State v. Popenhagen, No. 2006AP1114-CR.

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: Shirley S. Abrahamson
• Citation: 2008 WI 55,749 N.W.2d 611
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Michelle R. POPENHAGEN, Defendant-Respondent-Petitioner.
• Docket Number: No. 2006AP1114-CR.
• Decision Date: 04 June 2008

749 N.W.2d 611 2008 WI 55 STATE of Wisconsin, Plaintiff-Appellant,
v.
Michelle R. POPENHAGEN, Defendant-Respondent-Petitioner. No. 2006AP1114-CR. Supreme Court of Wisconsin. June 4, 2008.

[749 N.W.2d 614]

For the defendant-respondent-petitioner there were briefs by James B. Connell and Crooks, Low & Connell, S.C., Wausau, and oral argument by James B. Connell.

For the plaintiff-appellant the cause was argued by James M. Freimuth, Assistant Attorney General, with whom on the brief was J.B. Van Hollen, Attorney General.

¶ 1 SHIRLEY S. ABRAHAMSON, C.J.

The defendant, Michelle R. Popenhagen, seeks review of a published court of appeals decision reversing an order of the Circuit Court for Oneida County, Mark Mangerson, Judge.¹ The circuit court granted the defendant's motion to suppress bank documents that police obtained pursuant to a subpoena issued without a showing of probable cause in violation of Wis. Stat. § 968.135 (2005-06),² as well as incriminating statements that the defendant made after police confronted her with the unlawfully obtained bank documents.

¶ 2 In reversing the circuit court's order, the court of appeals concluded that the defendant cannot rely on the federal or state constitution for suppression and that Wis. Stat. § 968.135 does not expressly provide that a violation of the statute permits suppression as a remedy.

¶ 3 The issue on review is whether the circuit court erred in granting the defendant's motion to suppress both the bank documents and the defendant's incriminating statements. The defendant raises four arguments in support of the circuit court's order. The defendant contends (1) that police obtained her bank documents and incriminating statements in violation

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of her Fourth Amendment³ right to privacy; (2) that police obtained her bank documents and incriminating statements in violation of her right to privacy under Article I, Section 11 of the Wisconsin Constitution;⁴ (3) that the bank documents were obtained in violation of Wis. Stat. § 968.135 and that suppression of both the bank documents and the defendant's incriminating statements is an appropriate remedy; and (4) that the circuit court possessed inherent authority to order suppression of the contested evidence obtained by the State's "misuse of process."

¶ 4 We conclude that suppression of both the bank documents and the defendant's incriminating statements in the present case is an appropriate remedy when the bank documents were obtained in violation of Wis. Stat. § 968.135 and when the incriminating statements were obtained by law enforcement officers confronting the defendant with the unlawfully obtained bank documents. Accordingly, we conclude that the circuit court did not err as a matter of statutory interpretation in granting the defendant's motion to suppress the bank documents and the defendant's incriminating statements. We reverse the decision of the court of appeals and affirm the circuit court's order to suppress evidence of the bank documents and incriminating statements at issue.

¶ 5 The court of appeals addressed the constitutional issues. Because we affirm the circuit court's order on statutory grounds, we leave the interpretation of the federal and state constitutional provisions and federal statutes relating to the obligations of banks that the court of appeals addressed for another case in which these issues are determinative.

I

¶ 6 The relevant facts are not in dispute for purposes of this appeal. The defendant was an employee at Save More Foods, a grocery store in Minocqua. In August 2004, the owner of Save More Foods contacted the Minocqua Police Department and alleged that the defendant had improperly obtained money from the store. The owner specifically alleged that the defendant had cashed checks at the store drawn from accounts containing insufficient funds and further that the defendant had stolen money from the store's automated teller machine. According to the complaint and attached police report, the defendant allegedly stole approximately $29,000.

¶ 7 As part of the State's investigation, the district attorney's office sought three subpoenas before filing a complaint. Circuit Court Judges Kinney and Mangerson signed the subpoenas, ordering the banks to appear before the circuit court on a date and time certain and to bring Popenhagen's specified bank records or to mail the bank records to the Minocqua Police Department. Although an officer of the Minocqua Police Department apparently had filled out an affidavit, neither the police

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nor the Oneida County District Attorney's Office included any affidavit showing probable cause in the application to the circuit court for the subpoenas. The circuit court issued the subpoenas without recording a finding of probable cause.

¶ 8 A copy of each subpoena is attached hereto. Each subpoena states that it is issued pursuant to Wis. Stat. § 805.07. Section 805.07(1) states that "subpoenas shall be issued and served in accordance with ch. 885."⁵ Wisconsin Stat. § 885.01 provides that any judge may sign and issue a subpoena to require the "attendance of witnesses and their production of lawful instruments of evidence in any action, matter or proceeding or to be examined into before any court, magistrate, officer ... or other person authorized to take testimony in the state." Section 972.11(1) provides that the rules of practice in civil actions shall be applicable in all criminal proceedings unless the context of the section manifestly requires a different construction. Section 972.11 further provides that Chapter 885 "shall apply in all criminal proceedings."

¶ 9 Although the subpoenas on their face are in a form substantially similar to the forms set forth in both §§ 805.07(4) and 885.02, the subpoenas do not satisfy either Wis. Stat. § 885.01 or § 805.07. The subpoenas did not require the banks, in the words of either statute, to attend an "action, matter or proceeding pending or to be examined into before" the circuit court.⁶ For an explanation of why these subpoenas do not satisfy Wis. Stat. §§ 885.01 or 805.07, namely because no proceeding is pending, see State v. Schaefer, 2008 WI 25, ¶ 44, ___ Wis.2d ___, 746 N.W.2d 457, and Part A of the concurring opinion, ¶¶ 102-125 (Abrahamson, C.J., concurring).

¶ 10 The District Attorney apparently conceded in the circuit court that it used the wrong form of subpoena.⁷ Both the District Attorney and the defendant agreed in the circuit court that the State should have followed, but did not follow, Wis. Stat. § 968.135. The District Attorney and the defendant disagreed in the circuit court whether suppression is the appropriate remedy for the error. The circuit court suppressed the bank records and incriminating statements under § 968.135.

¶ 11 In the court of appeals the only statute the parties briefed relating to the subpoenas was Wis. Stat. § 968.135. The court of appeals ruled on § 968.135, declaring that suppression was not available in the present case as a remedy for the violation of § 968.135.

¶ 12 The defendant's petition for review in this court raised the following issue: "Is suppression of evidence a remedy for violation of Sec. 968.135 which requires probable cause for the issuance of a subpoena for documents?"⁸ The only statute the

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defendant and the State addressed in this court relating to the subpoenas was Wis. Stat. § 968.135.⁹

¶ 13 Having taken this case to address the issue whether the remedy of suppression is available when bank records were obtained by the district attorney with a subpoena that did not comply with the probable cause affidavit requirement of Wis. Stat. § 968.135, we address that issue.¹⁰

¶ 14 Wisconsin Stat. § 968.135 requires "a showing of probable cause" before a court may issue a subpoena under that section. The State does not dispute that the subpoenas requiring production of the defendant's bank documents were issued in violation of Wis. Stat. § 968.135. The statute provides in full as follows:

Subpoena for documents. Upon the request of the attorney general or a district attorney and upon a showing of probable cause under s. 968.12, a court shall issue a subpoena requiring the production of documents, as specified in s. 968.13(2). The documents shall be returnable to the court which issued the subpoena. Motions to the court, including, but not limited to, motions to quash or limit the subpoena, shall be addressed to the court which issued the subpoena. Any person who unlawfully refuses to produce the documents may be compelled to do so as provided in ch. 785. This section does not limit or affect any other subpoena authority provided by law.

¶ 15 The banks complied with their respective subpoenas, delivering bank statements, deposit slips, and cancelled checks to the Minocqua Police Department. Having obtained her bank documents, police officers interviewed the defendant, confronting her with her bank documents. The officers explained to the defendant that her bank deposits corresponded in time and amount to money reported missing from Save More Foods. At that point, the defendant made several incriminating statements. No transcript of the defendant's remarks is in the record; the remarks are recounted in summary fashion in a police report that is in the record.

¶ 16 The defendant was charged with theft of more than $10,000 contrary to Wis. Stat. § 943.20(1)(b) and (3)(c). In a pretrial motion, the defendant moved to suppress both her bank documents and the

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statements she made after being confronted with those documents.

¶ 17 The circuit court granted the defendant's motion. The circuit court reasoned that the defendant had a right to privacy in her bank documents under the Fourth Amendment of the United States Constitution and Article I, Section 11 of the Wisconsin Constitution. The circuit court further reasoned that suppression is an appropriate remedy not only for the...