State v. Scull

• Decision Date: 05 March 2015
• Docket Number: No. 2011AP2956–CR.,2011AP2956–CR.
• Citation: 862 N.W.2d 562,361 Wis.2d 288
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Gary Monroe SCULL, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

361 Wis.2d 288

862 N.W.2d 562

STATE of Wisconsin, Plaintiff–Respondent

v.Gary Monroe SCULL, Defendant–Appellant–Petitioner.

No. 2011AP2956–CR.

Supreme Court of Wisconsin.

Argued Oct. 2, 2014.

Decided March 5, 2015.

Reconsideration Denied April 20, 2015.

For the defendant-appellant-petitioner, there were briefs by Basil M. Loeb, Wauwatosa, and oral argument by Basil M. Loeb.

For the plaintiff-respondent, the cause was argued by Nancy A. Noet, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

An amicus curiae brief was filed by legal intern Nolan A. Jensen, Ellen Henak and Henak Law Office, S.C., Milwaukee; and Melinda A. Swartz and Law Office of Melinda Swartz LLC, Milwaukee, and intern Nolan A. Jenson behalf of the Wisconsin Association of Criminal Defense Lawyers.

An amicus curiae brief was filed by Kelli S. Thompson, state public defender, and Jefren E. Olsen, assistant state public defender, on behalf of the Wisconsin State Public Defender.

Opinion

ANN WALSH BRADLEY, J.

¶ 1 Petitioner, Gary Monroe Scull, seeks review of a published decision of the court of appeals that affirmed the denial of his motion to suppress evidence.¹ The court of appeals determined that the evidence obtained from a search of his home was admissible because the officers conducted the search in good faith reliance on a search warrant.

¶ 2 Scull contends that the warrant was invalid because it was based on information gained from a prior illegal search. More specifically, he asserts that an alert by a drug sniffing dog outside his home constituted a prior illegal search in violation of his Fourth Amendment rights because the officers needed, but did not have, a warrant to conduct the dog sniff. Accordingly, he argues, because the warrant relied on an affidavit detailing the dog's alert to the presence of drugs, the warrant was invalid and the evidence seized pursuant to that warrant must be suppressed.

¶ 3 Like the court of appeals, we resolve this case with a straight-forward application of our good faith jurisprudence governing police reliance on a warrant. It provides that the good faith exception to the exclusionary rule applies to evidence obtained in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate that is ultimately found to be defective. State v. Eason, 2001 WI 98, ¶ 3, 245 Wis.2d 206, 629 N.W.2d 625. Reliance on a warrant is objectively reasonable when: the warrant was preceded by a substantial investigation, the affidavit supporting the warrant was reviewed by either a police officer trained and knowledgeable in the requirements of probable cause and reasonable suspicion, or a knowledgeable government attorney, and a reasonably well-trained officer would not have known that the search was illegal despite the magistrate's authorization. Id.

¶ 4 In this case we determine that the good faith exception to the exclusionary rule applies because the evidence Scull seeks to suppress was obtained in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate. Accordingly, we conclude that the evidence should not be suppressed and affirm the court of appeals.

I

¶ 5 For purposes of our review, the facts of this case are undisputed. A confidential informant told Officer Wiesmueller that an individual named Gary M. Scull was involved in the distribution of cocaine base within the City of Milwaukee. The informant further identified the defendant by providing an address where he thought Scull possibly resided. Indicating that he had personally witnessed Scull distributing the cocaine base throughout the City, the informant stated that Scull conducts narcotics trafficking from his vehicle, a 1990s Ford Bronco, license plate 792–NYG.

¶ 6 After receiving the information from the informant Officer Wiesmueller conducted a follow-up investigation. He discovered that an individual named Gary M. Scull, born March 28, 1981, was on probation at the time. The address on file for Scull matched the address provided by the informant. Officer Wiesmueller further confirmed with the Wisconsin Department of Transportation that a vehicle with the license plate number and description matching the information provided by the informant was registered to Scull.

¶ 7 Officer Wiesmueller asked Detective Edersinghe to take his dog to Scull's address. Detective Edersinghe and his dog, Voden, are a drug detection team certified in the detection of the odor of marijuana, cocaine, heroin, and methamphetamine. When Voden detects the presence of controlled substances he will “alert” by aggressively scratching at the object.

¶ 8 In response to Officer Wiesmueller's request, Detective Edersinghe took Voden to Scull's house. As he approached, a woman exited the house with two small children. He decided to come back at another time when he would not be observed. When Detective Edersinghe returned with Voden, they were on the premises for less than 20 seconds. He took the dog on the sidewalk to the side entrance of the home and then they followed the walkway to the front door. They left the premises after Voden alerted at the front door.

¶ 9 Based on Voden's alert and the information provided by the informant, Officer Wiesmueller sought a warrant to search Scull's home. The affidavit for the search warrant detailed Detective Edersinghe's and Voden's training and explained how Voden “alerts” to the presence of a narcotic. It then stated that “within the past seventy two (72) hours, his canine, VODEN, made an ‘Alert’ on the front entry door to [Scull's residence]. Detective Christopher Edersinghe states that the ‘Alert’ of VODEN is a positive indication that controlled substances are contained in said apartment unit.”

¶ 10 The affidavit further detailed how the information from the confidential informant resulted in the dog sniff. It explained that the confidential informant was in a position to identify cocaine because the confidential informant had previously been involved in cocaine trafficking and that the informant was reliable because the informant had provided information in the past that had been confirmed by subsequent searches and arrests. The affidavit stated that the confidential informant told Officer Wiesmueller that “Gary M. Scull, b/m, 04–28–1981” was “involved in the distribution of cocaine base within the City of Milwaukee,” which he had personally witnessed. The affidavit included the informant's description of Scull's vehicle and its license plate, and the address he provided for Scull.

¶ 11 The steps Officer Wiesmueller took to follow up on the information he received from the informant were likewise identified. The affidavit stated that Officer Wiesmueller had ascertained that “Gary M. Scull, b/m, 04–28–1981, is currently on probation” and that the Department of Corrections gave the same address for Scull as the informant had provided. Additionally, the affidavit stated that Officer Wiesmueller had confirmed with the Wisconsin Department of Transportation that a vehicle with the license plate number and description matching the information provided by the informant was registered to Scull.

¶ 12 An assistant district attorney reviewed and approved the affidavit for the search warrant. It was subsequently submitted to a circuit court commissioner. After reviewing the affidavit, the commissioner determined that the affidavit submitted by Officer Wiesmueller showed probable cause to believe that there were controlled substances in Scull's home. The commissioner granted the search warrant to search Scull's home for those substances. Upon executing the warrant, officers found 53.85 grams of crack cocaine, 102.41 grams of marijuana, and drug-trafficking paraphernalia including digital scales, a razor blade, and numerous clear plastic baggies of various sizes. Based on this evidence, the State charged Scull with possession with intent to deliver cocaine, possession with intent to deliver THC, and keeping a drug house.

¶ 13 Scull moved to suppress the evidence obtained from his home. Scull asserted that the warrant was unlawfully obtained. He contended that the grounds for the warrant were insufficient because the dog sniff of his home was a warrantless search and information from an unlawful search cannot be used as a basis for a warrant justifying a subsequent search.

¶ 14 The circuit court denied the motion. It recognized that there was no case directly addressing the use of a drug-sniffing dog at the entrance of a home. However, it agreed with the State that the cases addressing dog sniffs in other circumstances established that dog sniffs were not searches and that police are lawfully on an individual's property when approaching the front door of a residence by means of a walkway. Accordingly, it determined that the dog was brought to the door of the residence “in a valid manner, not in a manner that violated the Fourth Amendment.” After his motion was denied, Scull pled guilty to possession with intent to deliver more than forty grams of cocaine and to keeping a drug house.

¶ 15 Scull appealed.² While his appeal was pending, the United States Supreme Court issued Florida v. Jardines, 569 U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), in which it determined that using a drug-sniffing dog on a homeowner's porch to investigate the contents of the home constitutes a search under the Fourth Amendment. Based on Jardines, the court of appeals determined that the police violated Scull's Fourth Amendment rights when they brought a drug-sniffing dog to his home without a search warrant. State v. Scull, 2014 WI App 17, ¶ 1, 352 Wis.2d 733, 843 N.W.2d 859. Nevertheless, the court affirmed Scull's conviction because the police subsequently obtained a search warrant upon which they relied in good faith. Id., ¶¶ 1, 22.

II

¶ 16 We are asked to determine whether the evidence obtained through the execution of a search warrant on Scull's home must be suppressed. Generally, in reviewing...