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Alleged omissions from search warrant application didn’t invalidate warrant

State v. Calvin Lee Brown, 2018AP766-CR, District 1, 4/9/19 (not recommended for publication); case activity (including briefs)

Brown challenged a search warrant that was executed at his home, arguing the police omitted information about J.R.R., an informant who was cited in the warrant application, and that the information provided reason to doubt J.R.R.’s credibility. The court of appeals rejects the challenge.

The circuit court denied Brown a Franks/Mann hearing, which is required when a defendant makes a “substantial preliminary showing” that the search warrant affidavit omitted undisputed facts that are critical to the determination of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978); State v. Mann, 123 Wis. 2d 375, 385-89, 367 N.W.2d 209 (1985). The court of appeals agrees with the circuit court that a Franks/Mann hearing wasn’t required:

¶14     We conclude that Brown has failed to make a “substantial preliminary showing” that the omitted information about J.R.R. was critical to a probable cause determination. See Franks, 438 U.S. at 155-56. The information included in the affidavit supports a commonsense, practical determination of a fair probability that evidence of Brown’s crimes would be found in his residence. [Detective] Stachula and other officers corroborated J.R.R.’s allegations about Brown’s connection to the residence, prostitution, and drug-related activities. Following Stachula’s conversation with J.R.R., Stachula requested surveillance of Brown’s property. West Allis police observed a vehicle, registered to Brown, parked outside of the property. Police also observed people exiting the residence and entering the vehicle. When police stopped the vehicle, the officers saw Brown in the driver’s seat, Miller in the front passenger’s seat, and “T.B.,” a person whom J.R.R. identified as being involved in prostitution at the residence, in the back seat. Brown told the officers that he resided at the residence. J.R.R. also told Stachula that Miller posted pictures of her on a prostitution website while J.R.R. was unconscious and J.R.R. provided Stachula with the specific phone number associated with prostitution activity at the residence. West Allis police found multiple advertisements on the website associated with the phone number J.R.R. provided, including advertisements with a picture of J.R.R. lying in a bed in her underwear, pictures of T.B., and a picture of Miller. The dates and the content of the advertisements corroborated J.R.R.’s statements to Stachula. Finally, J.R.R. told Stachula that Brown provided her with heroin and cocaine and described how and where Brown stored the drugs.

¶15     We agree with the State that “[t]he officers’ corroboration of [J.R.R.]’s statements through surveillance, a traffic stop, record checks, and an examination of the [website] advertisements significantly enhanced the observational reliability of [J.R.R.’s] detailed allegations.” The information in the affidavit was accurate, corroborated, and sufficient for a magistrate to determine probable cause. Based on the totality of these circumstances, the omitted information was not critical to a probable cause determination.

The court of appeals withdrew the original decision in this case on March 20th and reissued it today. The difference between the 2 decisions is not clear to On Point.

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