exclusionary rule in Wisconsin

2026Therefore, courts have crafted some exceptions to the rule where exclusion of the evidence would not serve the rule’s purpose. ¶15 The good faith exception to the exclusionary rule applies when “the officers conducting an illegal search ‘acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment.’” Id., ¶33 (quoting United States v. Leon, 468 U.S. 897, 918 (1984)).

2024Therefore, courts have crafted some exceptions to the rule where exclusion of the evidence would not serve the rule’s purpose. ¶9 As relevant here, the good faith exception to the exclusionary rule applies when “the officers conducting an illegal search ‘acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment.’” Id., ¶33 (quoting United States v. Leon, 468 U.S. 897, 918 (1984)).

2026We caution, however, that “[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring v. United States, 555 U.S. 135, 144 (2009).

2026THE GOOD-FAITH EXCEPTION ¶60 To be clear, “[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrent is worth the price paid by the justice system.” Herring v. United States, 555 U.S. 135, 144 (2009).

2026See Michigan v. DeFillippo, 443 U.S. 31, 38 (1979) (applying good-faith exception to evidence discovered in a search incident to arrest for violating an ordinance later held to be unconstitutional); Illinois v. Krull, 480 U.S. 340, 349–50 (1987) (applying good-faith exception to evidence obtained in an administrative search of vehicles in a wrecking lot pursuant to a statute later found unconstitutional).5 ¶129 Most on point here, the Court has held that “[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.” Davis v.

2024“When evidence is obtained in violation of the Fourth Amendment, the judicially developed exclusionary rule usually precludes its use in a criminal proceeding against the victim of the illegal search and seizure.” Illinois v. Krull, 480 U.S. 340, 347 (1987). ¶8 The exclusionary rule, however, “is a judicially created remedy, not a right, and its application is restricted to cases where its remedial objectives will best be served.” State v. Dearborn, 2010 WI 84, ¶35 , 327 Wis. 2d 252 , 786 N.W.2d 97 . “[T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, o

2026Nevertheless, the exclusionary rule is not automatic, and should be applied only when doing so would yield “appreciable deterrence.”8 Davis v. United States, 564 U.S. 229, 237 (2011) (quoting another source). ¶87 To that end, the Supreme Court has applied the “good-faith exception” to the exclusionary rule, which recognizes that when law enforcement’s conduct is less culpable, applying the exclusionary rule is 7 See, e.g., Maher, 120 F.4th at 315–16; United States v. Wilson, 13 F.4th 961, 978–79 (9th Cir. 2021); United States v. Miller, 982 F.3d 412, 429 (6th Cir. 2020); Ackerman, 831 F.3d at

2026See Michigan v. DeFillippo, 443 U.S. 31, 38 (1979) (applying good-faith exception to evidence discovered in a search incident to arrest for violating an ordinance later held to be unconstitutional); Illinois v. Krull, 480 U.S. 340, 349–50 (1987) (applying good-faith exception to evidence obtained in an administrative search of vehicles in a wrecking lot pursuant to a statute later found unconstitutional).5 ¶129 Most on point here, the Court has held that “[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.” Davis v.

2022Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment is generally excluded from a “criminal proceeding against the victim of the illegal search and seizure.” United States v. Calandra, 414 U.S. 338, 347 (1974).

2021Id. (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)). 9 No. 2019AP1404-CR Specifically, "the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Herring, 555 U.S. at 144 .

2018See 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.").

2018See 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.").

2020See Carroll, 322 Wis. 2d 299, ¶19 ; see also Wong Sun v. United States, 371 U.S. 471, 488 (the exclusionary rule applies to the “fruit” of an unconstitutional intrusion).

2010"The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion." Wong Sun v. United States, 371 U.S. 471, 485 (1963).

2026The exclusionary rule, however, “is a judicially created remedy, not a right, and its application is restricted to cases where its remedial objectives will best be served.” State v. Dearborn, 2010 WI 84, ¶35 , 327 Wis. 2d 252 , 786 N.W.2d 97 . “[T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances, recurring or systemic negligence.” Id., ¶36.

2026The exclusionary rule, however, “is a judicially created remedy, not a right, and its application is restricted to cases where its remedial objectives will best be served.” State v. Dearborn, 2010 WI 84, ¶35 , 327 Wis. 2d 252 , 786 N.W.2d 97 . “[T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances, recurring or systemic negligence.” Id., ¶36.

2021Exclusion was improper because "the officers' conduct [was] at most negligent, and isolated negligence is not 'misconduct' for purposes of the exclusionary rule." Id. (citing Herring, 555 U.S. at 146-47 ). ¶21 Many more examples could be provided,5 but the principle is clear: unless evidence was obtained by sufficiently deliberate and sufficiently culpable police misconduct, "[r]esort to the massive remedy of suppressing 5See, e.g., United States v. Leon, 468 U.S. 897, 916 (1984) (reasonable reliance on a warrant later held invalid); Illinois v. Krull, 480 U.S. 340, 342 (1987) (reasonable reli

2021The common thread through each of these cases is that the fault lies with someone who is not directly engaged in the "competitive enterprise of ferreting out crime"; who has "no stake in the outcome of particular prosecutions." See Evans, 514 U.S. at 15 . ¶80 Conversely, the exclusionary rule applies when evidence is unlawfully obtained due to an error made by law enforcement.

2022“Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment is generally inadmissible in court proceedings.” State v. Scull, 2015 16 No. 2020AP7-CR WI 22, ¶20, 361 Wis. 2d 288 , 862 N.W.2d 562 (citing Mapp v. Ohio, 367 U.S. 643, 655 (1961)).

2021Even before the exclusionary rule became obligatory upon the states pursuant to Mapp v. Ohio, 367 U.S. 643 (1961), we held that evidence seized in violation of the right against self-incrimination must be excluded from trial, thus elevating the right to one of substance rather than a mere "form of words."2 See Hoyer v. State, 180 Wis. 407, 415-16 , 193 N.W. 89 (1923).

2024Under this doctrine, “[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means … then the deterrence rationale [for the exclusionary rule] has so little basis that the evidence should be received.” Id. at 444 .

2024See State v. Jackson, 2016 WI 56, ¶46 , 369 Wis. 2d 673 , 882 N.W.2d 422 . ¶9 In Nix v. Williams, 467 U.S. 431 (1984), the United States Supreme Court held that the inevitable discovery doctrine is an exception to the exclusionary rule.

2012In the landmark case Brown v. Illinois, 422 U.S. 590 (1975), the United States Supreme Court acknowledged that not all derivative evidence must be suppressed to fulfill the deterrent purpose of the exclusionary rule.

2012Some derivative evidence may be so attenuated from the underlying illegal conduct that "the deterrent effect of the exclusionary rule no longer justifies its cost." Id. at 609 (Powell, J., concurring in part).

2018Kerr's view is that evidence may be suppressed either where suppression serves to deter future police misconduct or where it serves to preserve "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 , 236-3

2018Kerr's view is that evidence may be suppressed either where suppression serves to deter future police misconduct or where it serves to preserve "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 , 236-3

2021Exclusion was improper because "the officers' conduct [was] at most negligent, and isolated negligence is not 'misconduct' for purposes of the exclusionary rule." Id. (citing Herring, 555 U.S. at 146-47 ). ¶21 Many more examples could be provided,5 but the principle is clear: unless evidence was obtained by sufficiently deliberate and sufficiently culpable police misconduct, "[r]esort to the massive remedy of suppressing 5See, e.g., United States v. Leon, 468 U.S. 897, 916 (1984) (reasonable reliance on a warrant later held invalid); Illinois v. Krull, 480 U.S. 340, 342 (1987) (reasonable reli

2021Exclusion was improper because "the officers' conduct [was] at most negligent, and isolated negligence is not 'misconduct' for purposes of the exclusionary rule." Id. (citing Herring, 555 U.S. at 146-47 ). ¶21 Many more examples could be provided,5 but the principle is clear: unless evidence was obtained by sufficiently deliberate and sufficiently culpable police misconduct, "[r]esort to the massive remedy of suppressing 5See, e.g., United States v. Leon, 468 U.S. 897, 916 (1984) (reasonable reliance on a warrant later held invalid); Illinois v. Krull, 480 U.S. 340, 342 (1987) (reasonable reli

2024It cited New York v. Harris, 495 U.S. 14 (1990), and State v. Felix, 2012 WI 36 , 339 Wis. 2d 670 , 811 N.W.2d 775 , as establishing an exception to the exclusionary rule for evidence obtained outside of 2 It is undisputed that Decola’s garage is part of his residence for Fourth Amendment purposes.

2024The Harris court reasoned that “the police had a justification to question Harris prior to his arrest; therefore, his subsequent statement was not an exploitation of the illegal entry into Harris’ home.” Id. at 19 . ¶15 Thus, under Harris, “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of [the defendant’s] home, even though the statement is taken after an arrest made in the home in violation of Payton.” Harris, 495 U.S. at 21 .

2024See State v. Felix, 2012 WI 36, ¶30 , 339 Wis. 2d 670 , 811 N.W.2d 775 (the primary purpose of the exclusionary rule is to deter future unlawful police conduct).

2024See State v. Felix, 2012 WI 36, ¶30 , 339 Wis. 2d 670 , 811 N.W.2d 775 (the primary purpose of the exclusionary rule is to deter future unlawful police conduct).

2026APPLICATION OF THE EXCLUSIONARY RULE ¶125 The exclusionary rule excludes “evidence discovered during an unlawful search or seizure,” as well as “evidence discovered only because of what the police learned from the unlawful activity, also 8 STATE v. GASPER JUSTICE CRAWFORD, concurring in part and dissenting in part referred to as ‘fruit of the poisonous tree.’” State v. Van Linn, 2022 WI 16, ¶11, 401 Wis. 2d 1, 971 N.W.2d 478 (citing State v. Knapp, 2005 WI 127, ¶24, 285 Wis. 2d 86, 700 N.W.2d 899).

2026APPLICATION OF THE EXCLUSIONARY RULE ¶125 The exclusionary rule excludes “evidence discovered during an unlawful search or seizure,” as well as “evidence discovered only because of what the police learned from the unlawful activity, also 8 STATE v. GASPER JUSTICE CRAWFORD, concurring in part and dissenting in part referred to as ‘fruit of the poisonous tree.’” State v. Van Linn, 2022 WI 16, ¶11, 401 Wis. 2d 1, 971 N.W.2d 478 (citing State v. Knapp, 2005 WI 127, ¶24, 285 Wis. 2d 86, 700 N.W.2d 899).

2017See also Conrad v. State, 63 Wis. 2d 616, 635 , 218 N.W.2d 252 (1974) (explaining that judicial integrity could be compromised if unlawful police conduct were sanctioned by the use of evidence obtained in violation of the Fourth Amendment). ¶70 Both the Public Trial Clause and the exclusionary rule are aimed at deterring unlawful conduct.

2017See also Conrad v. State, 63 Wis. 2d 616, 635 , 218 N.W.2d 252 (1974) (explaining that judicial integrity could be compromised if unlawful police conduct were sanctioned by the use of evidence obtained in violation of the Fourth Amendment). ¶70 Both the Public Trial Clause and the exclusionary rule are aimed at deterring unlawful conduct.

2018In 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, 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) (citing Elkins v. United States , 364 U.S. 206 , 222, 80 S.Ct. 1437 , 4 L.Ed.2d 1669 (1960) ). ¶ 62 Subsequently, the Supreme Court reaffirmed that although the primary purpose of the exclusionary rule is to deter police misconduct, judicial integrity is a "relevant, albeit subordinate factor" that may require excl

2018In 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, 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) (citing Elkins v. United States , 364 U.S. 206 , 222, 80 S.Ct. 1437 , 4 L.Ed.2d 1669 (1960) ). ¶ 62 Subsequently, the Supreme Court reaffirmed that although the primary purpose of the exclusionary rule is to deter police misconduct, judicial integrity is a "relevant, albeit subordinate factor" that may require excl

2022Moreover, suppressing the hospital's blood test runs counter to the exclusionary rule because it would put the State in a worse position than it occupied absent the deputy's unlawful conduct.8 See Murray, 487 U.S. at 537–38. ¶19 Accordingly, we conclude that the results of the hospital's blood test are admissible under the independent-source doctrine.

2020Carroll, 322 Wis. 2d 299, ¶19 (citing Murray, 487 U.S. at 536-37 ). ¶16 Here, the State relies on the independent source doctrine, which was developed “[a]lmost simultaneously with [the Supreme Court’s] development of the exclusionary rule” and was announced in Silverthorne Lumber Co. See Murray, 487 U.S. at 537 .

2021Even before the exclusionary rule became obligatory upon the states pursuant to Mapp v. Ohio, 367 U.S. 643 (1961), we held that evidence seized in violation of the right against self-incrimination must be excluded from trial, thus elevating the right to one of substance rather than a mere "form of words."2 See Hoyer v. State, 180 Wis. 407, 415-16 , 193 N.W. 89 (1923).

2021Even before the exclusionary rule became obligatory upon the states pursuant to Mapp v. Ohio, 367 U.S. 643 (1961), we held that evidence seized in violation of the right against self-incrimination must be excluded from trial, thus elevating the right to one of substance rather than a mere "form of words."2 See Hoyer v. State, 180 Wis. 407, 415-16 , 193 N.W. 89 (1923).

2018Mapp v. Ohio , 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), extended the exclusionary rule established in Weeks v. United States , 232 U.S. 383 , 393, 34 S.Ct. 341 , 58 L.Ed. 652 (1914), to state criminal cases.

2018Mapp v. Ohio , 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), extended the exclusionary rule established in Weeks v. United States , 232 U.S. 383 , 393, 34 S.Ct. 341 , 58 L.Ed. 652 (1914), to state criminal cases.

2024Thus, the Fourth Amendment generally prohibits warrantless in-residence arrests.5 Payton v. New York, 445 U.S. 573 (1980). ¶13 As a remedy for a violation of the above constitutional principles, under the exclusionary rule “evidence obtained in violation of the Fourth Amendment is generally inadmissible in court proceedings.” Cundy, 409 Wis. 2d 34 , ¶22.

2023See M.C.I., Inc. v. Elbin, 146 Wis. 2d 239, 244-45 , 430 N.W.2d 366 (Ct. App. 1988) (We need not consider arguments which are “unexplained and undeveloped.”). ¶38 Moreover, our supreme court in Felix noted that the purpose of the exclusionary rule is to deter police misconduct and expressly stated that “[t]he Harris rule appropriately balances” that purpose “and the Payton rule with the social costs associated with suppressing evidence.” Felix, 339 Wis. 2d 670, ¶39 (adding, “The Payton rule was premised on the Fourth Amendment’s protection of the ‘sanctity of the home.’ Payton, 445 U.S. at 588

2022However, in Hudson v. Michigan, 547 U.S. 586, 591 (2006), the United States Supreme Court stated that “[s]uppression of evidence, however, has always been our last resort, not our first impulse.” It explained, “The exclusionary rule generates substantial social costs, which sometimes include setting the guilty free and the dangerous at large.

2021Exclusion was improper because "the officers' conduct [was] at most negligent, and isolated negligence is not 'misconduct' for purposes of the exclusionary rule." Id. (citing Herring, 555 U.S. at 146-47 ). ¶21 Many more examples could be provided,5 but the principle is clear: unless evidence was obtained by sufficiently deliberate and sufficiently culpable police misconduct, "[r]esort to the massive remedy of suppressing 5See, e.g., United States v. Leon, 468 U.S. 897, 916 (1984) (reasonable reliance on a warrant later held invalid); Illinois v. Krull, 480 U.S. 340, 342 (1987) (reasonable reli

2012The court of appeals declined to apply the Harris exception to the exclusionary rule because it had not yet been adopted by this court, and because the court of appeals concluded that Harris conflicted with this court's decisions in Laasch v. State, 84 Wis. 2d 587 , 267 N.W.2d 278 (1978), State v. Smith, 131 Wis. 2d 220 , 388 N.W.2d 601 (1986), and State v. Walker, 154 Wis. 2d 158 , 453 N.W.2d 127 (1990).

2012The court of appeals declined to apply the Harris exception to the exclusionary rule because it had not yet been adopted by this court, and because the court of appeals concluded that Harris conflicted with this court's decisions in Laasch v. State, 84 Wis. 2d 587 , 267 N.W.2d 278 (1978), State v. Smith, 131 Wis. 2d 220 , 388 N.W.2d 601 (1986), and State v. Walker, 154 Wis. 2d 158 , 453 N.W.2d 127 (1990).

2020Relevant here, the good-faith exception applies when law enforcement acted in objective good-faith reliance “‘on settled law (whether statute or binding judicial precedent) that was 9 No. 2015AP1113-CR subsequently overruled.’” Prado, 393 Wis. 2d 526, ¶67 (quoting State v. Blackman, 2017 WI 77, ¶70 , 377 Wis. 2d 339 , 898 N.W.2d 774 ). ¶21 As stated, in relying on the good-faith exception to the exclusionary rule in Prado we observed that, at the time of Prado’s 2014 blood draw, the incapacitated driver provision had “been on the books for decades, and its constitutionality had not been challe

2020Relevant here, the good-faith exception applies when law enforcement acted in objective good-faith reliance “‘on settled law (whether statute or binding judicial precedent) that was 9 No. 2015AP1113-CR subsequently overruled.’” Prado, 393 Wis. 2d 526, ¶67 (quoting State v. Blackman, 2017 WI 77, ¶70 , 377 Wis. 2d 339 , 898 N.W.2d 774 ). ¶21 As stated, in relying on the good-faith exception to the exclusionary rule in Prado we observed that, at the time of Prado’s 2014 blood draw, the incapacitated driver provision had “been on the books for decades, and its constitutionality had not been challe

2023See State v. Kerr, 2018 WI 87, ¶23 , 383 Wis. 2d 306 , 913 N.W.2d 787 (concluding that the court need not decide whether the good-faith exception applied because the exclusionary rule did not apply in the first instance).

2023See State v. Kerr, 2018 WI 87, ¶23 , 383 Wis. 2d 306 , 913 N.W.2d 787 (concluding that the court need not decide whether the good-faith exception applied because the exclusionary rule did not apply in the first instance).