Justice Shirley Abrahamson (right) is questioning the involvement of recently appointed Justice Rebecca Bradley (left) in a 4-3 Wisconsin Supreme Court decision that expanded police search and seizure authority. Credit: Journal Sentinel files

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In a 4-3 decision, the Wisconsin Supreme Court has again broadened an exception to allow police to seize and use evidence obtained from private places without the owner's consent to a search warrant.

The dissent called the majority's interpretation so broad as to "swallow the Fourth Amendment," which protects against unreasonable searches and seizures.

The decision Wednesday was also notable in that Justice Rebecca Bradley joined the majority that reversed the Court of Appeals, even though she had not heard arguments in the case, which occurred before her appointment Oct. 9 by Gov. Scott Walker.

She replaced Justice Patrick Crooks, who died in his court chambers Sept. 21, and she is now running for election to a 10-year term against two challengers, Court of Appeals Judge JoAnne Kloppenburg and Milwaukee County Circuit Judge Joseph Donald.

In a dissent, Justice Shirley Abrahamson wrote that when Crooks died, the court had heard oral arguments in, but had not decided, nine cases. It heard arguments in another seven after Crooks' death but before Bradley's appointment. The court had not decided any of the 16 cases when Bradley joined the court, Abrahamson wrote.

Since then, five of the cases have been decided, and Bradley did not participate in any of them. Having Bradley vote in Wednesday's case, Abrahamson said, seems inconsistent with past practice.

Without Bradley's vote, the result would be 3-3, and the Court of Appeals decision, that the evidence should be suppressed, would stand.

"No precedent appears to exist in the United States Supreme Court or in this court for a new justice who did not participate in oral argument to participate in the case without re-argument," she wrote.

Bradley, in a later interview, said her own research found no rule or precedent to prohibit her from deciding cases argued before she was seated, or one suggesting the approach endorsed by Abrahamson, that sitting justices should vote whether to rehear a case with the new member.

"It was surprising to me there isn't a procedure for this situation," she said.

She said she listened to recordings of the oral arguments and so has the same information the other justices have to make her decision.

Deciding cases of statewide importance is her job, she said. The reason she did not participate in an earlier case that deadlocked 3-3, regarding public records law, was that it was on a direct certification from the Court of Appeals, and the tie vote only sent it back to that court for a decision.

In Wednesday's case, she said, the tie would have let the Court of Appeals decision stand without any Supreme Court decision on the issue. "Our opinions aren't just for the parties, they become guidance to anyone who might be affected" by the issues statewide and in the future, she said.

Bradley seemed to suggest, but would not confirm or deny, that she intends to participate in some of the other cases that were argued to the court before she joined. "I just can't talk about pending cases," she said.

The case decided Wednesday involved a Kenosha police action in 2012. Officers went to Charles Matalonis' house to investigate a possible beating of his brother, who was found bloodied at a nearby residence.

Matalonis let them in and admitted fighting with his brother. Officers saw blood throughout the apartment, and some marijuana, a grinder, a pipe and a bong.

Matalonis refused to grant the officers permission to enter a locked bedroom. The officers said they would break the door down if Matalonis did not produce the key.

At some point, officers found the key, entered the room and found evidence of a marijuana growing operation. Matalonis was charged with manufacture of marijuana and moved to suppress the evidence.

The Court of Appeals agreed the search was unreasonable.

But writing for the Supreme Court majority, Justice Annette Ziegler found that police were not investigating a crime but exercising their "community caretaker" function by checking to make sure no other injured people were in the house.

Justice David Prosser, often seen as part of the court's conservative block, has repeatedly joined Abrahamson and Justice Ann Bradley in dissents that support more limits on the "community caretaker" exception to getting a search warrant.

He wrote the main dissent, again joined by Abrahamson and Ann Bradley, who is not related to Rebecca Bradley. Prosser observed that by the time officers entered the locked room, some 20 minutes or more after they had been in the house, there was little reason to suspect someone else was in the bedroom, but plenty of reason to suspect it might house marijuana.

The "majority's embrace of a broad, ever-expanding version of the exception risks transforming a shield for evidence encountered incidental to community caretaking into an investigatory sword."