State v. Hess

CourtUnited States State Supreme Court of Wisconsin
Citation327 Wis.2d 524,785 N.W.2d 568,2010 WI 82
Docket NumberNo. 2008AP2231-CR.,2008AP2231-CR.
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Michael R. HESS, Defendant-Appellant.
Decision Date15 July 2010
327 Wis.2d 524
785 N.W.2d 568
2010 WI 82

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,
Michael R. HESS, Defendant-Appellant.

No. 2008AP2231-CR.

Supreme Court of Wisconsin.

Argued March 2, 2010.
Decided July 15, 2010.

**571 For the plaintiff-respondent-petitioner the cause was argued by Aaron R. O'Neil, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the defendant-appellant there was a brief by George M. Tauscheck, Milwaukee, and oral argument by George M. Tauscheck.

¶ 1

327 Wis.2d 529


The issue presented in this case is whether the good-faith exception to the exclusionary rule permits the use of evidence obtained by a law enforcement officer in his execution of an arrest warrant that was void from the beginning because the warrant had no basis in fact or law. The State contends that suppression of evidence from a warrant issued solely as a result of judicial error would not further the purposes of the exclusionary rule.

¶ 2 We conclude that the good-faith exception to the exclusionary rule does not apply to a situation in which: (1) no facts existed that would justify an arrest without a warrant; (2) the civil arrest warrant issued by a circuit judge was void ab initio 1 because (a) it did not comply with any statute authorizing the court to issue a warrant; and (b) it was not supported by an oath or affirmation; and (3) the court issued the warrant without the benefit of verification of the facts or scrutiny of the procedure to ensure that the judge acted as a detached and neutral magistrate.

¶ 3 The warrant here was defective on its face. Nonetheless, we cannot reasonably attribute fault to the law enforcement officer who executed the warrant. Thus, suppressing evidence obtained as a result of the unauthorized, defective warrant is necessary to preserve

327 Wis.2d 530
the 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.


¶ 4 In mid-2005 the defendant, Michael R. Hess, was arrested in Walworth County for operating a motor vehicle under the influence of an intoxicant, in violation of Wis. Stat. § 346.63(1)(a) (2007-08).2 Hess was released on a $1,000 cash bond, which included various conditions including requirements that he "appear on all court dates" and "not possess or consume alcohol."

¶ 5 Hess subsequently pled guilty to the offense-a felony-and on January 12, 2007, the court ordered a presentence investigation (PSI). The order stated: "The Department of Corrections (Department) shall conduct a presentence investigation and prepare a report based on this investigation." It also set March 28, 2007, as the sentencing date. The court adjusted Hess's bond to a $10,000 signature bond with conditions of release similar to those in the original bond.

¶ 6 On February 8, 2007, the PSI author, a Department of Corrections agent, sent a letter to the circuit court. The letter explained that the agent had contacted Hess to schedule a meeting for February 1. Hess appeared at the meeting. The agent then reviewed a questionnaire that she had sent to Hess, noticing that portions of it **572 were incomplete. When asked why he had not completed the questionnaire, Hess responded that it incorrectly listed the offense as his fifth OWI. The agent then asked Hess to return to the lobby to complete

327 Wis.2d 531
the questionnaire, after which the interview would begin. Hess then left, which the agent presumed was because Hess was feeling ill.

¶ 7 The agent was unable to contact Hess after this meeting. She left a message with Hess's mother asking Hess to contact the agent by 4 p.m. that day. Hess did not respond, although he left a message with the agent's supervisor complaining about the agent. The agent's supervisor contacted Hess and directed him to return to complete the interview on February 6. He did not comply. The agent also was unable to contact Hess's attorney. Thus, the agent concluded her letter to the court with the following paragraph:

It should be noted that to date, Mr. Hess has not attempted to contact this agent or [the agent's supervisor]. Therefore, due to the current situation and Mr. Hess' failure to cooperate, as outlined above, this agent does not foresee, at this time, that the Pre-Sentence Investigation ordered by the Court will be completed as requested. However, it is respectfully requested that Mr. Hess be placed in custody, which would allow the Pre-Sentence Investigation to be completed. Should the Court concur with this request, please notify our office of such.
(Emphasis added.)

¶ 8 On February 14, 2007, Circuit Judge John Race issued a "Bench Warrant Civil." This warrant directed "any law enforcement officer" to "[a]rrest and deliver to the sheriff the above named person because this person: ... failed to: Meet with the Agent assigned to complete his Pre-Sentence Investigation." The warrant specified that Hess could be released upon "Completion of the Presentence Investigation Interview with the Agent assigned."

327 Wis.2d 532

¶ 9 On March 7, 2007, Deputy Gilbert Maas of the Walworth County Sheriff's Department went to Hess's address, understanding that he "had a criminal felony arrest warrant for Michael Hess." When he arrived, Deputy Maas encountered Hess's father at the front door. After a brief conversation with Hess's father, Deputy Maas spoke with Hess himself and advised him that he had an arrest warrant for failure to appear in court. As the two men were walking to the squad car, Deputy Maas smelled the odor of intoxicants coming from Hess. He placed Hess under arrest, handcuffed him, did a pat-down search, and placed Hess in the back of the squad car.

¶ 10 Following normal procedure, Deputy Maas requested the dispatch center to check if Hess was on any conditions of bond. He was advised by the dispatch center that Hess was on bond for a sixth offense drunk driving with a minor in the vehicle and that one of the conditions of his bond was that he not possess or consume alcohol. Deputy Maas then transported Hess to Lakeland Medical Center to obtain a blood draw.

¶ 11 Hess was thereafter charged with felony bail jumping, in violation of Wis. Stat. § 946.49, for violating the bond requirement that he not possess or consume alcohol. He in turn filed a motion to suppress any evidence obtained as a result of the civil warrant. This included Deputy Maas's observations regarding Hess's sobriety on March 7. Hess argued that the civil bench warrant was invalid because it failed to conform to the requirements for a civil bench warrant in Wis. Stat. ch. 818. Specifically, he argued that (1) none of the **573 enumerated situations in which an arrest may be made was present; and (2) the court was not furnished with an affidavit prior to issuing the warrant. He argued that

327 Wis.2d 533
all evidence obtained on March 7 must be suppressed as the fruit of an illegal arrest.

¶ 12 The circuit court, Judge James Carlson presiding, held a hearing on the motion to suppress. The court declined to take testimony at the hearing because it deemed the legality of the warrant an issue of law. It then denied the motion, reasoning that the warrant was valid under either (1) the court's inherent power to issue warrants; or (2) the court's general statutory powers under Wis. Stat. § 757.01. The circuit court also stated that even if the warrant were not valid, the evidence was admissible under the good-faith exception to the exclusionary rule.

¶ 13 The case proceeded to a jury trial, at which Deputy Mass testified regarding his observations on March 7. The jury found Hess guilty. The court withheld sentence and placed Hess on three years probation. Hess appealed.

¶ 14 The court of appeals reversed and remanded after suppressing the evidence. Hess, 320 Wis.2d 600, ¶ 3, 770 N.W.2d 769. The court analyzed the validity of the warrant, observing that the circuit court lacked the authority to issue a civil bench warrant because this was a criminal case. Id., ¶ 11 (citing Wis. Stat. ch. 818). The court then noted that the court lacked the authority to issue a criminal bench warrant under Wis. Stat. § 968.09(1) because Hess did not fail to appear in court and was under no express or implied requirement to meet with the PSI writer. Id., ¶ 12. Finally, the court said that the court had no authority to issue a warrant for contempt because the court did not order Hess to cooperate with the PSI writer. Id., ¶ 13. The court concluded that, because warrants may be issued only pursuant to statute, the arrest warrant was invalid. Id., ¶ 14 (citing Wagner v. Lathers, 26 Wis. 436, 438 (1870)).

327 Wis.2d 534

¶ 15 The court next examined the applicability of the exclusionary rule. The court noted that the primary purpose of the rule was to deter unlawful police conduct while also preserving judicial integrity. Hess, 320 Wis.2d 600, ¶ 16, 770 N.W.2d 769 (citing Terry v. Ohio, 392 U.S. 1, 12-13, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). It cited State v. Kriegbaum, 194 Wis. 229, 232, 215 N.W. 896 (1927), for the proposition that the exclusionary rule prohibits evidence obtained pursuant to a warrant issued by a judge with no legal authority to issue such a warrant. Hess, 320 Wis.2d 600, ¶¶ 17-18, 770 N.W.2d 769.

¶ 16 The court of appeals next turned to the good-faith exception to the exclusionary rule. It reasoned that the good-faith exception, as set out in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and State v. Eason, 2001 WI 98, 245 Wis.2d 206, 629 N.W.2d 625, "allow[s] the admission of evidence when law enforcement officers did what they were supposed to ... but someone made an accidental clerical or technical error or the judge erred in concluding that the law enforcement's application fulfilled the requirements for a warrant." Hess, 320 Wis.2d 600, ¶ 21, 770 N.W.2d 769. The court...

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