State v. Mieritz

• Decision Date: 18 April 1995
• Docket Number: No. 94-1879-CR,94-1879-CR
• Citation: 534 N.W.2d 632,193 Wis.2d 571
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Christy MIERITZ, Defendant-Appellant, Wayne Patrick Robinson, Defendant.
• Court: Wisconsin Court of Appeals

Page 632

534 N.W.2d 632

193 Wis.2d 571

STATE of Wisconsin, Plaintiff-Respondent, v. Christy MIERITZ, Defendant-Appellant Wayne Patrick Robinson, Defendant.

No. 94-1879-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 1, 1995.

Opinion Released April 18, 1995.

Opinion Filed April 18, 1995.

For the defendant-appellant the cause was submitted on the briefs of Ladd & Milaeger, with Andrew C. Ladd, Waukesha.

For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, Atty. Gen., and Thomas J. Balistreri, Asst. Atty. Gen.

Before WEDEMEYER, P.J., and FINE and SCHUDSON, JJ.

SCHUDSON, Judge.

Christy N. Mieritz appeals from the judgment of conviction, following her guilty plea, for delivery of cocaine, party to a crime. She argues that the trial court should have granted her motion to suppress evidence because the undercover officer who purchased cocaine from her was outside his jurisdiction when he did so. We conclude that suppression of evidence is not a constitutionally required remedy when a law enforcement officer is outside his or her jurisdiction when obtaining evidence. Therefore, we affirm.

The facts are undisputed. On April 22, 1993, City of Waukesha Police Detective Edward Bergin and other officers of the Waukesha County Metropolitan Drug Enforcement Group were working undercover when Bergin purchased cocaine from Mieritz at a nightclub in the City of Milwaukee. The officers did not arrest Mieritz but notified the Milwaukee County District Attorney's Office of the purchase. That office subsequently issued the criminal complaint against Mieritz and summoned her to appear in court. Mieritz moved to suppress the evidence, arguing that Bergin's purchase in Milwaukee was outside his Waukesha jurisdiction. The trial court denied Mieritz's motion and she pled guilty.

The State concedes that Bergin and the other officers had no authority to act as law enforcement officers in Milwaukee and, therefore, that Bergin was acting outside his official capacity when he purchased the cocaine from Mieritz. ¹ See State v. Barrett, 96 Wis.2d 174, 291 N.W.2d 498 (1980) (discussing whether police officer was acting in his official capacity when engaged in police activity). The State argues that suppression of the evidence is not appropriate because the exclusionary rule applies only when evidence has been obtained in violation of a defendant's constitutional rights or in violation of a statute that expressly provides for suppression as a sanction, and, in this case, the undercover investigation and purchase of cocaine did not violate any of Mieritz's constitutional or statutory rights.

The State is correct. The exclusionary rule requires suppression of evidence "only when the police obtain[ ] the evidence in violation of the defendant's constitutional rights," or in violation of a statute that expressly requires suppression as a sanction. State v. King, 142 Wis.2d 207, 213-214 & n. 3, 418 N.W.2d 11, 13-14 & n. 3 (Ct.App.1987). Mieritz implicitly argues that Bergin's purchase somehow constituted a seizure of evidence in violation of her rights. She fails to explain, however, how her Fourth Amendment rights were implicated in her fully consensual drug transaction with an undercover officer she believed to be a cocaine customer. Under circumstances like these, an undercover officer's purchase of contraband from a willing seller is not a "seizure" of evidence under the Fourth Amendment. Maryland v. Macon, 472 U.S. 463, 469-470, 105 S.Ct. 2778, 2782, 86 L.Ed.2d 370 (1985) (undercover police detectives did not seize evidence when they purchased obscene magazines from an adult bookstore); see also Illinois v. Perkins, 496 U.S. 292, 294, 110 S.Ct. 2394, 2396, 110 L.Ed.2d 243 (1990) (Fifth Amendment rights are not implicated and no Miranda warnings are required "when the suspect is unaware that he is speaking to a[n undercover] law enforcement officer and gives a voluntary statement").

Although this case does not involve any statute that expressly requires suppression as a sanction, Mieritz also argues that suppression is appropriate to deter law enforcement officers from acting outside their statutory jurisdiction. See § 59.24(1), STATS. (regarding the authority of sheriffs and their deputies), and § 62.09(13), STATS. (regarding the authority of police chiefs and their officers). As the State correctly responds, however, absent a constitutional violation of the defendant's rights, the criminal is not "to go free because the constable has blundered." See Conrad v. State, 63 Wis.2d 616, 639, 218 N.W.2d 252, 264 (1974). In this case, any statutory transgression that may have occurred apparently violated Milwaukee's jurisdictional authority, not Mieritz's constitutional rights.

In this regard, the Michigan Court of Appeals offered sound guidance in People v. Clark, 181 Mich.App. 577, 450 N.W.2d 75 (1989), a case similar to the instant one. In Clark, the government appealed from the order...