State v. Dearborn

2010 WI 84, 786 N.W.2d 97, 327 Wis. 2d 252, 2010 Wisc. LEXIS 110

• Court: Wisconsin Supreme Court
• Decided: July 15, 2010
• Docket: No. 2007AP1894-CR
• Status: Published

Opinions

MICHAEL J. GABLEMAN, J.

¶ 1. This is a review of a published decision of the court of appeals¹ affirming the circuit court's judgment of conviction against David A. Dearborn.² Dearborn asserts that the circuit court erred in denying his motion to suppress evidence obtained from a search of the passenger compartment of his locked vehicle, a search that occurred after he was placed under arrest and secured in the back of a squad car.

¶ 2. Dearborn maintains, and the State concedes, that in the wake of the United States Supreme Court's ruling in Arizona v. Gant, 556 U.S._, 129 S. Ct. 1710 (2009), the search of Dearborn's truck violated his constitutional right to be secure against unreasonable searches and seizures. The main question in this case is whether the exclusionary rule should be applied to remedy the constitutional violation, or alternatively, whether the good faith exception should preclude application of the exclusionary rule and the evidence's consequent suppression.³

¶ 3. Prior to the United States Supreme Court's decision in Gant, this court made clear in State v. Fry, 131 Wis. 2d 153, 388 N.W.2d 565 (1986), and its progeny that the type of search conducted of Dearborn's truck following his arrest was lawful. However, we now accept Gant's interpretation of the United States Constitution and adopt its holding as the proper interpretation of the Wisconsin Constitution's protection against unreasonable searches and seizures. Thus, the search of Dearborn's truck violated his constitutional rights.

¶ 4. However, we decline to apply the remedy of exclusion for the constitutional violation. We hold that the good faith exception precludes application of the exclusionary rule where officers conduct a search in objectively reasonable reliance upon clear and settled Wisconsin precedent that is later deemed unconstitutional by the United States Supreme Court. Accordingly, we affirm the court of appeals and uphold Dearborn's conviction.

I. BACKGROUND

¶ 5. On April 9, 2006, State Department of Natural Resources conservation warden Martin Stone was on his regular patrol, checking fishing license compliance in various locations in Richland County. The warden stopped at the Port Andrews boat landing to get a better look at the fishermen who were below a nearby bridge. David A. Dearborn had been sitting in his truck at the boat landing, but left soon after the warden arrived in his squad car. Dearborn then drove close to the warden's squad car, slowed down, and made an obscene gesture while glaring angrily at the warden. Concerned about his safety, the warden ran Dearborn's license plate and learned that Dearborn's license had been revoked for operating while intoxicated.

¶ 6. The warden then pursued Dearborn and pulled him over. Dearborn immediately exited his vehicle and walked toward the warden. The warden instructed Dearborn to get back in his truck, but Dearborn instead shut the door and locked his vehicle. The warden spoke with Dearborn and verified his identity. Dispatch confirmed that Dearborn was driving with a revoked license, and the warden told Dearborn he was placing him under arrest.

¶ 7. Dearborn became mad and refused to submit to arrest. As the warden tried to arrest him, Dearborn resisted by pushing and kicking. When the warden tried to subdue Dearborn with pepper spray, Dearborn waved a jacket in front of himself to deflect the spray. Dear-born then ran to a nearby house, picked up rocks, and started to wind up as if to throw them. The warden drew his gun in response, which persuaded Dearborn to put the rocks down. Even so, Dearborn kept resisting. He ran to the door of the nearby home and began yelling and shaking the doorknob. After the warden's additional attempt to arrest Dearborn was met with more kicking and punching, the warden again used pepper spray and was finally able to secure Dearborn until backup arrived.

¶ 8. Once backup arrived, Dearborn was placed under arrest and secured in handcuffs in the back of a squad car. The warden and a state trooper then unlocked and searched Dearborn's truck. Inside the passenger compartment, they found a small wooden container known as a "dugout" that contained a small amount of marijuana and a small metal pipe that smelled like burnt marijuana.

¶ 9. On April 11, 2006, a criminal complaint was filed in the Grant County Circuit Court, George S. Curry, Judge. Dearborn was charged with resisting a conservation warden, possession of THC, and possession of drug paraphernalia. Dearborn filed a pretrial motion to suppress the evidence obtained through the search of his vehicle on the grounds that the search was unconstitutional, but the circuit court denied the motion. A jury found Dearborn guilty of resisting a conservation warden and possession of THC, but not guilty of possession of drug paraphernalia.

¶ 10. Dearborn appealed.⁴ The court of appeals "assume [d] without deciding" that the issue was not preserved because Dearborn did not move at trial to suppress the evidence of the search on the grounds that it was not a valid search incident to arrest. Dearborn, 313 Wis. 2d 767, ¶¶ 43-44. But the court agreed to hear the issue because it was a question of law, was briefed by the parties, and was of sufficient public interest to merit a decision.⁵ Id.

¶ 11. The court of appeals rejected Dearborn's claim, relying heavily on State v. Littlejohn, 2008 WI App 45, 307 Wis. 2d 477, 747 N.W.2d 712 (pet. review granted). In that case, which this court also is deciding today, the court of appeals rejected a nearly identical argument that a search of a locked vehicle after a defendant is under arrest and secured in a squad car violates the Fourth Amendment because the area searched is not in the "immediate control" of the suspect. Littlejohn, 307 Wis. 2d 477, ¶ 15; Dearborn, 313 Wis. 2d 767, ¶ 46. Thus, the court of appeals held that Dearborn's Fourth Amendment rights had not been violated, and that the search was proper.

¶ 12. In his petition for review before this court, Dearborn noted that the United States Supreme Court agreed to address a nearly identical question. We therefore held Dearborn's case and agreed to hear it following the United States Supreme Court's decision in Gant.

II. STANDARD OF REVIEW

¶ 13. The application of constitutional principles to a particular case is a question of constitutional fact. State v. Pallone, 2000 WI 77, ¶ 26, 236 Wis. 2d 162, 613 N.W.2d 568. We accept the circuit court's findings of fact unless they are clearly erroneous. Id., ¶ 27. The application of constitutional principles to those facts is a question of law that we review de novo. Id.

III. DISCUSSION

¶ 14. The right to be secure against unreasonable searches and seizures is protected by both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Wisconsin Constitution.⁶ State v. Sykes, 2005 WI 48, ¶ 13, 279 Wis. 2d 742, 695 N.W.2d 277. We have historically interpreted the Wisconsin Constitution's protections in this area identically to the protections under the Fourth Amendment as defined by the United States Supreme Court.⁷ State v. Kramer, 2009 WI 14, ¶ 18, 315 Wis. 2d 414, 759 N.W.2d 598. Wisconsin Stat. § 968.11 also provides various restrictions on the scope of a search incident to a lawful arrest.

¶ 15. When there has been an unlawful search, a common judicial remedy for the constitutional error is exclusion. State v. Eason, 2001 WI 98, ¶¶ 39-45, 245 Wis. 2d 206, 629 N.W.2d 625. That is, illegally obtained evidence will be suppressed as a consequence of the law enforcement officers' misconduct. Id. The policies underlying both exclusion and the good faith exception to the exclusionary rule will be discussed more fully below.

¶ 16. The question before us is whether the good faith exception to the exclusionary rule should apply when clear and settled precedent, reasonably relied upon by law enforcement, is subsequently overruled.

¶ 17. We begin in Part A by discussing the implications of the United States Supreme Court's decision in Gant. We conclude that the search of Dearborn's truck was lawful under clear and settled Wisconsin precedent before the Gant decision, and that the officers here reasonably relied on this law in conducting the search. Yet, we do adopt the holding of Gant as the proper construction of Article 1, Section 11 of the Wisconsin Constitution, and recognize that, in light of Gant, the search of Dearborn's truck was in fact unlawful.

¶ 18. In Part B, we move to the proper remedy for this constitutional violation, focusing on the exclusionary rule and its tension with the retroactivity rule. We ultimately decline to enforce the remedy of exclusion for the unlawful search of Dearborn's truck. The principles underlying the exclusionary rule, and the good faith exception in particular, counsel that suppression of this evidence would have no deterrent effect and would therefore be unjustified.

A. Wisconsin Law and Arizona v. Gant

¶ 19. The parties agree that under Arizona v. Gant, the search here violated Dearborn's constitutional right to be free from unreasonable searches and seizures. The parties disagree, however, with the state of Wisconsin law pre-Gant. Dearborn argues that the search here was unlawful under Wisconsin law as it existed before Gant, while the State maintains that the search was conducted in reliance on settled Wisconsin precedent. A brief history of the case law in this area will put the dispute in context.

¶ 20. In Chimel v. California, 395 U.S. 752 (1969), the United States Supreme Court established the basic analysis underlying a search incident to arrest. It explained:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area "within his immediate control" — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

Id. at 762-63. Thus, the principle was established that officers may search the area an arrestee might be able to reach — an area "within his immediate control" — in the course of an arrest.

¶ 21. In 1981, the United States Supreme Court examined whether the passenger compartment of an automobile was subject to a search when the occupant is placed under lawful arrest. New York v. Belton, 453 U.S. 454, 455 (1981). The court noted the difficulty of determining the area within the immediate control of the arrestee and expressed a desire to establish a clear principle that law enforcement officers could rely on. Id. at 460. The court thus held "that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Id. The court went on to say that any containers in the passenger compartment could also, by logical extension, be searched as incident to a lawful arrest. Id. at 460-61.

¶ 22. Justice Brennan wrote a dissent in Belton that chastised the court for choosing a bright-line rule that failed to reflect the underlying policy justifications in Chimel. Id. at 463-64 (Brennan, J., dissenting). He noted that Chimel pointed to the danger that the arrestee could reach weapons or contraband, and that this danger was eliminated following a lawful arrest. Id. at 466. The Court, Justice Brennan argued, had adopted the fiction "that the interior of a car is always within the immediate control of an arrestee who has recently been in the car." Id.

¶ 23. Following the Supreme Court's decision in Belton, state and federal courts around the country took the general, "bright-line" principle announced in Belton to mean that actual accessibility was no longer needed; rather, passenger compartments were search-able as long as the arrestee was at the scene. See Gant, 129 S. Ct. at 1718 ("[0]ur opinion [in Belton] has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.").⁸ Wisconsin, like nearly every other jurisdiction to address the question, likewise understood Belton to adopt a bright-line rule allowing the search of passenger compartments, even if the arrestee did not have access to the passenger compartment at that time.

¶ 24. In State v. Fry, this court addressed the question of "whether the search of the locked glove compartment of the defendant's automobile after his arrest. .. was justified as a search incident to an arrest." 131 Wis. 2d at 156. In Fry, we read Belton as "deciding that the interior of an automobile 'is an area into which an arrestee might reach in order to grab a weapon or evidentiary item,' even when the defendant is not in the automobile during the search." Id. at 167 (citations omitted) (quoting Belton, 453 U.S. at 460). Relying on Belton, we concluded that the search did not violate Wis. Stat. § 968.11, the Wisconsin Constitution, or the United States Constitution because the officers "limited the search to the passenger compartment of [the defendant's] automobile, which Belton holds is within the acceptable area of a search incident to arrest." Id. at 170. We explicitly adopted our understanding of Belton as the proper interpretation of the Wisconsin Constitution in order to keep the federal and state constitutional protections consistent. Id. at 174-76. We also described Belton as a reasonable and workable bright-line rule that would provide clear direction for the police. Id. We construed Belton to hold that all closed containers in an automobile, whether locked or unlocked, may be searched incident to a lawful arrest while the defendant is at the arrest scene.⁹ Id. at 178-80.

¶ 25. After Fry, the law in Wisconsin was clear: following a lawful arrest, police may search the contents of an automobile while the defendant is at the scene without running afoul of Wis. Stat. § 986.11, Article 1, Section 11 of the Wisconsin Constitution, or the Fourth Amendment to the United States Constitution, whether or not the area searched was actually accessible to the arrestee. Subsequent Wisconsin cases were consistent in their reliance on Fry's articulation of the Belton rule. See Pallone, 236 Wis. 2d 162, ¶ 35 (explaining that under Belton and Fry, police may search a vehicle incident to arrest even though the defendants lacked the ability to access the interior of the vehicle due to their arrest); State v. Murdock, 155 Wis. 2d 217, 231-34, 455 N.W.2d 618 (1990) (same); Littlejohn, 307 Wis. 2d 477, ¶¶ 8-11 (same).

¶ 26. In Arizona v. Gant, 129 S. Ct. 1710 (2009), the United States Supreme Court rejected the prevailing interpretation of Belton—the interpretation we adopted in Fry. A "broad reading" of Belton, the Court explained, would "untether the rule from the justifications underlying the Chimel exception." Id. at 1719. Thus, the Court held "that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." Id. The Court went beyond Chimel and further held "that circumstances unique to the vehicle context justify a search [of an otherwise inaccessible vehicle] incident to a lawful arrest when it is 'reasonable to believe evidence relevant to the crime of arrest might he found in the vehicle.'" Id.

¶ 27. Gant, then, is a clear break from Fry and its progeny. Consistent with our prior practice of keeping Wisconsin and federal constitutional law in this area in step, we hereby adopt the reasoning in Gant as the proper reading of Article 1, Section 11 of the Wisconsin Constitution (protecting against unreasonable searches and seizures). Fry and any decisions relying on Fry's interpretation of the Belton rule are overruled. Under both the Wisconsin and United States Constitutions, the Chimel rationale authorizes a vehicular search only if the person arrested is unsecured and within reaching distance of the passenger compartment at the time of the search. However, a search incident to a lawful arrest may be justified when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Gant, 129 S. Ct. at 1719 (citing Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring in the judgment)).

¶ 28. In this case, Dearborn locked the door to his truck and was in custody at the time the officers performed the search of his truck incident to his arrest. Under Fry and Pallone, the search the officers conducted on Dearborn's truck was clearly lawful. The officers therefore acted in objectively reasonable reliance on clear and settled Wisconsin Supreme Court precedent.

¶ 29. However, after Gant, as both parties recognize, we now know that the search of Dearborn's truck was a violation of Dearborn's constitutional rights. This is so because Dearborn was secured and therefore unable to reach the passenger compartment of his vehicle at the time of the search. Moreover, Dearborn's search cannot be upheld under Gant on the grounds that relevant evidence might be found in the truck, because the warden could not have reasonably expected to find evidence in the vehicle regarding Dearborn's revoked license.

B. The Good Faith Exception to the Exclusionary Rule

¶ 30. Dearborn argues that because the search here was unlawful, the evidence obtained as a result of the illegal search should be suppressed under the exclusionary rule. The State asserts that because the officers relied in good faith on Wisconsin law as it stood at the time of the search, the good faith exception to the exclusionary rule should apply. This case, then, concerns the tension between two principles.

¶ 31. The first principle is the retroactivity rule, which states that newly declared constitutional rules must apply "to all similar cases pending on direct review." Griffith v. Kentucky, 479 U.S. 314, 322-23 (1987); see also United States v. Johnson, 457 U.S. 537, 562 (1982) (holding that a decision of the Supreme Court "construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered"). This rule accords with "basic norms of constitutional adjudication" and contains "no exception for cases in which the new rule constitutes a 'clear break' with the past." Griffith, 479 U.S. at 322, 328 (1987).

¶ 32. Applying the. retroactivity rule here means that even though the search the officers conducted in this case was done in accordance with the law as declared at the time of the search, we are still required to hold that the search of Dearborn's truck was unconstitutional. In other words, the retroactivity rule means that Dearborn gets the benefit of the Gant holding because his case was not yet final.¹⁰

¶ 33. The second competing principle at work here is the application of the proper remedy for the constitutional violation — specifically, the exclusionary rule and the good faith exception to the exclusionary rule. Broadly defined, the exclusionary rule is not applied when the officers conducting an illegal search "acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment." United States v. Leon, 468 U.S. 897, 918 (1984).

¶ 34. This court is not the first to attempt a reconciliation of these two principles. Numerous cases have been filed around the country in the wake of Gant raising precisely this same question. The results have been mixed. Some courts have determined that the remedy of exclusion should be applied in all cases where the retroactivity rule applies,¹¹ while other courts agree with our conclusion that the exclusionary rule should not apply where the officers relied in good faith on clear and settled law that was only subsequently changed.¹²

¶ 35. We begin first with the exclusionary rule. The exclusionary rule is a judicially created remedy, not a right, and its application is restricted to cases where its remedial objectives will best be served. Herring v. United States, 129 S. Ct. 695, 700 (2009); Arizona v. Evans, 514 U.S. 1, 10-11 (1995). That means that just because a Fourth Amendment violation has occurred does not mean the exclusionary rule applies.¹³ Herring, 129 S. Ct. at 700. Rather, exclusion is the last resort. Id. The application of the exclusionary rule should focus on its efficacy in deterring future Fourth Amendment violations. Id. Moreover, marginal deterrence is not enough to justify exclusion; "the benefits of deterrence must outweigh the costs." Id.

¶ 36. In Herring, decided just last year, the United States Supreme Court reaffirmed Leon's holding that the exclusionary rule should not apply when the police act in good faith, or in "objectively reasonable reliance" on a subsequently invalidated search warrant. Id. at 701. The Court clarified when the exclusionary rule should apply:

To 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. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.

Id. at 702. The test of whether the officers' reliance was reasonable is an objective one, querying " 'whether a reasonably well trained officer would have known that the search was illegal' in light of 'all of the circumstances.' " Id. at 703 (quoting Leon, 468 U.S. at 922 n.23).

¶ 37. This court adopted the good faith exception to the exclusionary rule in State v. Ward, 2000 WI 3, 231 Wis. 2d 723, 604 N.W.2d 517 (applying the exception to objectively reasonable reliance on settled law subsequently overruled), and affirmed the principles of Leon in Eason, 245 Wis. 2d 206 (applying the exception to objectively reasonable reliance on a warrant subsequently invalidated). Citing Leon, Eason held that the exclusionary rule cannot deter objectively reasonable law enforcement activity, and therefore it should not apply in those circumstances.¹⁴ Id., ¶ 73.

¶ 38. In sum, the exclusionary rule should be applied as a remedy to deter police misconduct and most appropriately when the deterrent benefits outweigh the substantial costs to the truth-seeking and law enforcement objectives of the criminal justice system.

¶ 39. The exclusionary rule's tension with the retroactivity rule that lies at the heart of this case has already been addressed by both the United States Supreme Court and this court.

¶ 40. In Illinois v. Krull, 480 U.S. 340 (1987), the Illinois Supreme Court had ruled that a statute authorizing warrantless administrative searches violated the Fourth Amendment. Id. at 345-46. The court also suppressed evidence seized during a search conducted under the later-invalidated statute. Id. at 346. The United States Supreme Court granted certiorari to determine whether the good faith exception to the exclusionary rule should preclude suppression where the officers acted in objectively reasonable reliance upon the statute. Id. at 342.

¶ 41. The United States Supreme Court began its analysis by pointing to the "prime purpose" of the exclusionary rule: deterrence of unlawful police conduct. Id. at 347 (quoting United States v. Calandra, 414 U.S. 338, 347 (1974)). It noted that the exclusionary rule is a judicial remedy, not a constitutional right of the aggrieved party. Id. The Court said that applying the exclusionary rule when the police officers acted in objectively reasonable reliance on a statute would have virtually no deterrent effect. Id. at 349-50. It would make no sense, the Court explained, to punish the officers for the legislature's error. Id. at 350. Because the officers' reliance on binding law was objectively reasonable and in good faith, the good faith exception to the exclusionary rule applied. Id. at 358-60.

¶ 42. Krull was a close case, with four members of the United States Supreme Court dissenting. Id. at 361. The dissent argued that the result in this case was directly at odds with the retroactivity rule announced in Griffith. Id. at 368 (O'Connor, J., dissenting). By failing to apply the exclusionary rule, "no effective remedy is to be provided in the very case in which the statute at issue was held unconstitutional." Id. Though recognizing that the exclusionary rule is a remedy not always available when Fourth Amendment rights are violated, "the failure to apply the exclusionary rule in the very case in which a state statute is held to have violated the Fourth Amendment destroys all incentive on the part of individual criminal defendants to litigate the violation of their Fourth Amendment rights." Id. at 369. Such a precedent, the dissent maintained, will chill the development of Fourth Amendment principles.¹⁵ Id.

¶ 43. Ten years ago, the Wisconsin Supreme Court relied on Krull for nearly the same proposition at issue in this case. In Ward, 231 Wis. 2d 723, this court allowed the admission of evidence obtained by officers acting in good faith reliance on clear case law that was subsequently changed by the United States Supreme Court. Id., ¶ 3.¹⁶ We concluded as follows: "[B]ecause the officers relied, in objective good faith, upon the pronouncements of this court we hold that exclusion of the evidence would serve no remedial objective and, therefore, the evidence seized at the Ward residence should be admitted."¹⁷ Id., ¶ 63. The dissent in Ward raised issues similar to those raised by the dissent in Krull and argued by Dearborn in this case. It noted, "The majority opinion applies to any published decision of the court of appeals or this court authorizing a search when the decision is later declared unconstitutional." Id., ¶ 88 (Abrahamson, C.J., dissenting). The dissent also questioned how this decision would affect the incentives for an accused to challenge a search explicitly authorized by law. Id.

¶ 44. We can find no principled way to distinguish Krull or Ward from this case.¹⁸ Both this court and the United States Supreme Court have determined that the retroactivity rule does not bar application of the good faith exception in situations where police act in objectively reasonable reliance on settled (albeit subsequently overruled) law. As we have already explained, the officers were following the clear and settled precedent of this court; this is exactly what officers should do. Application of the exclusionary rule would have absolutely no deterrent effect on officer misconduct, while at the same time coming with the cost of allowing evidence of wrongdoing to be excluded. In short, under Krull and Ward, it is clear that applying the exclusionary rule woixld be an inappropriate remedy for the constitutional violations here.

¶ 45. We are not unmindful of the impact of the retroactivity doctrine. As the dissents in Krull and Ward recognized, the real cost to not applying the exclusionary rule when the law has been changed is that litigants may have less incentive to challenge potentially unconstitutional searches. See Krull, 480 U.S. at 369 (O'Connor, J., dissenting); Ward, 231 Wis. 2d 723, ¶ 88 (Abrahamson, C.J., dissenting). But these concerns are misplaced for at least three reasons.

¶ 46. First, under our holding today, the exclusionary rule is inappropriate only when the officer reasonably relies on clear and settled precedent. Our holding does not affect the vast majority of cases where neither this court nor the United States Supreme Court have spoken with specificity in a particular fact situation. The only litigants who will be disincentivized are the relatively small number of defendants who choose to challenge searches that have already clearly and unequivocally been held lawful. The vast majority of cases, particularly in the fact-intensive Fourth Amendment context, will not fall into this category. Moreover, we suspect that litigants are already hesitant to challenge well-settled precedent; such challenges are usually time-consuming and not worth the effort. Additionally, litigants will often feel like the facts of their case are slightly different and not squarely under the authority of settled case law. Even Dearborn in this case alleges that the search of his truck was unconstitutional under Wisconsin law before Gant, an assertion we reject for the reasons noted above.

¶ 47. Second, criminal defendants will still want to do whatever they can to increase their chances for success. It seems unlikely that convicted defendants will give up a fight to secure their freedom merely because the possibility of a material change in their conviction is low, or maybe after this case, somewhat lower.

¶ 48. Finally, criminal defendants are represented by a dedicated group of public defenders and private attorneys who genuinely care about the development of the law. Time and time again we have seen criminal defense attorneys take cases to this court, often without pay, in order to effect a particular change in the law. We doubt that our holding in this case will change this practice.

¶ 49. In sum, we are persuaded that the benefits of applying the exclusionary rule in this case are exceedingly low. The deterrent effect on officer misconduct, which is the most important factor in our analysis, would be nonexistent. For this reason, we conclude that the good faith exception to the exclusionary rule should preclude the suppression of the illegally obtained evidence in this case because the officers reasonably relied on clear and settled Wisconsin Supreme Court precedent in carrying out the search.

IV CONCLUSION

¶ 50. Prior to the United States Supreme Court's decision in Gant, this court made clear in State v. Fry and its progeny that the type of search conducted of Dearborn's truck following his arrest was lawful. However, we now accept Gant's interpretation of the United States Constitution and adopt its holding as the proper interpretation of the Wisconsin Constitution's protection against unreasonable searches and seizures. Thus, the search of Dearborn's truck violated his constitutional rights.

¶ 51. However, we decline to apply the remedy of exclusion for the constitutional violation. We hold that the good faith exception precludes application of the exclusionary rule where officers conduct a search in objectively reasonable reliance upon clear and settled Wisconsin precedent that is later deemed unconstitutional by the United States Supreme Court. Accordingly, we affirm the court of appeals and uphold Dearborn's conviction.

By the Court. — The decision of the court of appeals is affirmed.

1 State v. Dearborn, 2008 WI App 131, 313 Wis. 2d 767, 758 N.W.2d 463.

2 Dearborn was convicted of assaulting or otherwise obstructing, or resisting a conservation warden in violation of Wis. Stat. § 29.951 (2005-06), and for possession of tetrahydrocannabinols (THC) in violation of Wis. Stat. § 961.41(3g)(e) (2005-06). All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.

3 The parties also briefed and argued the question of whether Dearborn's constitutional right to a unanimous jury verdict was violated because the jury instruction given at trial for § 29.951 did not require the jury to unanimously determine that he assaulted a warden, resisted a warden, or obstructed a warden. We decline to separately address this question and affirm the decision and reasoning of the court of appeals. State v. Dearborn, 2008 WI App 131, ¶¶ 12-42, 313 Wis. 2d 767, 758 N.W.2d 463.

4 On the issue of the required unanimity in a jury verdict (see supra note 3), the court of appeals held that Wis. Stat. § 29.951 defines one crime with multiple modes of commission (assault, resist, or obstruct), rather than multiple crimes. Dearborn, 313 Wis. 2d 767, ¶ 42. Therefore, for a guilty verdict, the jury was only required to find that the defendant committed the crime, not how he committed it. Id.

5 On review before this Court, the parties agree that this issue should be heard regardless of whether it was waived.

6 The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to he searched, and the persons or things to be seized.

The text of Article 1, Section 11 of the Wisconsin Constitution is identical but for minor variances in capitalization and punctuation.

7 The only exception to this consistent tradition of interpreting the Wisconsin and United States constitutions the same in this area is our addition of two requirements to application of the good faith exception when officers rely on defective no-knock search warrants. See State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625.

8 See also United States v. Davis, 598 F.3d 1259, 1262 (11th Cir. 2010) ("We, like most other courts, had read Belton to mean that police could search a vehicle incident to a recent occupant's arrest regardless of the occupant's actual control over the passenger compartment."); United States v. McCane, 573 F.3d 1037, 1041 (10th Cir. 2009) ("Tenth Circuit precedent anteceding Gant was not an exception" to the generally accepted reading of Belton.).

9 The dissent in Fry would have given greater protections under Wis. Stat. § 986.11 and the Wisconsin Constitution; it rejected what it called the "Belton rule." State v. Fry, 131 Wis. 2d 153, 186-88, 388 N.W.2d 565 (1986) (Bablitch, J., dissenting).

10 Chief Justice Abrahamson argues that Griffith compels application of exclusion here. See dissent, ¶¶ 67-73. The United States Supreme Court disagrees with her. See Illinois v. Krull, 480 U.S. 340, 369-70 (1987) (O'Connor, J., dissenting); infra ¶¶ 40-42.

The Chief Justice fails to appreciate the difference between a constitutional violation and a remedy for that violation. See dissent, ¶ 67 n.2. The retroactivity rule requires that we apply the newly announced rule to Dearborn — this means we must conclude that the search of his vehicle was unlawful. This is a distinct question, however, from whether the remedy of exclusion is warranted.

11 See, e.g., United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009); State v. McCarty, 229 P.3d 1041 (Colo. 2010).

12 See, e.g., United States v. Davis, 598 F.3d 1259 (11th Cir. 2010); United States v. McCane, 573 F.3d 1037 (10th Cir. 2009); State v. Baker, 229 P.3d 650 (Utah 2010).

13 Much of Chief Justice Abrahamson's dissent rests on her fundamental disagreement with this most basic principle. She laments, for example, that our opinion "leaves an acknowledged constitutional violation unremedied." See, e.g., dissent, ¶¶ 54, 66. That is true; but it is true whenever the remedy of exclusion is held to he inappropriate. Her quarrel is with the law, not with our reasoning.

14 Chief Justice Abrahamson has never liked the good-faith exception to the exclusionary rule. See State v. Ward, 2000 WI 3, ¶¶ 64-91, 231 Wis. 2d 723, 604 N.W.2d 517 (Abrahamson, C.J., dissenting); State v. Eason, 2001 WI 98, ¶¶ 76-100, 245 Wis. 2d 206, 629 N.W.2d 625 (Abrahamson, C.J., dissenting).

She obviously prefers the law as it stood in 1923 following this court's decision in State v. Hoyer, 180 Wis. 407, 193 N.W. 89 (1923). Dissent, ¶¶ 80-82. That decision, however, does not reflect the current state of the law.

15 Krull was decided just three years after the delineation of the good faith exception announced in Leon, and the same year as the Court's resolution of the retroactivity issues in Griffith.

16 The clear case law relied on by the police in Ward was this court's decision in State v. Richards, 201 Wis. 2d 845, 549 N.W.2d 218 (1996), which held that no-knock entries are always permitted when police execute a search warrant for felonious drug delivery. Ward, 231 Wis. 2d 723, ¶ 40. After the search warrant was executed and Ward pled no contest, but before Ward was sentenced, the United States Supreme Court overruled Richards in Richards v. Wisconsin, 520 U.S. 385 (1997). See Ward, 231 Wis. 2d 723, ¶ 16.

17 The North Dakota Supreme Court reached the same result in State v. Herrick, 588 N.W.2d 847 (N.D. 1999).

18 Chief Justice Abrahamson asserts that she can distinguish these cases, but we can find no discernible principle emerging from her writing. See dissent, ¶ 96. Her argument appears to boil down to attempts at factual distinctions without a difference. Ward in particular is a mirror image of this case. But it does not uphold Chief Justice Abrahamson's vision for the exclusionary rule, and thus, it appears she will not abide by its rule.