State v. Juan A. Casarez, 2008 WI App 166
For Casarez: Adam C. Essling
¶12 Although Casarez concedes the affidavit establishes probable cause that he committed a crime, he asserts that it contains no evidence to establish that a crime was committed at his home, that the gun was ever observed at his home, or that he was ever seen with the gun at his home. He also points out that the police stopped his vehicle ten minutes after the shooting; and, thus, there would have been no time for him to go to his home.
¶13 The dispositive issue, therefore, is whether the affidavit sufficiently averred that the objects sought were reasonably thought to be linked to the commission of a crime. Here, the objects sought included: “the location of ammunition, gun cleaning products, receipts related to the purchase and possession of firearms, ammunition, gun case, and other evidence relating to establishing dominion and control in the possession of firearm(s) by” Casarez. The crimes being investigated were first-degree recklessly endangering safety while armed and felon in possession of a firearm.
¶15 Under the circumstances here, it was reasonable for the police to continue the investigation. Although the police had recovered the gun and apprehended potential suspects of the shooting, the fact that there were three individuals in the car when the gun was recovered presented potential issues with proof of who committed the crime. The witnesses had described Casarez as the shooter, but the gun was found under the seat of Sosa. Sosa told police that Cornelius was the one who had the gun and passed it forward when the police stopped their car. Given the standard of proof, requiring the State to prove its case beyond a reasonable doubt, it was not unreasonable for the police to seek further evidence to prove the crimes being investigated.
State v. Christopher D. Sloan, 2007 WI App 146 (insufficient “nexus” between package and its return address), distinguished, ¶¶17-18. Broad language re gun-related crime: reasonable to infer arrestee’s residence will contain “gun-related materials,” ¶20; mitigated, though, by separate observation that court disdains “bright line” approach, and seemingly limiting case to facts, namely potential significant doubt as to, and need to confirm, gun ownership, ¶16. The concurrence, to be sure, dissociates itself from ¶16 (¶¶21-22), but given that the dissent (¶¶23-29) sees an insufficient nexus altogether, it’s safe to say that ¶16 commands majority support. Whether you can actually square ¶16 with the idea of no bright-line rule (the dissent says you can’t, ¶28) is quite something else. But at least it provides lip service for that idea.
Also see U.S. v. Williams, 544 F. 3d 683 (6th Cir No. 06-2018, 10/16/08), for discussion re: nexus requirement (“we join other circuits which have held, in cases involving a variety of suspected crimes, that an issuing judge may infer that a criminal suspect keeps the ‘instrumentalities and fruits’ of his crime in his residence”). The dissent in that case argues the Richards v. Wisconsin rejection of categorical approaches, but the majority disavows reliance on such approach; and that specific dispute underscores the point that the nexus in that case was established by evidence that Williams not only possessed multiple guns but had used them recently. Support for a nexus in Casarez is much thinner; whether it therefore as a practical matter establishes a categorical rule, pace the majority, remains to be seen.