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No Probable Cause - No Bank Records, Wis. High Court Rules

A divided Wisconsin Supreme Court has ruled that bank records the police obtained without probable cause and incriminating statements a woman made after being confronted with the documents cannot be used in court.

In a 5-2 vote the high court said suppression was appropriate even though applicable state law does not expressly provide for exclusion of the evidence.

According to the record, Michelle Popenhagen worked at a Wisconsin grocery store.

While investigating the crime but before filing a complaint, the district attorney secured three subpoenas to compel the production of Popenhagen's bank records.

Although a police officer filled out an affidavit in support of the subpoenas, neither the district attorney nor the police included an affidavit showing probable cause, the opinion said.

The Oneida County Circuit Court approved the subpoenas without a finding of probable cause.

According to the opinion, the district attorney's office later admitted that it cited the wrong statute in drawing the subpoena.

The police received the bank records and used them while questioning Popenhagen about the alleged theft. She made incriminating statements when confronted with the records, the opinion said.

During her theft trial Popenhagen moved to suppress the records and her statements made during the police interrogation. The trial court granted the motion.

The court noted that both the Fourth Amendment and the Wisconsin Constitution provided Popenhagen with a right of privacy in her bank records.

The state appealed, and a divided Wisconsin Court of Appeals reversed, finding that suppression was not available as a remedy for a violation of the law, which requires a showing of probable cause before a court may issue a subpoena.

Popenhagen turned to the state Supreme Court, which reinstated the trial court's ruling.

After an exhaustive examination of the statute's wording the majority concluded that evidence obtained in violation of the law may be suppressed to achieve the statute's objectives, even though it does not expressly provide for suppression or exclusion of evidence.

Therefore, the trial court did not err in ordering suppression of the bank documents, the high court majority said.

Finally, the court determined that Popenhagen's incriminating statements made when the police confronted her with her bank records also should be suppressed.

"It is absurd and unreasonable to allow the state to use incriminating statements derived directly from the subpoena and to gain an advantage by violating the statute," the majority said.

Justice Patience Drake Roggensack dissented, saying that appellate court precedent precludes suppressing the bank records and subsequent incriminating statements.

The statute does not authorize suppression of the bank records, and neither the U.S. nor the Wisconsin constitutions provides a privacy right in the records.

The majority based its ruling on interpretation of the statute and failed to delve into the constitutional issues concerning banks' obligations, Justice Roggensack said.

To comment, ask questions or contribute articles, contact West.Andrews.Editor@Thomson.com.

To comment, ask questions or contribute articles, contact West.Andrews.Editor@Thomson.com.

Popenhagen is represented by James Connell of Crooks, Low & Connell in Wausau, Wis.Counsel for the state is Assistant Attorney General James Freimuth.