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Abstract

Criminal cases involving novel digital evidence warrants often raise constitutional and suppression issues. As these constitutional issues become harder to resolve, resolution of the suppression issues becomes easier to predict. Where officers obtain warrants to use cutting-edge investigative techniques in the absence of any legal authority, it is unlikely that evidence obtained pursuant to those warrants will be suppressed under the exclusionary rule. Even if the exclusionary rule were “triggered,” the good faith exception would likely apply to preclude suppression. Either way, the outcome is clear: suppression is unlikely.

Confidence in the outcome of these suppression issues has seemingly taken precedence over the process for resolving them. When confronted with constitutional and suppression issues, courts tend to disagree on whether to resolve the underlying constitutional issue before addressing suppression and, further, on whether to deny suppression on exclusionary rule or good faith exception grounds. Failure to resolve the constitutional issue or follow a consistent path to exclusion, however, impedes the development of law.

This Comment therefore urges Wisconsin courts to use the proposed process for resolving constitutional and suppression issues in cases involving novel digital evidence warrants like geofence warrants. Namely, courts should make every attempt to resolve the underlying constitutional issue before addressing the suppression issue. Further, when addressing these suppression issues, Wisconsin courts must consider the exclusionary rule’s applicability before turning to a good faith inquiry. By helping Wisconsin courts navigate a confusing path intertwined with overlapping policies, this Comment aims to provide clarity for law enforcement, attorneys, and courts and, ultimately, to preserve the integrity of article I, section 11 of the Wisconsin Constitution.

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