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Search Warrants – Probable Cause – Right to Challenge Credibility of Informant

State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey

Issue: Whether Stank was entitled to an evidentiary hearing, relative to the credibility of the informant, in support of his attack on probable cause for the search warrant.

Holding:

¶30      We hold that Stank was not entitled to such a hearing. In Morales v. State, 44 Wis. 2d 96, 102-03, 170 N.W.2d 684 (1969), our supreme court held that a defendant could not challenge the credibility of the witness upon whose testimony the court relied in issuing the search warrant. …

¶31      Like the defendant in Morales, Stank relies primarily on testimony adduced at the trial and evidence that the witness testifying in support of the search warrant had a personal vendetta against him and other incentives to lie on behalf of law enforcement. …

¶32      We note that Franks does entitle a defendant to an evidentiary hearing when he or she can make a preliminary showing that a witness deliberately lied or testified with disregard for the truth of his or her statements. See also State v. Mann, 123 Wis. 2d 375, 385-89, 367 N.W.2d 209 (1985) (extending Franks to material omissions of fact that are the equivalent of deliberate falsehoods or reckless disregard for the truth). Here, however, that case is inapposite. Defense counsel expressly agreed with the trial court’s observation that he was not pursuing a Franks-Mann motion but rather merely sought to impeach Oehler’s credibility.

 

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