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Challenges to arrest, search warrants rejected

State v. Eric R. Burrows, 2018AP770-CR, District 2, 12/26/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Burrows sent threatening and harassing letters to E.W., arranged inflammatory and derogatory voicemail messages on her phone, and delivered a baby python to her apartment. He argues the police lacked probable cause to arrest him for stalking and to search his car and other property. The court of appeals disagrees.

As to Burrows’s arrest, the court agrees the evidence linking him to the harassing behavior was “circumstantial,” it supported more than just a hunch he was involved:

¶16     First, Burrows was directly linked to the snake in the box through the two phone calls that were made to the apartment complex [regarding the package]. Although one was a female voice, it came from Burrows’ cell phone number, which E.W. identified…. The second caller was a male, and the call came from Burrows’ work phone number. ….

¶17     Second, information contained in the letters connected Burrows to the crime. Although the letters were written from the perspective of a female who appeared to be upset that B.K. was in a relationship with E.W., B.K. reported to police that he did not have a girlfriend or a wife who would be writing these letters. The letters also contained information that only someone who was familiar with E.W.’s family would know…. Further, the letters sent to E.W.’s employer, her ex-husband, the army recruiter, and the letter in the box with the snake all contained the same inflammatory and derogatory language and allegations. E.W. also identified Burrows’ handwriting in the letter written to her ex-husband.

¶18     Third, like the letters, the voicemail messages left at E.W.’semployer also connect to Burrows. Again, the caller was female, but there was no evidence of a female in B.K.’s life and he did not recognize the voice. The information in the voicemails was similar to that in the letters, which, again, contained personal information about E.W. and her family….

¶19     Finally, Burrows’ behavior after E.W. ended their relationship certainly suggested he was a jilted lover with motive to commit this crime. The record indicates that Burrows was sending E.W. numerous texts, phone calls, and emails asking to rekindle the relationship, and E.W. repeatedly rebuffed his attempts. ….

Nor does it matter that Sheboygan police, who were investigating the case, didn’t tell the Manitowoc Sheriff’s Department, who actually arrested Burrows in coordination with Sheboygan police, the facts that supported probable cause. Burrows argues that   under State v. Black, 2000 WI App 175, 238 Wis. 2d 203, 617 N.W.2d 210, Manitowoc County had to be made aware of the details related to probable cause. In Black police detectives observed a person who appeared to engage in a drug deal transaction. They asked another officer to check the person’s identity without providing any basis for their suspicion. The court held the collective knowledge doctrine didn’t apply in that case because, for the doctrine to apply, “such information must actually be passed to the officer before he or she makes an arrest or conducts a search.” Id., ¶17 n.4. But here, the Sheboygan police clearly asked for an arrest for stalking under a “temporary arrest warrant” entered in the TIME system and communicated with Manitowoc regarding the arrest, all of which show sufficient communication about the basis for the arrest. (¶¶25-30).

Burrows also argues the temporary arrest warrant itself was invalid because it wasn’t issued by a judge. The court rejects this because under § 968.07(1)(d) a warrant isn’t required to arrest a person when there’s probable cause to believe he or she has committed a felony. (¶¶21-24).

Finally, Burrows makes two challenges to searches for evidence. First, the search of his car incident to arrest was okay even though he was cuffed and in the back of a squad when it was conducted. Under State v. Dearborn, 2010 WI 84, 327 WIs. 2d 252, 786 N.W.2d 97, search of a car incident to arrest is authorized if there’s probable cause to believe it contains evidence of the crime the person is arrested for. That standard is met here. (¶¶31-32). Second, he challenges the search warrants for his home, computer, cell phone and cell phone records, arguing the affidavits didn’t allege E.W. suffered “serious emotional distress” or was “terrified,” an element of stalking. True, the affidavits didn’t specifically say that, but the facts in them support that conclusion. (¶¶33-35).

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