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Search and seizure — validity of search warrant: staleness of probable cause; overbreadth

State v. Diane M. Millard, 2012AP2646-CR, District 2, 7/17/13; court of appeals decision (1-judge; ineligible for publication); case activity

A search warrant was supported by probable cause because the two events cited in the warrant request–a controlled heroin buy in January 2011 and a garbage search in July 2011 revealing “a small, circle shaped screen with burnt [THC] residue on it” (¶2)–were not too far apart in time or too distinct in nature:

¶9        Regarding the staleness challenge, the two drug-related events show protracted drug activity. Given these underlying circumstances, the information provided a substantial basis for issuance of the warrant. It was reasonable for the circuit court to infer from the evidence before it that there was long-term drug activity going on. We cannot say that the evidence before the circuit court was clearly insufficient to support the warrant. We conclude that the circuit court had a substantial basis to believe that controlled substances were located in the Millard residence on the day of issuance, based on the heroin buy and the subsequent refuse-exam marijuana screen, and therefore the decision to issue the warrant was justified.

Nor did this thin gruel of probable cause go stale by the time the warrant was executed. The warrant was issued the day after the THC residue was found and was executed four days after it was issued. (¶¶2-3). This execution was within the five-day time frame in § 968.15(1) and Millard failed to show under State v. Edwards, 98 Wis. 2d 367, 376-77, 297 N.W.2d 12 (1980), that probable cause had dissipated by the time the warrant was executed. (¶¶10-11).

Finally, the seizure of a prescription pill during the execution of the warrant was lawful under Myers v. State, 60 Wis. 2d 248, 261, 208 N.W.2d 311 (1973):

¶14      All four prongs in Myers are met here. First, the officers discovered the evidence during a lawful search pursuant to a warrant. Second, the evidence provided a connection to criminal activity. Prior to the search there had been heroin and marijuana activity at the house. It was reasonable to believe the lone pill, in a container with no label or prescription, found in a jewelry box with a marijuana pipe, was related to criminal activity. Third, the police discovered the pill in an area searchable pursuant to the warrant because the warrant allowed officers to search the home. Fourth, they found the pill while searching for marijuana and heroin. It was reasonable to look in the jewelry box because this was a location where drugs could be stored.

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