State v. Hess
| Decision Date | 17 June 2009 |
| Docket Number | No. 2008AP2231-CR.,2008AP2231-CR. |
| Citation | 2009 WI App 105,770 N.W.2d 769 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Michael R. HESS, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL> |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Aaron R. O'Neil, assistant attorney general, and J.B. Van Hollen, attorney general.
Before BROWN, C.J., ANDERSON, P.J., and SNYDER, J.
Wisconsin adopted a good faith exception to the exclusionary rule in State v. Eason, 2001 WI 98, ¶ 74, 245 Wis.2d 206, 629 N.W.2d 625. When people close to the criminal law discuss this exception, they speak of a scenario where law enforcement officers seek to do something, get judicial approval to do it (a warrant), and act in good faith reliance on that judicial approval. In that scenario, the good faith exception provides that law enforcement's reliance will not come back to haunt them if there was a procedural error. Generally this means that courts will admit evidence even if the issuing magistrate made a mistake in approving the warrant application because suppression would not fulfill the main purpose of the exclusionary rule— deterring police misconduct.
¶ 2 But, deterring police misconduct is only one of the exclusionary rule's two purposes. The exclusionary rule was also designed to keep out evidence that undermines judicial integrity. This purpose is not often discussed, but it is as much a part of the law now as it was when Wisconsin adopted the exclusionary rule in 1923. The facts in this case present the first situation in Wisconsin where judicial integrity has squarely collided with the good faith exception.
¶ 3 The question here is whether the evidence is admissible if it was seized while law enforcement was executing a warrant issued by a judge who had no authority whatsoever to issue the warrant. Other jurisdictions have answered this question "no" because a warrant issued by one without the authority to do so is void from the beginning, and no amount of objectively reasonable reliance or good faith by law enforcement can save a void warrant. We agree. The truth is, this case has nothing to do with the reason for the good faith exception (admitting evidence when exclusion will not deter police misconduct or judicial approval of misguided law enforcement action), and everything to do with what happens when a judge's actions threaten the integrity of the judiciary because he or she exercises power never granted to judges in the first place. We conclude that when a judge acts without any authority whatsoever, the warrant is void from the very beginning, and any evidence seized pursuant to it must be suppressed. We thus reverse and remand with directions that proceedings progress without the suppressed evidence.
¶ 4 Michael R. Hess was released on bond pending sentencing for a felony operating a motor vehicle while intoxicated conviction. The trial court had ordered a presentence investigation report (PSI) to be completed before March 13, 2007, in anticipation of a sentencing hearing scheduled fifteen days later. The PSI writer then contacted Hess to come in for an interview so that the writer could add his version of his various life events to the PSI. Hess came in, but left before the PSI writer could complete the interview. When the PSI writer attempted to arrange another appointment to finish the PSI, Hess did not respond and never otherwise made himself available to complete the interview. The PSI writer was provoked enough by Hess's inaction to send a letter to the trial court, dated February 8, 2007, explaining that she could not finish the PSI because Hess had failed to reschedule his appointment. The PSI writer requested in her letter that the trial court place Hess in custody to allow completion of the PSI.
¶ 5 The trial court ordered a civil bench warrant for Hess's arrest. A deputy sheriff then went to Hess's residence to arrest him. While the deputy was escorting him to the squad car, he smelled alcohol on Hess's breath. A subsequent forced blood test revealed that Hess's blood alcohol concentration was 0.118 grams per 100 milliliters. This was a breach of the condition of Hess's bond requiring that he refrain from drinking alcohol. The State then charged Hess with felony bail jumping.
¶ 6 Hess filed a motion to suppress the evidence, alleging that the State seized the evidence of his intoxication as the result of an illegally issued civil bench warrant in violation of his federal and state constitutional rights. He argued for application of the exclusionary rule because the trial court had no authority to issue a civil bench warrant for his arrest.
¶ 7 The trial court concluded that the arrest warrant was legal, and, even if it was not, the good faith exception saved its admissibility. The trial court reasoned that the deputy had a good faith reason to believe that the warrant was valid and the judge had the authority to issue it. And, the trial court concluded, if the court could not issue an arrest warrant to force a defendant to meet with the PSI writer, then defendants would simply refuse to appear. The case then went to a jury trial, and the jury returned a guilty verdict. Hess appeals, asserting the same arguments on appeal as he did in the trial court.
¶ 8 In reviewing a motion to suppress, we apply a two-step standard of review. State v. Pallone, 2000 WI 77, ¶ 27, 236 Wis.2d 162, 613 N.W.2d 568. First, we review the trial court's findings of historical fact, and will uphold them unless they are clearly erroneous. Id. Second, we review the application of constitutional principles to those facts de novo. Id.
¶ 9 On appeal, the parties concede that the arrest warrant was improper because the trial court had no authority under either the contempt chapter or the civil arrest chapter to authorize an arrest warrant for Hess. However, while we ultimately agree with the parties that error existed, we reject the concession in order to help in our discussion of why the warrant was void from the beginning.
¶ 10 We are not exactly sure what legal ground the trial court thought it was acting upon when it issued the civil arrest warrant. The trial court issued an arrest warrant for Hess on a civil bench warrant form. However, at the motion hearing, the trial court suggested that it actually issued the warrant in order to bring Hess before the court for contempt of court. In its brief, the State provides us with a third view. It surmises that the trial court actually intended to issue a criminal bench warrant. These three different legal acts of a court of record—(a) a civil bench warrant, (b) a criminal bench warrant, and (c) a contempt warrant—require us to briefly discuss their differences and demonstrate why none apply in this case.
¶ 11 WISCONSIN STAT. ch. 818 (2007-08)1
is the civil bench warrant chapter and it authorizes trial judges to issue bench warrants in certain civil cases. The underlying action in this case is a felony criminal case, so the trial court had no authority to issue a civil bench warrant.
¶ 12 WISCONSIN STAT. § 968.09(1) authorizes courts in criminal cases to issue a bench warrant for the defendant's arrest when the defendant fails to appear upon a court order or violates a term of bond or probation. This statute, too, is inapplicable for three reasons. First, there was no failure to appear before the court by court order. Second, while the trial court did order a PSI, it did not order Hess to meet with the PSI writer and such an order cannot be implied. To underscore this point, no law in Wisconsin requires a defendant to cooperate with the PSI writer, see WIS. STAT. § 972.15, and a PSI can be written without the defendant's cooperation. State v. Church, 2002 WI App 212, ¶ 5, 257 Wis.2d 442, 650 N.W.2d 873 (), rev'd on other grounds by 2003 WI 74, 262 Wis.2d 678, 665 N.W.2d 141. Third, at the time the civil arrest warrant was issued, there were no facts suggesting that Hess had violated any terms of his bond. Therefore, the trial court would have had no legal basis to issue a criminal bench warrant even had it so contemplated that this is what it was doing.
¶ 13 WISCONSIN STAT. ch. 785 controls arrests for contempt of court. The type of contempt of court relevant here requires that the court have actually ordered the defendant to do something. WIS. STAT. § 785.01(1)(b). As we stated before, the court did not order Hess to cooperate with the PSI writer. The trial court in this case thus had no legal authority to issue a contempt warrant either.
¶ 14 Courts are authorized to issue arrest warrants pursuant to statute only. See Wagner v. Lathers, 26 Wis. 436, 438, 1870 WL 4067 (1870). The trial court's arrest warrant was therefore invalid because it had no authority to issue an arrest warrant when there was no order requiring Hess's presence and no facts suggesting Hess had violated the terms of his bond. Given that the arrest warrant was invalid, we next determine if we must suppress the evidence seized as a result of executing the invalid warrant.
¶ 15 The right to be free from unreasonable searches and seizures is found in article I, section 11 of the Wisconsin Constitution, which states:
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.
WIS. CONST. art. I, § 11. Whether the conduct in this case...
To continue reading
Request your trial
-
State v. Hess
...to preservethe integrity of the judicial process. Consequently, we affirm the decision of the court of appeals, State v. Hess, 2009 WI App 105, 320 Wis.2d 600, 770 N.W.2d 769.I. BACKGROUND AND PROCEDURAL HISTORY ¶ 4 In mid-2005 the defendant, Michael R. Hess, was arrested in Walworth County......
-
United States v. Horton
...authority granted to judges in the first place."Levin , 186 F.Supp.3d at 41 (alterations in original) (quoting State v. Hess , 320 Wis.2d 600, 770 N.W.2d 769, 776 (Ct. App. 2009) ). The government argues that this distinction between "voidable" and "void" warrants is untenable in the good-f......
-
United States v. Levin
...i.e., a judge "act[ing] outside of the law, outside of the authority granted to judges in the first place." State v. Hess, 320 Wis.2d 600, 770 N.W.2d 769, 776 (Ct.App.Wis.2009) (emphasis added); cf.Scott, 260 F.3d at 515 ("Leon presupposed that the warrant was issued by a magistrate or judg......
-
United States v. Levin
...i.e., a judge "act[ing] outside of the law, outside of the authority granted to judges in the first place." State v. Hess, 770 N.W.2d 769, 776 (Ct. App. Wis. 2009) (emphasis added); cf. Scott, 260 F.3d at 515 ("Leon presupposed that the warrant was issued by a magistrate or judge clothed in......