Conrad v. State

¶1(concurring). I agree that the evidence of the finding of the body of Marie Conrad was properly admitted.. However, I disagree with the majority’s dicta criticizing the exclusionary rule.

¶2In essence, the exclusionary rule is one of the manifestations demonstrating the degree of civilization we have achieved in developing our democratic society. Ours is a government of laws, not of men, it is often said, and in the exclusionary rule we have a positive demonstration of our willingness that the government will not profit while it breaks the law and thus breeds contempt for the law. Mr. Justice Brandéis said in his dissent in Olmstead v. United States:

“. . . In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself ; it invites anarchy.” 1

¶3As recently as five years ago, Mr. Chief Justice Warren, speaking for the court in Terry v. Ohio 2 said:

*641“. . . The rule also serves another vital function — ■ ‘the imperative of judicial integrity.’ Elkins v. United States, 364 U. S. 206, 222 (1960). Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.”

¶4The essential justification for the exclusionary rule, which was fashioned by the United States Supreme Court as early as 1886 in Boyd v. United States,3and more fully in 1914 in Weeks v. United States4 was very recently stated by three dissenting justices in the case of United States v. Calandra,5wherein a majority of the United States Supreme Court held that the exclusionary rule in search and seizure cases does not apply to grand jury proceedings. The dissenting justices, vigorously defending the exclusionary rule, observed:

“. . . The exclusionary rule, if not perfect, accomplished the twin goals of enabling the judiciary to avoid the taint of partnership in official lawlessness and of assuring the people — all potential victims of unlawful government conduct — that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.” 6

¶5Our Wisconsin Supreme Court adopted the exclusionary rule with respect to Wisconsin criminal proceedings in 1923 in Hoyer v. State.7In Hoyer the court, in discussing art. I, sec. 11, of the Wisconsin Constitution — the constitutional identical counterpart of the United States Constitution’s fourth amendment — stated:

“Sec. 11, art. I, Wis. Const., supra, is a pledge of the faith of the state government that the people of the state, *642all alike (with no express or possible mental reservation that it is for the good and innocent only), shall be secure in their persons, houses, papers, and effects against unreasonable search and seizure. This security has vanished and the pledge is violated by the state that guarantees it when officers of the state, acting under color of state-given authority, search and seize unlawfully. The pledge of this provision and that of sec. 8 [Prosecutions; second jeopardy; self-incrimination; bail; habeas corpus.] are each violated when use is made of such evidence in one of its own courts by other of its officers. That a proper result — that is, a conviction of one really guilty of an offense — may be thus reached is neither an excuse for nor a condonation of the use by the state of that which is so the result of its own violation of its own fundamental charter. . . .”

¶6Law enforcement personnel of the federal government and here in Wisconsin have operated under the exclusionary rule for over half a century. There has been no collapse of either the federal or Wisconsin local law enforcement machinery. The majority admits that there is difficulty with all the known alternatives to the exclusionary rule. Although there are difficulties in operating under that rule, the exclusionary rule is not only required by our Wisconsin case of Hoyer 8 and in fact as the majority states “has been given statutory sanctions,” 9 but is also mandated by Mapp v. Ohio.10

¶7A recent commentator, discussing the exclusionary rule, said:

“. . . If constitutional rights are to be anything more than pious pronouncements, then some measurable consequence must be attached to their violation. It would be intolerable if the guarantee against unreasonable search and seizure could be violated without practical consequence. It is likewise imperative to have a practical procedure by which courts can review alleged violations of constitutional rights and articulate the meaning of *643those rights. The advantage of the exclusionary rule— entirely apart from any direct deterrent effect — -is that it provides an occasion for judicial review, and it gives credibility to the constitutional guarantees. By demonstrating that society will attach serious consequences to the violation of constitutional rights, the exclusionary rule invokes and magnifies the moral and educative force of the law. Over the long term this may integrate some fourth amendment ideals into the value system or norms of behavior of law enforcement agencies.” 11

¶8I am authorized to state that Mr. Chief Justice E. Habold Hallows joins in that part of the concurrence which disagrees with the dicta criticizing the exclusionary rule.