A challenge to the Wisconsin court commissioner issuing a search warrant utilized in a federal prosecution fails. While no Wisconsin court has considered the constitutionality of court commissioners, they are longstanding in the state, even after the unification of the court system in 1977. Under the Fourth Amendment, the court finds no basis to suppress. United States v. Diaz, 2010 U.S. Dist. LEXIS 12584 (E.D. Wis. January 15, 2010):
So precisely what is the constitutional basis for court commissioners? Despite having existed for more than three decades since the 1977 amendment, it does not appear that this question has yet been answered by, nor even posed to, any Wisconsin court. The resolution of this novel question would require an analysis of Wisconsin constitutional law and could have significant impact upon the longstanding judicial practices in the state. In the interest of comity, questions of this import should generally be reserved to the state rather than resolved by a federal court. It is the view of this court that it is inappropriate to delve into this issue when its resolution is not necessary to the question currently before this court. The question before this court is a narrow one: does the search withstand scrutiny under the Fourth Amendment?
The Fourth Amendment imposes two requirements upon searches and seizures: (1) the search and seizure must be reasonable; and (2) “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment does not dictate who may issue a search warrant. As the Supreme Court noted:
The substance of the Constitution’s warrant requirements does not turn on the labeling of the issuing party. The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause to believe that a crime has been committed and that the person or place named in the warrant is involved in the crime. Thus, an issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search.
Shadwick v. Tampa, 407 U.S. 345, 350 (1972); see also id. at 351 (“We find no commandment … that all warrant authority must reside exclusively in a lawyer or judge.”). Although individuals involved with the prosecution of a case, such as prosecutors or police officers may not issue warrants, see Coolidge v. New Hampshire, 403 U.S. 443, 450 (1971), other “competent personnel” may do so provided they are “neutral and detached.” Shadwick, 407 U.S. at 352-53. For example, in Shadwick, 407 U.S. at 351, the Supreme Court found no constitutional defect in a warrant issued by a municipal court clerk.
In this case, the Wisconsin legislature and judiciary have approved the position of court commissioners as well as the practice of court commissioners issuing search warrants. See Wis. SCR 75.02; Wis. Stat. § 757.69(1)(b). There is no allegation that court commissioners lack the capacity to determine probable cause, see Shadwick, 407 U.S. at 351, nor does Diaz contend the warrant was not supported by probable cause. Further, there is no allegation that the court commissioner was not neutral and detached. Thus, the court finds no basis to conclude that the search that occurred here was in violation of the Fourth Amendment.
Further, the court finds that application of the exclusionary rule under these circumstances would not be appropriate. Applying the exclusionary rule imposes substantial social costs and thus its application should be limited to situations “where its remedial objectives are thought most efficaciously served,–that is, where its deterrence benefits outweigh its substantial social costs.” Hudson v. Michigan, 547 U.S. 586, 591 (2006) (internal citations and quotation marks omitted). Thus, suppression of evidence should occur only as a last resort. Id.
The police proceeded as courts prefer; prior to conducting the search, a neutral and detached officer of the court was presented with an affidavit that established that there was probable cause to believe that evidence of a crime would be found in a particular location. Upon finding probable cause, a warrant was issued. Therefore, suppression of evidence is not appropriate in this case. Accordingly, the court shall recommend that Diaz’s motion to suppress be denied.
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
