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Warrants – “Franks”

State v. Jeffrey L. Loranger, 2002 WI App 5, PFR filed 1/22/02
For Loranger: Richard B. Jacobson, James C. Murray

Issue: Whether the search warrant was based on intentionally or recklessly false averments, Franks v. Delaware, 438 U.S. 154 (1978).

Holding:

¶23. Viewing the totality of the circumstances, we conclude that the issuing court commissioner had a substantial basis for concluding that probable cause existed. We agree with Loranger that the comparative statistics regarding Loranger’s versus the ‘average’ use of electricity could have been more specific. Not knowing exactly when or where the ‘average’ figures were extracted diminishes their value. Loranger does not challenge the veracity, however, of the information that was provided. The affidavit alleged that the average monthly kilowatt hour usage for Loranger’s residence was 1464 kilowatt hours per month. This was more than double each of the comparative averages provided in the affidavit. It would not be unreasonable to infer that a disparity of 100% is unlikely to be explained based upon the year or what part of the state the statistics came from. Although these statistics would not be sufficient to support a finding of probable cause on their own, see United States v. Field, 855 F. Supp. 1518, 1520 (W.D. Wis. 1994), they are supported by the results of the thermal imaging scan, which were consistent with the heat generated by lights used to grow marijuana indoors.

 

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