State v. Scull

• Decision Date: 28 January 2014
• Citation: 2014 WI App 17,352 Wis.2d 733,843 N.W.2d 859
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Gary Monroe SCULL, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

352 Wis.2d 733

843 N.W.2d 859

2014 WI App 17

STATE of Wisconsin, Plaintiff–Respondent,

v.Gary Monroe SCULL, Defendant–Appellant.

Court of Appeals of Wisconsin.

Jan. 28, 2014.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Basil M. Loeb of Wauwatosa.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Rebbecca Rapp St. John, assistant attorney general and J.B. Van Hollen, attorney general.

Before CURLEY, P.J., KESSLER and BRENNAN, JJ.¶ 1BRENNAN, J.

Gary Monroe Scull appeals from a judgment of conviction entered following his guilty plea to one count of possession with intent to deliver more than forty grams of cocaine and to one count of keeping a drug house. Scull argues that the circuit court erred in denying his motion to suppress because the police violated his Fourth Amendment rights when they brought a drug-sniffing dog to the front door of his residence without a warrant or probable cause. After the circuit court denied Scull's motion to suppress, and after Scull filed his notice of appeal, the United States Supreme Court ruled that “[t]he government's use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.” See Florida v. Jardines, 569 U.S. ––––, 133 S.Ct. 1409, 1417–18, 185 L.Ed.2d 495 (2013). As such, it is clear that the police did, in fact, violate Scull's Fourth Amendment rights when they brought a drug-sniffing dog to his front door without a search warrant or probable cause. Nonetheless, because the police then obtained a search warrant in good faith, although based, in part, on the prior illegal search, we conclude that the good-faith exception to the exclusionary rule applies, and we affirm.

BACKGROUND

¶ 2 The following facts are undisputed by the parties for purposes of this appeal.

¶ 3 In the summer of 2010, a previously reliable confidential informant advised Milwaukee Police Officer John Wiesmueller that Scull was “involved in the distribution of cocaine base within the City of Milwaukee” and “conducts his narcotics trafficking from ... a green early nineties Ford Bronco bearing Wisconsin registration plates of 792–NYG.” The confidential informant reported to Officer Wiesmueller that Scull “possibly resides at 4506 North 42nd Street in the City and County of Milwaukee.” (Some formatting altered.)

¶ 4 Officer Wiesmueller followed up on the confidential informant's tip. He was able to verify Scull's address and car as the ones described by the confidential informant. He also learned that Scull had been convicted of robbery with threat of force and first-degree recklessly endangering safety in 2000, and was currently on probation.

¶ 5 Relying on the information from the confidential informant, Milwaukee Police Detective Chris Edersinghe took “Voden,” a trained drug-sniffing dog, to Scull's residence. Detective Edersinghe initially walked with Voden to the side door of the residence and then walked to the front door where Voden “alerted.” Detective Edersinghe stayed on the walkways to both the side and front doors and did not walk on the grass. The entire episode took less than twenty seconds.

¶ 6 Based upon the information obtained from the confidential informant and Voden's alert, police applied for and obtained a search warrant for Scull's residence. Upon executing the warrant, police found drugs and drug-trafficking paraphernalia.

¶ 7 The State filed a complaint, charging Scull with one count of possession with intent to deliver more than forty grams of cocaine, one count of possession with intent to deliver less than 200 grams of tetrahydrocannabinols (marijuana), and one count of keeping a drug house. The complaint was based upon the evidence obtained during the execution of the search warrant at Scull's residence.

¶ 8 Scull filed a motion to suppress the evidence obtained by the police at his home, arguing that when Detective Edersinghe walked Voden to his front door to see if Voden would alert, the police “invade[d] the curtilage of his home” and performed “a warrantless search into an area in which [Scull] had a reasonable expectation of privacy.” Because the search warrant was based in substantial part on Voden's alert, Scull believed the search warrant was invalid. An evidentiary hearing was held on the motion at which Detective Edersinghe briefly testified as the only witness. The circuit court denied the motion.

¶ 9 Scull pled guilty to one count of possession with intent to deliver more than forty grams of cocaine and to one count of keeping a drug house. ¹ The circuit court sentenced him to eleven years of imprisonment on the two counts. Scull appeals.²

DISCUSSION

¶ 10 On appeal, Scull asks us to determine whether the act of bringing a drug-sniffing dog to the front door of his residence, without a warrant or probable cause, violated his Fourth Amendment rights. The State concedes that the United States Supreme Court, in Jardines, recently answered this question “yes.”

¶ 11 In Jardines, the police received an unverified tip that the defendant was growing marijuana in his home. Id., 133 S.Ct. at 1413. Based on the tip, police approached the front door of the defendant's home with a trained drug-sniffing dog. Id. After sniffing the base of the front door, the dog sat, as it was trained to do upon detecting illegal drugs. Id. The police and the dog immediately left the scene. Id. Relying on the dog's detection of drugs at the residence, police then received and executed a search warrant on the defendant's home. Id. Upon execution of the warrant, the police discovered marijuana plants in the residence. Id.

¶ 12 The United States Supreme Court held that “[t]he government's use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.” Id. at 1417–18. In so holding, the Court relied on the special protections afforded to the home and the area immediately surrounding the home, that is, a home's curtilage. Id. at 1414–15. The Court noted that the front porch is a classic example “of an area adjacent to the home” to which Fourth Amendment protections extend. See id. at 1415 (citing Oliver v. United States, 466 U.S. 170, 182 n. 12, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984)). The Court went on to explain that while “ ‘the knocker on the front door is treated as an invitation or license to attempt entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds,’ ” see id. (citation omitted), that traditional invitation does not extend to “a trained police dog to explore the area around the home in hopes of discovering incriminating evidence,” id. at 1416. “[T]he background social norms that invite a visitor to the front door do not invite him there to conduct a search.” Id.

¶ 13 The parties all agree that Jardines controls in this case and invalidates the search warrant upon which the police premised their search of Scull's home. Therefore, the question in this case shifts to whether the exclusionary rule should act to exclude the evidence obtained during the improper search of Scull's home or whether the evidence is saved by the good-faith exception.³ Application of the good-faith exception is a question of law we review de novo. See State v. Dearborn, 2010 WI 84, ¶ 13, 327 Wis.2d 252, 786 N.W.2d 97.

¶ 14 The exclusionary rule, of course, “is a judicially created remedy that prohibits the government from introducing at the defendant's trial evidence of guilt obtained through violations of the Fourth Amendment.” United States v. Ienco, 182 F.3d 517, 526 (7th Cir.1999). However, “just because a Fourth Amendment violation has occurred does not mean the exclusionary rule applies.” Dearborn, 327 Wis.2d 252, ¶ 35, 786 N.W.2d 97. Rather, we are to apply the exclusionary rule only as a “last resort,” when doing so will “deter police misconduct and most appropriately when the deterrent benefits outweigh the substantial costs to the truth-seeking and law enforcement objectives of the criminal justice system.” Id., ¶¶ 35, 38.

¶ 15 The good-faith exception to the exclusionary rule dictates that the exclusionary rule “is not to be applied when the officers conducting an illegal search ‘acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment.’ ” Id., ¶ 33 (citing United States v. Leon, 468 U.S. 897, 918, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). The exception encompasses situations in which “police officers act in objectively reasonable reliance upon [a search] warrant, which ha[s] been issued by a detached and neutral magistrate.” State v. Eason, 2001 WI 98, ¶ 74, 245 Wis.2d 206, 629 N.W.2d 625. “[T]he burden is upon the State to show that the process used in obtaining the search warrant included a significant investigation and a review by either a police officer trained and knowledgeable in the requirements of probable cause and reasonable suspicion, or a knowledgeable government attorney.” Id.

¶ 16 The search warrant in this case was signed by a Milwaukee County Court Commissioner, and the affidavit in support of the search warrant notes that it had been reviewed by an assistant district attorney prior to its submission. Scull does not argue that the court commissioner in this case was not “detached and neutral,” nor does he argue that the assistant district attorney who reviewed the affidavit was not “a knowledgeable government attorney.” See id.

¶ 17 The search warrant was based upon the affidavit of Officer Weismueller, who averred that he had nineteen years of experience as a police officer. Officer Wiesmueller based his search warrant application on both the tip from the confidential informant who detailed Scull's drug activities, and Voden's alert at Scull's front door.

¶ 18 Officer Wiesmueller explained to the court commissioner in his affidavit that he believed that the confidential informant was...