Constitution
Case Analysis
July
20, 2005
The
greatest impact of the two decisions is not the particular holdings themselves,
but that, in criminal cases, the Wisconsin Constitution will no longer be interpreted
in lock-step with the U.S. Constitution.
Suppression
motions that previously would have been patently meritless, because of how the
U.S. Supreme Court has ruled on a particular issue, can now be made with some
hope of success — if not on the circuit court level, then, eventually, on
further review.
The
court notes that this is not the first time it has adopted an interpretation of
the Wisconsin Constitution that differs from the U.S. Supreme Court's interpretation
of a parallel provision in the U.S. Constitution Nevertheless, the decisions in
these cases represent a marked change that can't be minimized that easily.
For
example, the court notes that, in State v. Hansford, 219 Wis.2d 226, 580 N.W.2d
171 (1998), it held that misdemeanor criminal defendants have a right to a 12-person
jury, even though the U.S. Supreme Court had held that a 6-person jury is constitutional.
This
is not comparable precedent, however. In Hansford, the court delved into the unique
history of the Wisconsin Constitution, and long-standing precedent interpreting
it prior to Mapp v. Ohio (1961). On an issue of that sort — whether the Wisconsin
Constitution requires a 12-person jury in all criminal cases — unique history
of the Wisconsin Constitution is relevant.
But
the court did not — nor could it have even if it wished — do the same
in the cases at bar. One cannot look at the history of the Wisconsin Constitution,
and find anything concerning when a show-up identification may be unduly suggestive,
or whether the exclusionary rule should be applied in a given case. The exclusionary
rule is a 20th century creation to which "unique history" is nonexistent.
Likewise,
suppose a future case before the court concerns the automobile exception, or wiretaps,
or the extent of a citizen's expectation of privacy in his home's curtilage. There
were no automobiles or telephone wires in 1848; nothing in the "unique history"
of the Wisconsin Constitution would provide any basis for a departure from federal
precedent on issues such as this.
The
only other instance of departing from federal precedent in the criminal arena
that the court cites is State v. Eason, 245 Wis.2d 206, 629 N.W.2d 625 (2001),
in which the court adopted a modified version of the good faith exception to the
exclusionary rule adopted in U.S. v. Leon, 468 U.S 897 (1984). However, even the
most experienced judge or criminal law attorney would be hard-pressed to cite
an actual example of a search that passed muster under the standard of Leon, but
not of Eason.
Thus,
the decisions are a very significant break from past interpretation. The question
is whether this break will extend to search and seizure law.
In
Eason, even though the court deviated slightly from federal precedent, it stated
that to do so in the Fourth Amendment area would be inappropriate, because "search
and seizure law is marked by hair-splitting distinctions and a complexity masked
by simple formulations." Eason, 629 N.W.2d at 642.
Instead,
in the search and seizure realm, article I, sec. 11 of the Wisconsin Constitution
has been coextensive with the Fourth Amendment. State v Fry, 131 Wis.2d 153, 388
N.W.2d 565 (1986); State v. Brady, 130 Wis.2d 443, 388 N.W.2d 151 (1986).
The
decision could be read as overruling this precedent. The best support to be found,
however, is not in the lead opinion, but in Justice Crooks' concurrence in Knapp.
In his discussion of the "new federalism" that the court is now embracing,
many of the cases he cites concern the Fourth Amendment: State v. Cardenas-Alvarez,
25 P.3d 225 (N.M. 2001); State v. Randolph, 74 S.W.3d 330 (Tenn.2002).
The
inclusion of Fourth Amendment cases in an opinion that could easily have limited
its citation to due process cases should be considered an invitation to defense
attorneys to challenge the continued validity of Fry and Brady.
The actual
holding in Dubose is not without significance, either. The court held that show-up
identifications are impermissible unless the police lack probable cause for arrest.
In borderline cases, this will cause police officers a dilemma.
If
they guess incorrectly that they do have probable cause, and arrest the suspect
unlawfully, they risk suppression of evidence on that ground; if they guess incorrectly
that they don't have probable cause, and use a show-up identification as a means
to establish probable cause, they risk suppression of the identification on that
ground.
Before
this decision, to conduct a show-up identification was to err on the side of caution,
avoiding the consequences of a potentially unlawful arrest; now, conducting a
show-up carries perils of its own, and risking the unlawful arrest may be the
lesser of two evils in borderline cases.
-
David Ziemer
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David
Ziemer can be reached by email.
