Lower court overturns higher courts so it can affirm conviction

The United States Supreme Court recently held that when government agents attach GPS trackers to our cars to follow our every move, that is a “search” and, if done without a warrant, violates the Fourth Amendment.  It’s amazing that we really needed a Supreme Court case to tell us that, but in this age of constant, mass, shameless government surveillance of its own citizens, well . . .   Worse yet, even in the rare case, like this one, that the Supreme Court actually speaks out against a government spying practice, its words mean nothing.

Here’s how it went down in the state of Wisconsin: cops put GPS device on defendant’s car to spy on him; cops use this to obtain evidence; prosecutor uses evidence to convict defendant in trial court; defendant appeals to state appellate court under new United States Supreme Court case; defendant argues GPS tracking was an illegal search; state agrees that it was an illegal search; defendant argues that the evidence obtained from the illegal search, therefore, should have been suppressed.

So, did the appellate court suppress the evidence?  No.  Courts are very eager (and proud) to rely on an embarrassingly weak (at least in this context) distinction between rights and remedies.  As I explained in this article, courts essentially say “congratulations defendant, you proved your rights were violated, but you haven’t proved that you’re entitled to a remedy, let alone suppression of the evidence.”

Therefore, the Wisconsin defendant was entitled to no remedy at all, and the court upheld his conviction.  The evidence against him was not suppressed because, even though there was a constitutional violation, the police supposedly acted in “objectively reasonable reliance on then-existing precedent[.]”  That is, when the police attached the GPS tracker to his car, they purportedly relied on the law at that time which did not classify GPS tracking as an illegal search.  This is called the good-faith exception to the general rule that illegally obtained evidence should be excluded.

In support of its decision, the Wisconsin appellate court cited a Wisconsin Supreme Court case that established this so-called good-faith exception to the exclusionary rule.  However, the appellate court ignored this sentence from the higher court’s case: “Our holding [establishing a good-faith exception to the exclusionary rule] does not affect the vast majority of cases where neither this court nor the United States Supreme Court have spoken with specificity in a particular fact situation.” ¶46.

And, neither the United States Supreme Court nor the Wisconsin Supreme Court [“this court”] had “spoken with specificity” with regard to GPS tracking.  In fact, the Wisconsin Supreme Court had previously declined to decide whether GPS tracking constituted a search; this left only the Wisconsin appellate court decisions on which the cops could have relied.  And those lower court decisions, in turn, could not possibly have formed the basis for good-faith reliance by the cops for at least two reasons: (1) those decisions upheld searches because the police, in those cases, actually obtained valid warrants before attaching GPS tracking devices to defendants’ cars, thus rendering any judicial discussion (about whether GPS tracking constituted a search) mere dicta; and (2) those decisions, even if their holdings had been crystal clear and on point, were not state or federal supreme court decisions, and thus could not have been relied upon under the applicable legal standard.

So, by ignoring the most important sentence of the Wisconsin Supreme Court's holding, the lower Wisconsin appellate court actually overruled the Wisconsin Supreme Court (and the United States Supreme Court).  There simply is no kinder way to put it.  But will the higher courts care?  At least for the Wisconsin Supreme Court, the answer is "probably not."  It overrules itself all the time, including, most recently, here and here.  (Note: The court will rarely, if ever, admit that it is overruling itself.  In some cases, it will even dance the night away trying to persuade the reader that its new decision somehow leaves its old decisions intact.  Such extraordinary effort, of course, merely convinces the astute reader of the exact opposite.)

For a legal system that is supposed to be built on precedent -- stare decisis, right? -- our earlier court decisions mean surprisingly little.