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Warrants – Probable Cause – Drug Dealing Nexus to Dealer’s Residence

State v. Lance R. Ward, 2000 WI 3, 231 Wis.2d 723, 604 N.W.2d 517, reversing 222 Wis. 2d 311, 588 N.W.2d 645
For Ward: Daniel P. Dunn

Issue: Whether the search warrant established probable cause despite the absence of an explicit connection between the owner’s alleged drug dealing and his residence.

Holding: The supporting affidavit’s assertion that the defendant was a drug supplier “who lives on Rocye” established a sufficient nexus between criminal activity and the defendant’s residence to support a warrant to search his home on Royce Street, notwithstanding the absence of any assertion that he ever sold or kept drugs there.

This begins, more or less, with a raid on Darrell Vance’s house, which produced 3,311 grams of marijuana. Anxious to make a deal, Vance identified “‘Lance’ who lives on Royce” as his supplier. ¶6. That’s about it. The police determined that Lance Ward, the subject of anonymous and, so far as the opinion indicates, unverified reports of dealing, lived on Royce Street. They got a no-knock warrant and battered down his door without announcing their presence. The trial court upheld the search, but only after impermissibly considering something outside the warrant application (critically; the court’s own experience that dealers ordinarily deal out of their houses). ¶14. The court of appeals reversed, 2-1, refusing the transparent invitation to recognize what would be a bright-line rule that probable cause to believe someone is a dealer ipso facto establishes probable cause to search the dealer’s home. The supreme court, 4-3, puts out the welcome mat for this argument. The warrant magistrate’s determination is entitled to “great deference.” ¶21. But the magistrate here erred in going outside the warrant application to rely on “his own experience”: “The subjective experiences of the magistrate are not part of the probable cause determination.”¶ 26. This leads, apparently, to de novo review (the court isn’t explicit about the effect of this error). There must, of course, be a link between the criminal activity and the place to be searched. Vance, the supreme court notes, was a “substantial dealer.” ¶29. And Vance identified “Lance who lives on Royce” as his supplier. “We agree with the State that it can be inferred from this information that Vance obtained the marijuana from Lance where Lance lived, on Royce.” ¶30.

Have the majority created some sort of bright-line rule, connecting a drug dealer to his or her residence? The dissent seems to think so: “The majority has … adopted a blanket rule, that if a magistrate determines probable cause to believe that a person is a dealer in significant quantities of drugs then it automatically follows there is probable cause to issue a warrant to search the person’s home.” ¶70. But if you’re looking to blunt the potential impact of this holding it might be wise to stress two crucial factors: “significant quantities” were involvedand the target was the informant’s current supplier, thus the activity was ongoing. Compare, in this regard, State v. Wilson , 178 Or App 163, 35 P3d 1111 (2001) (sale of drug to informant at unknown time insufficient to establish nexus to home so as to support probable cause to search same), with State v. Harper , Or App No. A118880, 2/2/05 (large amount of drug sold only two days earlier suggested ongoing activity and, therefore, sufficient nexus;Wilson distinguished on that basis). See also U.S. v. McPherson, 6th Cir No. 05-5534, 11/27/06 (mere fact of drug arrest of person, not known to be dealer, outside his home insufficient nexus; court stressing, fn. 3, that in some instances arrest even of dealer insufficient to establish nexus to residence); U.S. v. Ribeiro, 1st Cir No 03-2218, 2/8/05 (finding nexus on particular facts, and citing other authority to effect that evidence of dealing is likely to found where drug dealers live, but cautioning that “(a)lone, such generalized observations may not be enough to satisfy the nexus element”); and State v. Hansen, Iowa App 04-0790, 2/9/05 (court finds nexus and seems to stress factors beyond mere drug dealing, but they seem transparently flimsy; officer’s affidavit — “based on that experience and training he knew drug dealers often keep records of drug transactions in their residences” — is more like the crux of the matter and comes close to exemplifying dissent’s complaint inWard).

See also U.S. v. Laughton, 6th Cir No. 03-1202, 5/17/05 (affidavit related defendant’s practice of keeping drugs in crotch area and pockets of pants, and also recent puchases by CI, but was defective in “fail(ing) to make any connection between the residence to be searched and the facts of criminal activity”); the holding might be more moteworthy, though, for its refusal to uphold the warrant-based search under the good faith exception (“The application simply listed the address of the premises to be searched, a summary of the deputy’s professional experience, and two acontextual allegations against Laughton. No reasonable officer could have believed that the affidavit was not so lacking in indicia of probable cause as to be reliable.”).

Non-drug case supporting supporting idea that at least in some instances there must be “particularized, case-specific corroboration,” other than his/her training and experience, for affiant’s conclusion of probable cause nexus between items sought and place to be searched:State v. Henderson, Or App No. A119000, 6/15/05.


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