MADISON — Green County District Attorney Craig Nolen will get a chance to convince a judge that a person’s vehicles and cash, excluded as evidence in a dismissed criminal case, can be forfeited though a civil action.
The District IV Court of Appeals Thursday returned the civil case to Circuit Judge Thomas Vale to consider the prosecutor’s argument that there’s a “good faith exception” in the civil forfeiture process to the constitutional protections again unreasonable search and seizure.
The case began after members of the State Line Area Narcotics Team used search warrants to enter Michael and Lori Scott’s home in the town of Jordan in April 2016. The team seized about 55 pounds of marijuana, nearly $23,000 in cash, a 2015 Chevrolet pickup truck, a 1966 Oldsmobile, two jet skis and an all-terrain vehicle.
The Scotts were charged with possessing marijuana with the intent to distribute and maintaining a drug house. However, Vale found that the warrants he had issued were inadequate. He then threw out the drug evidence and dismissed the case.
The district attorney’s office also filed a civil forfeiture suit for the non-drug items seized, contending it is allowed under the Controlled Substances Act.
The Scotts’ attorney sought dismissal of the civil suit, claiming that under the exclusionary rule, evidence excluded in criminal cases due to unlawful search and seizure must be excluded from a civil case.
The district attorney countered that he’s entitled to a hearing to prove there’s a good faith exception to the exclusionary rule for evidence found inadmissible in a criminal case.
Vale ruled that the district attorney wasn’t entitled to a hearing as the warrants weren’t saved by the good faith exception even though he believed “there [wasn’t] any intentional misconduct by the police.”
The appeals court concluded that the Fourth Amendment protection against unreasonable search and seizure applies to “quasi-criminal” proceedings, which include property forfeiture actions.
Like Vale, the appeals court relied on a 1965 U.S. Supreme Court ruling in a case referred to as “Plymouth Sedan.” The court held that civil forfeiture could not apply to evidence illegally obtained.
The Plymouth sedan involved in the case was seized by Pennsylvania authorities for transporting liquor bottles that lacked tax stamps. The police observed the sedan was riding low and searched it contents. A court found that police couldn’t stop and search the car based on that observation. Without a criminal conviction, the police couldn’t keep the car it attempted to retain by civil forfeiture.
The attorney general’s office represented the district attorney in the appeal and had asked the appeals court not to apply the “Plymouth Sedan” ruling to the Scotts’ case as subsequent rulings have narrowed its scope.
The appeals court disagreed, saying that the Scotts’ case involves a civil statute to which “Plymouth Sedan” applies. Since civil statutes that allow property forfeitures are effective penalties for criminal violations, they are quasi-criminal matters in nature and “merit Fourth Amendment protection.”
The court did agree the state was entitled to a hearing to determine if the evidence could be forfeited on grounds that the police acted in good faith.
“On that basis only, we conclude that it is appropriate to remand to the circuit court for further proceedings with respect to the State’s good-faith exception argument,” District IV Judge Brian Blanchard wrote.
Nolen wasn’t pleased with the ruling despite it giving him “another kick at the can.”
“I felt that ‘Plymouth Sedan’ didn’t apply,” he said. “It has been curtailed by the U.S. Supreme Court and other federal court decisions. It’s just that Wisconsin hasn’t had a case that has touched it.”
Nolen maintains that civil forfeiture statues should be used under the good-faith exception.
“Regardless of the warrant’s deficiencies, why should law enforcement be punished when they acted appropriately,” he said.
The warrants were drafted before Nolen took office and he noted that the property sought by forfeiture could have included the Scott house, too. Nolen said he has talked to the Scotts’ attorney about proceeding with the case.
A call to the Scotts’ attorney for comment was not returned by deadline.