State v. Gary Monroe Scull

2015 WI 22

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2956-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Gary Monroe Scull,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 352 Wis. 2d 733, 843 N.W.2d 859)
(Ct. App. 2014 – Published)
PDC No.: 2014 WI App 17

OPINION FILED: March 5, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 2, 2014

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: David Borowski

JUSTICES:
CONCURRED: ROGGENSACK, CROOKS, ZIEGLER, GABLEMAN, JJJJ.,
concur (Opinion filed).

ZIEGLER, CROOKS, GABLEMAN, JJJ., concur (Opinion
filed).
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
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, Eileen 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.

2
 2015 WI 22
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2956-CR
(L.C. No. 2010CF337)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v.
MAR 5, 2015
Gary Monroe Scull,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANN WALSH BRADLEY, J. 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.

1
State v. Scull, 2014 WI App 17, 352 Wis. 2d 733, 843
N.W.2d 859 (affirming judgment of the circuit court of Milwaukee
County, David L. Borowski, J.).
 No. 2011AP2956-CR

¶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.

2
 No. 2011AP2956-CR

¶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.

3
 No. 2011AP2956-CR

¶7 Officer Wiesmueller asked Detective Ederesinghe 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 Weismueller'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 Ederesinghe 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
4
 No. 2011AP2956-CR

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
5
 No. 2011AP2956-CR

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,

6
 No. 2011AP2956-CR

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 (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 motions to
suppress, we apply a two-step standard of review. Eason, 245

Wis. 2d 206, ¶9. First, we review the circuit court's findings

of fact, and uphold them unless they are clearly erroneous. Id.

Second, we independently review the application of

constitutional principles to those facts. Id.

2
Although a defendant generally waives all non-
jurisdictional defects when entering a guilty plea, Wis. Stat.
§ 971.31(10) creates an exception to this rule for appellate
review of an order denying a suppression motion.

7
 No. 2011AP2956-CR

¶17 In this case, however, the facts are undisputed. It

is further undisputed that the dog sniff of Scull's house which

served as part of the basis for the warrant violated Scull's

Fourth Amendment right to be secure from unreasonable searches

and seizures. Thus, we are left to address whether the

exclusionary rule applies or whether the evidence from Scull's

home is admissible under the good faith exception to the rule.

The application of the good faith exception to the exclusionary

rule is an issue of law which we review independently of the

decisions rendered by the circuit court and court of appeals.

State v. Hess, 2010 WI 82, ¶19, 327 Wis. 2d 524, 785 N.W.2d 568.

III

¶18 We begin our analysis by setting forth the

constitutional right at issue, the Fourth Amendment to the

United States Constitution. It provides the right of citizens

to be secure against unreasonable searches and seizures:

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.
U.S. Const., Amend. IV.3

3
Article I, Section 11 of the Wisconsin Constitution
contains substantially the same language:

The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures shall not be violated; and no
warrant shall issue but upon probable cause, supported
(continued)
8
 No. 2011AP2956-CR

¶19 The Supreme Court has declared that Fourth Amendment

rights are "indispensable to the 'full enjoyment of personal

security, personal liberty and private property.'" Gouled v.

United States, 255 U.S. 298, 304 (1921). Courts have long

extolled the importance of the home, noting that the amendment

was drafted in part to codify "the overriding respect for the

sanctity of the home that has been embedded in our traditions

since the origins of the Republic." Payton v. New York, 445

U.S. 573, 601 (1980); Holt v. State, 17 Wis. 2d 468, 477, 117

N.W.2d 626 (1962) ("A home is entitled to special dignity and

special sanctity.").

¶20 The Court first applied the exclusionary rule to

protect against violations of Fourth Amendment rights in Weeks

v. United States, 232 U.S. 383 (1914). Under the exclusionary

rule, evidence obtained in violation of the Fourth Amendment is

generally inadmissible in court proceedings. Mapp v. Ohio, 367

U.S. 643, 655 (1961). The court has explained that "[t]he

exclusionary rule operates as a judicially created remedy
designed to safeguard against future violations of Fourth

by oath or affirmation, and particularly describing
the place to be searched and the persons or things to
be seized.

Ordinarily, we interpret Article I, Section 11 of the Wisconsin
Constitution consistent with the Fourth Amendment of the United
States Constitution. However, in State v. Eason, 2001 WI 98,
¶63, 245 Wis. 2d 206, 629 N.W.2d 625, we required additional
safeguards.

9
 No. 2011AP2956-CR

Amendment rights through the rule's general deterrent effect."

Arizona v. Evans, 514 U.S. 1, 10 (1995).

¶21 Wisconsin has adopted the exclusionary rule and

applied it to exclude evidence obtained in violation of the

Wisconsin Constitution as well. It was first applied in Hoyer

v. State, 180 Wis. 407, 193 N.W. 89 (1923). There, after

declaring that the provisions of the Bill of Rights embodied in

the constitutions are "of substance rather than mere tinsel,"

the Wisconsin Supreme Court determined that the evidence

obtained in an unlawful search and seizure should have been

suppressed. Id. at 415.

¶22 This court has cited two rationales in support of its

application of the exclusionary rule: assurance of judicial

integrity and deterrence of unlawful police conduct. State v.

Felix, 2012 WI 36, ¶39, 339 Wis. 2d 670, 811 N.W.2d 775; Hess,

327 Wis. 2d 524, ¶47; State v. Artic, 2010 WI 83, ¶65, 327 Wis.

2d 392, 786 N.W.2d 430; State v. Knapp, 2005 WI 127, ¶79, 285

Wis. 2d 86, 700 N.W.2d 899; State v. Noble, 2002 WI 64, ¶31, 253
Wis. 2d 206, 646 N.W.2d 38; Eason, 245 Wis. 2d 206, ¶31 n.10;

State v. Ward, 2000 WI 3, ¶47, 231 Wis. 2d 723, 604 N.W.2d 517;

State v. McMorris, 213 Wis. 2d 156, 177, 570 N.W.2d 384 (1997);

State v. Whitrock, 161 Wis. 2d 960, 988, 468 N.W.2d 696 (1991);

Conrad v. State, 63 Wis. 2d 616, 635, 218 N.W.2d 252 (1974). In

furtherance of judicial integrity, we have explained that

"[c]ourts and judges should not sanction violations of the

constitution. The integrity of the judicial process must be

10
 No. 2011AP2956-CR

inviolate and free from reliance upon transgressions against the

constitution." Conrad, 63 Wis. 2d at 635.4

¶23 "Unlawful police conduct is deterred when evidence

recovered in unreasonable searches is not admissible in courts."

State v. Tompkins, 144 Wis. 2d 116, 133-34, 423 N.W.2d 823

(1988); State v. Gums, 69 Wis. 2d 513, 516-17, 230 N.W.2d 813

(1975). However, when police action was pursued in good faith

"the deterrence rationale loses much of its force." Gums, 69

Wis. 2d at 517 (quoting Michigan v. Tucker, 417 U.S. 433, 447

(1974)). Such is the case where officers act in reliance on

clear and well-settled law that is subsequently changed, State

v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97, and

where officers act in objectively reasonable reliance on a

subsequently invalidated search warrant, Eason, 245 Wis. 2d 206.

¶24 In this case, the parties frame the question regarding

the application of the good faith exception as whether the

officers could have acted in reliance on clear and well-settled

law that was subsequently reversed. Both parties agree that
Jardines, 133 S. Ct. 1409, rendered the dog sniff of Scull's

home illegal at the time it was conducted. They dispute whether

4
We are not asserting that judicial integrity is a stand-
alone basis for the exclusion of evidence. The protection of
judicial integrity goes hand-in-hand with deterrence of police
misconduct. As this court has explained, "[t]he protection of
rights and the preservation of judicial integrity depend in
reality on the deterrent effect of the exclusionary rule."
State v. Tompkins, 144 Wis. 2d 116, 133, 423 N.W.2d 823 (1988).

11
 No. 2011AP2956-CR

the officers could have acted in reliance on the law at the time

of the search such that the good faith exception should apply.

¶25 We need not address this argument because a straight-

forward application of our good faith jurisprudence governing

police reliance on a warrant resolves our inquiry. Here, the

officers ultimately obtained a warrant to search Scull's home

and that warrant was issued by a detached and neutral

commissioner. The commissioner's decision to grant the warrant

was a reasonable application of the unsettled state of the law

at the time the warrant issued.

¶26 Two Wisconsin cases had addressed the validity of a

dog sniff. The first, State v. Miller, 2002 WI App 150, 256

Wis. 2d 80, 647 N.W.2d 348, addressed a warrantless dog sniff of

a vehicle. In addressing the defendant's Fourth Amendment

rights, the court observed that a dog sniff is much less

intrusive than a typical search. Id., ¶6. Further, dog sniffs

reveal only illegal conduct to which there is no legitimate

privacy interest. Id., ¶9. Accordingly, the court concluded
that the dog sniff of the vehicle did not constitute a search

and thus there was no Fourth Amendment violation. Id., ¶10.

¶27 In the second case, State v. Arias, 2008 WI 84, 311

Wis. 2d 358, 752 N.W.2d 748, this court likewise considered a

dog sniff of a vehicle in a public place. We agreed with

Miller's statements that there is no constitutionally protected

interest in possessing contraband, and that a dog sniff is much

less intrusive than activities that have been held to be
searches. Id., ¶¶22-24. Accordingly, we determined that a dog
12
 No. 2011AP2956-CR

sniff of a vehicle located in a public place was not a search

for purposes of the Wisconsin Constitution. Id., ¶24.

¶28 Both Wisconsin cases are consistent with the United

States Supreme Court precedent issued prior to Jardines. In

Illinois v. Caballes, 543 U.S. 405 (2005), the Court assessed

whether a dog sniff of a vehicle stopped for speeding violated

the Fourth Amendment. The defendant had argued that the sniff

was impermissible because the officers lacked reasonable

suspicion to justify it. Id. at 407. The court was not

persuaded. Like Miller and Arias, it focused on the fact that

there is no protected privacy interest in having an illegal

substance and the non-intrusive nature of a dog sniff. The

court observed that "[o]fficial conduct that does not

'compromise any legitimate interest in privacy' is not a search

subject to the Fourth Amendment." Id. at 408 (quoting United

States v. Jacobsen, 466 U.S. 109, 123 (1984)). Therefore, it

concluded that "[a] dog sniff conducted during a concededly

lawful traffic stop that reveals no information other than the
location of a substance that no individual has any right to

possess does not violate the Fourth Amendment." Id. at 409.

¶29 In United States v. Place, 462 U.S. 696, 707 (1983),

the Court considered a dog sniff in the context of an

individual's luggage. After an airline passenger's conduct

aroused suspicion, the officers seized his luggage and subjected

it to a "sniff test" by a trained narcotics detection dog. Id.

at 699. The Court noted that although a person possesses a
privacy interest in the contents of their personal luggage, a
13
 No. 2011AP2956-CR

dog sniff does not require opening the luggage. Id. at 707.

Thus, the Court concluded that the dog sniff of the luggage did

not constitute a search within the meaning of the Fourth

Amendment. Id.

¶30 In sum, at the time the commissioner issued the

warrant in this case, there was Wisconsin and United States

Supreme Court precedent stating there is no search when a dog

sniffs a vehicle. There was also precedent stating that there

is no search when a dog sniffs luggage at an airport. However,

it was unsettled whether the same analysis would apply to a dog

sniff of a home.5 Given the precedent, the commissioner's

decision to grant the warrant appears to be a reasonable

application of the unsettled law at the time the warrant issued.

Accordingly, we turn to our case law addressing the application

of the good faith exception to evidence obtained in reliance on

a warrant.

¶31 The seminal Wisconsin case on the application of the

good faith exception to the exclusionary rule in circumstances
involving a search warrant is Eason, 245 Wis. 2d 206. In that

case a court commissioner issued a no-knock search warrant based

on an affidavit submitted by police. Id., ¶4. When the

5
Notably, at the time the warrant was issued, had the
commissioner reviewed other states' jurisprudence on this
question, he would have discovered the appellate decision in
State v. Jardines, 9 So. 3d 1 (Fla. Dist. Ct. App. 2008), which
held that a dog's sniff of a home was not a Fourth Amendment
search.

14
 No. 2011AP2956-CR

officers executed the warrant they discovered narcotics at the

defendant's home. Id., ¶5. At trial, however, the circuit

court granted the defendant's motion to suppress the narcotics

because it determined that the affidavit in support of the

warrant failed to allege the requisite reasonable suspicion to

justify the issuance of the no-knock search warrant. Id., ¶7.

¶32 On appeal, this court acknowledged that in United

States v. Leon, 468 U.S. 897 (1984), the United States Supreme

Court formulated a good faith exception to the exclusionary rule

where a police officer acts in objectively reasonable reliance

on a search warrant issued by a detached and neutral magistrate.

Id., ¶27. In that situation, there would be little deterrent

effect from suppression because the "officer is acting as a

reasonable officer would and should act in similar

circumstances." Id., ¶32 (quoting Leon, 468 U.S. at 920).

¶33 Leon cautioned that the existence of a warrant does

not necessarily mean that the good faith exception to the

exclusionary rule will apply. Leon, 468 U.S. at 922. It will
not apply where "a reasonably well trained officer would have

known that the search was illegal despite the magistrate's

authorization." Id. at 922 n.23. An officer "cannot reasonably

rely upon a warrant that was based upon a deliberately or

recklessly false affidavit, or, a bare bones affidavit that she

or he reasonably knows could not support probable cause or

reasonable suspicion." Eason, 245 Wis. 2d 206, ¶36 (citing

Leon, 468 U.S. at 923). Further, "[t]he officer cannot
reasonably rely upon a warrant 'so facially deficient' that she
15
 No. 2011AP2956-CR

or he could not 'reasonably presume it to be valid'" or "upon a

warrant issued by a magistrate that 'wholly abandoned his [or

her] judicial role.'" Id. (quoting Leon, 468 U.S. at 923).

¶34 The Eason court observed that Leon is consistent with

this court's prior statements that application of the

exclusionary rule requires a weighing of the pertinent

interests. Eason, 245 Wis. 2d 206, ¶43. It concluded that the

good faith exception should apply to the situation where an

officer acts in objectively reasonable reliance on a warrant by

a detached and neutral magistrate because in that scenario, the

exclusionary rule has no deterrent effect. Id., ¶52.

¶35 However, rather than adopting Leon outright, this

court added to the test. It determined that Article I, Section

11 of the Wisconsin Constitution required additional protection.

Id., ¶63. Thus, in order for the good faith exception to apply

to scenarios involving a warrant, the State must "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., ¶74.

¶36 In applying this test to the facts of the case, the

Eason court determined that the officers had conducted a

significant investigation before seeking the warrant. Id., ¶70.

The court explained that the officers had worked with a

confidential informant, researched the suspects in police
records, and researched utility records for the premises. Id.
16
 No. 2011AP2956-CR

The Eason court also determined that the warrant application had

been reviewed by a government attorney. Id., ¶71. To reach

this conclusion, it relied on the fact that "[t]he warrant and

affidavit reflect advanced legal training, beyond that given to

a well-trained police officer." Id.

¶37 The application section of Eason's analysis also

reflects that the court considered whether a reasonably well-

trained officer would have known that the search was illegal

despite the magistrate's authorization, which would render the

officers' reliance on the warrant unreasonable. Id., ¶66. The

court observed that "[t]here have been no allegations that the

warrant was so facially deficient that a reasonable, well-

trained officer would not have relied upon it." Id. Further,

there were "no contentions that there [were] technical or other

glaring deficiencies with the warrant" and "[t]he affidavit

[was] not sketchy or bare-boned." Id. Accordingly, the court

determined that the officers' reliance on the warrant was

objectively reasonable and the evidence obtained from execution
of the warrant should not have been suppressed.

IV

¶38 Turning to the facts of this case, we follow the test

laid out in Eason. First, we determine whether officers

conducted a significant investigation prior to obtaining the

warrant. Second, we assess whether 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.
17
 No. 2011AP2956-CR

Lastly, we consider whether a reasonably well-trained officer

would have known that the search was illegal despite the

magistrate's authorization, rendering the officers' reliance on

the warrant unreasonable.

¶39 In terms of the first factor, we determine that

Officer Wiesmueller conducted a significant investigation before

obtaining the warrant. It appears the investigation into Scull

began when a confidential informant told Officer Wiesmueller

that Scull was selling cocaine base. Officer Wiesmueller

determined that the informant would be in a position to know

that the substance Scull distributed was cocaine because the

informant had been involved in cocaine trafficking in the past.

Further, he deemed the informant reliable because the informant

had provided information in the past that had been confirmed by

subsequent searches and arrests.

¶40 Upon investigating further, Officer Wiesmueller

discovered that there was an individual named Scull, matching

the informant's description, who was on probation at the time
for robbery and recklessly endangering safety in Milwaukee

County. From the Department of Corrections records, Officer

Wiesmueller confirmed that the home address the informant had

given him was Scull's address. Officer Wiesmueller also

obtained records from the Wisconsin Department of Transportation

from which he was able to confirm that a vehicle matching the

description and license plate number provided by the informant

was registered to Scull.

18
 No. 2011AP2956-CR

¶41 After verifying the information from the informant,

Officer Wiesmueller had Detective Edersinghe take his drug-

sniffing dog to Scull's address. The dog alerted to the

presence of drugs at Scull's front door. With this information,

combined with the information from the informant, Officer

Wiesmueller sought a warrant. The multiple steps taken by

Officer Wiesmueller to investigate the allegations of drug

trafficking were reasonable at the time and sufficient to

satisfy the investigation requirement for purposes of the good

faith exception under Eason. Therefore, we conclude that the

State met its burden of showing that a significant investigation

was conducted prior to the warrant.

¶42 The State also met its burden with regard to the

second factor, review of the affidavit by a knowledgeable

government attorney. In this case, we need look only at the

face of the affidavit for the search warrant to make this

determination. The affidavit states that it was "reviewed and

approved by ADA Christopher Ladwig on 07-02-2010." Thus, it is
evident that the affidavit was reviewed by a knowledgeable

government attorney. See State v. Marquardt, 2005 WI 157, ¶46,

286 Wis. 2d 204, 705 N.W.2d 878 (testimony that an experienced

district attorney had met with the officers and drafted the

warrant established that it had been reviewed by a knowledgeable

government attorney); Eason, 245 Wis. 2d 206, ¶71 (determining

that warrant had been reviewed by a knowledgeable government

attorney based on the language in the warrant which "reflect[ed]
advanced legal training.").
19
 No. 2011AP2956-CR

¶43 Lastly, we turn to consider whether a reasonably well

trained officer would have known that the search was illegal

despite the magistrate's authorization, rendering the officers'

reliance on the search warrant unreasonable. As in Eason, it is

not contended and we see nothing to suggest that the warrant in

this case was so facially deficient that a reasonable, well-

trained officer would not have relied upon it, that there were

technical or other glaring deficiencies with the warrant, or

that the affidavit was sketchy or bare-boned. Accordingly, we

conclude that at the time the officers executed the warrant on

Scull's home, a reasonable officer would not have known that a

search was illegal despite the warrant.

¶44 From the record presented in this case it appears that

the officers did everything they were required to do. With the

assistance of a knowledgeable government attorney they obtained

a warrant from a detached and neutral magistrate, which they

relied on to search Scull's home. Suppressing evidence obtained

in objectively reasonable reliance on that warrant would have no
deterrent effect. In such circumstances it is inappropriate to

apply the exclusionary rule. Therefore we determine that the

good faith exception to the rule applies.

V

¶45 In sum, 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. Reliance
on a warrant is objectively reasonable when: the warrant was
20
 No. 2011AP2956-CR

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.

¶46 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 we affirm the court of appeals.

By the Court.—The decision of the court of appeals is

affirmed.

21
 No. 2011AP2956-CR.pdr

¶47 PATIENCE DRAKE ROGGENSACK, J. (concurring). I join

the majority opinion's conclusions that the officers conducted

their search in reasonable reliance on a search warrant that

they believed was valid and that the good faith exception to the

exclusionary rule precludes suppression.1 I write in concurrence

to clarify that the "assurance of judicial integrity," standing

alone, is not a sufficient basis upon which to employ the

exclusionary rule to preclude the prosecution's use of evidence

seized when there is no underlying finding of police misconduct.

Accordingly, the majority opinion is not to be read as setting a

new standard that permits the exclusion of evidence without

police misconduct.

¶48 The exclusionary rule is a judicially created remedy

that may be applied to certain violations, including those of

the Fourth Amendment of the United States Constitution and

Article I, Section 11 of the Wisconsin Constitution. Davis v.

United States, __ U.S. __, 131 S. Ct. 2419, 2423 (2011); State

v. Ward, 2000 WI 3, ¶¶46, 58, 231 Wis. 2d 723, 604 N.W.2d 517.
The exclusionary rule was developed as a safeguard of Fourth

Amendment rights by requiring police to comply with the Fourth

Amendment's reasonableness requirements as a precondition to the

prosecution's use of evidence that police seized. Weeks v.

United States, 232 U.S. 383, 398 (1914); Hoyer v. State, 180

Wis. 407, 417, 193 N.W. 89 (1923).

1
Majority op., ¶1.

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 No. 2011AP2956-CR.pdr

¶49 As Fourth Amendment and Article I, Section 11

jurisprudence developed, the exclusionary rule has become

subject to exceptions. Both the United States Supreme Court's

and our own decisions have established good faith as an

exception to the exclusionary rule that permits prosecution's

use of evidence even though police have transgressed the Fourth

Amendment and Article I, Section 11. United States v. Leon, 468

U.S. 897, 916, 920 (1984); State v. Eason, 2001 WI 98, ¶2, 245

Wis. 2d 206, 629 N.W.2d 625; Ward, 231 Wis. 2d 723, ¶3. These

decisions are grounded in judicial assessment of the

reasonableness of police actions under the totality of the

circumstances. Davis, 131 S. Ct. at 2427-28; Eason, 245 Wis. 2d

206, ¶3.

¶50 As the parameters of the good faith exception to the

exclusionary rule have developed both in the Supreme Court's and

in our jurisprudence, so too have the judicial expressions of

the policies that underlie the exclusionary rule. For example,

in its recent decision in Davis, the Supreme Court expended
considerable effort explaining the policies that must be

considered with regard to the exclusionary rule and what facts

are necessary before exclusion of evidence is even an option for

courts to consider.

¶51 Davis involved the search of the passenger compartment

of Stella Owens' vehicle, in which Willie Davis was a passenger,

after both Owens and Davis were placed under arrest and secured.

Davis, 131 S. Ct. at 2425-26. A gun was found in Davis' jacket;
Davis was a convicted felon. Id. The search occurred before

2
 No. 2011AP2956-CR.pdr

the Court's decision in Arizona v. Gant, 556 U.S. 332 (2009),

which Alabama agreed set out new concerns relative to the search

of Davis' jacket under the Fourth Amendment if Gant were applied

to that search. Davis, 131 S. Ct. at 2431. However, while Gant

provided a "newly announced rule of substantive Fourth Amendment

law as a basis for seeking relief," Gant did not determine the

remedy, i.e., whether suppression applies. Id.

¶52 The ultimate question presented in Davis was whether

the good faith exception to the exclusionary rule permitted the

prosecution to present evidence obtained in a search that

complied with appellate precedent that pre-dated Gant. In

deciding this question, the Court examined whether police had

proceeded in objectively reasonable reliance on then-controlling

precedent in conducting the search. Davis, 131 S. Ct. at 2423-

24. After concluding that police had done so, the Court held

that "searches conducted in objectively reasonable reliance on

binding appellate precedent are not subject to the exclusionary

rule." Id.
¶53 Although the Court's conclusion settled an important

area of Fourth Amendment law, what is equally interesting about

Davis is the Court's detailed descriptions of the showing that

is required before the exclusionary rule can be considered. For

example, the Court reaffirmed its holding in Herring v. United

States, 555 U.S. 135 (2009), that the exclusionary rule's sole

purpose is to deter future Fourth Amendment violations by

3
 No. 2011AP2956-CR.pdr

police. Davis, 131 S. Ct. at 2426 (citing Herring, 555 U.S. at

141).2

¶54 The Court explained, "[r]eal deterrent value is a

necessary condition for exclusion, but it is not a sufficient

one. . . . The analysis must also account for the substantial

social costs generated by the rule. . . . For exclusion to be

appropriate, the deterrence benefits of suppression must

outweigh its heavy costs." Id. at 2427 (cited and quoted cases

omitted). When the error that leads to a Fourth Amendment

violation is not that of police but that of a magistrate or

judge who issues the warrant, the exclusionary rule does not

apply. "[P]unish[ing] the errors of judges is not the office of

the exclusionary rule." Id. at 2428 (cited and quoted cases

omitted). And finally, the Court explained, "in 27 years of

practice under Leon's good-faith exception, we have 'never

applied' the exclusionary rule to suppress evidence obtained as

a result of nonculpable, innocent police conduct." Id. at 2429

(quoting Herring, 555 U.S. at 144).
¶55 Our decision in Eason discussed the development of the

exclusionary rule. We began by reviewing Hoyer, which addressed

the Fourth Amendment's requirements, and we also considered the

exclusionary rule as developed within the parameters of Article

I, Section 11 of the Wisconsin Constitution. Eason, 245 Wis. 2d

2
See also State v. Hess, 2010 WI 82, ¶¶79-84, 327 Wis. 2d
524, 785 N.W.2d 568 (Gableman, J., dissenting), for a thorough
discussion of Herring v. United States, 555 U.S. 135 (2009), and
Herring's explanation of the considerations that courts must
address when asked to apply the exclusionary rule.

4
 No. 2011AP2956-CR.pdr

206, ¶¶41, 47 (citing Hoyer v. State, 180 Wis. 407, 193 N.W. 89

(1923). We noted that at least since confirmed in State v.

Tompkins, 144 Wis. 2d 116, 423 N.W.2d 823 (1988), "the

exclusionary rule has been a remedy, not a right" under Article

I, Section 11 of the Wisconsin Constitution, as well as the

Fourth Amendment. Eason, 245 Wis. 2d 206, ¶48. We also cited

Ward as explaining that without police misconduct, evidence was

admissible because "exclusion . . . would serve no remedial

objective." Id., ¶49 (quoting Ward, 231 Wis. 2d 723, ¶63).

Therefore, just as with the Fourth Amendment, Article I, Section

11 of the Wisconsin Constitution requires police misconduct as a

necessary predicate to consideration of whether the exclusionary

rule should be applied. Id.

¶56 So how does the above discussion fit within my concern

set out in the first paragraph of this concurrence? It provides

the necessary foundation to understand that the lead opinion in

Hess cannot be combined with certain narrations of the majority

opinion herein to conclude that the protection of judicial
integrity, standing alone without underlying police misconduct,

is sufficient to permit courts to suppress relevant evidence.3

3
Majority op., ¶22, citing the lead opinion in Hess, 327
Wis. 2d 524, ¶47, in which there was no underlying police
misconduct.

5
 No. 2011AP2956-CR.pdr

Let me explain further, beginning with the problem set up by the

lead opinion in Hess.4

¶57 First, while protection of judicial integrity was

mentioned in Supreme Court decisions and in our decisions that

preceded Leon's 1984 decision on good faith, protection of

judicial integrity is no longer part of the Supreme Court's

analysis. In that regard, the Supreme Court has unequivocally

held that before the exclusionary rule may be employed as a

remedy for a Fourth Amendment violation two conditions are

required: (1) police misconduct and (2) a reviewing court's

conclusion that "the deterrence benefits of suppression []

outweigh its heavy costs." Davis, 131 S. Ct. at 2427.

Protection of judicial integrity is not part of the Supreme

Court's Fourth Amendment analysis when the remedy sought is

suppression of evidence. We came to the same conclusion in

Eason as we addressed Article I, Section 11 of the Wisconsin

Constitution. Eason, 245 Wis. 2d 206, ¶48. Accordingly, when

an opinion relies on case law that has been refined through
years of consideration by many courts without discussing current

4
In Hess, the court sat six because Justice Crooks did not
participate. Hess, 327 Wis. 2d 524, ¶70. The lead opinion,
authored by Justice Prosser, was joined by Chief Justice
Abrahamson and Justice Bradley. Justice Ziegler joined the
result reached by the lead opinion, but on a very limited basis.
Id., ¶71 (Ziegler, J., concurring). Justice Gableman wrote a
thoughtful dissent that took issue with the lead opinion's
conclusion that application of the exclusionary rule could stand
on a foundation of judicial integrity when there had been no
police misconduct. Id., ¶¶75-97 (Gableman, J., dissenting).

6
 No. 2011AP2956-CR.pdr

jurisprudence on the issues presented, it does not accurately

articulate the state of the law and may confuse the reader.

¶58 Second, the protection of judicial integrity was

spoken of only in regard to its connection to police misconduct.

See Conrad v. State, 63 Wis. 2d 616, 635, 218 N.W.2d 252 (1974)

(explaining that judicial integrity could be compromised if

unlawful police conduct was sanctioned by the use of evidence

obtained in violation of the Fourth Amendment); Elkins v. United

States, 364 U.S. 206, 222-23 (1960) (explaining that "[i]f the

Government becomes a law-breaker, it breeds contempt for law").

¶59 Third, the lead opinion in Hess is the only Wisconsin

Supreme Court decision, or United States Supreme Court decision,

that I could locate that employs protection of judicial

integrity as a stand-alone basis for employing the exclusionary

rule. Justice Gableman tried to point out this concern, but the

lead opinion in Hess did not heed his thoughtful dissent.

¶60 Fourth, because the majority opinion herein cites the

lead opinion in Hess in a manner that could permit the reader to
erroneously conclude that police misconduct is not a necessary

predicate to the application of the exclusionary rule under both

United States Supreme Court precedent and our own precedent, I

have chosen to bring this issue forward. It is my hope that my

colleagues both on the bench and at the bar will take heed of

this trap for the unwary and recognize that the majority opinion

is not setting a new standard that permits the exclusion of

evidence without police misconduct. Accordingly, I respectfully
concur.

7
 No. 2011AP2956-CR.pdr

¶61 I am authorized to state that Justices N. PATRICK

CROOKS, ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join

this opinion.

8
 No. 2011AP2956-CR.akz

¶62 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join

Justice Roggensack's concurrence because I believe that the

"assurance of judicial integrity" is not a stand-alone basis for

suppressing evidence under the exclusionary rule. Although the

case at issue centers on the Fourth Amendment, I write to

clarify that the exclusionary rule can apply to violations of

constitutional provisions other than the Fourth Amendment.1 The

exclusionary rule requires suppression of evidence that was

obtained in violation of the Constitution, unless suppression

would not deter police misconduct or the error in admitting the

evidence was harmless beyond a reasonable doubt. United States

v. Leon, 468 U.S. 897, 906, 916 (1984); Arizona v. Fulminante,

499 U.S. 279, 309-12 (1991); Chapman v. California, 386 U.S. 18,

21-22 (1967); State v. Armstrong, 223 Wis. 2d 331, 368, 588

N.W.2d 606 (1999).

¶63 Because this is a Fourth Amendment case, the majority

opinion's discussion of the exclusionary rule focuses on that

constitutional provision. Specifically, the majority opinion
states that, "[t]he [United States Supreme Court] first applied

the exclusionary rule to protect against violations of Fourth

Amendment rights in Weeks v. United States, 232 U.S. 383 (1914).

Under the exclusionary rule, evidence obtained in violation of

the Fourth Amendment is generally inadmissible in court

1
Because this case involves a discussion of the
exclusionary rule, I do not address circumstances unrelated to
constitutional violations, which may otherwise warrant the
exclusion of evidence.

1
 No. 2011AP2956-CR.akz

proceedings." Majority op., ¶20 (citation omitted). Similarly,

this court has previously discussed the origins of the

exclusionary rule as it relates to the Fourth Amendment because

the focus of the case was the Fourth Amendment. See State v.

Hess, 2010 WI 82, ¶¶38-52, 327 Wis. 2d 524, 785 N.W.2d 568

(explaining the history of the Fourth Amendment exclusionary

rule in federal courts and Wisconsin). I write to clarify that

the history of the exclusionary rule is not limited to Fourth

Amendment violations——it applies to other constitutional

violations as well.

¶64 The Supreme Court created the exclusionary rule to

deter constitutional violations, but did not limit the

exclusionary rule to the Fourth Amendment right against

unreasonable searches and seizures. The exclusionary rule, if

warranted, results in the suppression of evidence so that it may

not be introduced to prove a defendant's guilt in the

prosecution's case-in-chief. See Leon, 468 U.S. at 906, 916.

The exclusionary rule, for example, may apply to deter
violations of the Fourth Amendment,2 Fifth Amendment,3 or Sixth

Amendment.4

2
Weeks v. United States, 232 U.S. 383, 398 (1914),
overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961);
State v. Tye, 2001 WI 124, ¶24, 248 Wis. 2d 530, 636 N.W.2d 473.
3
Blackburn v. Alabama, 361 U.S. 199, 205 (1960); Bram v.
United States, 168 U.S. 532, 542, 548 (1897); Rudolph v. State,
78 Wis. 2d 435, 441-42, 254 N.W.2d 471 (1977).
4
United States v. Wade, 388 U.S. 218, 237-39 (1967);
Massiah v. United States, 377 U.S. 201, 203-04, 206-07 (1964);
State v. McMorris, 213 Wis. 2d 156, 178, 570 N.W.2d 384 (1997).

2
 No. 2011AP2956-CR.akz

¶65 The origins of the exclusionary rule further

demonstrate that it was designed to apply to evidence obtained

in violation of constitutional provisions beyond the Fourth

Amendment. The United States Supreme Court applied the

exclusionary rule for the first time in Boyd v. United States,

116 U.S. 616 (1886). See Christopher Slobogin, The Exclusionary

Rule: Is It on Its Way Out? Should It Be?, 10 Ohio St. J. Crim.

L. 341, 343-44 (2013). In Boyd the Supreme Court held that the

evidence at issue was inadmissible because it was obtained in

violation of the Fourth and Fifth Amendments. Boyd, 116 U.S. at

621-22, 633-35, 638. Ten years later, the Supreme Court held

that the exclusionary rule applied, in federal criminal cases,

to confessions obtained in violation of the Fifth Amendment.

Wilson v. United States, 162 U.S. 613, 623 (1896); see also Bram

v. United States, 168 U.S. 532, 542, 548 (1897). Nearly 20

years later, in 1914, the Supreme Court held for the first time

that the exclusionary rule applied, in federal criminal cases,

to evidence obtained in violation of the Fourth Amendment.
Weeks v. United States, 232 U.S. 383, 398 (1914), overruled on

other grounds by Mapp v. Ohio, 367 U.S. 643 (1961); see also

Mapp, 367 U.S. at 648 (explaining that Weeks was the first case

in which the Supreme Court "held that 'in a federal prosecution

the Fourth Amendment barred the use of evidence secured through

an illegal search and seizure'" (quoted source omitted)). Thus,

the Fourth Amendment was not the only driving force behind the

Supreme Court's adoption of the exclusionary rule, which
occurred decades before Weeks.

3
 No. 2011AP2956-CR.akz

¶66 Furthermore, the exclusionary rule does not always

require suppression of evidence, even if it was obtained through

unconstitutional means. In fact, the exclusionary rule does not

apply when suppression would not deter police misconduct. Davis

v. United States, 564 U.S. ___, 131 S. Ct. 2419, 2426-28 (2011);

State v. Dearborn, 2010 WI 84, ¶35, 327 Wis. 2d 252, 786

N.W.2d 97. For example, evidence may not be suppressed under

the good faith exception5 because suppression would not serve the

exclusionary rule's purpose of deterring police misconduct.

Evidence obtained after a constitutional violation may otherwise

be admissible if the discovery of the evidence was sufficiently

attenuated from the police misconduct,6 the evidence was

discovered through a source independent from the police

misconduct,7 or the evidence would have been inevitably

discovered through lawful means.8 In addition, evidence that is

suppressed because of a constitutional violation may nonetheless

5
United States v. Leon, 468 U.S. 897, 922-25 (1984); State
v. Dearborn, 2010 WI 84, ¶¶35-49, 327 Wis. 2d 252, 786
N.W.2d 97; State v. Eason, 2001 WI 98, ¶3, 245 Wis. 2d 206, 629
N.W.2d 625.
6
Brown v. Illinois, 422 U.S. 590, 603-04 (1975); Wong Sun
v. United States, 371 U.S. 471, 488 (1963); State v. Phillips,
218 Wis. 2d 180, 204-06, 577 N.W.2d 794 (1998).
7
Murray v. United States, 487 U.S. 533, 537 (1988); Nix v.
Williams, 467 U.S. 431, 443 (1984); State v. Carroll, 2010 WI 8,
¶¶43-55, 322 Wis. 2d 299, 778 N.W.2d 1.
8
Murray, 487 U.S. at 539; Nix, 467 U.S. at 446-50; State v.
Weber, 163 Wis. 2d 116, 140-44, 471 N.W.2d 187 (1991); State v.
Schwegler, 170 Wis. 2d 487, 499-500, 490 N.W.2d 292 (Ct. App.
1992).

4
 No. 2011AP2956-CR.akz

be admitted for certain purposes. For example, suppressed

evidence may be used collaterally for impeachment purposes,

outside of the prosecution's case-in-chief.9

¶67 Some potential confusion surrounding the exclusionary

rule could stem from the fact that evidence may be properly

excluded for a variety of reasons. But the mere fact that

evidence is being excluded does not mean that it is excluded

under the exclusionary rule. "There are judicially created

exclusionary rules and legislatively created exclusionary rules.

There are constitutional exclusionary rules and statutory

exclusionary rules." Sun Kin Chan v. State, 552 A.2d 1351, 1355

(Md. Ct. Spec. App. 1989). A careful reader will keep in mind

that courts may inaccurately refer to "the exclusionary rule"

when a constitutional violation is not the basis for exclusion.

Cf. Oregon v. Elstad, 470 U.S. 298, 306-08 (1985) (explaining

the differences between the "Fourth Amendment exclusionary rule"

9
Kansas v. Ventris, 556 U.S. 586, 593-94 (2009) (holding
that defendant's statement obtained in violation of Sixth
Amendment right to counsel was inadmissible to prove guilt but
admissible to impeach defendant's inconsistent testimony); State
v. Pickett, 150 Wis. 2d 720, 727-30, 442 N.W.2d 509 (Ct. App.
1989) (same); United States v. Havens, 446 U.S. 620, 627-28
(1980) (holding that evidence obtained in violation of Fourth
Amendment was inadmissible to prove guilt but admissible to
impeach defendant's inconsistent testimony); State v. Thompson,
142 Wis. 2d 821, 833 & n.8, 419 N.W.2d 564 (Ct. App. 1987)
(same); Oregon v. Hass, 420 U.S. 714, 722-24 (1975) (holding
that defendant's statement made without warnings required by
Miranda v. Arizona, 384 U.S. 436 (1966), was inadmissible to
prove guilt but admissible to impeach defendant's inconsistent
testimony); State v. Mendoza, 96 Wis. 2d 106, 118-19, 291
N.W.2d 478 (1980) (same).

5
 No. 2011AP2956-CR.akz

and the "Miranda10 exclusionary rule"). Because the Fourth

Amendment is at issue in the present case, the majority

opinion's discussion of the exclusionary rule focuses on the

Fourth Amendment.

¶68 With the foregoing clarification, I join Justice

Roggensack's concurrence, and I concur.

¶69 I am authorized to state that Justices N. PATRICK

CROOKS and MICHAEL J. GABLEMAN join this concurrence.

10
Miranda v. Arizona, 384 U.S. 436 (1966).

6
 No. 2011AP2956-CR.akz

7