State v. Christopher John Kerr

2018 WI 87

SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP2455-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant,
v.
Christopher John Kerr,
Defendant-Respondent.

ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED: July 6, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 11, 2018

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Bayfield
JUDGE: John P. Anderson

JUSTICES:
CONCURRED: ZIEGLER, J., concurs, joined by ROGGENSACK,
C.J., GABLEMAN, J., and KELLY, J., (joins
footnote 2) (opinion filed).
DISSENTED: A.W. BRADLEY, J., dissents, joined by
ABRAHAMSON, J. (opinion filed).
R.G. BRADLEY, J., dissents (opinion filed).
NOT PARTICIPATING:

ATTORNEYS:

For the plaintiff-appellant, there were briefs by Misha
Tseytlin, solicitor general, with whom on the briefs were Brad
D. Schimel, attorney general, and Amy C. Miller, assistant
solicitor general. There was an oral argument by Misha
Tseytlin, solicitor general.

For the defendant-respondent, there was a brief filed by
Linda I. Coleman, John R. Carlson, and Sears, Carlson & Coleman,
S.C., Washburn. There was an oral argument by John R. Carlson.
 2018 WI 87
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP2455-CR
(L.C. No. 2015CF139)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Appellant, FILED
v. JUL 6, 2018
Christopher John Kerr, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent.

APPEAL from an order of the Circuit Court for Bayfield

County, John P. Anderson, Judge. Reversed and cause remanded.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of

the Bayfield County circuit court's order granting Christopher
John Kerr's ("Kerr") motion to suppress evidence discovered

during a search incident to arrest on the basis that "'judicial

integrity' is vital enough to justify exclusion of evidence when
 No. 2016AP2455-CR

the issuing court's arrest warrant was invalid ab initio."1 We

reverse.

¶2 On September 27, 2015, two officers were dispatched to

follow up on a 9-1-1 hang-up call from Kerr's residence. En

route, they were advised by dispatch that there was an

outstanding arrest warrant for Kerr in Ashland County. When the

officers arrived at Kerr's residence, they discovered that the

9-1-1 call was in error, but arrested Kerr pursuant to the

arrest warrant. In conducting a search incident to arrest, the

officers discovered methamphetamine in Kerr's pants pocket. The

State subsequently charged Kerr with one count of possession of

methamphetamine in violation of Wis. Stat. § 961.41(3g)(g)

(2015-16).2

¶3 Kerr filed a pre-trial motion to suppress the evidence

discovered during the search incident to arrest. He argued

that, while a warrant had been issued, and law enforcement did

not engage in any misconduct in executing the warrant, his

constitutional rights were nonetheless violated because he was
jailed without the issuing court first inquiring as to his

ability to pay, without being given notice that his ability to

1
The Honorable Robert E. Eaton of Ashland County issued the
warrant (the "issuing court"), but, because the arrest occurred
in Bayfield County, the Honorable John P. Anderson of Bayfield
County presided over the motion to suppress and reviewed the
warrant (the "reviewing court").
2
All references to the Wisconsin Statutes are to the 2015-
16 version unless otherwise noted.

2
 No. 2016AP2455-CR

pay is at issue, and without a meaningful opportunity to be

heard. He argued that the warrant would not have been issued,

and he would not have been arrested or searched incident to

arrest, if he had been afforded due process in the forfeiture

action.3

¶4 After extensive briefing and three hearings, the

reviewing court granted Kerr's motion to suppress. It concluded

that, although "[t]here is no question that the [issuing court],

as a court of general jurisdiction, has the constitutional and

statutory authority to hear and process municipal citations,"

the warrant was "not in compliance with the statutory

requirements and clearly violated defendant's statutory due

process rights." The reviewing court then concluded that

suppression under the exclusionary rule was proper based on the

"Wisconsin rule that 'judicial integrity' is vital enough to

justify exclusion of evidence when the issuing court's arrest

warrant was invalid ab initio." In so concluding, the reviewing

3
At the reviewing court, Kerr's arguments were somewhat
different than the arguments he presented to this court. He
asserted that the issuing court did not follow the requirements
of Wis. Stat. ch. 818 in issuing a civil bench warrant. He also
argued that, because there was no affidavit and there was no
contempt in the presence of the court, there was simply no
authority for this warrant to be issued. The reviewing court
ordered further briefing on the issue of whether the issuing
court had authority to proceed as a municipal court pursuant to
Wis. Stat. §§ 66.0114, 800.09, 800.095. At the hearing on that
issue, the State informed the court that the arrest warrant was
issued pursuant to Wis. Stat. § 778.09, but, before this court,
both parties apparently agree that Wis. Stat. § 800.095 governs
the issuance of the warrant.

3
 No. 2016AP2455-CR

court referenced the deterrent purpose of the exclusionary rule

and how "[h]ere the conduct is not isolated and may be the rule,

not the exception. Dete[r]rence certainly is a greater

consideration under these facts."

¶5 The State sought interlocutory review and filed a

petition to bypass the court of appeals, seeking immediate

review from this court. We granted the State's petition to

bypass.

¶6 Our overarching inquiry in this case is whether the

reviewing court erred in granting Kerr's motion to suppress.

Fundamental to our analysis is whether evidence discovered

during a search incident to arrest is properly suppressed under

the exclusionary rule when there is no police misconduct. We

conclude that suppression is not appropriate because the sole

purpose of the exclusionary rule is to deter police misconduct,

and there is no police misconduct here. Neither judicial

integrity nor judicial error is a standalone basis for

suppression under the exclusionary rule.4 We therefore conclude
that the reviewing court's grant of Kerr's motion to suppress on

the basis of judicial integrity is error.

4
In so concluding, we consider whether to overrule State v.
Hess, 2010 WI 82, 327 Wis. 2d 524, 785 N.W.2d 568. We conclude
that Hess need not be overruled because the lead opinion's view
in Hess of "judicial integrity" as a standalone justification
for suppression under the exclusionary rule did not garner the
support of a majority of the court; as such, it has no
precedential value that requires reconsideration in this case.

4
 No. 2016AP2455-CR

¶7 Accordingly, we reverse the Bayfield County circuit

court.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Warrant
¶8 A certified copy of the record for City of Ashland v.

Kerr, No. 2015FO219, is included in the record before us, but it

is particularly lean. This record reflects that, on June 16,

2015, Kerr was mailed a citation for disorderly conduct, in

violation of City of Ashland ordinance 201.03.5 This citation

notified Kerr to appear, if he so chose, at 10:00 a.m. on

July 21, 2015.6 This record also reflects that, on July 21,

2015, when Kerr failed to appear, the issuing court entered a

default judgment in the amount of $263.50 with 60 days to pay,

and that on July 31, 2015, the clerk sent notice of the default

judgment to Kerr (although neither the judgment nor the notice

is in the record).7 On September 22, 2015, 60 days after default

5
Disorderly conduct may also be prosecuted as a crime. See
Wis. Stat. § 947.01. Kerr was not charged with a crime; rather,
a civil municipal ticket was issued.
6
This ticket, unlike some, did not require a mandatory
appearance in court; instead, Kerr could avoid coming to court
by paying the citation.
7
In his brief before this court, Kerr alleges that the
notice of default judgment was not sent to him until "September
of 2016." While the reviewing court decision did state that
"[t]he record of [2015FO219] indicates a notice of default
judgment on July 31, 2015, and then again on September 15,
2016," this is clearly in error.

(continued)
5
 No. 2016AP2455-CR

judgment was entered, the court issued a commitment order/arrest

warrant8 for Kerr to "detain [him] in custody for 90 days or

until $298.50[9] is paid, or until the person is discharged by

due course of law." This warrant was issued on the basis that

The four-page record for 2015FO219, a certified copy of
which is in the record before this court, is devoid of any
indication of a notice sent in September of 2016, but it does
reference a notice of certification sent in September of 2015.
Thus, a simple review of the record reveals that such an
assertion must be mistaken. Additionally, Kerr filed his motion
to suppress on June 8, 2016, and in that motion did not dispute
this timeline: "The warrant that had been issued in Ashland
County was issued under case number [2015FO219], which was an
ordinance violation case in which default judgment was issued
against Mr. Kerr requiring him to pay a fine of $298.50 on
July 31, 2015." Moreover, Kerr was arrested on this non-payment
warrant on September 27, 2015; the criminal complaint for the
Possession of Methamphetamine charge was filed October 7, 2015;
and the Clerk of Court certification reflects that the reviewing
court was provided the record with respect to that motion in
July of 2016——all of which happened well before September of
2016.

Clearly then, it is not as argued in Kerr's brief that "the
court failed to send Mr. Kerr any notice that default judgment
was entered until over a year later, and after the events giving
rise to this case."
8
The record indicates that "arrest warrant" and "commitment
order" are used interchangeably in this case. This may not
always be the case and we decline to decide whether a commitment
order is always equivalent to an arrest warrant, as that issue
was not presented for our review or briefed by the parties. We
agree with the State, however, that any difference in this case
is not legally significant because the order here, like an
arrest warrant, required law enforcement to arrest the subject
of the order.
9
This total reflects a local forfeiture of $263.50, a
clerk's fee of $5.00, and a warrant fee of $30.00.

6
 No. 2016AP2455-CR

"[t]he balance due has not been paid within the period ordered

by the court."

B. The Arrest
¶9 On September 27, 2015, around midnight, 9-1-1 received

a call from a phone number later-identified as Kerr's. When the

9-1-1 operator picked up the call, there was a female yelling,

but the operator did not have the opportunity to discover the

nature of her distress before the line went dead. When the

operator called back, a male answered the phone and the operator

heard him say "shut the fuck up." When the operator asked whom

the male had been talking to, he responded that he was talking

to his cat. He denied that there was a female there and said

that there was no problem and that the call had been made by

accident.

¶10 The operator ran the number and discovered it was

registered to Kerr and that Kerr had an active arrest warrant in

Ashland County. The operator then dispatched Officer Matt

Ladwig of the City of Bayfield Police Department and Deputy Matt
Leino of the Bayfield County Sheriff's Department to Kerr's

residence to follow up on the 9-1-1 call, advising them both

that Kerr had a warrant for his arrest in Ashland County. When

they arrived, they spoke with Kerr and his girlfriend, R.E., and

determined that, although the two had had an argument, the 9-1-1

call was an accidental dial. Officer Ladwig then informed Kerr

that there was a warrant for his arrest in Ashland County for an
unpaid judgment in the amount of $298.50 and placed Kerr under

7
 No. 2016AP2455-CR

arrest. He conducted a search incident to arrest and discovered

a plastic bag containing a white-colored rock in Kerr's pants

pocket, which, after testing, was revealed to be

methamphetamine.

C. The Motion To Suppress
¶11 On October 7, 2015, the State filed its criminal

complaint, charging one count of possession of methamphetamine

in violation of Wis. Stat. § 961.41(3g)(g).10

¶12 On June 8, 2016, prior to trial, Kerr filed a motion

to suppress the methamphetamine discovered during the search

incident to his arrest.11 The crux of Kerr's argument is that

issuance of the civil municipal arrest warrant violated his due

process rights because, contrary to the statutory requirements,

"[t]here was no hearing that was noticed to provide [him] an

opportunity to be heard on the issue of his ability to pay prior

to the issuance of a warrant." Kerr argued that the warrant for

this civil municipal ticket never should have been issued, Kerr

never should have been arrested, and the methamphetamine never
should have been discovered. Therefore, says Kerr, the evidence

should be suppressed because it was discovered as a result of an

10
To be clear, these criminal charges were not the basis of
the arrest warrant, which issued after Kerr failed to pay a
civil municipal forfeiture ticket.
11
Kerr filed an amended motion to suppress on June 13,
2016. The only revision made was to type (rather than hand-
write) the date and time at which the suppression motion would
be heard. Otherwise the motions are identical.

8
 No. 2016AP2455-CR

unlawful arrest in violation of his constitutional and statutory

rights.

¶13 On July 12, 2016, the reviewing circuit court held its

first hearing on the motion, at which Officer Ladwig, Deputy

Leino, and Kerr all testified. Officer Ladwig and Deputy Leino

testified to the facts described above regarding the arrest.

They also both testified that they had not attempted to look up

the arrest warrant. Kerr testified that he had been unaware of

any warrant from Ashland County, and that he had had no hearing

about owing any money prior to his arrest on September 27, 2015.

¶14 On September 6, 2016, after further briefing, the

reviewing court held its second hearing on the motion, hearing

arguments from the parties. Kerr argued that the arrest warrant

was facially invalid because, regardless of the statutory basis,

the statutory procedures were not followed: defendants cannot

be arrested and incarcerated for being poor——there must be some

showing of ability to pay. The State argued that exclusion was

improper because there was no police misconduct; officers should
be able to rely on dispatch——they cannot be the arbiters of

whether a court had authority to issue a warrant because they

are never in a position to question a court order. The State

further argued that, where a warrant is defective but there is

no police misconduct, the proper remedy is either a writ of

habeas corpus or a civil suit under 42 U.S.C. § 1983. After

hearing these arguments, the reviewing court ordered further

briefing on the issue of whether a circuit court has competency

9
 No. 2016AP2455-CR

to proceed as a municipal court pursuant to Wis. Stat.

§§ 66.0114, 800.09, and 800.095.

¶15 On October 5, 2016, the reviewing court held its third

hearing on the motion, hearing argument from the parties on that

issue. Kerr argued that a circuit court could proceed under

Wis. Stat. ch. 800, but that, even if this is what the issuing

court had done, it still had not adhered to the procedural

requirements, and a police officer cannot reasonably rely on a

warrant that has no statutory basis. The State informed the

reviewing court that the arrest warrant was issued pursuant to

Wis. Stat. § 778.09,12 and argued that suppression is not

designed to correct judicial misconduct and would have no

deterrent effect here. Kerr responded that police officers

cannot be allowed to avoid suppression on a hear-no-evil-see-no-

evil basis by not looking at the warrant.

¶16 On October 31, 2016, the reviewing court issued its

decision and order granting Kerr's motion to suppress. It

concluded that the issuing court had authority to issue the

12
Wisconsin Stat. § 778.09 states as follows:

Judgment, costs, commitment of defendant. Where
judgment is recovered pursuant to this chapter it
shall include costs and direct that if the judgment is
not paid the defendant, if an individual, shall be
imprisoned in the county jail for a specified time,
not exceeding 6 months, or until otherwise discharged
pursuant to law. The commitment shall issue, as in
ordinary criminal actions, and the defendant shall not
be entitled to the liberties of the jail.

§ 778.09.

10
 No. 2016AP2455-CR

warrant because it has general jurisdiction under Article VII,

Section 8 of the Wisconsin Constitution and Wis. Stat. § 753.03

to impose and collect municipal forfeitures under Wis. Stat.

§§ 66.0114(1)(c), 800.09, 800.095, 345.47(1)(a), and/or 778.10.

It nonetheless concluded that the arrest warrant was defective

because the issuing court did not comply with statutory

procedural requirements in issuing the warrant. In this regard,

the reviewing court took the issuing court to task for what it

perceived to be "an institutional or administrative disregard

for the law governing civil commitments."13 The reviewing court

then acknowledged that the officers engaged in no wrongdoing,

also noting that "neither the defendant nor the State alleges

even the slightest hint of misconduct or wrongdoing by law

enforcement." It nonetheless concluded, after discussion of

13
The reviewing court's written decision makes clear,
however, that, instead of relying on the facts of record, the
court rested its conclusions on its own familiarity with how the
issuing court "issues civil commitments [and how] the error in
this case results in several, or dozens or hundreds of arrest
warrants being issued in complete disregard for the applicable
law." The court stated:

While there is no reason in this case to assume
intentional malfeasance on the issuing court, the
record from the [issuing county] case shows an
institutional or administrative disregard for the law
governing civil commitments. While the record does
not reflect this, I am administratively aware that
[the issuing county] follows the procedure that
occurred in this case in almost all of its civil
nonpayments. In [the issuing county], nonpayment of a
civil forfeiture generally means summary issuance of a
civil commitment. There may be hundreds of similar
commitments of record.

11
 No. 2016AP2455-CR

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

light of State v. Scull, 2015 WI 22, 361 Wis. 2d 288, 862

N.W.2d 562, that exclusion of the evidence was proper because

the deterrent purpose of the exclusionary rule is served where

the judicial misconduct is systemic.

¶17 On December 9, 2016, the State appealed.14 On July 10,

2017, the State petitioned this court for bypass of the court of

appeals. On October 17, 2017, the State's petition for bypass

was granted.

II. STANDARD OF REVIEW
¶18 "'Our review of an order granting or denying a motion

to suppress evidence presents a question of constitutional

fact.'" State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 421,

857 N.W.2d 120 (quoting State v. Robinson, 2010 WI 80, ¶22, 327

Wis. 2d 302, 786 N.W.2d 463). "When presented with a question

of constitutional fact, this court engages in a two-step

inquiry. First, we review the circuit court's findings of

historical fact under a deferential standard, upholding them
unless they are clearly erroneous. Second, we independently

apply constitutional principles to those facts." Id., ¶27

(citations omitted).

¶19 The interpretation and application of a constitutional

provision are questions of law that we review de novo. See,

e.g., Black v. City of Milwaukee, 2016 WI 47, ¶21,

14
The reviewing court has suspended proceedings pending the
outcome of this appeal.

12
 No. 2016AP2455-CR

369 Wis. 2d 272, 882 N.W.2d 333 (citing Appling v. Walker,

2014 WI 96, ¶17, 358 Wis. 2d 132, 853 N.W.2d 888). "When

interpreting constitutional provisions and amendments, we look

to intrinsic as well as extrinsic sources." State v. Williams,

2012 WI 59, ¶15, 341 Wis. 2d 191, 814 N.W.2d 460 (citing Buse v.

Smith, 74 Wis. 2d 550, 568, 247 N.W.2d 141 (1976)). In

particular, we look to (1) the plain meaning of the words in the

context used; (2) the historical analysis of the constitutional

debates that the court may reasonably presume were known to the

framers; (3) the prevailing practices when the provision was

adopted; and (4) the earliest interpretation of the provision by

the legislature, as manifested in the first law passed following

its adoption. Id.

III. ANALYSIS
¶20 There is no dispute that the exclusionary rule applies

in Wisconsin. See Mapp v. Ohio, 367 U.S. 643 (1961); Conrad v.

State, 63 Wis. 2d 616, 636, 218 N.W.2d 252 (1974). The parties

before us, however, argue two competing views of when evidence
must be suppressed under the exclusionary rule. The State's

view is that evidence is suppressed only where suppression will

likely serve to deter future police misconduct. This is, and

has been, the view of the majority of this court. See Scull,

361 Wis. 2d 288, ¶¶47-61 (Roggensack, J., concurring, joined by

Crooks, Ziegler, and Gableman, JJ.). Kerr's view is that

evidence may be suppressed either where suppression serves to
deter future police misconduct or where it serves to preserve

13
 No. 2016AP2455-CR

"judicial integrity." The view that "judicial integrity" is a

standalone justification for suppression under the exclusionary

rule is error, as this view has not garnered favor among a

majority of this court, nor of the United States Supreme Court.15

¶21 In fact, the Supreme Court recently reiterated that

"[t]he rule's sole purpose, we have repeatedly held, is to deter

future Fourth Amendment violations." Davis v. United States,

564 U.S. 229, 236-37 (2011); see also Elkins v. United States,

364 U.S. 206, 217 (1960) ("Its purpose is to deter . . . by

removing the incentive to disregard it."). And this purpose is

punitive, not remedial. See, e.g., United States v. Calandra,

414 U.S. 338, 347 (1974) ("The purpose of the exclusionary rule

is not to redress the injury to the privacy of the search

victim . . . ."); Elkins, 364 U.S. at 217 ("The rule is

calculated to prevent, not to repair."). Thus, the singular

15
When "judicial integrity" has been discussed in relation
to the suppression of evidence, it has been tethered to the
taint of police misconduct. See, e.g., Stone v. Powell, 428
U.S. 465, 485 (1976) (citation omitted) ("Although our decisions
often have alluded to the 'imperative of judicial integrity,'
they demonstrate the limited role of this justification in the
determination whether to apply the rule in a particular
context."); Terry v. Ohio, 392 U.S. 1, 12-13 (1968) (citation
omitted) ("The rule also serves another vital function——'the
imperative of judicial integrity.' . . . A ruling admitting
evidence in a criminal trial, we recognize, has the necessary
effect of legitimizing the conduct which produced the
evidence . . . ."); State v. Tompkins, 144 Wis. 2d 116, 133, 423
N.W.2d 823 (1988) ("The protection of rights and the
preservation of judicial integrity depend in reality on the
deterrent effect of the exclusionary rule.").

14
 No. 2016AP2455-CR

purpose of the exclusionary rule is to deter police misconduct,16

and the exclusionary rule does not apply in order to preserve

judicial integrity or to correct judicial error.17

16
In so concluding we consider whether to overrule Hess,
327 Wis. 2d 524. The State argues that Hess should be overruled
because its view of "judicial integrity" as a standalone
justification for suppression is a significant departure from
United States Supreme Court precedent. Kerr argues that Hess
should not be overruled because its discussion of judicial
integrity as a standalone justification for suppression was
correct. We conclude that Hess need not be overruled because
the lead opinion's view of "judicial integrity" as a standalone
justification for suppression under the exclusionary rule did
not garner the support of a majority of the court.

Justice Prosser authored the lead opinion, joined by then-
Chief Justice Abrahamson and Justice A.W. Bradley; Justice
Ziegler concurred and filed an opinion that did not adopt the
"judicial integrity" rationale of the lead opinion; Justice
Gableman dissented and filed an opinion that then-Justice
Roggensack joined, which specifically rejected "judicial
integrity" as a standalone rationale; and Justice Crooks did not
participate in the case. Justice Crooks did, however,
participate in State v. Scull, 2015 WI 22, 361 Wis. 2d 288, 862
N.W.2d 562, where he joined the concurring majority in rejecting
judicial integrity as a standalone rationale. Thus, Hess has no
precedential value that requires reconsideration in this case.
17
In fact, in general, the exclusionary rule does not even
apply to deter mistakes made by judicial employees:

First, the exclusionary rule is designed to deter
police misconduct rather than to punish the errors of
judges and magistrates. Second, there exists no
evidence suggesting that judges and magistrates are
inclined to ignore or subvert the Fourth Amendment or
that lawlessness among these actors requires
application of the extreme sanction of exclusion.

Third, and most important, we discern no basis,
and are offered none, for believing that exclusion of
evidence seized pursuant to a warrant will have a
significant deterrent effect on the issuing judge or
(continued)
15
 No. 2016AP2455-CR

¶22 Moreover, Supreme Court precedent establishes that the

manner in which the warrant was issued by the court and executed

by law enforcement in this case does not afford suppression

under the exclusionary rule. As noted above, see supra ¶21, for

the exclusionary rule to apply, there must have been some police

misconduct. Although Kerr argues that the officers' failure to

look at the warrant itself constitutes such misconduct, this

view is incorrect. As a practical matter, officers should be

able to rely on dispatch in the same way they are able to rely

on their computer records. See Arizona v. Evans, 514 U.S. 1,

14-16 (1995). Relatedly, absent some evidence in the record to

the contrary, dispatch personnel are not "adjuncts to the law

enforcement team engaged in the often competitive enterprise of

ferreting out crime." Id. at 15. Additionally, to the extent

that looking at a warrant before executing it may be best

practice, the officers' conduct here is at most negligent, and

isolated negligence is not "misconduct" for the purposes of the

exclusionary rule. Herring v. United States, 555 U.S. 135, 146-
47 (2009). Thus, the officers here did not engage in any

misconduct that renders the evidence suppressible under the

exclusionary rule.

magistrate. . . . Judges and magistrates are not
adjuncts to the law enforcement team; as neutral
judicial officers, they have no stake in the outcome
of particular criminal prosecutions.

United States v. Leon, 468 U.S. 897, 916-17 (1984); see also
Herring v. United States, 555 U.S. 135, 142 (2009).

16
 No. 2016AP2455-CR

¶23 The parties also make arguments regarding the good-

faith exception, which applies when an "officer's conduct is

objectively reasonable, [because] 'excluding the evidence will

not further the ends of the exclusionary rule in any appreciable

way; for it is painfully apparent that . . . the officer is

acting as a reasonable officer would and should act in similar

circumstances.'" United States v. Leon, 468 U.S. 897, 919-20

(1984) (quoting Stone v. Powell, 428 U.S. 465, 539-40 (1976)

(White, J., dissenting)). In Wisconsin, we have adopted the

good-faith exception. See State v. Eason, 2001 WI 98, ¶52, 245

Wis. 2d 206, 629 N.W.2d 625 ("[A] good faith exception for

objective, reasonable reliance upon a search warrant does not

offend the Wisconsin Constitution [because in that situation,]

applying the exclusionary rule will have no deterrent effect.").

But, because the exclusionary rule applies to deter police

misconduct, and there is no police misconduct here, the

exclusionary rule does not apply; the good-faith exception thus,

also need not be further analyzed and the evidence is not
excluded.

IV. CONCLUSION
¶24 Our overarching inquiry in this case is whether the

circuit court erred in granting Kerr's motion to suppress.

Fundamental to our analysis is whether evidence discovered

during a search incident to arrest is properly suppressed under

the exclusionary rule when there is no police misconduct. We
conclude that suppression is not appropriate because the sole

17
 No. 2016AP2455-CR

purpose of the exclusionary rule is to deter police misconduct,

and there is no police misconduct here. Neither judicial

integrity nor judicial error is a standalone basis for

suppression under the exclusionary rule.18 We therefore conclude

that the circuit court's grant of Kerr's motion to suppress on

the basis of judicial integrity is error.

¶25 Accordingly, we reverse the Bayfield County circuit

court.

By the Court.—The order of the circuit court is reversed,

and the cause is remanded.

18
In so concluding, we consider whether to overrule Hess,
327 Wis. 2d 524. We conclude that Hess need not be overruled
because the lead opinion's view of "judicial integrity" as a
standalone justification for suppression under the exclusionary
rule did not garner the support of a majority of the court; as
such, it has no precedential value that requires reconsideration
in this case.

18
 No. 2016AP2455-CR.akz

¶26 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I, of

course, join the opinion that I wrote for the majority. I write

separately to address issues that three of the four members of

the majority conclude are also relevant.

¶27 The reviewing circuit court in this case took issue

with the manner in which the neighboring circuit court issued

the warrant.1 It concluded that the neighboring court issued

this warrant contrary to statutory provisions, that the issuing

court did so on a regular basis, that all such warrants were

void ab initio, and that, therefore, this case represented "an

institutional or administrative disregard for the law governing

civil commitments." The reviewing court, thus, suppressed the

evidence because of "judicial error on a wide administrative

level," concluding that "'judicial integrity' is vital enough to

justify exclusion of evidence when the issuing court's arrest

warrant was invalid ab initio."

¶28 This case cannot be so easily resolved by relying on
the issuing court's alleged statutory violation, because neither

the facts of record nor the plain language of the applicable

statutes support that conclusion. Relatedly, while it may be

tempting to do so, this case cannot be resolved by relying on my

concurrence in State v. Hess, 2010 WI 82, 327 Wis. 2d 524, 785

1
The Honorable Robert E. Eaton of Ashland County issued the
warrant (the "issuing court"), but, because the arrest occurred
in Bayfield County, the Honorable John P. Anderson of Bayfield
County presided over the motion to suppress and reviewed the
warrant (the "reviewing court").

1
 No. 2016AP2455-CR.akz

N.W.2d 568, because the arrest warrant was not void ab initio

here, where the issuing court had authority to issue it.2

¶29 Accordingly, I respectfully concur.

I. FACTS OF RECORD
¶30 Recall that the record regarding the issuance of the

warrant in this case is rather lean. This record reflects that,

on June 16, 2015, Kerr was mailed a citation for disorderly

conduct, in violation of City of Ashland ordinance 201.03. This

citation notified Kerr to appear, if he so chose, at 10:00 a.m.

on July 21, 2015. He did not. This record also reflects that,

on July 21, 2015, when Kerr failed to appear, the court entered

a default judgment in the amount of $263.50 with 60 days to pay,

and that on July 31, 2015, the clerk sent notice of the default

judgment to Kerr (although neither the judgment nor the notice

is in the record). On September 22, 2015, 60 days after default

judgment was entered, the circuit court issued an arrest warrant

for Kerr to "detain [him] in custody for 90 days or until

2
For an egregious example of abuse of power see State ex
rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, 363
Wis. 2d 1, 866 N.W.2d 165. The facts of this case, however, are
dramatically different. And regardless, given the forward-
looking nature of the exclusionary rule, it is incapable of
functioning as a remedy. Here it cannot, and never has. While
it may be tempting to judicially create a remedy for these
wrongful searches and seizures, repurposing the exclusionary
rule to be a remedy, rather than a tool to deter police
misconduct, will not fix the problem and will, in fact, create
downstream problems of its own. In fact, it would disband the
exclusionary rule in its entirety. Stated differently, it turns
a forward-facing pedagogical tool backward into a purported
remedy.

2
 No. 2016AP2455-CR.akz

$298.50[3] is paid, or until the person is discharged by due

course of law." This warrant was issued on the basis that "the

balance due has not been paid within the period ordered by the

court."

¶31 There is also very little in the record created by the

reviewing court to support its conclusion that the issuing court

issued warrants in a similar manner on a regular basis. In

fact, the record regarding the review of this singular warrant

reflects that it is largely the reviewing court's own opinion

and personal belief, rather than fact finding, that this

procedure reflects "an institutional or administrative disregard

for the law governing civil commitments":

[A]s already known to this Court due to its
familiarity with how [the issuing county] issues civil
commitments, the error in this case results in
several, or dozens or hundreds of arrest warrants
being issued in complete disregard for the applicable
law.

In isolated cases of judicial malfeasance,
exclusion will not likely deter future conduct, as the
conduct is often remarkably isolated. Here the
conduct is not isolated and may be the rule, not the
exception. Deter[r]ence certainly is a greater
consideration under these facts. . . .

While there is no reason in this case to assume
intentional malfeasance on the issuing court, the
record from the [issuing county] case shows an
institutional or administrative disregard for the law
governing civil commitments. While the record does
not reflect this, I am administratively aware that
[the issuing county] follows the procedure that
occurred in this case in almost all of its civil

3
This total reflects a local forfeiture of $263.50, a
clerk's fee of $5.00, and a warrant fee of $30.00.

3
 No. 2016AP2455-CR.akz

nonpayments. In [the issuing county], nonpayment of a
civil forfeiture generally means summary issuance of a
civil commitment. There may be hundreds of similar
commitments of record.
(Emphasis added.) Additionally, the record reflects that the

reviewing court acknowledged that there is not "even the

slightest hint of misconduct or wrongdoing by law enforcement in

this matter," and that it concluded that the issuing court "had

statutory authority to issue a bench warrant under Wis. Stat.

§ 800.095(1)(b)1 for Kerr's arrest for failure to pay the fine

imposed."

¶32 Thus, the reviewing court's decision to suppress the

evidence was based solely on its view that the neighboring court

issued this warrant without following statutory procedures, that

the neighboring court did so on a regular basis, and that,

because of that systemic failure, this warrant was "invalid ab

initio." This view, however, is not supported by the facts of

record; rather, it is based on the reviewing court's own

understanding of a neighboring county's practice. Even

assuming, however, that there were facts of record to support
the reviewing court's conclusion that arrest warrants in civil

forfeiture cases were regularly issued in this manner, and that

doing so fails to comply with Wis. Stat. § 800.095(1)(b)2.,4 that

procedural defect does not render the warrant "void ab initio."

II. DISTINGUISHING "VOID AB INITIO"
¶33 Warrants may be defective for a variety of reasons.

Most typically, a warrant is later challenged because of a

4
But see Part III.

4
 No. 2016AP2455-CR.akz

defect, for example, lack of probable cause or procedural

irregularity, but not because it was issued without authority.

And warrants are deemed "void ab initio" only when the person

issuing the warrant lacks authority to ever issue that warrant

in that type of case. Thus, when a judge has the authority to

issue a warrant, as is the case here, but fails to properly

adhere to prescribed requirements,5 that warrant may be

defective, but it is not void ab initio.

¶34 In other words, the type of defective warrant that

issues when a judge fails to follow statutory procedural

requirements in issuing it differs from the type of defective

warrant that issues when a judge lacks authority to issue it:

the former, although defective, is not void ab initio; the

latter is per se void ab initio. The reality of this

distinction is evident from the fact that, if there were no

distinction, there would be no place for the exclusionary rule

or its companion good-faith exception. In all exclusionary rule

cases, the warrant is defective, but nonetheless the evidence
discovered in a search incident to arrest is upheld unless there

is police misconduct. Notably, the reviewing court stated that

there is not "even the slightest hint of misconduct or wrong

doing by law enforcement in this matter." Thus, although I

assume without deciding that the reviewing court correctly

5
For the purposes of this section we assume without
deciding that the issuance of the arrest warrant failed to
follow the requirements of Wis. Stat. § 800.095(1)(b)2. But
see Part III.

5
 No. 2016AP2455-CR.akz

concluded that the warrant was defective, it incorrectly used

the term "invalid ab initio" because it is clear from the

reviewing court's decision——which concluded that the issuing

court "had statutory authority to issue a bench warrant under

Wis. Stat. § 800.095(1)(b)1"——that its grant of Kerr's motion to

suppress was based upon the "institutional or administrative

disregard for the law governing civil commitments," not a lack

of court authority to issue this type of warrant.

A. Authority To Issue
¶35 I agree with the reviewing court that the issuing

court had the authority to issue this warrant under Wis. Stat.

§ 800.095. Chapter 753 of the Wisconsin Statutes governs the

circuit courts. Under Wis. Stat. § 753.03, "circuit courts have

power to hear and determine, within their respective circuits,

all civil and criminal actions and proceedings unless exclusive

jurisdiction is given to some other court . . . ." § 753.03

(emphasis added); see also Wis. Const. art. VII, § 8 ("Except as

otherwise provided by law, the circuit court shall have original

jurisdiction in all matters civil and criminal within this

state . . . .").

¶36 Chapter 755 of the Wisconsin Statutes governs

municipal courts. Under Wis. Stat. § 755.045, a "municipal

court has exclusive jurisdiction over an action in which a

municipality seeks to impose forfeitures for violations of

municipal ordinances of the municipality that operates the

court . . . ." § 755.045(1) (emphasis added); see also Wis.
Const. art. VII, § 14 ("All municipal courts shall have uniform

6
 No. 2016AP2455-CR.akz

jurisdiction limited to actions and proceedings arising under

ordinances of the municipality in which established.").

¶37 Chapter 800 of the Wisconsin Statutes promulgates

"Municipal Court Procedure[s]," and where, as here, Wis. Stat.

§ 800.095 operates to impose a forfeiture for violation of a

municipal ordinance, authority to act under § 800.095 would be

exclusive to a municipal court if a municipal court has been

established under Wis. Stat. § 755.01. See Wis. Stat.

§ 755.045. However, where, as here, there is no municipal

court, the circuit court of the county in which the municipality

is located has authority vis-à-vis its general jurisdiction to

resolve violations of municipal ordinances pursuant to Chapter

800.

¶38 Thus, the reviewing court is correct that (1) "[t]here

is no question that the [issuing court], as a court of general

jurisdiction, has the constitutional and statutory authority to

hear and process municipal citations," and (2) the issuing court

"had statutory authority to issue a bench warrant under Wis.
Stat. § 800.095(1)(b)1 for Kerr's arrest for failure to pay the

fine imposed."

B. Procedural Defects
¶39 The reviewing court errs, however, when it concludes

that the warrant here was "invalid ab initio" on the basis that

the issuing court issued the warrant in violation of the

statutory procedural requirements of Wis. Stat. § 800.095.

Kerr, who agrees with this conclusion, and the State, which
concedes this point, thus also err. In particular, the State

7
 No. 2016AP2455-CR.akz

inaccurately cites my concurrence in Hess for the proposition

that "[a] warrant can be void ab initio when the judge or

magistrate lacked legal authority to issue any warrant, or when

a mandatory condition precedent to the court's authority to

issue a warrant was not met from the outset." Procedural

defects (the latter) are different from lack of authority to

issue the warrant in the first instance (the former). To

conflate authority to issue with procedural defects is error,

and that error is aptly demonstrated in a case where, as here,

the alleged defect is procedural in nature, and not related the

issuing court's authority. Again, if lack of authority to issue

and procedural defect were both to result in a warrant being

deemed void ab initio, the exclusionary rule (and its good-faith

exception) would be read out of existence because every

exclusionary rule case is analyzed in light of a defective

warrant, yet under the exclusionary rule the evidence discovered

in a search incident to arrest is not suppressed unless there is

police misconduct because the good-faith exception otherwise
applies.

1. Hess, 327 Wis. 2d 524, ¶¶71-74 (Ziegler, J., concurring)
¶40 In Hess, I concurred on the basis that exclusion of

the evidence was proper because the warrant was "void ab

initio."6 I cited three cases for the principle that evidence

discovered as a result of a warrant void ab initio must be

6
The parties, and the reviewing court, have used the term
"void ab initio" rather loosely in this case.

8
 No. 2016AP2455-CR.akz

excluded. See Hess, 327 Wis. 2d 524, ¶71 (Ziegler, J.,

concurring) (citing State v. Kriegbaum, 194 Wis. 229, 215 N.W.

896 (1927), State v. Grawien, 123 Wis. 2d 428, 430-31, 367

N.W.2d 816 (Ct. App. 1985), and State v. Loney, 110 Wis. 2d 256,

259-60, 328 N.W.2d 872 (Ct. App. 1982)). I continue to agree

with this principle.

¶41 In these three cases, however, the warrant was held

void ab initio because the issuing judicial officer lacked

authority to issue the warrant in question. See Kriegbaum, 194

Wis. at 231-32 (concluding that the warrant was void ab initio

because justices of the peace "can exercise only the judicial

power conferred upon [them] by the statutes" and the statutes

did not grant authority "to issue a warrant for the search of a

person"); Grawien, 123 Wis. 2d at 430-31 (concluding that the

warrant was void ab initio because "the state conceded that [the

commissioner] was not authorized to issue search warrants

pursuant to sec. 757.69(1)"); Loney, 110 Wis. 2d at 259-60

(concluding that the warrant was void ab initio because the
power of the court commissioner to issue warrants, "must be

conferred by express delegation" and "the order appointing the

commissioner fails to delegate authority to issue warrants").

Here, these cases are inapplicable because, as noted above, see

supra ¶¶35-38, the issuing judge in this case had the authority

to issue the warrant.

2. Distinguishing authority to act from failure to act
¶42 I also noted in my Hess concurrence that "[w]hile a
per se void ab initio warrant is always defective, a defective

9
 No. 2016AP2455-CR.akz

warrant is not always per se void ab initio." 327 Wis. 2d 524,

¶73 (Ziegler, J., concurring). As noted above, see supra ¶¶33-

34, a warrant issued by someone with authority that is later-

found defective for failure to fulfill a requirement such as

probable cause, or deficient oath or affirmation——both of which

are also requirements for a warrant to issue——does not render

the warrant void ab initio and require exclusion of the

evidence. Again, this is evident from the fact that, if it did,

there would be no need for the exclusionary rule or its

companion good-faith exception because every exclusionary rule

case involves a defective warrant. Similarly, a warrant that is

later-found defective for failure to adhere to statutory

procedural requirements does not render the warrant void ab

initio. Again, this is evident from the fact that there is a

difference between a lack authority to issue and a failure to

fulfill procedural requirements.

¶43 Thus, while it may be tempting to conclude that this

warrant is void ab initio by citing to cases which involved a
justice of the peace or court commissioners who had no authority

in the first instance to issue the warrant, that line of

reasoning is inapplicable because the judge here did have

authority to issue the warrant. Compare supra ¶41 (discussing

Kriegbaum, 194 Wis. 229, Grawien, 123 Wis. 2d 428, and Loney,

110 Wis. 2d 256) with supra ¶¶35-38. In other words, the

warrants in Kriegbaum, Loney, and Grawien were void ab initio

because the person who issued the warrant could never issue the

10
 No. 2016AP2455-CR.akz

warrant under any circumstances, but that is not what we have

here.

¶44 The difference between failing to comply with the

provisions of Wis. Stat. § 800.095(1)(b)2. and lacking authority

to issue the warrant is a difference that is significant because

Kriegbaum and its progeny stand for the proposition that, when

the person issuing the warrant had no authority to do so, that

warrant is void ab initio and evidence may be excluded on that

basis. See Hess, 327 Wis. 2d 524, ¶30 ("[Loney and Grawien]

together with Kriegbaum, support the conclusion that exclusion

is an appropriate remedy where evidence was obtained by a

warrant [that] issued by a magistrate who lacked the authority

to issue the warrant."); id., ¶29 ("Because the circuit court

had no authority to issue the warrant it did, exclusion is an

appropriate remedy for evidence obtained as a result of that

warrant.").

¶45 Here, because the judge did have authority to issue

the warrant, the warrant cannot be deemed void ab initio.
Instead, the type of defect at issue here is akin to the type of

defect that arises when a warrant is challenged post-search or

post-arrest and is found to lack probable cause, oath or

affirmation, and/or particularity; in those circumstances, the

warrant is defective as a result of a judge's failure to adhere

to specific requirements before issuing a warrant. Such later-

discovered defects do not, however, render the warrant void ab

initio.

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 No. 2016AP2455-CR.akz

III. PLAIN LANGUAGE OF THE APPLICABLE STATUTES7
¶46 As discussed above, see supra ¶31, the reviewing court

concluded that the issuing court "failed to comply with the

requirements under Wis. Stat. § 800.095(1)(b)2," and that,

therefore, "how [the neighboring county] issues civil

commitments . . . results in several, or dozens or hundreds of

arrest warrants being issued in complete disregard for the

applicable law." Because of that "systemic" failure, the

reviewing court determined that "[h]ere the conduct is not

isolated and may be the rule, not the exception. Deter[r]ence

certainly is a greater consideration under these facts."

(Emphasis added.) Thus, it suppressed the evidence discovered

incident to arrest because "'judicial integrity' is vital enough

to justify exclusion of evidence when the issuing court's arrest

warrant was invalid ab initio."

7
The interpretation and application of a statute present
questions of law that this court reviews de novo. See, e.g.,
State v. Dorsey, 2018 WI 10, ¶23, 379 Wis. 2d 386, 906
N.W.2d 158 (citing State v. Alger, 2015 WI 3, ¶21, 360
Wis. 2d 193, 858 N.W.2d 346). When interpreting a statute, we
begin with the language of the statute, and, "[i]f the meaning
of the statute is plain, we ordinarily stop the inquiry." State
ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45,
271 Wis. 2d 633, 681 N.W.2d 110. If the meaning is not plain,
we look to the context in which the statute is used, "in
relation to the language of surrounding or closely-related
statutes," and may consult the scope and purpose of the statute
where they are ascertainable from the text and structure of the
statute itself. Id., ¶¶46, 48. Resort to legislative history
and other extrinsic sources is traditionally inappropriate "in
the absence of a finding of ambiguity," "although legislative
history is sometimes consulted to confirm or verify a plain-
meaning interpretation." Id., ¶51.

12
 No. 2016AP2455-CR.akz

¶47 In other words, the circuit court granted Kerr's

motion to suppress the evidence discovered incident to arrest

because it concluded that there was not just procedural

malfeasance with respect to this one warrant, but rather with

respect to "several, or dozens or hundreds of arrest warrants,"

and, therefore, a greater need for deterrence, considering the

pervasive systemic nature of the issuance of these warrants in

violation of the procedural requirements of the statute. While

not fundamental to the conclusion that we reach today, I thus

also consider whether the plain language of the applicable

statutes supports the strength of the reviewing court's

conviction that the issuing court's actions were a violation of

the statute.

A. Default Judgment
¶48 The reviewing court's conclusion that the issuing

court "may have failed to issue or render a written default

judgment in 2015" is subject to question. Entry of default

judgment in civil forfeiture cases is governed by Wis. Stat.

§§ 800.08 and 800.09. Section 800.08 provides, in relevant

part, as follows: "If a defendant does not appear at trial, the

court may enter a default judgment under s. 800.09."

§ 800.08(5). Section 800.09 provides, in relevant part, as

follows: "If the defendant is not present, the court shall

ensure that the information is sent to the defendant by mail."

§ 800.09(1g).

¶49 Here, the parties do not dispute that Kerr did not
appear on July 21, 2015; thus, entry of default judgment was

13
 No. 2016AP2455-CR.akz

proper. See Wis. Stat. § 800.08(5). As noted above, the

certified record from the issuing court reflects that default

judgment was entered on July 21, 2015. Additionally, the record

is completely devoid of any indication that the notice sent on

July 31, 2015, was somehow deficient. Consequently, there is

nothing in the record to indicate that the notice Kerr

presumably received8 did not properly advise him of the

consequences of failure to timely pay or appear, including

"imprisonment" and that "the defendant should notify the court

if he or she is unable to pay the judgment because of poverty."9

See Wis. Stat. § 800.09(1g). The reviewing court concluded in

fact that the standard default judgment form contained the

information required to be given by statute.10 Thus, there is

nothing in the record to support the reviewing court's

conclusion that the issuing court "may have failed to issue or

render a written default judgment in 2015."
8
The statute's language does not impose any requirement to
ensure that the defendant receive the notice; rather, the court
need only "ensure that the information is sent to the defendant
by mail." Wis. Stat. § 800.09(1g). In this regard, I note that
the record indicates that the address to which the ticket, and
presumably the notice of default judgment, was sent is different
from the address where Kerr was arrested. This difference does
not affect my analysis, however, as a court is not required to
verify that the address of record is accurate and there is
nothing in the record to indicate that the notices were not
mailed as required or that they were returned to the court.
9
Kerr never made any such request to the court.
10
The reviewing court said: "The standard default judgment
form, which was eventually used in this case, contains the
information required to be provided in writing to a defendant if
he or she is not in court when judgment is entered, pursuant to
§§ 345.47 and 800.09(1g)."

14
 No. 2016AP2455-CR.akz

B. Arrest Warrant
¶50 The reviewing court's conclusion that the issuing

court "failed to comply with the requirements under Wis. Stat.

§ 800.095(1)(b)2." in issuing the arrest warrant is also subject

to question. Issuance of an arrest warrant in civil forfeiture

cases is governed by Wis. Stat. § 800.095. Section 800.095

provides, in relevant part, as follows:

(1) If the defendant fails to pay a monetary
judgment ordered by the court, the court may
order . . .

(b) 1. That the defendant be imprisoned until
the forfeiture, assessments, surcharge, and costs are
paid. If the court orders imprisonment under this
subdivision, all of the following apply:

a. The maximum period of imprisonment shall be
90 days for any one judgment, and the defendant shall
receive credit against the amount owed at the rate of
at least $50 for each day of imprisonment, including
imprisonment following an arrest but prior to the
court making a finding under subd. 2.

b. The court may impose a term of imprisonment
under this subdivision that is either concurrent with
or consecutive to any other term of imprisonment
imposed at the same time or any term of imprisonment
imposed by any court.

2. No defendant may be imprisoned under subd. 1.
unless the court makes one of the following findings:

a. Either at sentencing of thereafter, that the
defendant has the ability to pay the judgment within a
reasonable time. If a defendant meets the criteria in
s. 814.29(1)(d), the defendant shall be presumed
unable to pay under this subsection and the court
shall either suspend or extend payment of the judgment
or order community service.

b. The defendant has failed, without good
cause, to perform the community service authorized
under this subsection or s. 800.09.
15
 No. 2016AP2455-CR.akz

c. The defendant has failed to attend an
indigency hearing offered by the court to provide the
defendant with an opportunity to determine whether he
or she has the ability to pay the judgment.

d. The defendant has failed, without good
cause, to complete an assessment or treatment program
related to alcohol or drugs that was ordered in lieu
of a monetary forfeiture.
§ 800.095(1)(b)1.-2.

¶51 The plain language of this statute contemplates

imprisonment before a subd. (b)2. hearing is held when it states

that imprisonment may be imposed up to "90 days for any one
judgment, and the defendant shall receive credit against the

amount owed at the rate of at least $50 for each day of

imprisonment, including imprisonment following an arrest but

prior to the court making a finding under subd. 2."

§ 800.095(1)(b)1.a. (emphasis added). Thus, while

§ 800.095(1)(b)2. indeed provides that no defendant may continue

to be imprisoned under subd. (b)1. unless the court makes

certain findings, subd. (b)1. does seem to permit "imprisonment

following an arrest but prior to the court making a finding

under subd. 2."

¶52 As an initial matter, Kerr has not challenged Wis.

Stat. § 800.095(1)(b)1.a. in any way; rather, Kerr rests his

argument on the court's failure to determine his ability to pay

the forfeiture imposed prior to arrest. While that may be a

good practice, it is less than clear that the statutes require

it because, as noted above, see supra ¶¶50-51, this argument is

not necessarily borne out by the plain language of the
applicable statutes. Additionally, the facts of this case

16
 No. 2016AP2455-CR.akz

demonstrate precisely why an arrest and/or imprisonment prior to

the court making a finding under § 800.095(1)(b)2. may be both

necessary and prudent: Kerr was entirely absent. He was never

present for the court to ask him whether he could pay the

forfeiture, nor did Kerr ever ask for an indigency hearing.

Nothing in the record indicates that the notice Kerr presumably

received was deficient in so advising him, and, in fact, the

reviewing court stated that he received proper notice. See

supra ¶49. Thus, the issuing court's ability to resolve the

ticket by arrest and/or imprisonment under subd. (b)1., followed

by findings under subd. (b)2. is not definitively prohibited.

See Wis. Stat. § 800.095(1)(b)1.a.

¶53 In sum, even if the facts of record demonstrated that

the issuing court regularly proceeded in the manner described

above, it is not clear that such actions violated the plain

language of the applicable statutes. First, entry of default

judgment pursuant to Wis. Stat. § 800.09(5) was proper because,

although the ticket issued to Kerr did not require his
appearance in court, failure to appear at the time designated on

the ticket endows the court with authority to enter default

judgment. Second, the record reflects that notice of default

judgment was sent by mail pursuant to Wis. Stat. § 800.09(1g),

and the record is devoid of any indication that the notice might

have been lacking; in fact, the court stated that proper notice

was given. Third, Kerr's assertion that suppression is

warranted because "no hearing was noticed to provide [him] with
an opportunity to be heard on the issue of ability to pay prior

17
 No. 2016AP2455-CR.akz

to the issuance of a warrant" is not clearly supported by the

statute; rather, Wis. Stat. § 800.095(1)(b)1.a. permits

"imprisonment following an arrest but prior to the court making

a finding under subd. 2." And this might make sense in cases

such as this one when no indigency hearing has been requested by

the defendant, and, where, at the only court appearance held,

the defendant did not appear. In such cases, the statute's

language does not appear to always place the onus on the court

to set an indigency hearing and ask questions of a non-appearing

defendant.11 It might also make sense to give notice again and

set an order to show cause, but the statute is less than clear

that that is always required. We need not decide this today,

however, as it is not fundamental to our decision.

IV. CONCLUSION
¶54 I, of course, join the opinion that I wrote for the

majority. I write separately to address issues that three of

the four members of the majority conclude are also relevant.

¶55 The reviewing circuit court in this case took issue

with the manner in which the issuing circuit court issued the

warrant. It concluded that the neighboring court issued this

warrant contrary to statutory provisions, that the issuing court

did so on a regular basis, that all such warrants were void ab

initio, and that, therefore, this case represented "an

11
The statute appears to place the onus on the defendant to
request that hearing. See Wis. Stat. § 800.09(1g) ("[T]he
defendant should notify the court if he or she is unable to pay
the judgment because of poverty . . . .").

18
 No. 2016AP2455-CR.akz

institutional or administrative disregard for the law governing

civil commitments." The reviewing court, thus, suppressed the

evidence because of "judicial error on a wide administrative

level," concluding that "'judicial integrity' is vital enough to

justify exclusion of evidence when the issuing court's arrest

warrant was invalid ab initio."

¶56 This case cannot be so easily resolved by relying on

the issuing court's alleged statutory violation, because neither

the plain language of the applicable statutes nor the facts of

record support the conclusion that the issuing court acted

wrongfully. Relatedly, this case cannot be resolved by relying

on my concurrence in Hess, 327 Wis. 2d 524, because the arrest

warrant was not void ab initio here, where the issuing court had

authority to issue it.

¶57 Accordingly, I respectfully concur.

¶58 I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK and Justice MICHAEL J. GABLEMAN join this

concurrence. I am also authorized to state that Justice DANIEL
KELLY joins footnote 2.

19
 No. 2016AP2455-CR.awb

¶59 ANN WALSH BRADLEY, J. (dissenting). When a court

issues a warrant without regard for any legislatively mandated

statutory safeguards, the use of evidence discovered through

execution of such a warrant calls into question the fairness of

the process. "Public confidence in the fair and honorable

administration of justice, upon which ultimately depends the

rule of law," is a "transcending value at stake." Sherman v.

United States, 356 U.S. 369, 380 (1958) (Frankfurter, J.,

concurring).

¶60 As was explained in State v. Hess, 2010 WI 82, ¶¶64-

65, 327 Wis. 2d 524, 785 N.W.2d 568, even though the purpose of

the exclusionary rule is primarily to deter police misconduct, a

"secondary consideration" of the rule is to preserve judicial

integrity. I conclude that judicial integrity remains an

independent basis for the application of the exclusionary rule

and, like the circuit court, I would apply it here.

¶61 For well over a half century, the rationale of

judicial integrity has coursed through exclusionary rule
jurisprudence in both this court and the United States Supreme

Court. In the seminal case of Terry v. Ohio, the United States

Supreme Court wrote that in addition to deterring police

misconduct, the exclusionary rule "also serves another vital

function——'the imperative of judicial integrity.'" 392 U.S. 1,

12-13 (1968) (citing Elkins v. United States, 364 U.S. 206, 222

(1960)).

¶62 Subsequently, the Supreme Court reaffirmed that
although the primary purpose of the exclusionary rule is to

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deter police misconduct, judicial integrity is a "relevant,

albeit subordinate factor" that may require exclusion of

evidence in "unusual circumstances." United States v. Janis,

428 U.S. 433, 458 n.35 (1976); United States v. Leon, 468 U.S.

897, 921 n.22 (1984).

¶63 Davis v. United States, 564 U.S. 229 (2011), altered

this analysis. In Davis, the Supreme Court departed from

judicial integrity and determined that pursuant to the federal

Constitution, the "sole purpose of the exclusionary rule is to

deter misconduct by law enforcement." Id. at 246.

¶64 However, this court need not follow the United States

Supreme Court's departure. "[W]e retain the right to interpret

our constitution to provide greater protections than its federal

counterpart." State v. Dubose, 2005 WI 126, ¶41, 285

Wis. 2d 143, 699 N.W.2d 582. This court "will not be bound by

the minimums which are imposed by the Supreme Court of the

United States if it is the judgment of this court that the

Constitution of Wisconsin and the laws of this state require
that greater protection of citizens' liberties ought to be

afforded." State v. Knapp, 2005 WI 127, ¶59, 285 Wis. 2d 86,

700 N.W.2d 899 (quoting State v. Doe, 78 Wis. 2d 161, 172, 254

N.W.2d 210 (1977)). To provide true meaning to our

constitution's protections against unreasonable searches and

seizures, it is appropriate to do so here.

¶65 There is ample support in our prior case law for

maintaining judicial integrity as an independent basis for
applying the exclusionary rule pursuant to the Wisconsin

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Constitution. In State v. Felix, an opinion decided post-Davis

and based in part on the Wisconsin Constitution, this court

referenced the dual purposes of the exclusionary rule, including

judicial integrity. 2012 WI 36, ¶39, 339 Wis. 2d 670, 811

N.W.2d 775. Similarly, in Hess we referenced both the Fourth

Amendment to the United States Constitution and Article I,

Section 11 of the Wisconsin Constitution.1 See Hess, 327

Wis. 2d 524, ¶¶20, 33. Likewise, in State v. Eason, the court

referred to the exclusionary rule's dual purpose of deterring

police misconduct and ensuring judicial integrity while

explicitly basing its conclusion on the Wisconsin Constitution.

2001 WI 98, ¶¶3, 31 n.10, 245 Wis. 2d 206, 629 N.W.2d 625.

¶66 The consideration of judicial integrity in the

application of the exclusionary rule also fulfills the

"important purposes" of "enabl[ing] the judiciary to avoid the

taint of partnership in official lawlessness" and "assur[ing]

the people——all potential victims of unlawful government

1
The Fourth Amendment to the United States Constitution
sets forth:

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

U.S. Const. amend. IV. Article I, Section 11 of the Wisconsin
Constitution contains substantially the same language. See
State v. Scull, 2015 WI 22, ¶18 n.3, 361 Wis. 2d 288, 862
N.W.2d 562.

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conduct——that the government would not profit from its lawless

behavior, thus minimizing the risk of seriously undermining

popular trust in government." See Herring v. United States, 555

U.S. 135, 152 (2009) (Ginsburg, J., dissenting) (quoting United

States v. Calandra, 414 U.S. 338, 357 (1957) (Brennan, J.,

dissenting)); see also Robert M. Bloom & David H. Fentin, "A

More Majestic Conception": The Importance of Judicial Integrity

in Preserving the Exclusionary Rule, 13 U. Pa. J. Const. L. 47

(2010).

¶67 Eight years ago, Hess provided an instructive analysis

of the judicial integrity consideration in applying the

exclusionary rule. See Hess, 327 Wis. 2d 524, ¶¶63-67.

"[J]udicial integrity is implicated when a judge issues a

warrant that does not comply with statutory requirements and is

not supported by the constitutionally required oath or

affirmation." Id., ¶63. Further, "[t]he consideration of

judicial integrity must take into account the nature of the

defects in the warrant." Id., ¶66.
¶68 In Hess, a civil bench warrant issued for Hess's

arrest because he failed to meet with the agent assigned to

complete his pre-sentence investigation. Id., ¶8. The defects

in Hess's warrant "were not technical irregularities or errors

of judgment: The defendant's failure to cooperate with the

agent in preparing a PSI was not a crime. It did not violate a

court order, and it did not violate a condition of his bond."

Id., ¶66.

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¶69 Further we explained that "[t]he bench warrant civil

that the court issued was void ab initio because it did not

comply with any statute authorizing the court to issue a

warrant. It was defective on its face because it was a civil

warrant in a criminal case." Id. "In short, the warrant was

void ab initio because it was unauthorized and defective in

nearly every respect." Id. For this reason, we concluded that

"[w]hen fundamental constitutional and statutory requirements

for issuing a warrant are completely absent, the good-faith

exception cannot save the resulting unconstitutionally obtained

evidence." Id., ¶67.

¶70 This case turns on similar concerns. The Ashland

County Circuit Court issued an arrest warrant for Kerr because

he had not paid a forfeiture imposed for disorderly conduct.

Majority op., ¶8. Wisconsin Stat. § 800.095 provides specific

procedures for the filing of such a warrant. The Ashland County

Circuit Court followed none of them, yet issued the warrant

anyway.2
¶71 Accordingly, the Ashland County Circuit Court had no

authority to issue the warrant. It was, like the warrant in

Hess, "void ab initio because it was unauthorized and

2
The concurrence latches onto an argument not advanced by
either party, concluding that "neither the plain language of the
applicable statutes nor the facts of record support the
conclusion that the issuing court acted wrongfully."
Concurrence, ¶56. Even the state concedes that "the arrest
order here was void ab initio." Rather than engage an argument
that was not briefed or argued, I determine that the State's
concession is reasonable and conclude the warrant was void ab
initio.

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 No. 2016AP2455-CR.awb

defective . . . ." See Hess, 327 Wis. 2d 524, ¶66. As in Hess,

maintaining the integrity of the judicial process demands

suppression of the evidence here.

¶72 The Bayfield County Circuit Court agreed in its ruling

suppressing the evidence. In its thoughtful written decision,

the circuit court stated: "There are obvious reasons why

judicial integrity is a valid consideration. While there is no

reason in this case to assume intentional malfeasance on the

issuing court, the record from the Ashland County case shows an

institutional or administrative disregard for the law governing

civil commitments."

¶73 Using judicial integrity as the sole basis for the

application of the exclusionary rule is admittedly only proper

in "unusual circumstances." See Hess, 327 Wis. 2d 524, ¶64

(citing Leon, 468 U.S. at 921 n.22). The warrant here was

issued without regard for the mandatory procedural safeguards of

Wis. Stat. § 800.095. Such a situation presents the "unusual

circumstances" necessary to suppress evidence based solely on
the concern for judicial integrity.

¶74 For the foregoing reasons, I respectfully dissent.

¶75 I am authorized to state that Justice SHIRLEY S.

ABRAHAMSON joins this dissent.

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 No. 2016AP2455-CR.rgb

¶76 REBECCA GRASSL BRADLEY, J. (dissenting). The

majority applies federal Exclusionary Rule jurisprudence in this

case despite the fact that the United States Supreme Court has

never addressed whether that rule applies in the context of a

void ab initio warrant. We have our own Constitution in the

State of Wisconsin and it provides: "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 by oath

or affirmation, and particularly describing the place to be

searched and the persons or things to be seized."1 For nearly a

century, this court deemed unauthorized warrants to be void ab

initio and required any evidence recovered under such warrants

to be suppressed, a rule this court reaffirmed just eight years

ago.2 Instead of applying long-standing Wisconsin law, the

majority allows the admission of evidence obtained under a

warrant with no basis in the law——a warrant the State concedes

was void ab initio and which caused the unlawful arrest and
search of a Wisconsin citizen. Notably, the invalid warrant for

Christopher Kerr's arrest stemmed from an unpaid municipal

citation for an ordinance violation——a civil, not a criminal

offense.

1
Wis. Const. art. I, § 11 (emphasis added).
2
State v. Kriegbaum, 194 Wis. 229, 232, 215 N.W. 896
(1927); State v. Hess, 2010 WI 82, 327 Wis. 2d 524, 785
N.W.2d 568.

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¶77 Perhaps it is easy to acquiesce in the circuit court's

infringement of constitutional rights when the defendant is

found with an illegal drug in his pocket, but the majority's

decision applies equally to the innocent citizens of Wisconsin

who may be unlawfully arrested and searched under the guise of a

warrant. An alarming example of the abuse of the judicial power

to issue warrants occurred just five years ago when unelected

"Reserve Judge [Barbara] Kluka authorized search warrants for

the homes and offices of" citizens of Wisconsin, which "were

executed . . . in pre-dawn, armed, paramilitary-style raids in

which bright floodlights were used to illuminate the targets'

homes." State ex rel. Two Unnamed Petitioners v. Peterson, 2015

WI 85, ¶28, 363 Wis. 2d 1, 866 N.W.2d 165. An unelected reserve

judge issued these search warrants against "citizens who were

wholly innocent of any wrongdoing" and despite the absence of

probable cause that any crime had been committed. Id. at ¶¶34-

35, 133.

¶78 Under the Wisconsin Constitution, statutes, and

longstanding case law, the evidence in this case must be
suppressed because it was obtained only as a result of an

unlawful arrest warrant issued in violation of statutory

procedures and Kerr's constitutional rights. A warrant issued

in violation of Wis. Stat. § 800.095 is void ab initio, and any

search or seizure pursuant to such a warrant violates Article I,

Section 11 of the Wisconsin Constitution. I would affirm the

circuit court's order suppressing the unlawfully obtained

evidence.

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¶79 Just two years ago, I cautioned against judicial

approval of governmental intrusion into the home in violation of

a citizen's constitutional guarantee to be free from

unreasonable searches and seizures.3 The infringement in this

case is perhaps more alarming because it was accomplished by law

enforcement's blameless execution of a warrant that the judge

issued on his own initiative and with no legal basis whatsoever;

rather, the warrant was issued in violation of procedural

preconditions set forth in the Wisconsin Statutes. The majority

minimizes the gravity of the judge's error by altogether

ignoring it. But the danger of tolerating a breach of statutory

procedures was powerfully explained by the United States Supreme

Court over a century ago:

[I]llegitimate and unconstitutional practices get
their first footing . . . by silent approaches and
slight deviations from legal modes of procedure. This
can only be obviated by adhering to the rule that
constitutional provisions for the security of person
and property should be liberally construed. A close
and literal construction deprives them of half their
efficacy, and leads to gradual depreciation of the
right, as if it consisted more in sound than in
substance. It is the duty of the courts to be
watchful for the constitutional rights of the citizen,
and against any stealthy encroachments thereon.

Boyd v. United States, 116 U.S. 616, 635 (1886). The majority

strengthens the foothold of an illegitimate and unconstitutional

judicial practice, disregards its duty to protect the

constitutional rights of Wisconsin citizens, and permits a

3
State v. Weber, 2016 WI 96, ¶141, 372 Wis. 2d 202, 887
N.W.2d 554 (R. Grassl Bradley, J. dissenting).

3
 No. 2016AP2455-CR.rgb
stealthy encroachment of the right to be free from unlawful

searches and seizures. I respectfully dissent.

I

¶80 There is no dispute that the evidence discovered by

police during the search of Kerr, incident to his arrest, was

unlawfully obtained. Both parties agree that the warrant should

not have issued because the circuit court failed to follow the

statutory procedures required for issuing a valid warrant. The

State argues that despite the statutory violation resulting in

the unlawful search, the evidence is admissible because the

Exclusionary Rule does not apply absent police misconduct, and

everyone agrees the police did nothing wrong. I agree that

suppression under the Exclusionary Rule is limited to instances

of police misconduct and the court should not extend its

application. See State v. Dearborn, 2010 WI 84, ¶44, 327

Wis. 2d 252, 786 N.W.2d 97. The police did not engage in any

misconduct in this case; therefore, the Exclusionary Rule does

not apply.

¶81 Nonetheless, the evidence must be suppressed under
Wisconsin law because the warrant was void ab initio, making the

search violative of Kerr's constitutional rights. Wisconsin

case law requires suppression of evidence obtained under a

4
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warrant that was void ab initio.4 The purpose of this rule is

not to provide a remedy for the citizen whose rights were

violated; the harm attendant to an unlawful arrest and search is

irreparable. Rather, suppression partially restores the status

quo ante: but for the issuance of the unlawful warrant, no

arrest would have been made, no search would have been

conducted, and no evidence would have been discovered.

II

¶82 In its brief, the State explicitly concedes the

warrant was void ab initio: "[T]he court that issued the arrest

warrant had no authority to do so, rendering the warrant void ab

initio." Additionally, the State notes:

This arrest warrant, as it turns out, was void ab
initio. A warrant is "void ab initio" when it was
"[n]ull from the beginning, as from the first moment."
Void, Black's Law Dictionary (10th ed. 2014)
(including definition of "void ab initio"); see also
[State v.]Hess, 2010 WI 82, ¶2 n.1.[5]
The State, citing Justice Annette Kingsland Ziegler's

concurrence in State v. Hess,6 as well as State v. Kriegbaum,7

4
Relying on federal appellate court decisions, the State
asserts that the Exclusionary Rule applies even when a warrant
is void ab initio. The United States Supreme Court, however,
has not subjected a void ab initio warrant to the exclusionary
rule-good faith analysis. This court is "bound on the subject
of federal law only by the pronouncements of the United States
Supreme Court." State v. Webster, 114 Wis. 2d 418, 426 n.4, 338
N.W.2d 474 (1983). Wisconsin case law requires suppression and
it is our state law we should apply.
5
2010 WI 82, 327 Wis. 2d 524, 785 N.W.2d 568.
6
Id., ¶¶71-73 (Ziegler, J. concurring).
7
194 Wis. at 232.

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State v. Loney,8 and State v. Grawien,9 correctly explains: "A

warrant can be void ab initio when the judge or magistrate

lacked legal authority to issue any warrant, or when a mandatory

condition precedent to the court's authority to issue a warrant

was not met from the outset."

¶83 Neither party disputes that the circuit court failed

to comply with the provisions of Wis. Stat. § 800.095(1)(b)2.,

and therefore lacked any authority to issue the warrant.10

Wisconsin law prohibits imprisoning a defendant for failing to

pay a fine imposed for a municipal ordinance violation unless

the court finds, as pertinent here, that the defendant has the

financial ability to pay the fine or failed to attend an

indigency hearing to determine his ability to pay. Wis. Stat.

§ 800.095(1)(b)2. Accordingly, the warrant for Kerr's arrest

was null from the beginning——it was void ab initio. As a

result, Kerr's constitutional rights were violated and the

evidence discovered should be suppressed.

8
110 Wis. 2d 256, 260, 328 N.W.2d 872 (Ct. App. 1982).
9
123 Wis. 2d 428, 430-31, 367 N.W.2d 816 (Ct. App. 1985).
10
Wisconsin Stat. § 800.095 provides that "[n]o defendant
may be imprisoned under [Wis. Stat. § 800.095(1) for failure to
comply with certain court ordered requirements] unless the court
makes one of [four] findings." These include finding that the
defendant has the ability to pay the judgment within a
reasonable time (subd. para. a.), has failed without good cause
to perform required community service (subd. para. b.), has
failed to attend an indigency hearing (subd. para. c), or has
failed without good cause to complete certain drug or alcohol
programs (subd. para. d).

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¶84 Longstanding precedent——Kriegbaum, Loney, and Grawien—

—controls this case. In Kriegbaum, this court held that a

warrant issued without authority violates Article I, Section 11

of the Wisconsin Constitution, which guarantees to the defendant

immunity from unreasonable searches and seizures: "A search

made pursuant to warrant issued by a justice of the peace to

whom the legislature had not granted the power to issue such a

warrant is an unreasonable search and in violation of the

defendant's constitutional rights under this section of that

fundamental law." 194 Wis. 229, 233, 215 N.W. 896 (1927).

¶85 The same principle applies in Kerr's case. The

circuit court did not have authority under Wis. Stat. § 800.095

to issue the warrant because it did not make any of the four

findings under subd. 2. Compliance with the statutory mandates

is necessary to confer authority on the circuit court to issue

the warrant.

¶86 The circuit court's failure to comply with the

statutory procedures deprived it of any lawful authority to

issue this warrant in the first place. The warrant's issuance
rendered the search constitutionally unreasonable. This court

in Kriegbaum, 194 Wis. at 233, concluded that the admission of

the evidence obtained from an unlawful warrant violated

Wisconsin's Constitution. This court should apply this

precedent in Kerr's case and suppress the evidence.

¶87 Our court of appeals reached the same conclusion in

Loney and Grawien. In Loney, the court of appeals held that

evidence obtained as a result of an unlawfully issued warrant
necessitated suppression of the evidence. 110 Wis. 2d 256, 259-

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60, 328 N.W.2d 872 (Ct. App. 1982). Because the court

commissioner who issued the warrant lacked the authority to do

so, the circuit court should have granted the defendant's motion

to suppress, and the court of appeals accordingly reversed

Loney's conviction. Id. at 260. In Grawien, the court of

appeals likewise held that when a warrant is issued by a court

commissioner who had no authority to issue it, the evidence

obtained under the unlawful warrant must be suppressed. 123

Wis. 2d 428, 431-33, 367 N.W.2d 816 (Ct. App. 1985).

¶88 In this case, the circuit court similarly lacked legal

authority to issue the warrant because it did not make any of

the findings mandated by Wis. Stat. § 800.095(1)(b)2. Any

evidence discovered upon execution of a warrant void ab initio

must be suppressed as a violation of Kerr's right to be free

from unreasonable searches and seizures under the Wisconsin

Constitution.11 See also State v. Vickers, 964 P.2d 756, 762

(Mont. 1998) (holding that a void ab initio warrant requires

suppression, and "the inquiry stops and all other issues

pertaining to the validity of the search warrant, such as
whether the purpose of the exclusionary rule is served, are

moot"); People v. Carrera, 783 N.E.2d 15 (Ill. 2002); State v.

Surowiecki, 440 A.2d 798, 799 (Conn. 1981) (suppressing evidence

11
Case law also supports suppression as a sanction when
statutes are violated. See, e.g., State v. Renard, 123
Wis. 2d 458, 461, 367 N.W.2d 237 (Ct. App. 1985) ("Suppression
of the blood test is an appropriate sanction for failure to
comply with [Wis. Stat. §] 343.305(5)"); see also State v.
McCrossen, 129 Wis. 2d 277, 286-97, 385 N.W.2d 161 (1986)
(discussing sanctions including suppression arising from due
process violations).

8
 No. 2016AP2455-CR.rgb

obtained under void ab initio warrant because it was "fatally

defective, invalid and void and conferred no authority to act

thereunder") (quoted source omitted); State v. Nunez, 634 A.2d

1167, 1169 (R.I. 1993) (reversing conviction based on evidence

obtained from void ab initio warrant); People v. Hentkowski, 397

N.W.2d 255 (Mich. Ct. App. 1986) (per curiam) (suppressing

evidence obtained from void ab initio warrant); State v. Covert,

675 S.E.2d 740, 742-43 (S.C. 2009) (reversing conviction because

evidence should have been suppressed where warrant was not

signed; not reaching good faith exception because an unsigned

warrant is "not a warrant" at all).

¶89 Justice Ziegler's distinction between void and

defective warrants is unconvincing.12 The warrant issued here is

no different than the problematic warrants in Hess, Kriegbaum,

Loney, and Grawien. The individual official issuing the warrant

in each case lacked the statutory authority to do so. In Hess,

just like this case, the circuit court judge lacked statutory

authority to issue an arrest warrant. 327 Wis. 2d at 524, ¶23.

The fact that judges generally possess authority to issue
warrants does not authorize judges to issue warrants that

12
There is a dearth of precedent distinguishing between
warrants that are void ab initio and warrants that are simply
defective on both the federal and state level. Justice
Ziegler's concurrence in Hess is the only case identifying a
notable difference between the two, but Justice Ziegler did not
cite to any case law to support her proposition. See Hess, 327
Wis. 2d 524, ¶73 (Ziegler, J., concurring) ("While a per se void
ab initio warrant is always defective, a defective warrant is
not always per se void ab initio."). Justice Ziegler's
concurrence in this case fares no better——it cites no cases
supporting the distinction she makes here.

9
 No. 2016AP2455-CR.rgb

violate statutory law or constitutional rights. That the judge

in Kerr's case would have had legal authority to issue the

warrant if he had complied with the statutory requisites does

not alter the nature of the constitutional violation. A void ab

initio warrant is not a warrant at all——it is as if the warrant

never existed; therefore, the analysis stops and the evidence

should be suppressed. These cases are different from situations

involving a warrant that was valid when issued, but a reviewing

court later declared the warrant invalid. For example, a

warrant may be valid upon issuance, but subsequently become

invalid because a statute is declared unconstitutional, case law

is overruled, the legislature changes the law, or a reviewing

court decides the warrant was not supported by probable cause.

In these examples, the law or the analysis of it changed. In

Kerr's situation, the judge did not follow governing law,

rendering the warrant void from the beginning.13 The judge who

issued Kerr's warrant lacked any legal authority to do so.

Hess, Kriegbaum, Loney, and Grawien control under these facts.

The evidence should be suppressed because it was obtained only
as a result of an arrest warrant that was void ab initio and

13
In her concurrence, Justice Ziegler attempts to vindicate
the judge's issuance of the warrant for Kerr's arrest. The text
itself categorically negates her statutory construction.
Section 800.095(1)(b)2 unambiguously declares: "No defendant
may be imprisoned under subd. 1 unless the court makes one of
the following findings: . . . ." As pertinent in this case,
these include finding that the defendant has the ability to pay
the judgment within a reasonable time (subd. para. a.), and has
failed to attend an indigency hearing (subd. para. c). It is
uncontested that the requisite finding was not made; therefore,
Kerr's arrest and imprisonment were unlawful.

10
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therefore in violation of Kerr's right to be free from

unreasonable searches and seizures under the Wisconsin

Constitution.

¶90 The Fourth Amendment, the language of which the

framers of the Wisconsin Constitution adopted verbatim, was

designed to protect the people from the odious English practice

of issuing writs of assistance empowering revenue officers to

indiscriminately search homes. Boyd, 116 U.S. at 624-25. This

practice was rightly described as "the worst instrument of

arbitrary power, the most destructive of English liberty, and

the fundamental principles of law, that ever was found in an

English law book." Id. at 625 (quoting Thomas M. Cooley,

Constitutional Limitations 301-303 (1868)). If evidence seized

under an unlawful warrant may be used against a person whose

constitutional rights were violated by an unreasonable search

and seizure, "declaring his right to be secure against such

searches and seizures, is of no value, and, so far as those thus

placed are concerned, might as well be stricken from the

Constitution." Weeks v. United States, 232 U.S. 383, 393
(1914).14 While allowing Kerr to circumvent punishment for

illegal drug possession may be an unpalatable outcome for the

majority, "[t]he efforts of the courts and their officials to

bring the guilty to punishment, praiseworthy as they are, are

not to be aided by the sacrifice of those great principles

established by years of endeavor and suffering which have

14
Mapp v. Ohio, 367 U.S. 643 (1961), extended the
exclusionary rule established in Weeks v. United States, 232
U.S. 383, 393 (1914), to state criminal cases.

11
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resulted in their embodiment in the fundamental law of the

land." Id.

¶91 I respectfully dissent.

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1