State Of Wis. v. Dearborn, No. 2007AP1894-CR.

CourtUnited States State Supreme Court of Wisconsin
Citation786 N.W.2d 97,2010 WI 84
Decision Date15 July 2010
PartiesSTATE of Wisconsin, Plaintiff-Respondent,v.David A. DEARBORN, Defendant-Appellant-Petitioner.
Docket NumberNo. 2007AP1894-CR.

786 N.W.2d 97
2010 WI 84

STATE of Wisconsin, Plaintiff-Respondent,
v.
David A. DEARBORN, Defendant-Appellant-Petitioner.

No. 2007AP1894-CR.

Supreme Court of Wisconsin.

Argued April 13, 2010.
Decided July 15, 2010.


786 N.W.2d 98

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For the defendant-appellant-petitioner there were briefs and oral argument by Eileen A. Hirsch, assistant state public defender.

For the plaintiff-appellant the cause was argued by Michael J. Losse, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

¶ 1 MICHAEL J. GABLEMAN, J.
786 N.W.2d 256

This is a review of a published decision of the court of appeals 1 affirming

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the circuit court's judgment of conviction against David A. Dearborn.2 Dearborn asserts that the circuit court erred in denying his motion to suppress evidence obtained from a search of the passenger compartment of his locked vehicle, a search that occurred after he was placed under arrest and secured in the back of a squad car.

¶ 2 Dearborn maintains, and the State concedes, that in the wake of the United States Supreme Court's ruling in Arizona v. Gant, 556 U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the search of Dearborn's truck violated his constitutional right to be secure against unreasonable searches and seizures. The main question in this case is whether the exclusionary rule should be applied to remedy the constitutional violation, or alternatively, whether the good faith exception should preclude application of the exclusionary rule and the evidence's consequent suppression.3

¶ 3 Prior to the United States Supreme Court's decision in Gant, this court made clear in State v. Fry, 131 Wis.2d 153, 388 N.W.2d 565 (1986), and its progeny

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that the type of search conducted of Dearborn's truck following his arrest was lawful. However, we now accept Gant's interpretation of the United States Constitution and adopt its holding as the proper interpretation of the Wisconsin Constitution's protection against unreasonable searches and seizures. Thus, the search of Dearborn's truck violated his constitutional rights.

¶ 4 However, we decline to apply the remedy of exclusion for the constitutional violation. We hold that the good faith exception precludes application of the exclusionary rule where officers conduct a search in objectively reasonable reliance upon clear and settled Wisconsin precedent that is later deemed unconstitutional by the United States Supreme Court. Accordingly, we affirm the court of appeals and uphold Dearborn's conviction.

I. BACKGROUND

¶ 5 On April 9, 2006, State Department of Natural Resources conservation warden Martin Stone was on his regular patrol, checking fishing license compliance in various locations in Richland County. The warden stopped at the Port Andrews boat

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landing to get a better look at the fishermen who were below a nearby bridge. David A. Dearborn had been sitting in his truck at the boat landing, but left soon after the warden arrived in his squad car. Dearborn then drove close to the warden's squad car, slowed down, and made an obscene gesture while glaring angrily at the warden. Concerned about his safety, the warden ran Dearborn's license plate and learned that Dearborn's license had been revoked for operating while intoxicated.

¶ 6 The warden then pursued Dearborn and pulled him over. Dearborn immediately exited his vehicle and walked toward the warden. The warden

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instructed Dearborn to get back in his truck, but Dearborn instead shut the door and locked his vehicle. The warden spoke with Dearborn and verified his identity. Dispatch confirmed that Dearborn was driving with a revoked license, and the warden told Dearborn he was placing him under arrest.

¶ 7 Dearborn became mad and refused to submit to arrest. As the warden tried to arrest him, Dearborn resisted by pushing and kicking. When the warden tried to subdue Dearborn with pepper spray, Dearborn waved a jacket in front of himself to deflect the spray. Dearborn then ran to a nearby house, picked up rocks, and started to wind up as if to throw them. The warden drew his gun in response, which persuaded Dearborn to put the rocks down. Even so, Dearborn kept resisting. He ran to the door of the nearby home and began yelling and shaking the doorknob. After the warden's additional attempt to arrest Dearborn was met with more kicking and punching, the warden again used pepper spray and was finally able to secure Dearborn until backup arrived.

¶ 8 Once backup arrived, Dearborn was placed under arrest and secured in handcuffs in the back of a squad car. The warden and a state trooper then unlocked and searched Dearborn's truck. Inside the passenger compartment, they found a small wooden container known as a “dugout” that contained a small amount of marijuana and a small metal pipe that smelled like burnt marijuana.

¶ 9 On April 11, 2006, a criminal complaint was filed in the Grant County Circuit Court, George S. Curry, Judge. Dearborn was charged with resisting a conservation warden, possession of THC, and possession of drug paraphernalia. Dearborn filed a pretrial motion to suppress the evidence obtained through the

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search of his vehicle on the grounds that the search was unconstitutional, but the circuit court denied the motion. A jury found Dearborn guilty of resisting a conservation warden and possession of THC, but not guilty of possession of drug paraphernalia.

¶ 10 Dearborn appealed.4 The court of appeals “assume[d] without deciding” that the issue was not preserved because Dearborn did not move at trial to suppress the evidence of the search on the grounds that it was not a valid search incident to arrest. Dearborn, 313 Wis.2d 767, ¶¶ 43-441, 758 N.W.2d 463. But the court agreed to hear the issue because it was a question of law, was briefed by the parties, and was of sufficient public interest to merit a decision.5 Id.

786 N.W.2d 102

¶ 11 The court of appeals rejected Dearborn's claim, relying heavily on State v. Littlejohn, 2008 WI App 45, 307 Wis.2d 477, 747 N.W.2d 712 (pet. review granted). In that case, which this court also is deciding today, the court of appeals rejected a nearly identical argument that a search of a locked vehicle after a defendant is under arrest and secured in a squad car violates the Fourth Amendment because the area searched is not in the “immediate control” of the suspect. Littlejohn, 307 Wis.2d 477, ¶ 15, 747 N.W.2d 712; Dearborn, 313 Wis.2d 767, ¶ 46, 758 N.W.2d 463. Thus, the court of appeals held that

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Dearborn's Fourth Amendment rights had not been violated, and that the search was proper.

¶ 12 In his petition for review before this court, Dearborn noted that the United States Supreme Court agreed to address a nearly identical question. We therefore held Dearborn's case and agreed to hear it following the United States Supreme Court's decision in Gant.

II. STANDARD OF REVIEW

¶ 13 The application of constitutional principles to a particular case is a question of constitutional fact. State v. Pallone, 2000 WI 77, ¶ 26, 236 Wis.2d 162, 613 N.W.2d 568. We accept the circuit court's findings of fact unless they are clearly erroneous. Id., ¶ 27. The application of constitutional principles to those facts is a question of law that we review de novo. Id.

III. DISCUSSION

¶ 14 The right to be secure against unreasonable searches and seizures is protected by both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Wisconsin Constitution.6 State v. Sykes, 2005 WI 48, ¶ 13, 279 Wis.2d 742, 695 N.W.2d 277. We have historically interpreted the Wisconsin

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Constitution's protections in this area identically to the protections under the Fourth Amendment as defined by the United States Supreme Court.7 State v. Kramer, 2009 WI 14, ¶ 18, 315 Wis.2d 414, 759 N.W.2d 598. Wisconsin Stat. § 968.11 also provides various restrictions on the scope of a search incident to a lawful arrest.

¶ 15 When there has been an unlawful search, a common judicial remedy for the constitutional error is exclusion. State v. Eason, 2001 WI 98, ¶¶ 39-45, 245 Wis.2d 206, 629 N.W.2d 625. That is, illegally obtained evidence will be suppressed as a consequence of the law enforcement officers' misconduct. Id. The policies underlying both exclusion and the good faith exception to the exclusionary rule will be discussed more fully below.

¶ 16 The question before us is whether the good faith exception to the exclusionary rule should apply when clear and settled precedent, reasonably relied upon by law enforcement, is subsequently overruled.

786 N.W.2d 103

¶ 17 We begin in Part A by discussing the implications of the United States Supreme Court's decision in Gant. We conclude that the search of Dearborn's truck was lawful under clear and settled Wisconsin precedent before the Gant decision, and that the officers here reasonably relied on this law in conducting the search. Yet, we do adopt the holding of Gant as the

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proper construction of Article 1, Section 11 of the Wisconsin Constitution, and recognize that, in light of Gant, the search of Dearborn's truck was in fact unlawful.

¶ 18 In Part B, we move to the proper remedy for this constitutional violation, focusing on the exclusionary rule and its tension with the retroactivity rule. We ultimately decline to enforce the remedy of exclusion for the unlawful search of Dearborn's truck. The principles underlying the exclusionary rule, and the good faith exception in particular, counsel that suppression of this evidence would have no deterrent effect and would therefore be unjustified.

A. Wisconsin Law and Arizona v. Gant

¶ 19 The parties agree that under Arizona v. Gant, the search here violated Dearborn's constitutional right to be free from unreasonable searches and seizures. The parties disagree, however, with...

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107 practice notes
  • State v. Burch, No. 2019AP1404-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 29, 2021
    ...Rule ¶16 "When there has been an unlawful search, a common judicial remedy for the constitutional error is exclusion." State v. Dearborn, 2010 WI 84, ¶15, 327 Wis. 2d 252, 786Page 11 N.W.2d 97. The exclusionary rule is a judicially-created, prudential doctrine designed to compel respect for......
  • State v. Iverson, No. 2014AP515–FT.
    • United States
    • United States State Supreme Court of Wisconsin
    • November 25, 2015
    ...2000 WI 77, ¶ 43, 236 Wis.2d 162, 613 N.W.2d 568 (open intoxicants in a motor vehicle), overruled on other grounds by State v. Dearborn, 2010 WI 84, 327 Wis.2d 252, 786 N.W.2d 97 ; see also City of Milwaukee v. Nelson, 149 Wis.2d 434, 456, 439 N.W.2d 562 (1989) (loitering).18 Neither are tr......
  • State v. Scull, No. 2011AP2956–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 5, 2015
    ...(1974) ). Such is the case where officers act in reliance on clear and well-settled law that is subsequently changed, State v. Dearborn, 2010 WI 84, 327 Wis.2d 252, 786 N.W.2d 97, and where officers act in objectively reasonable reliance on a subsequently invalidated search warrant, Eason, ......
  • State v. Lindquist, No. A12–0599.
    • United States
    • Supreme Court of Minnesota (US)
    • August 19, 2015
    ...when a case overrules binding appellate precedent that previously worked in the State's favor. See State v. Dearborn, 327 Wis.2d 252, 786 N.W.2d 97, 109–10 (2010) (“The only litigants who will be disincentivized are the relatively small number of defendants who choose to challenge searches ......
  • Request a trial to view additional results
107 cases
  • State v. Burch, No. 2019AP1404-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • June 29, 2021
    ...Rule ¶16 "When there has been an unlawful search, a common judicial remedy for the constitutional error is exclusion." State v. Dearborn, 2010 WI 84, ¶15, 327 Wis. 2d 252, 786Page 11 N.W.2d 97. The exclusionary rule is a judicially-created, prudential doctrine designed to compel respect for......
  • State v. Iverson, No. 2014AP515–FT.
    • United States
    • United States State Supreme Court of Wisconsin
    • November 25, 2015
    ...2000 WI 77, ¶ 43, 236 Wis.2d 162, 613 N.W.2d 568 (open intoxicants in a motor vehicle), overruled on other grounds by State v. Dearborn, 2010 WI 84, 327 Wis.2d 252, 786 N.W.2d 97 ; see also City of Milwaukee v. Nelson, 149 Wis.2d 434, 456, 439 N.W.2d 562 (1989) (loitering).18 Neither are tr......
  • State v. Scull, No. 2011AP2956–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 5, 2015
    ...(1974) ). Such is the case where officers act in reliance on clear and well-settled law that is subsequently changed, State v. Dearborn, 2010 WI 84, 327 Wis.2d 252, 786 N.W.2d 97, and where officers act in objectively reasonable reliance on a subsequently invalidated search warrant, Eason, ......
  • State v. Lindquist, No. A12–0599.
    • United States
    • Supreme Court of Minnesota (US)
    • August 19, 2015
    ...when a case overrules binding appellate precedent that previously worked in the State's favor. See State v. Dearborn, 327 Wis.2d 252, 786 N.W.2d 97, 109–10 (2010) (“The only litigants who will be disincentivized are the relatively small number of defendants who choose to challenge searches ......
  • Request a trial to view additional results

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