State v. Grawien, No. 84-416-CR

• Court: Court of Appeals of Wisconsin
• Writing for the Court: Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM; NETTESHEIM
• Citation: 367 N.W.2d 816,123 Wis.2d 428
• Docket Number: No. 84-416-CR
• Decision Date: 07 March 1985
• Parties: STATE of Wisconsin, Plaintiff-Appellant and Cross-Respondent, v. James GRAWIEN, Defendant-Respondent and Cross-Appellant. d

Page 816

367 N.W.2d 816 123 Wis.2d 428 STATE of Wisconsin, Plaintiff-Appellant and Cross-Respondent,
v.
James GRAWIEN, Defendant-Respondent and Cross-Appellant.
^d No. 84-416-CR. Court of Appeals of Wisconsin. Submitted on Briefs Jan. 31, 1985.
Opinion Released March 7, 1985.
Opinion Filed March 7, 1985.

Page 817

[123 Wis.2d 430] Bronson C. La Follette, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen., for plaintiff-appellant and cross-respondent.

Mark Lukoff, First Asst. State Public Defender, for defendant-respondent and cross-appellant.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

NETTESHEIM, Judge.

The State of Wisconsin appeals an order of the trial court granting the suppression of certain evidence. ¹ The respondent, James Grawien, cross-appeals an order of the trial court denying the suppression of other evidence.

James Grawien was charged with the unlawful possession of a controlled substance with intent to deliver pursuant to sec. 161.41(1m)(b), Stats. Prior to the issuance of the complaint, Court Commissioner William D. Engler, Jr. issued a search warrant authorizing the search of Grawien's house and adjoining property for marijuana and other controlled substance related materials. The search warrant was supported by the affidavit of Daniel G. Hughes, an agent for the Wisconsin Department of Justice. Hughes recited that the Manitowoc County Sheriff's Department had received an anonymous letter stating that marijuana was being grown and cultivated on Grawien's property and that an aerial surveillance had revealed the presence of a patch of suspected marijuana growing on Grawien's property.

At a motion to suppress the evidence seized pursuant to the search warrant, the state conceded that Commissioner[123 Wis.2d 431] Engler was not authorized to issue search warrants pursuant to sec. 757.69(1), Stats. The state requested an opportunity to make an offer of proof to demonstrate the good faith of the police authorities in procuring the warrant from Commissioner Engler. The trial court denied the request to make the offer of proof and granted the motion to suppress.

At the time of its decision, the trial court did not have the benefit of the recent United States Supreme Court decision of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Leon adopts a "good faith" exception to the exclusionary rule under the Fourth Amendment of the United States Constitution. The state asks that we do the same.

The state's request, however, flies in the face of the controlling case law of the Wisconsin Supreme Court. The application of the exclusionary rule in Wisconsin is one that is firmly rooted in our jurisprudence (see Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923)), and one that long predates the landmark case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which made the exclusionary rule binding upon the states. In addition, the Wisconsin Supreme Court recognized in State v. Kriegbaum, 194 Wis. 229, 215 N.W. 896 (1927), that the receipt into evidence of the fruits of a search warrant issued by one having no such authority violates a right under the Wisconsin Constitution to be free from unreasonable searches and seizures. Kriegbaum holds:

The legislature having granted no power to a justice of the peace to issue a warrant for the search of a person, the conclusion follows that the liquor in question was received in evidence in violation of art. I, sec. 11, of the constitution of Wisconsin, 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

Page 818

not [123 Wis.2d 432] 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. [Emphasis added.]

Id. at 232, 215 N.W. at 897-98.

The state effectively seeks the overruling of Hoyer, its progeny and the Kriegbaum case. This is neither our function nor our privilege.

The Wisconsin Court of Appeals serves the primary "error-correcting" function in our two-tiered appellate system. See State v. Mosley, 102 Wis.2d 636, 665-66, 307 N.W.2d 200, 216-17 (1981). The Wisconsin Supreme Court, unlike the court of appeals, has been designated by the constitution and the legislature as a law-declaring court. See State ex rel. La Crosse Tribune v. Circuit Court, 115 Wis.2d 220, 230, 340 N.W.2d 460, 465 (1983). While the court of appeals also serves a law-declaring function, such pronouncements should not occur in cases of great moment. ² This is such a case.

The supreme court has previously wrestled with certain reservations concerning the wisdom of the exclusionary rule and its retention. See Conrad v. State, 63 Wis.2d 616, 636-39, 218 N.W.2d 252, 262-64 (1974); id. at 640-43, 218 N.W.2d at 264-66 (Wilkie, J., concurring). Our supreme court has acknowledged that a United States Supreme Court decision relieving the states of the exclusionary rule would additionally require overruling Hoyer. Id. at 637-38, 218 N.W.2d at 263.

In light of these considerations, a court of appeals decision which effectively overrules a controlling decision of the Wisconsin Supreme Court is patently erroneous and usurpative.

[123 Wis.2d 433] We therefore affirm the order of the trial court suppressing the evidence seized pursuant to the search warrant. ³

Grawien cross-appeals an order of the trial court denying a motion to suppress evidence obtained as a result of aerial surveillance of his property. ⁴

On September 15, 1983, Detective Larry Conrad received an anonymous letter from an individual who stated that marijuana was possibly being grown on Grawien's property. Detective Conrad contacted the Wisconsin Department of Justice, and aerial surveillance was planned. On September 21, 1983, agent Daniel G. Hughes and his pilot made three passes over Grawien's property at various altitudes. Twenty photographs were taken of the area. Hughes observed a patch of suspected marijuana approximately twenty feet by twenty-five feet behind and to the south of the Grawien residence.

The trial court found this marijuana patch to be approximately twenty-five by twenty-five feet, "although not necessarily square." The patch was located approximately 100 to 150 feet from the rear of the Grawien residence. Adjacent to the southwest corner of the marijuana[123 Wis.2d 434] patch was a pumpkin patch and to the immediate west thereof another area described by one witness as a vegetable garden. The marijuana patch was...