On Point: H. Exclusionary rule

Darryl J. Sutton v. Randy Pfister, 7th Circuit Court of Appeals No. 15-2888, 2016 WL 4446561, 8/24/16

Sutton filed a habeas petition challenging his sexual assault conviction on the ground the evidence connecting him with the crime was obtained by the state through a conceded violation of the Fourth Amendment in a different case. The district court ruled in his favor, but the court of appeals holds there’s no Fourth Amendment violation because the evidence would inevitably have been discovered.

State v. Katherine J. Downer Jossi, 2016AP618-CR, 8/24/16, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

This court of appeals decision acknowledges what On Point predicted here when SCOTUS issued Rodriguez v. United States, 135 S. Ct. 1609 (2015). That is, Rodriguez, which held that prolonging a traffic stop to conduct a dog sniff requires reasonable suspicion of criminal activity  beyond the traffic infraction, effectively overruled State v. Arias, 2008 WI 84, ¶32, 311 Wis. 2d 358, 752 N.W.2d 748, which allowed for a reasonable delay based on the totality of the circumstances (a.k.a. the “incremental intrusion” test).

State v. Paul L. Linde, 2014AP2445-CR, 8/2/16, District 3 (not recommended for publication); case activity (including briefs)

A court commissioner issued a warrant to search Linde’s cabin for evidence of drug manufacturing and for drug paraphernalia. It was based in part on a tip by an anonymous informant, a fact that proved decisive in the court of appeals decision to reverse the circuit court’s denial of Linde’s suppression motion.

State v. Mastella L. Jackson, 2016 WI 56, 7/1/16, affirming a published decision of the court of appeals, 2015 WI App 49, 363 Wis. 2d 553, 866 N.W.2d 768; case activity (including briefs)

Despite the “flagrant” and “reprehensible” violations of Jackson’s Fifth Amendment rights by police, the supreme court holds that physical evidence seized based in part on information obtained from those violations should not be suppressed because the evidence would have been inevitably discovered. In the course of this ruling, the court alters Wisconsin’s long-established inevitable discovery standard and refuses to rule out using the doctrine in cases where the police intentionally violate a suspect’s rights.

Utah v. Strieff, USSC No. 14-1373, 2016 WL 3369419 (June 20, 2016), reversing State v. Strieff, 357 P.3d 532 (Utah 2015); Scotusblog page (includes links to briefs and commentary)

“This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. ”  –Sotomayor, J., dissenting

United States v. Lonnie Whitaker, 7th Circuit Court of Appeals Nos. 14-3290 & 14-3506, 4/12/16

Taking a drug-sniffing dog into the locked, second-floor hallway of an apartment building where there were at least six to eight apartments without first obtaining a warrant violated the Fourth Amendment under Florida v. Jardines, 133 S. Ct. 1409 (2013), and Kyllo v. United States, 533 U.S. 27 (2001).

SCOTUS will hear argument in Utah v. Strieff on February 22nd. Orin Kerr just published, on SCOTUSblog, this analysis of the future of the exclusionary rule, which has come under attack in recent decisions like Davis v. U.S. and Herring v. U.S. If you’ve got a Fourth Amendment issue, his post is worth a read.

State v. Brian I. Harris, 2016 WI App 2, petition for review granted 4/6/16, affirmed 2017 WI 31; case activity (including briefs)

Incriminating statements Harris made while he was in custody were admissible despite the lack of Miranda warnings because the statements were either sufficiently attenuated from the taint of police questioning or were not made in response to police interrogation.

State v. David Jerome Gant, 2015 WI App 83; case activity (including briefs)

Ten months after seizing Gant’s computer as part of their investigation of the death of Gant’s wife, police searched the computer pursuant to a warrant and found child pornography. Assuming it was unlawful for the police to keep Gant’s computer for that long, the child pornography found on the computer should not be suppressed under the independent source and attenuation doctrines.

Review of a published court of appeals decision; case activity (including briefs)

Issues (composed by On Point from the PFR)

1. Does the inevitable discovery doctrine require the State to show that information gained through police misconduct did not prompt or influence the purportedly lawful investigation?
2. Does the inevitable discovery doctrine require the State to show that it was actively pursuing an alternative line of investigation prior to the illegal conduct?
3. Does the Wisconsin Constitution bar use of the inevitable discovery doctrine to allow admission of evidence obtained through an intentional violation of constitutional rights?