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Search Warrants – Staleness – Drug Transaction, 30 Days Old

State v. Michael Anthony King, 2008 WI App 129
For King: Mark S. Rosen

Issue/Holding: Search warrant based on drug transaction occurring 30 days earlier lacked probable cause, ¶32 n. 7:

… From our review of the record, it would appear that probable cause as to the search of his residence was stale. The most recent information directly tied to King was thirty days old. To minimize the effect of this delay, the State pointed out that the affidavit in support of the warrant referred to over thirty individuals involved in the narcotics ring and detailed intercepted phone calls between Caraballo and other individuals, which took place within five days of when the warrant was issued. Details of the calls that took place within five days of the warrant’s issuance, however, make no mention of King. While we acknowledge that the “‘totality of the circumstances’” are to be considered, see Falbo, 190 Wis. 2d at 337 (citation omitted), there is nothing in the affidavit to support the combining of the older information pertinent to King with the newer information, in order to establish probable cause as of the date of the warrant’s issuance, cf. State v. Moley, 171 Wis. 2d 207, 213-14, 490 N.W.2d 764 (Ct. App. 1992) (concluding that a 1990 tip received by a detective, which was old information, combined with an aerial identification of marijuana plants the following year, i.e., new data, supported the inference that marijuana was growing on the property during the 1991 growing season and established “present probable cause”).

For a warrant to have been properly issued for King’s residence, more than “mere suspicion” was required to establish probable cause. See State v. Kiper, 193 Wis.  2d 69, 81, 532 N.W.2d 698 (1995). Although the affidavit details various items that narcotics traffickers commonly keep in their residence, it offers no explanation as to why, despite the lapse of thirty days from the last information directly linking King to Caraballo and despite the fact that law enforcement had not verified King’s address, evidence of criminal activity would nevertheless be present there. We cannot conclude that “a practical, commonsense decision” would have led to the conclusion that probable cause was sufficient as to King’s as-yet-to-be-verified residence. See State v. Ward, 2000 WI 3, ¶23, 231 Wis. 2d 723, 604 N.W.2d 517. Thus, the lack of probable cause is yet another basis on which the warrant could have been invalidated.

 

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