State v. Raflik

• Decision Date: 04 December 2001
• Docket Number: No. 00-1086-CR.,00-1086-CR.
• Citation: 636 N.W.2d 690,248 Wis.2d 593,2001 WI 129
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Cherise A. RAFLIK, Defendant-Appellant.
• Court: Wisconsin Supreme Court

248 Wis.2d 593

2001 WI 129

636 N.W.2d 690

STATE of Wisconsin, Plaintiff-Respondent, v. Cherise A. RAFLIK, Defendant-Appellant.

No. 00-1086-CR.

Supreme Court of Wisconsin.

Oral argument September 12, 2001.

Decided December 4, 2001.

For the defendant-appellant there were briefs by Michael J. Fitzgerald, Dean A. Strang, and Fitzgerald, & Strang, S.C., Milwaukee, and Michael J. Fitzgerald, Craig W. Albee, and Glynn, Fitzgerald & Albee, S.C., Milwaukee, and oral argument by Michael J. Fitzgerald.

For the plaintiff-respondent the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. JON P. WILCOX, J.

This case requires us to decide whether suppression is the proper remedy when a telephonic application for a search warrant is not recorded in accordance with Wis. Stat. § 968.12(3)(d)¹, and when the factual basis for the warrant is reconstructed in an ex parte hearing after the warrant has been executed. We conclude that suppression is improper, and that the warrant application in this case was appropriately and adequately reconstructed.

¶ 2. The State charged Cherise Raflik with seven felony drug counts, including possession of tetrahydrocannabinol (THC) with intent to deliver, drug tax stamp violations,² possession of psilocybin with intent to deliver, and keeping a drug house. Raflik moved to suppress all of the evidence seized from her home because the State had not made a contemporaneous record of the telephonic search warrant application in accordance with § 968.12(3)(d). After conducting a hearing, the Washington County Circuit Court, Leo F. Schlaefer, Circuit Court Judge, denied Raflik's motion. Raflik pleaded guilty to misdemeanor possession of THC, misdemeanor possession of psilocybin, and felony keeping a drug house. On appeal, Raflik challenged the denial of her motion to suppress, and the court of appeals certified the case to this court.

I

¶ 3. The relevant facts in this case are undisputed. On August 4, 1998, shortly after 6:00 p.m., Detective Douglas Kocher, of the Washington County Sheriff's Department, met Assistant District Attorney Todd Martens at the Germantown Police Station, where they were going to apply for a telephonic search warrant. Kocher sought to seize drugs and drug paraphernalia from the residence and garage of Cherise Raflik in the town of Jackson.

¶ 4. Kocher and Martens placed a call from the Germantown Police Department to Washington County Circuit Court Judge Annette Ziegler. Both Martens and Kocher thought the phone line they were using was a recorded line. Martens had brought along his own recording equipment, but was assured by local police that he did not need to use his equipment because the phone line was already being recorded. Thus, Martens did not hook up his independent recording device.

¶ 5. Judge Ziegler took testimony over the phone from Detective Kocher and found that there was probable cause to issue the search warrant. During the telephone conversation, Detective Kocher and Judge Ziegler each filled out a search warrant document with identical language that specified the location of the property and the items to be seized. The search warrant was executed that evening, and law enforcement officials seized drugs, drug paraphernalia, and cash from Raflik's house and garage.

¶ 6. The next morning, Martens contacted the Germantown Police Department to obtain the recording of the search warrant application. The department informed Martens that there had been a mistake and that the call had been made on a non-recorded phone line. There was no evidence of improper behavior on the part of Martens, Kocher, or the Germantown Police.

¶ 7. At about 11:15 a.m. that same day, Martens notified Judge Ziegler of the mistake. Judge Ziegler directed Martens to locate Detective Kocher and to have Kocher review his notes so he would be prepared to give testimony about the previous evening's warrant application. Martens contacted Kocher, and Kocher prepared an affidavit, which recounted the warrant application of the night before. Kocher's affidavit was prepared at approximately 12:15 p.m. on August 5th.

¶ 8. At 1:23 p.m. that day, Judge Ziegler convened an ex parte hearing with Kocher and Martens present. Judge Ziegler explained on the record that they were "trying to, as contemporaneously as possible, provide a record of what exactly the testimony was that ... supported the issuance of the search warrant." At the hearing, Detective Kocher testified that he had met Martens the night before at the Germantown Police Station, where they had called Judge Ziegler for a telephonic search warrant. Kocher testified that he thought the line they had used was recorded, and that he had found out that morning that the conversation, in fact, had not been recorded.

¶ 9. Kocher went on to testify to the contents of his warrant application from the previous evening. Kocher recounted the location and description of the home in question, the fact that Raflik lived there, and the details of the investigation that led to his requesting the warrant.

¶ 10. When Martens concluded his questioning, Judge Ziegler proceeded to ask Kocher several questions. First, Judge Ziegler asked Kocher about his conversations with Raflik's landlord, Steven Wydirek. Judge Ziegler also asked Kocher how he had made the inference that there might have been drugs in the house after seeing marijuana-like substances in the garage. Finally, the judge confirmed Wydirek's reliability. Each of the questions asked by Judge Ziegler was phrased in a leading format, that allowed Kocher to answer either "yes" or "correct."³ After she finished questioning Kocher, Judge Ziegler found, from the facts presented and the inferences drawn from those facts, that there was probable cause to support the search warrant, and that they had adequately recreated the record of the warrant application. The affidavit Kocher had drafted that afternoon was also attached to the record.

¶ 11. Based on the evidence found when the search warrant was executed, Raflik was charged with possession of THC with intent to deliver, contrary to Wis. Stat. § 961.41(1m)(h)2; three drug tax stamp violations, contrary to Wis. Stat. §§ 139.87, 139.88 and 139.95; manufacture of THC, contrary to Wis. Stat. § 961.41(1)(h)2; possession of psilocybin with intent to deliver, contrary to Wis. Stat. § 961.41(1m)(g)1; and maintaining a drug house, contrary to Wis. Stat. § 961.42. Raflik filed a motion to suppress the evidence found pursuant to the warrant on the grounds that the State had failed to make a contemporaneous record of the warrant application, in violation of Wis. Stat. § 968.12(3), the Fourth Amendment of the U.S. Constitution, and Article I, Section 11 of the Wisconsin Constitution.

¶ 12. In a hearing on the suppression motion, Washington County Circuit Court Judge Leo Schlaefer ruled that the evidence seized pursuant to the search warrant should not be suppressed. The court noted that the State had exercised its best efforts to recreate the record within 24 hours of the original warrant application and that the record indicated that Detective Kocher's testimony at the hearing was consistent with the testimony he had offered the previous evening. The trial court found that Raflik's substantial rights had not been prejudiced, and that, under the totality of the circumstances, the failure to record the warrant application was a technical irregularity under Wis. Stat. § 968.22. The court held that suppression was not a proper remedy and denied Raflik's motion.

¶ 13. Raflik pleaded guilty to the amended charges of misdemeanor possession of THC, misdemeanor possession of psilocybin, and felony keeping a drug house. On appeal, Raflik challenged her conviction on the grounds that the trial court erred when it had denied her motion to dismiss. The court of appeals, recognizing this as a case of first impression in Wisconsin, certified the appeal to this court.

II

¶ 14. Several constitutional rights are significant to this case: the right to be free from unreasonable search and seizure, protected by the Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the Wisconsin Constitution; the due process right to meaningful judicial review, protected by the Fourteenth Amendment to the U.S. Constitution; and the right to a meaningful appeal, protected by Article I, Section 21 of the Wisconsin Constitution. The State concedes that Wis. Stat. § 968.12(3)(d) was violated when no contemporaneous recording of the warrant application was made. However, the State maintains that the failure to record the application only affects Raflik's right to have a meaningful record for the purposes of appeal, and that Raflik's right to a meaningful appeal was protected when the warrant application was reconstructed. Raflik, on the other hand, argues that the failure of the State to meet the requirements of § 968.12 is not merely a technical irregularity, but instead renders the warrant constitutionally inadequate. Raflik concludes that such a significant violation warrants suppression.

[1, 2]

¶ 15. The suppression of evidence is not a constitutional right, but rather it is a judge-made rule used to deter misconduct by law enforcement officials. Stone v. Powell, 428 U.S. 465, 482 (1976). Suppression is only required when evidence has been obtained in violation of a defendant's constitutional rights, State v. Hochman, 2 Wis. 2d 410, 419, 86 N.W.2d 446, 451 (1957), or if a statute specifically provides for the suppression remedy. State ex rel. Arnold v. County Court, 51 Wis. 2d 434, 439-440, 187 N.W.2d 354 (1971); see also State ex rel. Peckham v. Krenke, 229 Wis. 2d 778, 787, 601 N.W.2d 287 (Ct. App. 1999)

; State v. Verkuylen, 120 Wis. 2d 59, 61, 352 N.W.2d 668 (Ct. App. 1984). There is no specific statutory remedy provided for the failure to record a telephonic search warrant...