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COURT OF APPEALS DECISION DATED AND RELEASED November
29, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-3084-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
BRIAN
J. LEWANDOSKE,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Sheboygan County: GARY LANGHOFF, Judge. Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
PER
CURIAM. Brian J. Lewandoske appeals
from a judgment convicting him of possession of tetrahydrocannabinol (THC) with
intent to deliver contrary to § 161.41(1m)(h)1, Stats. On appeal,
Lewandoske challenges the issuance and execution of the search warrant. Because we conclude that the warrant was
supported by probable cause and the police were not required to knock and
announce before entering Lewandoske's home, we affirm.
On
or about June 23, 1994, Officer James Tetzlaff filed an affidavit in support of
a search warrant for Lewandoske's residence, two vehicles and a
"pop-up" camper to locate evidence relating to the following crimes: possession of THC, possession of THC with
intent to manufacture or deliver, and keeping or maintaining a drug house.
The
affidavit stated that Tetzlaff received a telephone call from an anonymous
informant on June 20, 1994. The
informant stated that he knew Lewandoske and that ten days earlier he had
observed Lewandoske at the latter's residence with one-quarter ounce of
marijuana. The informant also stated
that Lewandoske was friendly with Michael DeBecker, whom the informant knew
kept approximately one pound of marijuana in his basement and had sold one
ounce of marijuana within the last ten days.
The informant believed Lewandoske was obtaining marijuana from
DeBecker.
On
June 21, Tetzlaff picked up garbage bags in the alley near Lewandoske's
residence and located identifiers for Larue King, Lewandoske's girlfriend, and
a portion of a check imprinted with King's and Lewandoske's names. The garbage also contained two marijuana
plant stems, a marijuana seed and a small screen which, in Tetzlaff's training
and experience, is commonly used for marijuana pipes. The material tested positive for the presence of THC. While observing DeBecker's residence on June
23, Tetzlaff saw a car registered to Lewandoske parked at the house. A court commissioner issued the warrant.
At
the hearing on Lewandoske's motion to suppress evidence seized pursuant to the
warrant, Tetzlaff testified that he was one of four officers who went
to Lewandoske's home to execute the search warrant. He knocked on the outer door of the residence, waited
three to five seconds, "heard some activity in the house" and then
entered the inner hallway of the residence.
When Lewandoske opened the inner door, Tetzlaff stated, "Police,
search warrant."[1]
Lewandoske
argued to the trial court that there was insufficient probable cause to support
the issuance of the warrant, the warrant was overly broad and the information
upon which the warrant was based was stale.
The trial court acknowledged that it was required to pay great deference
to the official who issued the warrant.
The trial court made factual findings in line with Tetzlaff's testimony
regarding the manner in which the search warrant was executed. The trial court also found that Lewandoske's
vehicle was seen at DeBecker's residence on or about June 23, the date the
warrant was issued. The trial
court rejected Lewandoske's staleness argument and determined that the warrant
was supported by probable cause because the anonymous informant had observed
Lewandoske with one-quarter ounce of marijuana two weeks before the warrant was
issued, and marijuana debris was found in Lewandoske's garbage on June 21,
three days before the warrant issued.
The trial court deemed this evidence of marijuana processing at
Lewandoske's home. Additionally,
Lewandoske was "well acquainted" with DeBecker, a suspected drug
dealer.
Turning
to the officers' failure to knock and announce before entering Lewandoske's
residence, the trial court considered State v. Stevens, 181
Wis.2d 410, 511 N.W.2d 591 (1994), cert. denied, 115 S. Ct. 2245 (1995),
and concluded that this was a "very, very close case." However, because the police had a warrant
relating to drug dealing, the trial court concluded that they properly executed
it even though they did not knock and announce their presence.
We
agree with the trial court. The police
entered the outer door of Lewandoske's residence without knocking and
announcing their identity and purpose.
Our supreme court held in Stevens that "a no-knock
search is reasonable any time the police have a warrant, supported by probable
cause, to search a residence for `evidence of drug dealing.' Under these circumstances, the police may
dispense with the rule of announcement."
Id. at 426, 511 N.W.2d at 596. The court characterized this as a "blanket" exception
to the rule of announcement. Id. The police had a warrant to search
Lewandoske's home for evidence of drug dealing. Accordingly, under Stevens, the police had
authority to dispense with the knock-and-announce rule. Having so held, we turn to the remaining
question on appeal: whether the warrant
was supported by probable cause.
Appellate
review of the sufficiency of an affidavit submitted in support of the issuance
of a search warrant is limited. State
v. Ehnert, 160 Wis.2d 464, 468, 466 N.W.2d 237, 238 (Ct. App.
1991). Our duty is to ensure that the
warrant-issuing commissioner had a substantial basis for concluding that
probable cause existed. State v.
Kerr, 181 Wis.2d 372, 378, 511 N.W.2d 586, 588 (1994), cert. denied,
115 S. Ct. 2245 (1995). We must
determine whether the commissioner was "apprised of sufficient facts to
excite an honest belief in a reasonable mind that the objects sought are linked
with the commission of a crime, and that they will be found in the place to be
searched." Id.
(quoted source omitted).
Great
deference is due the commissioner's probable cause determination. Id. at 379, 511 N.W.2d at
589. Probable cause is a
"flexible, common-sense measure of the plausibility of particular
conclusions about human behavior."
Id. at 379, 511 N.W.2d at 588 (quoted source
omitted). The warrant issuer "is
simply to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit ..., including the `veracity' and
`basis of knowledge' of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a
particular place." Id.
(quoted source omitted). Probable cause
depends on the totality of the circumstances.
Ehnert, 160 Wis.2d at 469, 466 N.W.2d at 238.
With
regard to staleness, we look for proof "of facts so closely related to the
time of the issue of the warrant as to justify a finding of probable cause at
that time." Id. at
469, 466 N.W.2d at 238 (quoted source omitted). Timeliness is not determined by counting the number of days
between the occurrence of the facts relied upon and the issuance of the
warrant. Id. at 469, 466
N.W.2d at 239. Rather, timeliness
depends upon the nature of the underlying circumstances. Id.
We
agree with the trial court that while this is a "very, very close
case," the warrant application provided the commissioner with sufficient
facts to "excite an honest belief" that the items sought were linked
with the commission of the crimes suggested in the application and that the
items would be found in the places to be searched. A common-sense reading of the warrant application permits a
probable cause determination that drug dealing was occurring at Lewandoske's
residence.
Lewandoske
argues that the information upon which the application for the search warrant
was based was stale. Based upon our
review of the circumstances of this case, we conclude that the information was
not stale. Lewandoske argues that the
informant was reporting an occurrence (possession of one-quarter ounce of
marijuana) which was ten days old.
However, we note that two days before the warrant was issued, marijuana
debris was found in Lewandoske's garbage, and Lewandoske's vehicle was observed
at DeBecker's house the day Tetzlaff applied for the warrant. Old information can combine with new data to
establish probable cause. See State
v. Moley, 171 Wis.2d 207, 213-14, 490 N.W.2d 764, 766 (Ct. App.
1992). A nontechnical reading of the
application suggests that it is plausible that Lewandoske was engaged in drug
manufacturing or sale. The warrant
application supported a reasonable inference that there was more than mere
possession of marijuana going on at Lewandoske's residence.
Lewandoske's
argument that the search warrant was overbroad is premised upon his contention
that there was no probable cause of drug dealing. Having already concluded that the warrant was supported by
probable cause, we do not address this argument.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.