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COURT OF APPEALS DECISION DATED AND RELEASED October 26, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3201-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
JAMES LANZEL,
Defendant-Respondent.
APPEAL from an order of
the circuit court for La Crosse County:
MICHAEL J. MULROY, Judge. Reversed.
Before Gartzke, P.J.,
Sundby and Vergeront, JJ.
PER
CURIAM. The State of Wisconsin appeals from a
circuit court order suppressing evidence of bomb-making apparatus found in the
apartment of respondent James Lanzel.
Based on our review of the affidavit and the search warrant, we conclude
that the warrant issued upon probable cause.
We therefore reverse the suppression order.
STANDARD OF REVIEW
In reviewing the
sufficiency of an affidavit supporting issuance of a search warrant,
"great deference must be paid to a magistrate's determination of probable
cause." State v. Anderson,
138 Wis.2d 451, 469, 406 N.W.2d 398, 407 (1987). So long as the magistrate has "a substantial basis" to
conclude that a search would uncover evidence of wrongdoing, a reviewing court
will uphold the magistrate's determination.
Id.
Stated otherwise,
because of the "great deference" paid to a magistrate's
determination, that determination "will stand unless the defendant
establishes that the facts are clearly insufficient to support a finding of
probable cause." State v.
Higginbotham, 162 Wis.2d 978, 989, 471 N.W.2d 24, 29 (1991). The duty of the reviewing court is to ensure
that the magistrate had a substantial basis for concluding that probable cause
existed. Id. The evidence before the magistrate in
support of the warrant must have been such as to apprise the magistrate 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 the objects
sought will be found in the place to be searched." Id. (quoted source
omitted).
Because the standard of
review requires us to review the magistrate's decision directly, we need not
consider whether the circuit court adopted an incorrect standard of review, as
urged by the State.
BACKGROUND
The affidavit here,
dated July 29, 1994, stated that on June 14, 1994, while attempting to plant a
bomb in the car of a man he thought was a "narc,"[1]
the bomb exploded and blew off Scott Sill's right hand. At a July 20, 1994 police interview, Sill
stated that a man named Steve Walz told him that he could "get something
that would take care of getting back at" the narc. Sill went to an apartment above Bill's
Pumping Station, found to be 106 1/2 East Clinton Street, La Crosse, and
there met with Walz, and a man previously unknown to him named
"Jim." Sill, Walz and Jim
went to a bar where Walz and Jim discussed bomb-making. Several days later, Sill again visited 106
1/2 East Clinton Street, Walz came out of that apartment carrying a black
duffle bag, Walz gave Sill a bomb made of two pipes, and Sill paid Walz
$200.
The affidavit also
averred that a La Crosse Police Lieutenant "reports the tenant at 106 1/2
East Clinton Street was identified as James A. Lanzel ...." The affidavit sought a search warrant for
"106 1/2 East Clinton Street, occupied by James A. Lanzel, for the purpose
of seeking evidence of bomb construction." The affidavit averred that in the opinion of ATF agents,
"evidence of the manufactured bomb may be present at the situs of its
creation ... [and that] normally the person manufacturing the bomb would retain
the publications utilized in a bomb's creation ... [and that various small
items sought] made [sic] have inadvertently been retained due to their
size."
The search warrant,
which issued on August 1, 1994, permitted police to search for publications about
electrical work and explosive devices, as well as for various small items
specifically enumerated (e.g., wire strippings, clippings, glass fragments,
walkie-talkie antennas and batteries with the same date code as that found on
batteries in the recovered remains of the bomb).
ANALYSIS
Lanzel essentially
argues that the search warrant was improper on two grounds: First, that the magistrate had before him
insufficient evidence to support a finding of probable cause, and second, that
the evidence was "stale." We
reject both arguments.
The evidence recited by
the affidavit was "sufficient ... to excite an honest belief in a
reasonable mind" that evidence of bomb-making could be found at 106 1/2
East Clinton Street, La Crosse. Both of
Sill's contacts with that address implicated bombs and bomb manufacture. In his first visit, Sill met Walz and a man
previously unknown to him named "Jim," and shortly thereafter
accompanied Walz and Jim to a tavern where Walz and Jim discussed bomb
manufacture. On Sill's second visit to
the apartment, Walz came out of that apartment with a bomb. Finally, the apartment was known to police
to be occupied by a James Lanzel. This
evidence creates a substantial basis for a reasonable mind to conclude that 106
1/2 East Clinton Street was a locus of bomb activity, and that the occupant,
James Lanzel, was involved with bomb-making.
We agree with respondent
that a bomb may merely have been stored at 106 1/2 East Clinton Street, and
been manufactured elsewhere. However,
where there is otherwise sufficient evidence that the evidence sought is at one
location, there is probable cause to search that location regardless of the
fact that there may be other evidence that could lead reasonable persons to
conclude that the evidence sought is in a different location. State v. Tompkins, 144 Wis.2d
116, 125, 423 N.W.2d 823, 827 (1988).
It is not necessary to
infer that Lanzel manufactured the bomb.
However, the reasonableness of a search warrant is not to be measured by
the success attending its execution.
106 1/2 East Clinton Street was the geographic locus most associated
with the bomb Sill ultimately exploded, and Lanzel was known to police as the
occupant at that address. Presumably,
had a search of this location proved unproductive, further search warrants
would have issued for other places associated with either Lanzel or Walz.
Turning to whether the
evidence was stale, we conclude that the affidavit reasonably permitted the
magistrate to believe that the evidence sought would remain on the premises,
despite the passage of several months.
Bomb-making requires experience.
Therefore, it was reasonable for the magistrate to infer that manuals
and other written instructions would remain in the bomb-maker's possession,
perhaps for future use.
The other evidence
sought was specified to be either innocuous (batteries and the like) or so
small that it may have been overlooked (wire clippings, wire strippings,
etc.). As the affidavit makes clear,
such evidence is likely to be retained "inadvertently," and hence
could "excite an honest belief in a reasonable mind" that it would
still be present several months after the police's first suspicions.
By the Court.—Order
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.