State,
U.S. constitutions are not coextensive
By
David Ziemer
Wisconsin Law Journal
July
20, 2005
The
Wisconsin Supreme Court announced in two cases on July 14 that it will no longer
interpret the Wisconsin Constitution in lock-step with parallel provisions in
the U.S. Constitution.
State
v. Dubose
In
the first case, Tyrone L. Dubose was stopped for suspicion of armed robbery, after
a canine unit tracked him from a robbery scene. The police officers placed him
in the back of a squad car for a show-up procedure, and the victim identified
him as one of the men who robbed him.
Ten
to 15 minutes later, a second show-up occurred at the police station, where the
victim again identified Dubose. A short time afterwards, the police showed the
victim a mug shot of Dubose, and he identified him for a third time.
Dubose
was charged, tried, and convicted of armed robbery, after the court denied his
motion to suppress all identifications of him as suggestive. The court of appeals
affirmed in an unpublished decision.
The
Supreme Court accepted review, and reversed, in a decision by Justice N. Patrick
Crooks. Justices Jon P. Wilcox, David T. Prosser, and Patience Drake Roggensack
each wrote a dissent, and Justice Louis B. Butler, Jr., wrote a concurrence.
The
court began with a history of when out-of-court identification procedures violate
the defendant's right to due process, examining Stovall v. Denno, 388 U.S. 293
(1967), U.S. v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S.
263 (1967), all decided the same day.
In
Stovall, the court adopted a "totality of the circumstances" test, emphasizing
the necessity of the show-up identifications in those cases.
Later,
in Neil v. Biggers, 409 U.S. 188 (1972), and in Manson v. Brathwaite, 432 U.S.
98 (1977), the emphasis changed from necessity to reliability. Relying on Biggers
and Brathwaite, the Wisconsin Supreme court held in State v. Wolverton, 193 Wis.
2d 234, 264, 533 N.W.2d 167 (1995), that if the defendant demonstrates that the
show-up was impermissibly suggestive, the burden "shifts to the state to
demonstrate that 'under the "totality of the circumstances"' the identification
was reliable."
Returning
to the issue, the majority abandoned that approach, in favor of the former test
set forth in Stovall, with its emphasis on necessity.
The
court found that, since it decided Wolverton, there have been extensive studies
done showing that eyewitness identifications are often "hopelessly unreliable,"
and are "the single greatest source of wrongful convictions in the United
States, and responsible for more wrongful convictions than all other causes combined."
The
court wrote, "In light of such evidence, we recognize that our current approach
to eyewitness identification has significant flaws. … that approach is unsound,
since it is extremely difficult, if not impossible, for courts to distinguish
between identifications that were reliable and identifications that were unreliable.
… Because a witness can be influenced by the suggestive procedure itself,
a court cannot know exactly how reliable the identification would have been without
the suggestiveness."
Accordingly,
the court adopted the following test: "We conclude that evidence obtained
from an out-of-court showup is inherently suggestive and will not be admissible
unless, based on the totality of the circumstances, the procedure was necessary.
A showup will not be necessary, however, unless the police lacked probable cause
to make an arrest or, as a result of other exigent circumstances, could not have
conducted a lineup or photo array."
The
court added that, if a showup is necessary, it should be made as non-suggestive
as possible: "Showups conducted in police stations, squad cars, or with the
suspect in handcuffs that are visible to any witness, all carry with them inferences
of guilt, and thus should be considered suggestive."
Offering
more guidance, the court wrote that witnesses should be instructed in non-suggestive
fashion: "an eyewitness should be told that the real suspect may or may not
be present, and that the investigation will continue regardless of the result
of the impending identification procedure. Finally, it is important that a suspect
be shown to the witness only once. If a suspect is identified, the police have
no reason to conduct further identification procedures. Conversely, if the suspect
is not identified by the witness, he or she should not be presented to that witness
in any subsequent showups."
Applying
the standard to the case at bar, the court found the showup was unnecessary, because
the police had probable cause to arrest Dubose after the canine unit tracked him
from the crime scene to where he was hiding in someone else's backyard. The court
found it was also unduly suggestive, because Dubose was seated in a squad car.
Finally, the court found the two later identifications unnecessary.
The
court concluded by citing for support, a law review article by former U.S. Supreme
Court Justice William Brennan, State Constitutions and the Protection of Individual
Rights, 90 Har. L.Rev. 489 (1977), which urged states to adopt greater protection
than federal law provides, and Brown v. Board of Education, 347 U.S. 483 (1954),
which relied on sociological studies in overruling Plessy v. Ferguson, 163 U.S.
537 (1896).
| What
the court held Case:
State of Wisconsin v. Matthew J. Knapp, 2000AP2590-CR, and State of Wisconsin
v. Tyrone L. Dubose, No. 2003AP1690-CR. Issue:
Is physical evidence seized as a direct result of an intentional Miranda violation
admissible? Where
police conducted a showup identification, even though they had probable cause
to arrest, and conduct a lineup, is the identification admissible? Holding:
No. Where the Miranda violation was intentional, the physical evidence seized
as a result must be suppressed.
No. Where probable cause is present, a showup is unnecessary and suggestive. Counsel:
For the State, William L. Gansner, David H. Perlman; for Knapp, Robert G. LeBell,
Milwaukee; for DuBose, Jefren E. Olsen. |
Justice
Butler wrote a concurrence, defending the court's use of social science concerning
eyewitness identifications in reaching its decision, concluding, "Unless,
and until, we improve eyewitness identification procedures so that the likelihood
of irreparable misidentification is significantly reduced, we can no longer proceed
as though all is good in the land of Oz."
Justice
Wilcox dissented, defending lock-step interpretation of parallel provisions of
the U.S. and Wisconsin constitutions: "the majority fails to articulate a
rationale for how identical language in the two documents can mean the same thing
for a number of years and now suddenly mean something different. Simply stating
that a majority of the court disagrees with a United States Supreme Court decision
and has the power to construe our state constitution more broadly is not a principled
basis for suddenly rejecting our long history of interpreting the due process
clauses of the federal and state constitutions in concert."
Justice
Prosser's dissent criticized the majority's application of the new standard to
the facts, arguing, "The facts in this case are not sufficient to justify
the majority's conclusion that this defendant's due process rights were violated.
Nothing in these facts is so inherently unfair or suggestive that it justifies
this court-ordered sea change in the law."
Roggensack's
dissent criticized the majority's use of "disputed social science theory"
to justify its holding, asserting, "I dissent because reliability, and not
a disputed social science theory, must be the key to admissibility of all identification
testimony in criminal trials and because I conclude that the totality of circumstances
bearing on the identification in this case resulted in a reliable identification
of Dubose as the perpetrator of the armed robbery of which he was convicted."
Roggensack
also criticized the majority for citing Brown v. Board of Education for support:
"the Brown holding was not made in reliance on a social science theory…
The
reports in Brown were listed in one footnote and used without discussion to support
one sentence in the entire opinion. Rather, Brown is preeminent because it judicially
proclaimed that the enormity of suffering that generation after generation of
African-Americans were forced to endure by the doctrine of 'separate but equal'
simply because they were a different color, was unconstitutional. I object to
the manner in which the majority opinion uses Brown because it trades on Brown's
prestigious position in American jurisprudence to support the majority opinion's
reliance on a disputed social science theory."
State
v. Knapp
In
the second case, a police officer deliberately failed to give Matthew J. Knapp,
a murder suspect, his Miranda warnings, when he arrested him on a parole hold
issued for unrelated activity. At one point, the officer asked Knapp what clothes
he was wearing the night before.
The
officer seized the clothing indicated by Knapp, and the sweatshirt he had worn
contained blood determined to have come from the victim.
The
circuit court denied Knapp's suppression motion, but the Wisconsin Supreme Court
reversed, holding that physical evidence obtained as the direct result of a Miranda
violation should be suppressed when the violation was an intentional attempt to
prevent the suspect from exercising his Fifth Amendment rights. State v. Knapp,
2003 WI 121, 265 Wis.2d 278, 666 NW.2d 881.
The
U.S. Supreme Court vacated the decision, citing its holding to the contrary in
U.S. v. Patane, 124 S.Ct. 2620 (2004). Nevertheless, on remand, the Wisconsin
Supreme Court again held the sweatshirt inadmissible, notwithstanding Patane.
The
court quoted with approval from the dissent of Justice Souter in Patane: "In
closing their eyes to the consequences of giving an evidentiary advantage to those
who ignore Miranda, the majority adds an important inducement for interrogators
to ignore the rule in that case." Patane, 124 S.Ct. at 2631.
As in Dubose,
the court cited Justice Brennan's 1977 law review article for support in providing
greater protection than federal law affords, even though the U.S. and Wisconsin
provisions at issue are virtually identical.
The
court reasoned, "It is not too much to expect law enforcement to respect
the law and refrain from intentionally violating it. When law enforcement is encouraged
to intentionally take unwarranted investigatory shortcuts to obtain convictions,
the judicial process is systemically corrupted."
The
court added, "We will not allow those we entrust to enforce the law to intentionally
subvert a suspect's constitutional rights. As it is undisputed that the physical
evidence here was obtained as a direct result of an intentional violation of Miranda,
it is inadmissible."
Justice
Crooks wrote a concurrence, citing cases from around the country in which state
courts have granted greater constitutional protection than the U.S. Supreme Court
has afforded — a movement known as "new federalism."
Click
here for Case Analysis.
David
Ziemer can be reached by email.
