In Custodian of Records v. State (2004), the Wisconsin Supreme Court cautioned that the “power wielded by the government is considerable,” creating “a potential for infringing on Fourth Amendment and other constitutional rights.” This was not a perfunctory observation buried in an analysis of other issues. It followed a six-page discussion under the heading “Fourth Amendment principles,” crafted to support the decision’s conclusion that the State’s quest for evidence of criminal activity was “unreasonable” in the case at bar. Not only that, the majority opinion saw fit to marshal its Fourth-Amendment arguments despite the fact that neither of the contending parties even mentioned the amendment in their briefs.
Were this not enough to encourage nascent criminal-defense lawyers to feature Fourth-Amendment arguments wherever possible, any remaining doubt might have crumbled upon learning the identity of the decision’s author—Justice Roggensack, one of the court’s most conservative members. If even she saw fit to rely so heavily on the Fourth Amendment to shield citizens from an aggressive search by the state, surely the court would approve Fourth Amendment protections in other cases as well. And yet, a perusal of the court’s decisions over the past nineteen terms (1995-96 through 2013-14) suggests that few arguments have less chance of success than appeals invoking the Fourth Amendment.
During this 19-term period, the court heard 81 cases in which the Fourth Amendment generated at least one of the issues presented, and in only 10% of these cases did the court rule favorably on the defendants’ Fourth-Amendment arguments. In the most recent six terms (2008-9 through 2013-14), during which the court’s current members have all served together, this figure dropped to 7% (2 “favorable” rulings out of a total of 30 Fourth-Amendment cases). As one might expect, Fourth-Amendment appeals fared better during the four terms in which Justice Butler joined the court (2004-5 through 2007-8), but even here the “success” rate was only 17% (2 out of 12 cases)—and over the preceding 9 terms (1995-96 through 2003-4) it was only 10% (4 out of 39 cases).
To appreciate how low these percentages are, consider the “success” rates in criminal cases of all types (Fourth-Amendment and all other criminal cases taken together). Over our 19-term period, the court heard 449 criminal cases, of which 25% (114 cases) resulted in decisions favorable to the defendants—fully two and a half times the 10% “favorable” rate for Fourth Amendment arguments alone. Of the 120 criminal cases heard during the six most recent terms, 13% (16 cases) yielded decisions that favored defendants—nearly twice the 7% rate of “favorable” outcomes for Fourth-Amendment appeals over the same period. This information appears in Table 1, along with comparable figures for the “Butler years” and the preceding 9 terms, all of which suggest that cases relying on Fourth-Amendment arguments faced a considerably stiffer challenge than criminal cases generally.
|Terms||% of all criminal cases resulting in favorable rulings for defendants||% of Fourth-Amendment cases resulting in favorable rulings|
|2008-9 through 2013-14||13% (16/120)||7% (2/30)|
|2004-5 through 2007-8||28% (21/75)||17% (2/12)|
|1995-96 through 2003-4||30% (77/254)||10% (4/39)|
|Total for all 19 terms||25% (114/449)||10% (8/81)|
Just as dramatic is the difference in voting tendencies among individual justices. For instance, Table 2 indicates that Justices Abrahamson, Butler, and Bradley accepted Fourth-Amendment arguments in over 60% of their votes. The fact that only 17% of Fourth-Amendment decisions favored defendants during Justice Butler’s tenure demonstrates how wide the gulf was between these three justices and the other members of the court on this issue.
Regarding the current justices, it is interesting to note that Justice Prosser, often labeled a conservative, voted in favor of Fourth-Amendment arguments at two and a half times the rate of Justice Crooks, more commonly characterized as a “swing vote” than a conservative in the press. Finally, the gap between Justices Abrahamson and Bradley on the one hand (accepting 72% and 63% of Fourth-Amendment arguments, respectively) and Justices Ziegler (6%), Gableman (3%), and Roggensack (2%) is enormous. I do not recall any other issue in previous SCOWstats posts where the difference in voting rates between current “liberal” and “conservative” justices has been so stark.
|Justices||% of cases in which individual justices favored the Fourth Amendment arguments presented by defendants (1995-96 through 2013-14)|
Given a judicial climate so inhospitable to Fourth-Amendment arguments, how should one explain the court’s hearty endorsement of Fourth-Amendment protection in Custodian of Records v. State, where neither party addressed the amendment at all? This seems to have puzzled Justice Abrahamson, who wondered if “[m]aybe something was in the air, or water …”
In this instance, perhaps one could seek an answer in the nature of the people threatened by the State’s demands. They were not accused of possessing heroin or child pornography. Instead they were unnamed Wisconsin State legislators, suspected by the Dane County District Attorney of illegal activity in connection with the political caucuses of that period. Hence the John Doe subpoena for a sweeping array of legislative communications, which the court found overly broad and thus an unreasonable search under the Fourth Amendment. (Justice Abrahamson, by the way, agreed that the subpoena was too broad but maintained that this conclusion could, and should, have been reached from the arguments briefed by the parties.)
There may well be additional explanations for such an ardent embrace of the Fourth Amendment by a majority of justices normally disinclined to apply it, and I would be grateful for any conjectures that readers can offer.
 The category “all criminal cases” encompasses all cases whose numbers end with the CR suffix, except for those resulting in per curiam decisions or (in five instances) decisions that were difficult to regard as either favorable or unfavorable for the defendants. Also, it should be noted that four of the Fourth-Amendment cases do not have CR suffixes and thus would not be included in the “all criminal cases” calculations. However, their number is so small that their absence from the “all criminal cases” category has virtually no effect on the percentages in Table 1.
 On rare occasions, a justice would accept a Fourth-Amendment argument but affirm a defendant’s conviction for other reasons. In State v. Subdiaz-Osorio, for instance, Justice Bradley concluded that, in the context of the Fourth Amendment, the warrantless search conducted in the case should not have been regarded by the circuit court as justified. Thus I categorized her opinion as favoring a Fourth Amendment argument—even though she concluded that the circuit court’s error did not contribute to the defendant’s conviction.
Custodian of Records v. State is not included in these calculations, because neither of the parties argued or briefed the Fourth Amendment.
Justice Day is not included in the table because the data cover only his last term (1995-96) on the bench.
 It would be interesting to know if Fourth-Amendment arguments have fared differently in Wisconsin’s lower courts, despite their chilly reception in the Supreme Court.