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Warrants – Probable Cause – “Nexus” Between Objects Sought and Place to be Searched

State v. Christopher D. Sloan, 2007 WI App 146
For Sloan: Thomas E. Hayes

Issue/Holding: There was an insufficiently established “nexus” between the contraband found in a package and its return address to support a search warrant for that address:

¶31 What Hennen does not describe in his affidavit is critical to our analysis. He never tells the reader that he believes Sloan is, or has recently been, engaged in any criminal activity at the residence to be searched, or why he believes that is the case. To establish probable cause to support this warrant, there must be some factual connection between the items that are evidence of the suspected criminal activity and the address to be searched. “Probable cause to believe that a person has committed a crime does not automaticallygive the police probable cause to search his house for evidence of that crime.”State v. Marquardt, 2005 WI 157, ¶81, 286 Higginbotham, 162 Wis. 2d at 995). “[P]robable cause cannot be upheld … if the affidavit provides nothing more than the legal conclusions of the affiant.” Kerr, 181 Wis. 2d at 378 (citing Higginbotham, 162 Wis. 2d at 992).

¶32 Hennen does not describe surveillance that shows anything about the house that suggests criminal activity might be afoot. Surveillance disclosed only the general configuration of the house (square) where the street number is located (by the front door, above the mailbox), and that two vehicles registered to Sloan were parked at that address. There is no report that anyone was observed at the address. There is no claim of prior police reports of drug sales or other suspicious activity at that address, nor is there evidence of Sloan’s prior actual or suspected involvement with marijuana or other controlled substances. Hennen does not claim that Sloan fits any relevant profile of someone involved in the manufacture, sale or distribution of marijuana or other controlled substances. [9] The owner of the residence was not Sloan. There is no evidence that police interviewed the owner or did any investigation to discover drug-related activity at that address. Indeed, if Sloan’s statement to UPS was to be believed, it was unlikely that contraband would be found at the residence since he said he was leaving for Florida the next day. Nothing in the affidavit provides a reasonable factual basis upon which to conclude that a crime had been or likely would be committed at the residence, or that there was evidence of a crime at the residence. No facts were provided in Hennen’s affidavit which tend to show where Sloan acquired or packed the marijuana he attempted to ship with UPS.

¶38 In short, the affidavit tells the reader what Hennen believes a drug trafficker does by way of recordkeeping, but gives the reader no reason to conclude Sloan is a drug trafficker, or that other people traffic in drugs at that residence. If the affidavit here is sufficient to establish probable cause for an expansive residential search, then a similar search of a residence, after a person is found in possession of a small quantity of marijuana or other controlled substance, would be permitted with nothing more to support the search than a return address on a document, and vehicle registration at that address. Such an outcome would dilute the Fourth Amendment requirements of reasonableness and probable cause to the strength of mist or vapor. Some of the missing facts might have been developed with more investigation (or a controlled delivery of the package, as in Beal) and then used to established a factual link sufficient to support probable cause for a search of the residence. Unfortunately, perhaps in a rush to obtain a warrant, no such facts were developed. The lack of any factual connections between crimes by Sloan or others and the residence to be searched is fatal to a finding of probable cause. Consequently, we reverse that portion of the trial court’s decision upholding the search warrant.

 [9] See State v. Lindgren, 2004 WI App 159, ¶¶18-20, 275 Wis. 2d 851, 687 N.W.2d 60. The Lindgren court held that because the affidavit included a detailed profile of a child molester which provided sufficient justification for a search of the home, the search of the home of the defendant who took nude photographs of a minor employee at his business was supported by probable cause.


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