Commentary: Court orders new suppression hearing.

• Author: Ziemer, David

Byline: David Ziemer

A prior court's ruling on a suppression motion does not prevent relitigation of the validity of a search in a later case, even though the facts, parties, and issues are all identical.

That holding by the Wisconsin Court of Appeals may be correct for this particular case, but not for the reason given by the court.

The court's blanket holding fails to recognize that the key consideration should be whether there was an opportunity to appeal the suppression ruling.

The defendant, Heath N. Wasserman, was charged with possession of a firearm by a felon in 2003. Wasserman moved to suppress the gun, but after a two-day hearing, the circuit court denied the motion.

The case was later dismissed, without prejudice, upon the state's motion, due to the unavailability of a witness.

The state then re-filed the charge, and again, Wasserman moved to suppress the gun.

The state argued that the admissibility of the gun had already been decided, and need not be relitigated. Milwaukee County Circuit Court Judge Jeffrey A. Kremers agreed.

After pleading no contest, Wasserman appealed the circuit court's refusal to consider his suppression motion, and the Court of Appeals reversed, in an opinion by Judge Ted E. Wedemeyer, Jr.

Addressing issue preclusion, the extent of the court's analysis was as follows:

Because the first case was dismissed without prejudice, and there was no decision on the merits, [issue preclusion and other theories] do not preclude a second suppression hearing. ... Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995)('Issue preclusion refers to the effect of a judgment in foreclosing relitigation in a subsequent action of an issue of law or fact that has been actually litigated and decided in a prior action.)(emphasis added by court).

The problem with the court's discussion of issue preclusion is that the doctrine of issue preclusion no longer requires that the holding on the issue be essential to a final judgment.

The suppression motion was actually litigated and decided. Based on the very standard set forth in the opinion, Wasserman should not be allowed to relitigate the issue, contrary to the conclusion.

Actually, the ultimate result is correct. For all practical purposes, Wasserman never had an opportunity to appeal the denial of the first suppression motion.

In addition to the core question in analyzing the issue preclusion doctrine -- was the issue actually litigated and decided? --...