Pubdate: Wed, 28 Nov 2001
Source: Milwaukee Journal Sentinel (WI)
Copyright: 2001 Milwaukee Journal Sentinel
Contact:  http://www.jsonline.com/
Details: http://www.mapinc.org/media/265
Author: Dennis Chaptman, of the Journal Sentinel staff
Bookmark: http://www.mapinc.org/area/Wisconsin

SUPREME COURT UPHOLDS DRUG CASE RULING

Search Warrant Evidence Suppressed For Lack Of Signature

Madison - A Racine County judge was right to suppress drug case
evidence obtained by a search warrant tarnished by an investigator's
inadvertent error, the state Supreme Court ruled Tuesday.

The case involved Wilton Tye, 38, who was charged with heroin
possession and maintaining a drug house after Racine police searched
his home on June 28, 1999, seizing heroin and evidence of drug
packaging and sales.

But the warrant needed to be accompanied by a signed affidavit by Mark
Tharinger, a 30-year veteran of the department, supporting its
issuance by Circuit Judge Dennis Flynn.

Neither Tharinger, the prosecutor nor Flynn noticed that Tharinger had
failed to sign the affidavit. When Tharinger discovered the oversight,
a second affidavit was prepared and signed, but it didn't pass
judicial muster.

Circuit Court Judge Emily Mueller suppressed the evidence that the
warrant produced, saying the signed affidavit was so basic that it
could not be seen as a technical oversight.

In a unanimous opinion written by Chief Justice Shirley Abrahamson,
the high court agreed.

"An oath is a matter of substance, not form, and it is an essential
component of the Fourth Amendment," Abrahamson said, adding that the
affidavit "preserves the integrity of the search warrant process."

Abrahamson traced Wisconsin's affidavit requirement back to the
territorial legislature in 1839, and said that both legislation and
the state constitution in subsequent years have supported it.

The court also rejected the second affidavit as a way around the
paperwork problem, saying that the swearing of such an oath after a
search is executed guts the constitutional requirement for an affidavit.

"We will not create such a remedy for the total absence of an oath or
affirmation required by the federal and state constitutions,"
Abrahamson wrote.

Racine attorney Mark Richards, who represented Tye, said the case was
unique.

"It's never going to happen again, for a police officer, a prosecutor
and a judge to fail to notice," Richards said.

Assistant Attorney General William Gansner, who argued to allow
introduction of the suppressed evidence, said he could not find any
similar cases in Wisconsin.

"It is an extraordinarily unusual case," Gansner said. "It will serve
a public purpose of making sure that the procedural requirements are
followed in every case. It was a simple mistake by a very experienced
judge and a very experienced investigator." 
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MAP posted-by: Richard Lake