Mistake
Case Analysis
July
26, 2006
The
decision lends support for defendants in Wisconsin state courts facing what is
arguably an unsettled issue.
In
State v. Longcore, 226 Wis.2d 1, 594 N.W.2d 412 (Ct.App.1999), the Wisconsin Court
of Appeals held, as did the Seventh Circuit that, if a police officer erroneously
applies the law to the to the facts and no law has been broken, the officer does
not have probable cause for a traffic stop.
The
Supreme Court granted review, and the decision was affirmed. However, it was not
affirmed by a majority, but by an equally divided court, 2000 WI 23, 233 Wis.2d
278, 607 N.W.2d 620.
How
the court would decide the issue if considered by a full seven-justice panel is
thus uncertain.
Much
of the reasoning in the court of appeals’ decision in Longcore is also not
applicable any longer.
The
focus of much of the court’s opinion was that, at that time, Wisconsin had
not yet adopted the good faith exception to the exclusionary rule that the U.S.
Supreme Court adopted in U.S. v. Leon, 468 U.S. 897 (1984). Longcore, 594 N.W.2d
at 415-417.
The
court wrote, “arguments that excuse an officer’s reasonable but misguided
conduct are inapplicable to suppression motions based upon the Wisconsin Constitution.”
Id., at 416-17.
Since
Longcore was decided, the Wisconsin Supreme Court has adopted the good-faith exception
(or at least, a version of it). State v. Eason, 2001 WI 98, 245 Wis.2d 206, 629
N.W.2d 625. Thus, much of the court of appeals’ rationale is no longer applicable.
However,
proponents of the result in Longcore have a new source of argument they did not
have at that time — the court of appeals’ decision in State v. Repenshek,
2004 WI App 229, 277 Wis.2d 780, 691 N.W.2d 369.
Repenshek
was arrested for a nonexistent crime — causing great bodily harm by reckless
driving. When he was ultimately charged with actual crimes, he moved to suppress
admission of his blood sample.
The
court of appeals held that his arrest was not illegal, and that the exclusionary
rule did not bar admission of evidence obtained as a result. Even though Repenshek
was arrested for a nonexistent crime, there was probable cause for other charges,
and thus, the arrest was lawful.
The
court wrote, “even when an officer acts under a mistaken understanding of
the crime committed, an objective test is used to determine the legality of the
arrest.” Id., 691 N.W.2d at 373.
While not
directly on point, the decision is relevant, because it represents the mirror
image of case at bar.
In
the case at bar, the defendant committed no offense, but the officer subjectively
thought he did.
In
Repenshek, the defendant did commit an offense, but the officer arrested him for
a crime that does not exist.
The
court in Repenshek found the officers’ subjective beliefs irrelevant, and
concluded that the standard is purely objective. Id.
Thus,
applying Repenshek to the case of a mistake of law compels a conclusion that the
arrest is unlawful. Disregarding the officer’s subjective beliefs, no crime
was committed when considered from a purely objective view, and thus, the exclusionary
rule should preclude admission of the evidence.
-
David Ziemer
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David
Ziemer can be reached by email.
