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Warrants – Staleness – Serial Homicides

State v. James E. Multaler, 2002 WI 35, affirming 2001 WI App 14, 246 Wis. 2d 752, 632 N.W.2d 89
For Multaler: Jeffrey W. Jensen

Issue/Holding: Multaler seeks suppression of pornographic images found by the police while executing a search warrant for evidence of serial homicides committed more than 20 years earlier – in other words, that the information was too stale to support probable cause. the court rejects his argument:

¶38. These observations illustrate that the concept of staleness is not so much an independent bar to a determination of probable cause as it is a function of the essence of the probable cause determination. “‘[S]taleness’ is not a separate doctrine in probable cause to search analysis. It is merely an aspect of the Fourth Amendment inquiry.”People v. Russo, 487 N.W.2d 698, 707 (Mich. 1992). As with any determination of probable cause to search on a warrant, the determination must be made on a case-by-case basis. See Ehnert, 160 Wis. 2d at 469.

¶39. Multaler’s position is that these staleness precepts undermine any conclusion that there was a fair probability the items sought in the warrant would be found in his house more than 20 years after the murders. To the contrary, we think they reinforce such a conclusion.

¶40. This is a case that depends, in part, upon the unusual tendency of serial homicide offenders, as stated in the affidavit, to collect and retain items that constitute evidence of their crimes. As already explained, the likelihood that Multaler was a serial killer who would retain possession of the items sought, even more than 20 years after the murders, is established sufficiently by the information in the affidavit.

¶41. At the time the warrant issued and was executed, the probable cause to search Multaler’s house was not stale. The type of criminal behavior being investigated was recurring, entrenched, and continuous. The nature of the criminal activity, serial homicide, and the nature of the items sought, the sort of items likely to be retained indefinitely by the killer, both lead to the conclusion that probable cause to search Multaler’s house was not stale. None of the factors outlined in Ehnert or Andresen when applied here leads to a conclusion that the evidence sought would not remain in Multaler’s house.


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