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Wisconsin search warrants may be unconstitutional

Most people would assume that the police are only allowed to search your home if a judge has found that there is probable cause to do so. However, Wisconsin has actually allowed court commissioners to sign search warrants since 1977. These commissioners are not judges and do not hold elected office as do judges. Instead, they are lawyers appointed by judges.

The Wisconsin State Supreme Court is set to decide whether this Wisconsin practice is constitutional. From a criminal defense standpoint, the ruling by the Wisconsin Supreme Court may affect many people who have been accused of crimes based on search warrants that may have been improperly obtained.

For example, one Wisconsin man is currently facing sexual assault charges and mistreatment of animals. The evidence against him was obtained from search warrants that were not issued by a judge. He, like others in his situation, argues that the delegation of the issuance of search warrants to those other than elected judges is unconstitutional.

They argue that searching someone's home is one of the most intrusive acts that the government can perform. As a result, they believe that a search and seizure is only constitutionally allowed after a judge makes a determination that there is probable cause to do so.

If the practice of allowing lawyers, and not judges, to sign search warrants is found to be unconstitutional in Wisconsin, then this may have widespread implications both for those people currently facing criminal charges, as well as those who have been convicted based on evidence gathered under an unconstitutional search warrant.

Source: Journal Sentinel, "State Supreme Court to decide who can issue search warrants," Bruce Vielmetti, Sept. 26, 2011

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