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COURT OF APPEALS DECISION DATED AND RELEASED December 7, 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
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No. 95-0638-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GEORGE W. ALLEN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Rock County:
JAMES E. WELKER, Judge. Reversed
and cause remanded.
Before Eich, C.J.,
Gartzke, P.J., and Sundby, J.
PER
CURIAM. George W. Allen challenges a suppression order. The issue is whether the affidavit provided
probable cause to issue a search warrant.
Because of the affidavit's stale, irrelevant and conclusory averments,
we conclude that the affidavit does not provide a sufficient basis for probable
cause to issue a search warrant.
Therefore, we reverse and remand for further proceedings, including
withdrawal of Allen's guilty plea.
The affidavit on which
the warrant to search Allen's house was based included the following
information:
1. Allen
produced $745 in cash--which he retrieved from his bathroom--as a warrant
payment to a warden from DNR who had gone to Allen's house to arrest him for a
boating violation; the warden also observed that Allen had a number of $100
bills on hand;
2.
Allen sold marijuana from the same address nine months earlier, according to a
reliable confidential informant;
3. a
police dog, trained and experienced in drug
searches, alerted to the
currency collected from Allen;
4. Allen
was convicted of the manufacture/ delivery of a controlled substance in 1989;
5. Allen
was "involved" with the reckless use of a weapon in 1989;
6. police
suspected that Allen sells cocaine;
7. Allen
was employed at a topless bar.
The trial court
considered the totality of the circumstances and denied Allen's suppression
motion, primarily on the basis of the large amount of cash in Allen's bathroom
and the information from the informant.
The trial court refused to allow expert testimony on the reliability of
a dog alerting to cash because the court didn't "think that the dog makes
any difference." The court also
disregarded the "gun episode [as] surplusage."
A court must determine whether the
commissioner who issued the warrant 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." The warrant-issuing commissioner's determination of probable
cause cannot be upheld, however, if the affidavit provides nothing more than
the legal conclusions of the affiant.
....
The
task of the warrant-issuing commissioner "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."
State
v. Kerr, 181 Wis.2d 372, 378-79, 511 N.W.2d 586, 588 (1994), cert.
denied, 115 S. Ct. 2245 (1995) (citations omitted). On review, we decide whether there was a
"substantial basis" for the probable cause determination. Illinois v. Gates, 462 U.S.
213, 238-39 (1983); State v. Anderson, 138 Wis.2d 451, 469, 406
N.W.2d 398, 406 (1987).
We conclude that the
$745 in cash found in a somewhat unusual location is insufficient to establish
probable cause to search Allen's house for evidence of drug dealing. We also conclude that the information from
the informant was stale. The
allegations supporting probable cause must be sufficiently recent to provide a
reasonable basis to believe that the objects sought remain in the area subject
to search. See United States v.
Johnson, 461 F.2d 285, 287 (10th Cir. 1972). An alleged sale of marijuana is too remote in time to provide
probable cause to search Allen's house for contraband ten months later.
The State urges us to
apply the canine alert evidence to supplement the other facts in the
affidavit. Allen cites persuasive
authority that "the evidentiary value of the narcotics dog's alert [is]
minimal." United States v.
$5,000 in U.S. Currency, 40 F.3d 846, 849 (6th Cir. 1994). We conclude that the canine alert evidence
in this record is insufficient to
establish probable cause.
Allen's 1989 conviction
is relevant but independently insufficient to establish probable cause. The l989 involvement with a weapon is too
vague to establish probable cause. The
Rock County Metro Unit files reflect that Allen is suspected of selling
cocaine. However, the affidavit must
provide more than mere suspicions to demonstrate probable cause. See State v. Higginbotham,
162 Wis.2d 978, 992, 471 N.W.2d 24, 30 (1991).
There also is an averment that Allen was employed as a disc jockey at a
topless bar. No one attempts to assert
that such employment is relevant to probable cause.
The State urges us to
consider the totality of the circumstances, rather than the averments
individually, citing State v. Kerr, 181 Wis.2d 372, 380, 511
N.W.2d 586, 589 (1994) (totality of circumstances permits probable cause
determination because affidavit supporting search warrant "contains a
minimal factual basis to support probable cause"). However, even the "minimal factual
basis" in the Kerr affidavit exceeded the totality of the
instant averments.[1] We conclude that the marginally relevant
averments—Allen's 1989 conviction, coupled with his keeping $745 in cash in his
bathroom—even if considered collectively, do not establish probable cause.
The State alternatively
urges us to recognize the good faith exception to the exclusionary rule. United States v. Leon, 468
U.S. 897, 922-24 (1984). We decline to
do so because "effectively overrul[ing] a controlling decision of the
Wisconsin Supreme Court is patently erroneous and usurpative."[2] State v. Grawien, 123 Wis.2d
428, 432, 367 N.W.2d 816, 818 (Ct. App.
1985). Therefore, we reverse and remand
for further proceedings, including withdrawal of Allen's guilty plea.
By the Court.—Judgment
reversed and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] In State v. Kerr, 181 Wis.2d 372, 377, 511 N.W.2d 586, 588 (1994), the affidavit supporting the search warrant contained averments that defendant: (1) was carrying large amounts of cash, from which he paid for his airline tickets and motel room; (2) had not made prior reservations or specified a departure date; (3) carried a metal suitcase of a type known to be used by drug traffickers; and (4) was suspected of possession of a concealed firearm. These averments, which collectively fit the profile of a drug trafficker, were current, relevant and factually specific, unlike those in the instant case.