

in    "unusual   circumstances."         See       Hess,    327    Wis. 2d 524,      ¶64

(citing Leon, 468 U.S. at 921 n.22).                       The warrant here was

issued without regard for the mandatory procedural safeguards of

Wis. Stat. § 800.095.          Such a situation presents the "unusual

circumstances" necessary to suppress evidence based solely on
the concern for judicial integrity.

       ¶74   For the foregoing reasons, I respectfully dissent.

       ¶75   I   am    authorized   to    state      that    Justice       SHIRLEY    S.

ABRAHAMSON joins this dissent.




                                         6
                                                                    No.    2016AP2455-CR.rgb


        ¶76    REBECCA        GRASSL      BRADLEY,        J.      (dissenting).           The

majority applies federal Exclusionary Rule jurisprudence in this

case despite the fact that the United States Supreme Court has

never addressed whether that rule applies in the context of a

void ab initio warrant.                 We have our own Constitution in the

State of Wisconsin and it provides:                    "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 by oath

or   affirmation,        and    particularly          describing     the    place    to    be

searched and the persons or things to be seized."1                           For nearly a

century, this court deemed unauthorized warrants to be void ab

initio and required any evidence recovered under such warrants

to be suppressed, a rule this court reaffirmed just eight years

ago.2         Instead    of    applying    long-standing          Wisconsin      law,     the

majority       allows    the    admission        of    evidence     obtained      under     a

warrant with no basis in the law——a warrant the State concedes

was void ab initio and which caused the unlawful arrest and
search of a Wisconsin citizen.               Notably, the invalid warrant for

Christopher       Kerr's       arrest     stemmed      from    an    unpaid      municipal

citation for an ordinance violation——a civil, not a criminal

offense.



        1
            Wis. Const. art. I, § 11 (emphasis added).
        2
       State v. Kriegbaum, 194 Wis. 229, 232, 215 N.W.                                    896
(1927); State v. Hess, 2010 WI 82, 327 Wis. 2d 524,                                       785
N.W.2d 568.


                                             1
                                                              No.     2016AP2455-CR.rgb

    ¶77     Perhaps it is easy to acquiesce in the circuit court's

infringement    of    constitutional         rights    when     the    defendant     is

found with an illegal drug in his pocket, but the majority's

decision applies equally to the innocent citizens of Wisconsin

who may be unlawfully arrested and searched under the guise of a

warrant.     An alarming example of the abuse of the judicial power

to issue warrants occurred just five years ago when unelected

"Reserve Judge [Barbara] Kluka authorized search warrants for

the homes and offices of" citizens of Wisconsin, which "were

executed . . . in pre-dawn, armed, paramilitary-style raids in

which bright floodlights were used to illuminate the targets'

homes."     State ex rel. Two Unnamed Petitioners v. Peterson, 2015

WI 85, ¶28, 363 Wis. 2d 1, 866 N.W.2d 165.                 An unelected reserve

judge issued these search warrants against "citizens who were

wholly innocent of any wrongdoing" and despite the absence of

probable cause that any crime had been committed.                       Id. at ¶¶34-

35, 133.

    ¶78     Under     the     Wisconsin       Constitution,           statutes,      and

longstanding    case    law,     the    evidence      in   this       case    must   be
suppressed    because    it    was     obtained     only   as    a    result    of   an

unlawful     arrest    warrant       issued    in     violation        of    statutory

procedures and Kerr's constitutional rights.                    A warrant issued

in violation of Wis. Stat. § 800.095 is void ab initio, and any

search or seizure pursuant to such a warrant violates Article I,

Section 11 of the Wisconsin Constitution.                     I would affirm the

circuit     court's    order     suppressing        the    unlawfully         obtained

evidence.



                                         2
                                                                   No.    2016AP2455-CR.rgb

     ¶79    Just    two   years     ago,       I    cautioned       against        judicial

approval of governmental intrusion into the home in violation of

a   citizen's       constitutional         guarantee          to         be     free    from

unreasonable searches and seizures.3                     The infringement in this

case is perhaps more alarming because it was accomplished by law

enforcement's blameless execution of a warrant that the judge

issued on his own initiative and with no legal basis whatsoever;

rather,    the   warrant     was    issued         in     violation       of     procedural

preconditions set forth in the Wisconsin Statutes.                             The majority

minimizes    the    gravity    of    the       judge's       error        by     altogether

ignoring it.       But the danger of tolerating a breach of statutory

procedures was powerfully explained by the United States Supreme

Court over a century ago:

     [I]llegitimate and unconstitutional practices get
     their first footing . . . by silent approaches and
     slight deviations from legal modes of procedure. This
     can only be obviated by adhering to the rule that
     constitutional provisions for the security of person
     and property should be liberally construed.     A close
     and literal construction deprives them of half their
     efficacy, and leads to gradual depreciation of the
     right, as if it consisted more in sound than in
     substance.    It is the duty of the courts to be
     watchful for the constitutional rights of the citizen,
     and against any stealthy encroachments thereon.

Boyd v. United States, 116 U.S. 616, 635 (1886).                              The majority

strengthens the foothold of an illegitimate and unconstitutional

judicial    practice,        disregards            its    duty      to        protect      the

constitutional      rights    of    Wisconsin            citizens,       and     permits    a


     3
       State v. Weber, 2016 WI 96, ¶141, 372 Wis. 2d 202, 887
N.W.2d 554 (R. Grassl Bradley, J. dissenting).


                                           3
                                                                   No.   2016AP2455-CR.rgb
stealthy encroachment of the right to be free from unlawful

searches and seizures.         I respectfully dissent.


                                             I

       ¶80     There is no dispute that the evidence discovered by

police during the search of Kerr, incident to his arrest, was

unlawfully obtained.          Both parties agree that the warrant should

not have issued because the circuit court failed to follow the

statutory procedures required for issuing a valid warrant.                            The

State argues that despite the statutory violation resulting in

the    unlawful    search,     the   evidence         is   admissible      because    the

Exclusionary Rule does not apply absent police misconduct, and

everyone agrees the police did nothing wrong.                             I agree that

suppression under the Exclusionary Rule is limited to instances

of    police    misconduct     and     the       court     should    not    extend    its

application.        See   State      v.    Dearborn,       2010     WI   84,   ¶44,    327

Wis. 2d 252, 786 N.W.2d 97.               The police did not engage in any

misconduct in this case; therefore, the Exclusionary Rule does

not apply.

       ¶81     Nonetheless,    the     evidence        must   be    suppressed       under
Wisconsin law because the warrant was void ab initio, making the

search   violative     of     Kerr's      constitutional         rights.       Wisconsin

case    law    requires     suppression          of   evidence      obtained    under   a




                                             4
                                                                  No.   2016AP2455-CR.rgb

warrant that was void ab initio.4                   The purpose of this rule is

not   to    provide       a   remedy   for    the       citizen   whose    rights    were

violated; the harm attendant to an unlawful arrest and search is

irreparable.        Rather, suppression partially restores the status

quo ante:          but for the issuance of the unlawful warrant, no

arrest      would    have       been   made,       no    search    would    have     been

conducted, and no evidence would have been discovered.

                                             II

      ¶82     In    its       brief,   the    State       explicitly      concedes    the

warrant was void ab initio:              "[T]he court that issued the arrest

warrant had no authority to do so, rendering the warrant void ab

initio."      Additionally, the State notes:

      This arrest warrant, as it turns out, was void ab
      initio.   A warrant is "void ab initio" when it was
      "[n]ull from the beginning, as from the first moment."
      Void,   Black's   Law  Dictionary    (10th ed.   2014)
      (including definition of "void ab initio"); see also
      [State v.]Hess, 2010 WI 82, ¶2 n.1.[5]
The       State,     citing       Justice         Annette     Kingsland       Ziegler's

concurrence in State v. Hess,6 as well as State v. Kriegbaum,7


      4
       Relying on federal appellate court decisions, the State
asserts that the Exclusionary Rule applies even when a warrant
is void ab initio.    The United States Supreme Court, however,
has not subjected a void ab initio warrant to the exclusionary
rule-good faith analysis.   This court is "bound on the subject
of federal law only by the pronouncements of the United States
Supreme Court." State v. Webster, 114 Wis. 2d 418, 426 n.4, 338
N.W.2d 474 (1983). Wisconsin case law requires suppression and
it is our state law we should apply.
      5
          2010 WI 82, 327 Wis. 2d 524, 785 N.W.2d 568.
      6
          Id., ¶¶71-73 (Ziegler, J. concurring).
      7
          194 Wis. at 232.


                                             5
                                                                     No.    2016AP2455-CR.rgb

State v. Loney,8 and State v. Grawien,9 correctly explains:                                     "A

warrant      can   be    void      ab   initio      when    the    judge    or   magistrate

lacked legal authority to issue any warrant, or when a mandatory

condition precedent to the court's authority to issue a warrant

was not met from the outset."

      ¶83     Neither party disputes that the circuit court failed

to comply with the provisions of Wis. Stat. § 800.095(1)(b)2.,

and   therefore         lacked      any   authority         to    issue    the   warrant.10

Wisconsin law prohibits imprisoning a defendant for failing to

pay a fine imposed for a municipal ordinance violation unless

the court finds, as pertinent here, that the defendant has the

financial      ability        to   pay    the       fine    or    failed    to   attend         an

indigency hearing to determine his ability to pay.                               Wis. Stat.

§ 800.095(1)(b)2.             Accordingly, the warrant for Kerr's arrest

was   null    from      the    beginning——it          was   void    ab     initio.         As    a

result,      Kerr's      constitutional          rights      were    violated        and    the

evidence discovered should be suppressed.




      8
           110 Wis. 2d 256, 260, 328 N.W.2d 872 (Ct. App. 1982).
      9
           123 Wis. 2d 428, 430-31, 367 N.W.2d 816 (Ct. App. 1985).
      10
       Wisconsin Stat. § 800.095 provides that "[n]o defendant
may be imprisoned under [Wis. Stat. § 800.095(1) for failure to
comply with certain court ordered requirements] unless the court
makes one of [four] findings."   These include finding that the
defendant has the ability to pay the judgment within a
reasonable time (subd. para. a.), has failed without good cause
to perform required community service (subd. para. b.), has
failed to attend an indigency hearing (subd. para. c), or has
failed without good cause to complete certain drug or alcohol
programs (subd. para. d).


                                                6
                                                                     No.   2016AP2455-CR.rgb

      ¶84    Longstanding precedent——Kriegbaum, Loney, and Grawien—

—controls    this      case.      In   Kriegbaum,       this        court    held    that    a

warrant issued without authority violates Article I, Section 11

of the Wisconsin Constitution, which guarantees to the defendant

immunity from unreasonable searches and seizures:                               "A search

made pursuant to warrant issued by a justice of the peace to

whom the legislature had not granted the power to issue such a

warrant     is   an    unreasonable        search      and     in     violation      of   the

defendant's      constitutional        rights     under       this     section      of    that

fundamental law."            194 Wis. 229, 233, 215 N.W. 896 (1927).

      ¶85    The      same    principle     applies       in    Kerr's       case.        The

circuit court did not have authority under Wis. Stat. § 800.095

to issue the warrant because it did not make any of the four

findings under subd. 2.             Compliance with the statutory mandates

is necessary to confer authority on the circuit court to issue

the warrant.

      ¶86    The      circuit     court's       failure        to     comply     with     the

statutory    procedures         deprived    it    of    any     lawful       authority      to

issue this warrant in the first place.                       The warrant's issuance
rendered the search constitutionally unreasonable.                              This court

in Kriegbaum, 194 Wis. at 233, concluded that the admission of

the   evidence        obtained      from     an     unlawful          warrant       violated

Wisconsin's        Constitution.           This     court           should     apply      this

precedent in Kerr's case and suppress the evidence.

      ¶87    Our court of appeals reached the same conclusion in

Loney and Grawien.             In Loney, the court of appeals held that

evidence obtained as a result of an unlawfully issued warrant
necessitated suppression of the evidence.                      110 Wis. 2d 256, 259-

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60,    328   N.W.2d 872          (Ct.   App.    1982).         Because      the    court

commissioner who issued the warrant lacked the authority to do

so, the circuit court should have granted the defendant's motion

to    suppress,    and     the    court    of   appeals    accordingly         reversed

Loney's conviction.              Id. at 260.          In Grawien, the court of

appeals likewise held that when a warrant is issued by a court

commissioner who had no authority to issue it, the evidence

obtained under the unlawful warrant must be suppressed.                               123

Wis. 2d 428, 431-33, 367 N.W.2d 816 (Ct. App. 1985).

       ¶88   In this case, the circuit court similarly lacked legal

authority to issue the warrant because it did not make any of

the    findings    mandated       by    Wis.    Stat.    § 800.095(1)(b)2.            Any

evidence discovered upon execution of a warrant void ab initio

must be suppressed as a violation of Kerr's right to be free

from    unreasonable       searches       and   seizures    under     the    Wisconsin

Constitution.11          See also State v. Vickers, 964 P.2d 756, 762

(Mont. 1998) (holding that a void ab initio warrant requires

suppression,       and    "the     inquiry      stops    and    all    other      issues

pertaining    to    the     validity      of    the   search    warrant,       such   as
whether the purpose of the exclusionary rule is served, are

moot"); People v. Carrera, 783 N.E.2d 15 (Ill. 2002); State v.

Surowiecki, 440 A.2d 798, 799 (Conn. 1981) (suppressing evidence

       11
       Case law also supports suppression as a sanction when
statutes are violated.     See, e.g., State v. Renard, 123
Wis. 2d 458, 461, 367 N.W.2d 237 (Ct. App. 1985) ("Suppression
of the blood test is an appropriate sanction for failure to
comply with [Wis. Stat. §] 343.305(5)"); see also State v.
McCrossen, 129 Wis. 2d 277, 286-97, 385 N.W.2d 161 (1986)
(discussing sanctions including suppression arising from due
process violations).


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obtained under void ab initio warrant because it was "fatally

defective, invalid and void and conferred no authority to act

thereunder") (quoted source omitted); State v. Nunez, 634 A.2d

1167, 1169 (R.I. 1993) (reversing conviction based on evidence

obtained from void ab initio warrant); People v. Hentkowski, 397

N.W.2d     255    (Mich.      Ct.    App.   1986)     (per   curiam)     (suppressing

evidence obtained from void ab initio warrant); State v. Covert,

675 S.E.2d 740, 742-43 (S.C. 2009) (reversing conviction because

evidence     should      have       been   suppressed    where    warrant     was   not

signed; not reaching good faith exception because an unsigned

warrant is "not a warrant" at all).

      ¶89    Justice          Ziegler's      distinction      between       void     and

defective warrants is unconvincing.12                 The warrant issued here is

no different than the problematic warrants in Hess, Kriegbaum,

Loney, and Grawien.            The individual official issuing the warrant

in each case lacked the statutory authority to do so.                         In Hess,

just like this case, the circuit court judge lacked statutory

authority to issue an arrest warrant.                   327 Wis. 2d at 524, ¶23.

The   fact       that   judges       generally   possess      authority      to    issue
warrants     does       not    authorize     judges     to   issue     warrants     that


      12
       There is a dearth of precedent distinguishing between
warrants that are void ab initio and warrants that are simply
defective on both the federal and state level.           Justice
Ziegler's concurrence in Hess is the only case identifying a
notable difference between the two, but Justice Ziegler did not
cite to any case law to support her proposition. See Hess, 327
Wis. 2d 524, ¶73 (Ziegler, J., concurring) ("While a per se void
ab initio warrant is always defective, a defective warrant is
not always per se void ab initio.").          Justice Ziegler's
concurrence in this case fares no better——it cites no cases
supporting the distinction she makes here.


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violate statutory law or constitutional rights.                          That the judge

in   Kerr's    case      would    have   had    legal    authority        to    issue     the

warrant if he had complied with the statutory requisites does

not alter the nature of the constitutional violation.                           A void ab

initio warrant is not a warrant at all——it is as if the warrant

never existed; therefore, the analysis stops and the evidence

should be suppressed.             These cases are different from situations

involving a warrant that was valid when issued, but a reviewing

court      later   declared       the    warrant   invalid.             For    example,     a

warrant     may    be    valid    upon    issuance,      but    subsequently        become

invalid because a statute is declared unconstitutional, case law

is overruled, the legislature changes the law, or a reviewing

court decides the warrant was not supported by probable cause.

In these examples, the law or the analysis of it changed.                                 In

Kerr's      situation,      the    judge    did    not     follow       governing        law,

rendering the warrant void from the beginning.13                          The judge who

issued     Kerr's       warrant   lacked    any    legal       authority       to   do   so.

Hess, Kriegbaum, Loney, and Grawien control under these facts.

The evidence should be suppressed because it was obtained only
as a result of an arrest warrant that was void ab initio and


      13
       In her concurrence, Justice Ziegler attempts to vindicate
the judge's issuance of the warrant for Kerr's arrest. The text
itself   categorically   negates  her   statutory   construction.
Section 800.095(1)(b)2 unambiguously declares:     "No defendant
may be imprisoned under subd. 1 unless the court makes one of
the following findings: . . . ."    As pertinent in this case,
these include finding that the defendant has the ability to pay
the judgment within a reasonable time (subd. para. a.), and has
failed to attend an indigency hearing (subd. para. c).      It is
uncontested that the requisite finding was not made; therefore,
Kerr's arrest and imprisonment were unlawful.


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therefore        in     violation        of     Kerr's       right       to     be     free    from

unreasonable           searches         and     seizures          under         the     Wisconsin

Constitution.

      ¶90    The        Fourth    Amendment,           the       language       of     which    the

framers     of    the     Wisconsin       Constitution            adopted       verbatim,       was

designed to protect the people from the odious English practice

of issuing writs of assistance empowering revenue officers to

indiscriminately search homes.                       Boyd, 116 U.S. at 624-25.                 This

practice     was       rightly     described          as    "the       worst    instrument       of

arbitrary power, the most destructive of English liberty, and

the fundamental principles of law, that ever was found in an

English     law       book."      Id.     at     625       (quoting      Thomas       M.   Cooley,

Constitutional Limitations 301-303 (1868)).                              If evidence seized

under an unlawful warrant may be used against a person whose

constitutional rights were violated by an unreasonable search

and seizure,          "declaring his right to be secure against such

searches and seizures, is of no value, and, so far as those thus

placed     are     concerned,       might        as     well      be    stricken        from    the

Constitution."            Weeks     v.    United        States,         232     U.S.    383,    393
(1914).14         While    allowing           Kerr    to    circumvent          punishment      for

illegal drug possession may be an unpalatable outcome for the

majority, "[t]he efforts of the courts and their officials to

bring the guilty to punishment, praiseworthy as they are, are

not   to    be    aided    by     the    sacrifice          of    those    great       principles

established        by     years    of     endeavor          and    suffering          which    have

      14
       Mapp v. Ohio, 367 U.S. 643 (1961), extended the
exclusionary rule established in Weeks v. United States, 232
U.S. 383, 393 (1914), to state criminal cases.


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resulted   in   their   embodiment   in   the   fundamental    law   of   the

land."   Id.

    ¶91    I respectfully dissent.




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