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Search Warrant – Erroneous Information in Application; Search Warrant – No-Knock Authorization

State v. Nick E. Sammon, District 2, 2011AP682-CR, 7/25/12

court of appeals decision (not recommended for publication); case activity

Search Warrant – Erroneous Information in Application

A detective’s application for a search warrant of Sammons’ residence asserted that Sammons had been convicted in Texas for drug and burglary offenses (in fact, both had been dismissed after deferred adjudication of guilt). The assertions in the warrant application were based on the NCIC database, which listed the burglary as a conviction, and the drug disposition as “unknown.” The detective followed up the latter with the DEA, which informed him that the disposition was a conviction. The trial court found that these inaccuracies had not been included either intentionally or with reckless disregard for the truth. The court of appeals now affirms, because “law enforcement checked and double-checked its information as to one of the offenses and had no reason to believe that the information on the other offense was ambiguous,” ¶1. Franks v. Delaware438 U.S. 154, 155 (1978), discussed and applied.

¶11      Regarding the NCIC listing two convictions, Sammon points out that the NCIC report listed one “unknown” disposition, which the DEA thereafter confirmed (inaccurately) as a conviction. Sammon then contends that the information about the conviction is not attributable to the NCIC report and the detective was wrong to say that it was.  We agree that this was a technical misstatement on the detective’s part.  But we do not see the error as problematic.  As the Supreme Court stated in Franks, the truthful showing required by the Fourth Amendment

does not mean “truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true.

Franks, 438 U.S. at 164-65.  In this instance, while the detective’s lack of precision as to the source of his information may have been negligent, it does not rise to the level of intentional misstatement of fact or reckless disregard for the truth.  See Anderson, 138 Wis. 2d at 463.  We note that the NCIC report was the original source of the information in the sense that it listed the arrest and prompted the detective to take steps to verify a conviction elsewhere.  The splitting of fine hairs by the defendant will not carry the day on this issue.

Search Warrant – No-Knock Authorization 

No-knock entry upheld, State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625, discussed and applied:

 ¶14      Sammon complains that the affidavit did not contain any particularized showing that Sammon was dangerous or violent, that he intended to protect his drug dealing, or that Sammon would quickly destroy the items the affidavit indicated might be in his home.  We disagree. The affidavit consisted primarily of the detective’s summary of statements made to him by Sammon’s wife and Metro 584.  Sammon’s wife outlined the presence of chemicals and equipment commonly used to manufacture methamphetamines, and she expressed suspicion and concern for her safety and that of her young child because her husband was using drugs.[6]  Furthermore, Metro 584 stated that Sammon had six to eight firearms in his home and appeared to be high on narcotics on one occasion.  Finally, the detective averred, based on his training and experience, that methamphetamine users tend to have aggressive and violent tendencies.  Based on all of that information, with or without the alleged felony convictions, there was reasonable suspicion that knocking or announcing police presence would be dangerous.[7]

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