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WI Supreme Court Upholds Seizure of Drugs in Vehicle Searches




"Today's Supreme Court decisions reaffirm the longstanding principle that evidence seized by the police should only be suppressed where there was deliberate police misconduct, and not when the law relied upon by the police at the time of the search was later overturned," said Attorney General J.B. Van Hollen.


MADISON - In two decisions issued earlier today, the Wisconsin Supreme Court held that drugs seized by police in vehicle searches incident to the arrest of the drivers could be used at trial to convict the drivers, even though the law changed after the seizure to prohibit similar searches.  The Court held that the police acted in good faith in relying upon the law regulating searches incident to arrest in effect at the time of the searched.


The decision in State v. David Dearborn, 2007AP1894-CR, affirmed decisions of both the Wisconsin Court of Appeals and the Grant County Circuit Court.  Dearborn had been convicted of assaulting a DNR warden and possession of marijuana. 


The decision in State v. Michael Littlejohn, 2007AP900-CR, affirmed a decision of the Wisconsin Court of Appeals.  The Court of Appeals had reversed a decision of the Monroe County Circuit Court.  The Monroe County Circuit Court had suppressed drugs found in Littlejohn's car, which meant that the evidence could not be used at trial, and the case would have to be dismissed.  The Supreme Court's decision resurrects the prosecution of Littlejohn, and sent the case back to the circuit court for further proceedings.  


In both cases the Supreme Court held that the "good faith exception to the exclusionary rule" precluded suppression of drugs seized during vehicle searches incident to arrest, conducted prior to the U.S. Supreme Court's April 2009 decision in Arizona v. Gant.  The Gant decision declared vehicle searches incident to arrest unlawful if the defendant was secured and no longer had access to the vehicle, and if there was no reason to believe that evidence of the crime of arrest was in the vehicle.  The decision was deemed to be retroactive.  Prior to the Gant decision police officers could search the passenger compartment of a vehicle after the driver was arrested, so long as he or she was still at the scene of the arrest when the search was conducted.


This meant that although the searches in Dearborn and Littlejohn were perfectly lawful when conducted, they became unlawful after the Gant decision was issued.  The issue then became whether applying Gant retroactively, as the U.S. Supreme Court had ordered, necessarily meant applying the remedy of suppression, or whether the good faith exception would be deemed to apply here and block suppression. 


The Wisconsin Supreme Court determined in these two cases that the good faith exception to the exclusionary rule should apply because the police officers acted in good faith and followed the law as it existed at the time the searches were conducted.  The fact that the law was later changed, making such searches unlawful after the fact, does not mean that the criminal should go free.  The Court also noted that the exclusionary rule was intended to only be applied when it would deter deliberate police misconduct.  In these two cases there was no police misconduct to deter.  


The decisions of the Supreme Court may be found at the court's website:, and .


The Grant County District Attorney's Office litigated the Dearborn case in the Circuit Court and in the Court of Appeals.  The Monroe County District Attorney's Office litigated the Littlejohn case in the Circuit Court.  The Wisconsin Attorney General represents the State in all felony appeals in both the Wisconsin Court of Appeals and the Wisconsin Supreme Court.  Assistant Attorney General Stephen Kleinmaier represented the State in the Littlejohn case in the Court of Appeals.  Assistant Attorney General Michael Losse represented the State in both cases in the Supreme Court.