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COURT OF APPEALS
DECISION
DATED AND FILED
June 12, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT IV
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State of Wisconsin,
Plaintiff-Respondent,
v.
Prince M. Preston,
Defendant-Appellant.
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APPEAL
from judgments of the circuit court for Vernon County: michael
j. rosborough, Judge. Affirmed.
Before
Dykman, Vergeront and Lundsten, JJ.
¶1 PER CURIAM. Prince Preston appeals from
judgments convicting him of delivery of cocaine and maintaining a drug
trafficking place. The sole issue on
appeal is whether evidence seized pursuant to a search warrant should have been
suppressed based on the State’s failure to provide the defendant with a timely
transcript of the telephonic search warrant request. We agree with the trial court that
suppression was not required, and therefore affirm.
BACKGROUND
¶2 On May 12, 2006, an investigator for the Vernon County
Sheriff’s Department telephonically applied for a no-knock warrant to search Preston’s residence and vehicles. A CD recording of the application was made. The warrant was executed that same day and various
items of drug-related activity were recovered. A return on the warrant was filed with the
trial court on May 15, 2006.
¶3 Preston was charged with two
drug counts on May 19, 2006. He was
bound over for trial on June 7, 2006, following a preliminary hearing. On June 16, 2006, Preston
moved to suppress the evidence seized during the execution of the search
warrant on the grounds that there was no transcript of any testimony provided
in support of the warrant; and therefore, no basis to conclude that a no-knock
warrant was justified. Preston
argued that he was prejudiced by the lack of a transcript, because counsel was
unable to review the factual basis for the search warrant before the deadline
for filing pretrial motions expired. The
trial court concluded that extending the deadline for Preston
to file an additional suppression motion until after the warrant application
transcript was filed would cure any prejudice.
Accordingly, the court extended the deadline and denied the motion to
suppress.
¶4 The transcript was filed on August 4, 2006. Preston
subsequently entered guilty pleas, rather than filing an additional suppression
motion. He now appeals the suppression
ruling.
STANDARD
OF REVIEW
¶5 Wisconsin Stat. § 971.31(10)
(2005-06)
authorizes review of suppression determinations notwithstanding a subsequent
guilty plea. When reviewing the denial
of a motion to suppress evidence, we will uphold the circuit court’s findings
of fact unless they are clearly erroneous.
Wis. Stat.
§ 805.17(2); State v. Eckert, 203 Wis.
2d 497, 518, 553 N.W.2d 539 (Ct. App. 1996).
However, we will independently determine whether the facts found by the
circuit court satisfy applicable statutory and constitutional provisions. State v. Ellenbecker, 159 Wis. 2d 91, 94, 464
N.W.2d 427 (Ct. App. 1990).
DISCUSSION
¶6 Wisconsin Stat.
§ 968.12(3) authorizes a judge to issue a search warrant based upon sworn
oral testimony given over the telephone.
However, the judge must arrange to have the sworn testimony recorded and
a transcript produced and filed with the court. Wis.
Stat. § 968.15(3)(d). A
transcript of any testimony made in support of a search warrant must be filed
within five days after the execution of the warrant. Wis.
Stat. § 968.17(2).
¶7 The State concedes that the transcript of the telephonic
search warrant application was not timely filed in this case. However, it argues that suppression is not an
available remedy under Wis. Stat.
§ 968.22. That section provides
that “[n]o evidence seized under a search warrant shall be suppressed because
of technical irregularities not affecting the substantial rights of the
defendant.” Section 968.22. It has been held that a violation of the time
to file the transcript of a telephonic search warrant application “does not
invalidate the search absent prejudice to the rights of the defendant.” State v. Elam,
68 Wis. 2d
614, 620, 229 N.W.2d 664 (1975).
¶8 The State contends that application of Wis. Stat. § 986.22 has two
elements: first, that the ground
asserted for suppression must be some sort of technical irregularity, and
second, that the irregularity affected the defendant’s substantial rights. It then argues that Elam stands for the
proposition that a violation of the time to file a telephonic warrant
application transcript is always a technical irregularity, and the only
question is whether the defendant’s substantial rights were affected.
¶9 Preston disagrees with the State’s reading of Elam. He points out that Elam actually labeled the
time to file a transcript under Wis.
Stat. § 968.17(1) a “ministerial act” rather than a “technical
irregularity.” He then argues that not every
breach of a ministerial duty must be a technical violation. Rather, he seems to be suggesting that a
violation cannot be deemed technical unless it is first determined that it has
not affected the defendant’s substantial rights.
¶10 It is unnecessary for us to discuss here whether Wis. Stat. § 968.22 is properly
conceptualized as a one- or two-part test because the bottom line under either
formulation is that prejudice must be established before the remedy of
suppression is barred.
¶11 In Elam,
the court concluded that there had been no prejudice to the defendant because
the transcript was filed before the information, giving the defendant “ample
time to study the transcript in preparation for a suppression motion[.]” Id.
at 619. The court further explained that
“no claim has been made that the passage of time increased the difficulty of
challenging the probable cause evidence.”
Id.
at 620.
¶12 Preston attempts to distinguish his case from Elam on the grounds that his
preliminary hearing had been held and the original deadline for filing pretrial
motions had already passed before the transcript was filed. He argues that his due process rights were
violated by not having access to the information used to support the search
warrant, “which would have potentially identified witnesses to call on his
behalf or which would have assisted in the cross-examination of the State’s
witnesses,” or could have been used “to challenge the probable cause basis for
the warrant.”
¶13 These allegations are conclusory and are insufficient to
demonstrate prejudice. Preston
has not identified any additional witness he could have called or any
additional question he could have asked at the preliminary hearing based on the
information in the transcript, much less shown that the additional testimony
elicited would have altered the outcome of the preliminary hearing. Furthermore, he was granted an opportunity to
challenge the probable cause basis for the warrant after the transcript was
filed and did not do so. He has not
alleged any reason why his ability to challenge the warrant was adversely
affected by the passage of time. If the
transcript provided no actual grounds to challenge the warrant, it does not
matter when it was filed.
¶14 Preston also argues that we
“should consider the potential for police or prosecutorial misconduct that
would result if the filing requirements of Section 968.17 could be violated
without consequence.” However, the
legislature has imposed consequences in Wis.
Stat. § 968.22, and it has determined that suppression is to be
used as an individualized remedy only when a defendant has actually suffered
prejudice, not as a generalized policy for deterrence.
¶15 Finally, Preston contends that
he was also entitled to the transcript under the Open Records Law. That statute is inapplicable here, however,
because there is nothing in the record to show that Preston
ever made any formal open records request.
¶16 In sum, we are satisfied that the trial court properly denied
Preston’s suppression motion after extending the time for him to file an
additional motion based on information in the delinquent transcript.
By the Court.—Judgments affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.