State v. Adrian J. Jackson, 2008 WI App 109
For Jackson: Craig S. Powell; Brian Kinstler
Issue: Whether a warrant established probable cause to search either the entirety of a multi-unit residential building.
¶19 The magistrate was told only that the informant saw Jackson with two guns “at the residence of 4124 N. 21st Street” and that a booking record shows Jackson used that address eight months earlier. Nothing in the Affidavit states that Jackson had been observed using both of the two-story duplex units, or that the two-story duplex is actually a single family residence. Inferring from the limited information provided in the Affidavit that a two-story duplex was actually a single family residence, or that Jackson actually lived in both units, would be only speculation. While a magistrate is permitted reasonable inferences from the information presented, “‘the finding cannot be based on the affiant’s suspicions and conclusions, the magistrate may make the usual inferences reasonable persons would draw from the facts presented.’” Ward, 231 Wis. 2d 723, ¶27 (quoting Bast v. State, 87 Wis. 2d 689, 693, 275 N.W.2d 682 (1979)).
¶22 The Affidavit contained nothing suggesting the duplex was anything other than a two-family residential building. That Jackson may have used an address common to both units of the duplex in no way particularizes his residence to a specific unit. Nor does use of an address common to more than one unit of a building permit the reasonable inference that the duplex was actually a one-family residence. If one person’s use of a common address in a multi-unit building permitted the reasonable inference that this person occupied the entire building, then a search warrant for a person using the address of 633 West Wisconsin Avenue, Milwaukee, Wisconsin, would permit search of all units in that building. The Fourth Amendment does not cast so wide a net. …
¶24 While a single warrant may identify different residences within a single building, still probable cause must be shown for searching each residence unless the information supporting the warrant provides probable cause to believe that although appearing to be a multi-unit building, the entire building is actually being used as a single unit. See Hinton, 219 F.2d at 326.
It is worth considering the dissent’s explanation of the holding:
¶31 Although the Majority concedes that we may not look outside the affidavit, the Majority does so in holding that the word “duplex” meant that the two-story building at 4124 North 21st Street was a “multifamily residence,” and that therefore the affidavit should have specified for which “unit” the search warrant was sought. Majority, ¶1. There is nothing in the affidavit, however, that says 4124 North 21st Street was a “multifamily residence.” The affidavit merely says that it was a “duplex” that had but one address. The Majority, however, interposes a dictionary definition and holds as a matter of law that in every case a description of a building as a “duplex” invariably means that the building is a two-unit structure where the units are as separate from each other as were the two Berlins before the wall was torn down. But, of course, that is not always the case; indeed, that was not the case here because Jackson shared the “duplex” with his mother. (I mention this not, as the Majority says in footnote 7, to add gloss to the affidavit submitted in support of the search warrant, but to demonstrate that the Majority’s iron-clad presumption about the living arrangements in a building that is structurally a duplex is wrong.)