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COURT OF APPEALS DECISION DATED AND RELEASED April 3, 1996 |
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. 95-0884-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
PENNY L. SWANSON,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Kenosha County:
S. MICHAEL WILK, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
PER CURIAM. Penny L. Swanson was
convicted of possessing marijuana with intent to deliver as party to the
crime. On appeal from the judgment of
conviction, she challenges the trial court's refusal to quash a search warrant
and suppress evidence gathered as a result of the search.[1] Swanson argues that the affidavit for search
warrant prepared by a Kenosha police detective did not support a probable cause
determination and that the trial court erred in ruling that any errors in the
affidavit were technical and did not prejudice Swanson's rights. We disagree and affirm.
The principles governing
appellate review of a challenge to the issuance of a search warrant were
recently set forth in State v. Kerr, 181 Wis.2d 372, 511 N.W.2d
586 (1994), cert. denied, 115 S. Ct. 2245 (1995). In assessing whether there was probable
cause to issue the search warrant, we review the record that was before the
warrant-issuing commissioner (here, the circuit court judge). Id. at 378, 511 N.W.2d at
588. We determine whether the issuing
judge 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).
In assessing probable
cause, the issuing judge "is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit ...
there is a fair probability that contraband or evidence of a crime will be
found in a particular place." Id.
at 379, 511 N.W.2d at 588 (quoted source omitted). "Probable cause is not a technical, legalistic concept but a
flexible, common-sense measure of the plausibility of particular conclusions
about human behavior" based upon the totality of the circumstances set
forth in the affidavit in support of the warrant. See id. at 379-80, 511 N.W.2d at 588-89
(quoted source omitted). We give great
deference to the issuing judge's probable cause determination. Id. at 379, 511 N.W.2d at 589.
Turning to the record
before the issuing judge at the time the search warrant was sought, we conclude
that the judge had a substantial basis for concluding that probable cause
existed. The detective's affidavit in
support of the issuance of the search warrant stated that controlled substances
and associated paraphernalia would be found at 915 - 49th Street, Kenosha, and
that particular United States currency used in a controlled buy of cocaine by a
confidential informant would also be found on the premises.
Paragraphs one and two
of the affidavit's factual statements recite that the detective is assigned to
the Kenosha County Controlled Substances Unit and has specialized training in
investigating drug trafficking, including the use and supervision of
informants. Paragraph three describes
the steps in a "controlled buy" by a confidential informant working
with police. Paragraph four indicates
that the search warrant is based, in part, upon a controlled buy made by the
confidential informant within the past seventy-two hours. Paragraph five states that in the past
seventy-two hours, the informant told the detective that he or she could
purchase cocaine at 915 ‑ 49th Street, Kenosha, a controlled
buy was arranged, and the detective observed the informant enter and leave the
49th Street address and return to him.
At that point, the informant gave the detective $80.[2] Paragraph six states that the informant told
the detective that Penny Swanson and an individual named "Pepie" gave
the informant a controlled substance while inside the 49th Street address, that
Swanson represented that the substance was cocaine and that the informant gave
Pepie the U.S. currency designated for use in the controlled buy. Paragraph seven of the affidavit states that
the detective has experience in testing controlled substances and that the
substance obtained by the informant from Swanson testified positive for the
presence of cocaine.
The circuit court issued
the warrant based upon this affidavit.
A search of 915 - 49th Street yielded marijuana and cocaine. Swanson was charged with two counts of
possession with intent to deliver a controlled substance (cocaine and
marijuana) and moved to quash the search warrant and suppress the evidence
seized.
At the hearing on the
motion, Swanson argued that the error in paragraph five, i.e., the statement
that the confidential informant returned from the controlled buy with $80
rather than a controlled substance, precluded a determination of probable cause
that a crime occurred. The State
conceded that paragraph five contained a clerical error but urged that there
was probable cause based upon the totality of the circumstances set forth in
the affidavit. The court agreed and
ruled that the error in the affidavit was technical and did not affect
Swanson's substantial rights. See
§ 968.22, Stats. In arriving at this decision, the court was
influenced by a complete reading of the detective's affidavit, particularly the
allegations regarding the detective's familiarity with controlled buys using
confidential informants, the fact that a controlled buy occurred and that the
substance purchased tested positive for the presence of cocaine. Therefore, the court declined to suppress
the evidence seized pursuant to the search warrant. Swanson pled guilty to possession of marijuana with intent to
deliver and renews her challenge to the warrant on appeal.
Section 968.22, Stats., 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." It is apparent from
the totality of the circumstances that the error in paragraph five was
clerical. Other paragraphs in the
affidavit described the manner in which a controlled buy is made, the role of
the confidential informant and the detective, the field test result on the
controlled substance received from the confidential informant, and the fact
that the confidential informant gave the predetermined amount of currency to
Pepie and received a controlled substance from Swanson. The clarity and totality of these statements
support a determination that the error in paragraph five was merely clerical.
Swanson complains that
the issuing judge violated her substantial rights by
"rubber-stamping" the affidavit without noticing the error in
paragraph five. We disagree. While it would have been preferable for the
error to have been noticed and corrected prior to issuance of the search
warrant, we nevertheless affirm the refusal to quash the warrant because the
error was merely clerical.
A clerical error in an
affidavit for a search warrant does not render the court's probable cause
determination erroneous. United
States v. Hyten, 5 F.3d 1154, 1157 (8th Cir. 1993). In State v. Nicholson, 174
Wis.2d 542, 497 N.W.2d 791 (Ct. App. 1993), this court reviewed an affidavit
which misidentified the premises to be searched even though the police
ultimately searched the premises they had intended to search. Id. at 545, 497 N.W.2d at
792. In reaching its conclusion that
the erroneous address stated in the warrant did not invalidate the warrant,
this court considered the other information supplied in the affidavit in
support of the search warrant. That
information made clear which location was to be searched notwithstanding the
erroneous address contained in the affidavit.
Id. at 546, 497 N.W.2d at 793.
As in Nicholson,
the totality of the circumstances set forth in the affidavit in this case
indicates that Swanson was involved in a controlled buy and that paragraph
five's statement that the informant gave the $80 buy money back to the
detective was a technical irregularity under the facts of this case and did not
affect any substantial right of Swanson.
Finally, we disagree with
Swanson that the affidavit is somehow invalid because it is largely preprinted
with spaces for inserting specific information relating to the particular
premises to be searched and the circumstances justifying a search. Our focus is on the content of the
affidavit, not on its form. The
affidavit contains factual allegations sufficient to excite an honest belief
that the objects sought in the warrant were linked with the commission of a
crime and that they would be found in the place to be searched. Kerr, 181 Wis.2d at 378, 511
N.W.2d at 588.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Swanson entered a guilty plea which waives nonjurisdictional defects and defenses, including claimed constitutional rights. County of Racine v. Smith, 122 Wis.2d 431, 434, 362 N.W.2d 439, 441 (Ct. App. 1984). However, her right to appeal the trial court's refusal to quash the search warrant and suppress evidence is preserved under § 971.31(10), Stats.