The sequel is better than the original: Lower court overturns higher court so it can affirm conviction (again)

Back in July, 2013 I wrote about State v. Copeland, a case where, due to a United States Supreme Court decision, the Wisconsin appellate court had no choice but to admit that the police did, in fact, violate the defendant’s rights when they attached a GPS device to his car without a warrant.  But despite this, the defendant in Copeland was still out of luck.  The Wisconsin court relied on the so-called “good faith exception" and held that the police who attached the GPS device were relying on the law at that time, and the U.S. Supreme Court decision (holding that GPS searches required a warrant) was decided later.  But there was one major problem with the Wisconsin court’s reasoning excuse-making.

The problem was that, in order for the good faith exception to save the illegal police conduct, the police must have been relying on a case where either the Wisconsin Supreme Court or “the United States Supreme Court have spoken with specificity in a particular fact situation.”  And, unfortunately for the cops in Copeland, no such case existed.  So instead, the Copeland court said that the police were justified in relying on a case from lower court—worse yet, a case that didn’t even hold that warrantless GPS searches were legal—in order to save the day for the government.

But now, in State v. Skull—“the sequel,” if you will—the Wisconsin appellate court is diving deeper into its disingenuous bag of tricks in order to uphold more illegal police conduct.  In Skull, the police searched the defendant’s home, without a warrant, by using a drug-sniffing dog.  The problem for the police, though, is that after they did this, the U.S. Supreme Court decided Floridav. Jardines wherein it stated the obvious: “the government’s use of trained police dogs to investigate the home and its immediate surroundings is a search within the meaning of the Fourth Amendment.”

First, I see a pattern developing here: the police in Wisconsin are consistently wrong about what constitutes a search.  But second, how did the Wisconsin appellate court bail out the police this time?  You guessed it: it held, once again, that the police were acting in good faith.  But on what case were the police relying in good faith?  Was there a previous U.S. Supreme Court case holding that the use of drug-sniffing dogs on a person’s house is not a search?  Nope; strike one.  Was there a Wisconsin Supreme Court case holding that such tactics do not constitute a search?  Nope; strike two.  Okay, then there must have been a lower court case in Wisconsin that could have somehow justified the belief that it was okay to run a drug-sniffing dog around a person’s house, right?  Strike three.

So on what, then, could the police have relied in good faith?  The Wisconsin appellate court held: “dog-sniff searches of the type presented in this case had been held lawful in many jurisdictions” other than Wisconsin (¶21).

You have got to be kidding me!  First, do we seriously want to pretend that cops read out-of-state court cases when legal issues are undecided in-state, and then rely on those cases to mold their investigations accordingly?  (That delusion is, after all, central to the good faith exception.)  And if so, then why didn’t the cops follow the out-of-state cases holding the opposite: that the use of drug-sniffing dogs did constitute a search?  I’ll tell you why: because the cops have never read an in-state case, let alone an out-of-state case.  Cops are not concerned about what the law is because, as I demonstrate in detail in this article, courts give cops an incentive to ignore the law, not to learn what it is, let alone to follow it.

And second, whenever defense lawyers cite an out-of-state case in one of our motions or briefs in support of a legal argument, judges light up like Las Vegas because they instantly use the out-of-state case to do the exact opposite of whatever the defense lawyer asking for.  It doesn’t matter that there is no in-state case on-point, or even that the out-of-state case is on-point, well-reasoned, and logical.  Because the out-of-state case is not legally binding in Wisconsin, the judges seize on this as an excuse to avoid the legal issue, and then rule exactly as the state wants without any analysis or reasoning.

Whoever appeals this Skull case to the Wisconsin Supreme Court for the defendant, be sure to remind the our state’s highest court of its holding in paragraph 46 of State v. Dearborn:  the good faith exception “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.”

So sorry prosecutors, trial courts, and appellate courts: we have to stop pretending that the police are “relying” on cases that are out-of-state and, worse yet, that they’ve never even read.