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COURT OF APPEALS DECISION DATED AND FILED March 8, 2011 A.
John Voelker Acting 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 |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Richard E. Aderholdt,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM. Richard Aderholdt appeals a judgment convicting him of manufacturing THC with intent to deliver and maintaining a drug trafficking place. He argues that the circuit court erred when it denied his motion to suppress evidence seized pursuant to a search warrant because the affidavit in support of the warrant failed to establish probable cause that contraband would be found in Aderholdt’s home. Specifically, he contends that the affidavit lacked sufficient detail to evaluate a confidential informant’s information and the information was stale. He also argues that the court should have conducted a Franks/Mann[2] hearing to determine whether the police intentionally, or with reckless disregard for the truth, omitted information from the affidavit that would establish the staleness of the confidential informant’s information. We reject these arguments and affirm the judgment.
¶2 The affidavit in support of the warrant established the
confidential informant’s credibility and the reliability of the information he
furnished. The affidavit states that the
confidential informant had been to Aderholdt’s house many times, he knew Aderholdt’s
nickname, “Zeech,” and he had often purchased marijuana, heroin, “oxy” pills,
and needles from Aderholdt. These
statements against penal interest where there is no apparent motive for the
confidential informant to lie adequately establish his credibility.
¶3 In addition, the informant provided detailed information that
enhance the reliability of his statement.
He described in detail Aderholdt’s secret “grow room,” including the
fact that it could only be accessed by an elevator and “when you reach the
bottom level walk straight and you’ll see a special built room.” The investigating officer further
corroborated the informant’s information by examining Aderholdt’s more recent electricity
records, which showed sharp increases and decreases in power consumption that
the investigator said was “consistent with marijuana growing operations” based
on his experience and training. The
information contained in the affidavit establishes probable cause because it
would lead a reasonable person to conclude that the evidence sought is likely
to be in a particular location. State
v. Ward, 2000 WI 3, ¶34, 231
¶4 The last time the informant had been in Aderholdt’s residence
was one year before the application for the search warrant. Aderholdt contends that this gap renders the
information too stale to support probable cause. However, the mere passage of time does not necessarily
render the information stale. When the
activity is of a protracted and continuous nature, the passage of time
diminishes in significance. State
v. Ehnert, 160
¶5 Finally,
the court properly denied Aderholdt’s request for a Franks/Mann hearing.
Because the one-year time lapse does not alter the probable cause
determination in this case, omitting that information from the affidavit does
not provide any basis for relief. A
hearing is only required after a defendant makes a substantial preliminary
showing that the omitted information is necessary to the finding of probable
cause. State v. Mann, 123
By
the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2009-10).