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Police had probable cause to arrest person whose home was being searched pursuant to a warrant

State v. Daniel Tawan Smith, 2015AP291-CR, District 4, 9/17/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Police had probable cause to arrest Smith, who was seen driving away from his home just as police arrived to execute a search warrant to look for evidence that he was selling marijuana.

¶7     “There is probable cause to arrest ‘when the totality of the circumstances within that officer’s knowledge at the time of the arrest would lead a reasonable police officer to believe that the defendant probably committed a crime.’” State v. Sykes, 2005 WI 48, ¶18, 279 Wis. 2d 742, 695 N.W.2d 277 (quoted source omitted). “‘The objective facts before the police officer need only lead to the conclusion that guilt is more than a possibility.’” Id. (quoted source omitted). ….

¶8     Applying these common sense standards, I agree that there was, at a minimum, probable cause to believe that Smith possessed marijuana. To begin, the police had recent information from an informant that they thought was reliable that Smith was selling marijuana from an address on the 1200 block of Bluff Street. And, by examining the trash bag contents obtained from the boulevard area in front of 1223 Bluff Street, police reasonably connected Smith to the 1223 1/2 Bluff Street address and obtained evidence of the presence of at least a small amount of marijuana at that location in recent days. In addition, Smith had just left the 1223 1/2 Bluff Street location, further confirming his connection to that address and, therefore, to marijuana. Finally, the police had additional “intelligence” that Smith was selling prescription pills and marijuana.[3]

[3] The State agrees with Smith that the search warrant affidavit’s reference to “4 separate pieces of intelligence” adds little if anything to the probable cause determination. I agree that the value is marginal, but conclude that this information adds at least slightly to the totality of the circumstances supporting probable cause.

The court rebuffs Smith’s challenges to probable cause based the lack of reliability of the informant, the “remoteness” in time of the arrest to the information police had received, and the fact that only a small amount of marijuana was found in the trash search. (¶¶9-12).

The State argued there was probable cause to arrest Smith because, as it acknowledged at the suppression hearing, Bailey v. United States, 133 S. Ct. 1031 (2013), limited police authority to detain suspects as an incident to the execution of a search warrant. In particular, Bailey held that such detentions may only occur in the “immediate vicinity” of the searched premises. Id. at 1042. Smith was stopped about two blocks (or three-tenths of a mile) from his residence, far enough, apparently, to get him out of the Bailey zone.

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