On Point

State v. Michael Anthony King, 2008 WI App 129
For King: Mark S. Rosen

Issue/Holding: Although an “anticipatory” search warrant may be issued to seize property in transit, a warrant may not condition its execution on verification of an address, ¶¶16-24

State v. Juan A. Casarez, 2008 WI App 166
For Casarez: Adam C. Essling

Issue/Holding:

¶12      Although Casarez concedes the affidavit establishes probable cause that he committed a crime, he asserts that it contains no evidence to establish that a crime was committed at his home, that the gun was ever observed at his home, or that he was ever seen with the gun at his home. He also points out that the police stopped his vehicle ten minutes after the shooting; and, thus, there would have been no time for him to go to his home.

¶13      The dispositive issue, therefore, is whether the affidavit sufficiently averred that the objects sought were reasonably thought to be linked to the commission of a crime. Here, the objects sought included: “the location of ammunition, gun cleaning products, receipts related to the purchase and possession of firearms, ammunition, gun case, and other evidence relating to establishing dominion and control in the possession of firearm(s) by” Casarez. The crimes being investigated were first-degree recklessly endangering safety while armed and felon in possession of a firearm.

…

¶15      Under the circumstances here, it was reasonable for the police to continue the investigation. Although the police had recovered the gun and apprehended potential suspects of the shooting, the fact that there were three individuals in the car when the gun was recovered presented potential issues with proof of who committed the crime. The witnesses had described Casarez as the shooter, but the gun was found under the seat of Sosa. Sosa told police that Cornelius was the one who had the gun and passed it forward when the police stopped their car. Given the standard of proof, requiring the State to prove its case beyond a reasonable doubt, it was not unreasonable for the police to seek further evidence to prove the crimes being investigated.

State v. Christopher D. Sloan, 2007 WI App 146 (insufficient “nexus” between package and its return address), distinguished, ¶¶17-18. Broad language re gun-related crime: reasonable to infer arrestee’s residence will contain “gun-related materials,” ¶20; mitigated, though, by separate observation that court disdains “bright line” approach, and seemingly limiting case to facts, namely potential significant doubt as to, and need to confirm, gun ownership, ¶16. The concurrence, to be sure, dissociates itself from ¶16 (¶¶21-22), but given that the dissent (¶¶23-29) sees an insufficient nexus altogether, it’s safe to say that ¶16 commands majority support. Whether you can actually square ¶16 with the idea of no bright-line rule (the dissent says you can’t, ¶28) is quite something else. But at least it provides lip service for that idea.

Also see U.S. v. Williams, 544 F. 3d 683 (6^th Cir No. 06-2018, 10/16/08), for discussion re: nexus requirement (“we join other circuits which have held, in cases involving a variety of suspected crimes, that an issuing judge may infer that a criminal suspect keeps the ‘instrumentalities and fruits’ of his crime in his residence”). The dissent in that case argues the Richards v. Wisconsin rejection of categorical approaches, but the majority disavows reliance on such approach; and that specific dispute underscores the point that the nexus in that case was established by evidence that Williams not only possessed multiple guns but had used them recently. Support for a nexus in Casarez is much thinner; whether it therefore as a practical matter establishes a categorical rule, pace the majority, remains to be seen.

State v. Adrian J. Jackson, 2008 WI App 109
For Jackson: Craig S. Powell; Brian Kinstler

Issue: Whether a warrant established probable cause to search either the entirety of a multi-unit residential building.

Holding:

¶19      The magistrate was told only that the informant saw Jackson with two guns “at the residence of 4124 N. 21st Street” and that a booking record shows Jackson used that address eight months earlier.^[9] Nothing in the Affidavit states that Jackson had been observed using both of the two-story duplex units, or that the two-story duplex is actually a single family residence. Inferring from the limited information provided in the Affidavit that a two-story duplex was actually a single family residence, or that Jackson actually lived in both units, would be only speculation. While a magistrate is permitted reasonable inferences from the information presented, “‘the finding cannot be based on the affiant’s suspicions and conclusions, the magistrate may make the usual inferences reasonable persons would draw from the facts presented.’” Ward, 231 Wis.  2d 723, ¶27 (quoting Bast v. State, 87 Wis.  2d 689, 693, 275 N.W.2d 682 (1979)).

…

¶22      The Affidavit contained nothing suggesting the duplex was anything other than a two-family residential building. That Jackson may have used an address common to both units of the duplex in no way particularizes his residence to a specific unit. Nor does use of an address common to more than one unit of a building permit the reasonable inference that the duplex was actually a one-family residence. If one person’s use of a common address in a multi-unit building permitted the reasonable inference that this person occupied the entire building, then a search warrant for a person using the address of 633 West Wisconsin Avenue, Milwaukee, Wisconsin, would permit search of all units in that building.^[10] The Fourth Amendment does not cast so wide a net. …

…

¶24      While a single warrant may identify different residences within a single building, still probable cause must be shown for searching each residence unless the information supporting the warrant provides probable cause to believe that although appearing to be a multi-unit building, the entire building is actually being used as a single unit. See Hinton, 219 F.2d at 326.

It is worth considering the dissent’s explanation of the holding:

¶31 Although the Majority concedes that we may not look outside the affidavit, the Majority does so in holding that the word “duplex” meant that the two-story building at 4124 North 21st Street was a “multifamily residence,” and that therefore the affidavit should have specified for which “unit” the search warrant was sought. Majority, ¶1. There is nothing in the affidavit, however, that says 4124 North 21st Street was a “multifamily residence.” The affidavit merely says that it was a “duplex” that had but one address. The Majority, however, interposes a dictionary definition and holds as a matter of law that in every case a description of a building as a “duplex” invariably means that the building is a two-unit structure where the units are as separate from each other as were the two Berlins before the wall was torn down. But, of course, that is not always the case; indeed, that was not the case here because Jackson shared the “duplex” with his mother. (I mention this not, as the Majority says in footnote 7, to add gloss to the affidavit submitted in support of the search warrant, but to demonstrate that the Majority’s iron-clad presumption about the living arrangements in a building that is structurally a duplex is wrong.)

State v. Michael Anthony King, 2008 WI App 129
For King: Mark S. Rosen

Issue/Holding: A search warrant that conditions its execution on verification of the target’s address violates the 4^th amendment’s particularity requirement:

¶25      … The Fourth Amendment clearly sets forth the particularity requirement that must be satisfied prior to issuance of a warrant. … The particularity requirement is necessary “to direct the officer to the exact place to be searched and to guard against abuses that prevailed under the old writs of assistance which left the place to be searched to the discretion of the searching officer.” Rainey v. State, 74 Wis. 2d 189, 202, 246 N.W.2d 529 (1976) (emphasis added).

…

¶27      We agree with King that the search warrant afforded law enforcement the sole discretion to search any one of the three addresses specified in violation of the particularity requirement. There were no safeguards in the warrant as to how the police were going to determine the address. It provided only: “This authorization is contingent upon law enforcement officers identifying the precise unit, 8811, 8813 or 8815, in which Michael King resides. No search of any unit is authorized absent such a verification, and the authorization extends only to that unit in which Michael King resides.”

…

¶30      No information has been provided to explain why King’s address could not have been verified before the search warrant was sought. From our review of other cases dealing with search warrants, law enforcement has frequently confirmed the address of a target by checking motor vehicle registration and utility records. …

¶31      Were we to conclude that this language was sufficiently particular, we would encourage a crop of search warrants containing alternate addresses, leaving law enforcement free to pick the residence they want to search. …

¶32      Based on the foregoing, we agree with King that the warrant was invalid.

State v. Adrian J. Jackson, 2008 WI App 109
For Jackson: Craig S. Powell; Brian Kinstler

Issue/Holding: A warrant describing the building to be searched only as “a two-story duplex residence” did not satisfy the particularity requirement:

¶9    If the location to be searched is not described with sufficient particularity to inform officers which unit in a multi-unit building they are to search, the particularity required by the Fourth Amendment has not been satisfied. Hinton, 219 F.2d at 325-26. “[A] warrant which describes an entire building when cause is shown for searching only one apartment is void.” Id. at 326 ….

…

¶14      The Affidavit does say that Jackson was seen with guns at the common address of the duplex units, but it does not say Jackson was seen in the duplex or any specific part thereof. …

…

¶15      Neither the Affidavit nor the warrant identify which portion of the two-family residence is to be searched. The unit of the duplex “occupied by … Adrian Jermaine Jackson” is not, in any way, otherwise identified. The record does not indicate that Jackson’s picture was attached to the warrant, as occurred with the search warrant in Morales. See id., 44 Wis. 2d at 105-06. The Affidavit reports no investigation by law enforcement beyond looking at a booking record for Jackson from eight months earlier that identifies as his residence the address common to the whole duplex. Not a shred of evidence presented to the magistrate hints at which unit Jackson occupied. ^[8] Indeed, the paucity of information about who resides in, or otherwise controls, either unit of the duplex is brought into sharp focus by the officer’s request at paragraph seven of his affidavit to search for “documents which establish the identities of persons in control of the premises.” (Emphasis added.) The officer’s use of the plural indicates the officer either knew or believed that more than one person inhabited, or had control of, the “two-story duplex residence,” but that he did not know who inhabited or controlled either unit, much less the entire building.

¶16      More is needed than was presented here to move from a general warrant for a multi-unit building to a warrant that describes with particularity the unit in a multi-unit building which is to be searched. See Garrison, 480 U.S. at 91; Morales, 44 Wis. 2d at 105; Hinton, 219 F.2d at 325-26.

State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly

Issue: Whether execution of a search warrant for business records exceeded the warrant’s scope in that the warrant: authorized only the search for and seizure of records that related to a specific business with specifically named clients; and also authorized only a search of that business’s office space and not the defendant’s personal office within that space.

Holding:

¶38         A search warrant’s execution must be conducted reasonably, and the search and seizure must be limited to the scope that is permitted by the warrant. State v. Andrews, 201 Wis. 2d 383, 390, 549 N.W.2d 210 (1996). Whether a seized item is properly within the search warrant’s scope depends on the search warrant’s terms and on the nature of the items that were seized. Id. at 390-91. The search warrant here was a premises warrant. [8] This court has held that a premises warrant generally “authorizes the search of all items on the premises so long as those items are plausible receptacles of the objects of the search.” Id. at 389. We continued by stating, “‘A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search.'” Id. at 389-90 (citation omitted).

¶39        We find LaCount’s assertion that the police exceeded the scope of the search warrant by searching LaCount’s personal office within GP&L’s office to be without merit. Because, the search warrant was a premises warrant, the police were entitled to search the entire premises, including the items within the premises, so long as such items were “plausible receptacles of the objects of the search.” Id. at 389. As a result, the search of LaCount’s personal office within GP&L’s office was warranted, because his office’s furnishings were plausible receptacles that were very likely to have contained the items that the search warrant authorized to be searched for and seized. Lawful searches, as here, may extend “‘to the entire area in which the object of the search may be found and [are] not limited by the possibility that separate acts of entry or opening may be required to complete the search.'” Id. at 389-90 (citation omitted).

…

¶41      We similarly hold that LaCount’s assertion that the police exceeded the scope of the search warrant by seizing records of GP&L’s clients other than those specifically named in the warrant is without merit. The DeSmidt decision is especially helpful on the issue relating to whether the police exceeded the scope of the search warrant. State v. DeSmidt, 155 Wis. 2d 119, 133-34, 454 N.W.2d 780 (1990). In that case, we stated that, when “there is probable cause to believe that there exists a pervasive scheme to defraud, all the records of a business may be seized.” Id. (citation omitted).

State v. Michael Anthony King, 2008 WI App 129
For King: Mark S. Rosen

Issue/Holding: Search warrant based on drug transaction occurring 30 days earlier lacked probable cause, ¶32 n. 7:

… From our review of the record, it would appear that probable cause as to the search of his residence was stale. The most recent information directly tied to King was thirty days old. To minimize the effect of this delay, the State pointed out that the affidavit in support of the warrant referred to over thirty individuals involved in the narcotics ring and detailed intercepted phone calls between Caraballo and other individuals, which took place within five days of when the warrant was issued. Details of the calls that took place within five days of the warrant’s issuance, however, make no mention of King. While we acknowledge that the “‘totality of the circumstances’” are to be considered, see Falbo, 190 Wis. 2d at 337 (citation omitted), there is nothing in the affidavit to support the combining of the older information pertinent to King with the newer information, in order to establish probable cause as of the date of the warrant’s issuance, cf. State v. Moley, 171 Wis. 2d 207, 213-14, 490 N.W.2d 764 (Ct. App. 1992) (concluding that a 1990 tip received by a detective, which was old information, combined with an aerial identification of marijuana plants the following year, i.e., new data, supported the inference that marijuana was growing on the property during the 1991 growing season and established “present probable cause”).

For a warrant to have been properly issued for King’s residence, more than “mere suspicion” was required to establish probable cause. See State v. Kiper, 193 Wis.  2d 69, 81, 532 N.W.2d 698 (1995). Although the affidavit details various items that narcotics traffickers commonly keep in their residence, it offers no explanation as to why, despite the lapse of thirty days from the last information directly linking King to Caraballo and despite the fact that law enforcement had not verified King’s address, evidence of criminal activity would nevertheless be present there. We cannot conclude that “a practical, commonsense decision” would have led to the conclusion that probable cause was sufficient as to King’s as-yet-to-be-verified residence. See State v. Ward, 2000 WI 3, ¶23, 231 Wis. 2d 723, 604 N.W.2d 517. Thus, the lack of probable cause is yet another basis on which the warrant could have been invalidated.