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Odor of marijuana is probable cause for search; text messages admissible as “panorama” or “other acts” evidence

State v. Willie Brownlee, Jr., 2015AP2319-CR, 11/21/17, District 1, (not recommended for publication); case activity (including briefs)

Two officers stopped Brownlee after he drove his rental car through a red light. One officer approached the driver’s side, the other approached the passenger side occupied by Brownlee’s friend. Both smelled the distinct odor of burnt marijuana. They ordered Brownlee and his friend out of the car and searched it. Guess what they found in the glove compartment?

Wrong! They found a bar-soap shaped piece of crack cocaine. They arrested Brownlee, confiscated his iPhone, and obtained a warrant to search it. The phone contained text messages of drug transactions, which the State used to convict Brownlee of possession of cocaine with intent to deliver.

Grounds for search of car. Brownlee said that he never consented to a search of the car. One of the officers testified that he did. The circuit court believed the officer. End of story. The court of appeals deferred to that finding. Opinion ¶¶22-24.

Brownlee, relying on State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999) also argued that the odor of marijuana alone did not establish probable cause to search the car because the officers could not link it to a specific person. That contention failed because, according to the court of appeals, Secrist‘s statement that the evidence of a crime must be linked to a specific person applies to probable cause to arrest a person not probable cause to search a car.  Opinion ¶20. To search a car occupied by multiple people, police need only a “fair probability” that evidence will be found there. Opinion ¶18 (citing State v. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621).

Admission of text messages. The court of appeals recently explained how to authenticate text message so that it is admissible at trial in State v. Giacomantonio, 2016 WI App 62, 371 Wis. 2d 452, 885 N.W.2d 394. The answer is the same way you authenticate other kinds of evidence–via §909.01 and §909.015, even though other states impose more stringent requirements. See our post on Giacomantonio here. Applying these statutes, the court of appeals held:

¶28 In this case, there is sufficient circumstantial evidence to authenticate the text messages found on the iPhone confiscated from Brownlee to support the finding that he had sent and received those texts. First, the iPhone was discovered in Brownlee’s pocket at the time of his arrest. Furthermore, in providing his personal information upon arrest, Brownlee gave a phone number that differed by only one digit from the phone number of the confiscated iPhone; Officer Tracy testified that individuals placed under arrest often provide inaccurate information. Additionally, the email address associated with the phone contained Brownlee’s last name followed by numbers that correlated with Brownlee’s birthdate.

¶29 Moreover, the incoming and outgoing text messages also provide further circumstantial evidence to support the inference that the iPhone belongs to Brownlee. See State v. Baldwin, 2010 WI App 162, ¶55, 330 Wis. 2d 500, 794 N.W.2d 769 (holding that “telephone calls can be authenticated by circumstantial evidence”). One of the incoming text messages refer to the receiver as “Willie,” which is Brownlee’s first name. A “selfie” photograph of Brownlee was also sent from the iPhone, which suggests that Brownlee possessed and used the phone to send the picture.

The court of appeals next held that the text messages of drug transactions were admissible at trial as either “panorama evidence” or “other acts” evidence.

¶34 Here, the trial court determined that the text messages involving information relating to drug transactions for marijuana and pills were part of the “panorama of evidence” against Brownlee, that is, the context in which the crime occurred, and not other acts evidence. See id. In fact, the trial court noted that it did not see how the State could tell the complete story of the case to the jury without this evidence. We agree with this categorization. The text messages regarding the sale of marijuana and pills, along with the messages relating to the sale of cocaine, were all relevant to one of the elements of the crime with which Brownlee was charged—intent to deliver. See WIS. STAT. §961.41(1m)(cm)3. See also Dukes, 303 Wis. 2d 208, ¶30.

Lastly, applying  State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), the court held that the text messages (1) were offered for a permissible purtpose (proof of Brownlee’s intent to sell an illegal subsntance; (2) relevant to the charge of intent to deliver; and neither confusing to the jury nor prejudicial to Brownlee. Opinion ¶¶38-39.








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