State v. Anderson
| Decision Date | 01 June 1987 |
| Docket Number | Nos. 85-1826-C,85-1827-CR,s. 85-1826-C |
| Parties | STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Paul W. ANDERSON, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Brian J. HEDGES, Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
Christopher Wren, Asst. Atty. Gen., (argued), for plaintiff-appellant-petitioner; Bronson C. La Follette, Atty. Gen., on brief.
Walter W. Stern (argued), for Anderson; Sfaciotti & Stern, Kenosha, on brief.
Terry W. Rose (argued), for Hedges; Rose & Rose, Kenosha, on brief.
This is a review of an unpublished decision of the court of appeals affirming an order of the circuit court for Kenosha county, Judge William U. Zievers, granting the defendants' motions to suppress evidence obtained as a result of the execution of a search warrant.
The issue before us concerns the circuit court's conclusion that the affidavit contains false statements made knowingly and intentionally or with a reckless disregard for the truth. Based upon these conclusions, the circuit court determined that the affidavit, absent those statements, failed to state probable cause. The circuit court, therefore, suppressed the evidence which was obtained as a result of the invalid search warrant. Because we conclude, under the methodology outlined in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), that the circuit court erroneously determined that the statements in the affidavit were either intentionally false or made with reckless disregard for the truth, and because we find that the affidavit does state probable cause, we uphold the validity of the search warrant. We, therefore, vacate the circuit court's order to suppress the evidence obtained as a result of the execution of the search warrant.
The facts in these cases are as follows: Paul W. Anderson (defendant) and Brian J. Hedges (defendant) were each charged separately with possession of marijuana with intent to deliver in violation of secs. 161.41(1m), 161.14(4)(t), and 939.05, Stats. (1983-84). The charges were based upon evidence seized in a search, pursuant to a search warrant, of a residence located at 1039 Sheridan Road, Township of Somers, Kenosha county, Wisconsin. Circuit Judge David M. Bastian had issued the warrant based on the following affidavit of Officer Gary R. Smith of the Kenosha Police Department.
Following a preliminary examination and bindover, Anderson and Hedges filed separate motions to suppress all evidence seized during the search. Both motions raised two primary arguments. The defendants first argued that the affidavit was insufficient to state probable cause because it failed to establish the reliability of Donald J. Kisielewski, the person from whom Officer Smith obtained his information about the location of the marijuana. Second, the defendants argued that, even if Kisielewski's reliability was sufficiently shown, the affidavit nevertheless failed to state probable cause because it contained false statements made knowingly and intentionally or with reckless disregard for the truth and that such statements were necessary to state probable cause. 1 Accordingly, the defendants requested an order suppressing the use of any evidence from, and all fruits of, the search conducted at 1309 Sheridan Road, Town of Somers, Wisconsin.
A consolidated hearing on both motions to suppress was held before Judge Zievers. The evidence introduced at the hearing consisted of the testimony of Officer Smith and a stipulation by the parties as to what the testimony of Judge Bastian would have been had he testified.
At the hearing, Officer Smith (Smith) testified that he had been a police officer since November, 1978, and that he had been assigned to narcotics for the year and a half immediately preceding the issuance of the warrant. Smith further testified to the following series of events leading up to the execution of the search warrant. On September 4, 1984, Smith, acting in his undercover capacity, purchased a quarter ounce of marijuana from Kisielewski. At the time of the purchase, Smith observed additional quantities of marijuana in Kisielewski's residence.
On September 6, 1984, Smith obtained additional marijuana from Kisielewski. This second acquisition of marijuana was obtained without charge, leading up to a three-pound buy that Smith was supposed to make. Kisielewski advised Smith that Kisielewski's source was in the north part of Kenosha county and that the three-pound purchase would come from Kisielewski's source. At this second meeting, Smith again observed additional quantities of marijuana in Kisielewski's apartment.
On September 10, 1984, Smith met Kisielewski and drove with him to the Surfside Bowling Lanes parking lot on Sheridan Road. While enroute, Kisielewski told Smith they were going to Kisielewski's source on Sheridan Road. 2 Once in the parking lot, Kisielewski parked the car at the south end of the lot facing south. Kisielewski then told Smith that, because no strangers were allowed in the house, Smith would have to wait in the car while Kisielewski went to the house. At that time Kisielewski indicated that the house involved was the one referred to in the search warrant. The house at 1039 Sheridan Road is the only residence in the vicinity of where the car was parked.
Smith then observed Kisielewski walk around the east section of the house. Because Smith lost sight of Kisielewski when he walked west along the house, Smith did not see Kisielewski enter the house. Approximately one minute later, Kisielewski returned from the area of the house and stated that "he" was not home. Smith and Kisielewski then went into the bowling alley. Sometime later an unidentified individual said "Don [Kisielewski], if you're looking for Brian he's home now." After exiting the bar and returning, Kisielewski advised Smith that Brian was home and directed Smith to wait in the car.
Smith then observed Kisielewski walk around the east section of the house. Smith again did not see Kisielewski enter the house. Approximately three minutes later, Kisielewski returned with a small plastic bag. Kisielewski told Smith that Brian had the same stuff in the house and that this was a sample of what he was going to buy. Although Smith had sufficient money with him, the drug transaction did not occur. Kasielewski did not explain why the buy did not occur; he only stated that it would be put off until that night. Kisielewski and Smith then proceeded back to the apartment.
Smith further testified that, because of the amounts of marijuana in Kisielewski's possession, Smith concluded that Kisielewski was more a dealer than a user. Although Smith testified that reliability of an informant is important and that he had never previously used evidence of criminal conduct as providing reliability, Smith considered Kisielewski to be a good contact and a reliable person. According to Smith, Kisielewski's conduct with Smith is what led him to believe that Kisielewski was reliable.
On the afternoon of September 10, 1984, Smith and Assistant District Attorney J. Patrick O'Neill prepared and submitted Smith's affidavit in support of the request for a search warrant. According to a stipulation entered into by the parties, "Judge Bastian examined the affidavit, read the entire affidavit and then indicated as to a concern that he had regarding the basis for the reliability of Mr. Kisielewski and that it was then at his insistence that [an] additional handwritten paragraph ... was added describing the basis for relying on Mr. Kisielewski's information." In response to Judge Bastian's concerns, Assistant District Attorney O'Neill added the following additional lines at the bottom of the affidavit which Smith initialed. "Your affiant has knowledge as to the reliability of Mr. Kisielewski from two prior occasions when he provided your affiant with accurate information." Judge Bastian then...
To continue reading
Request your trial
-
State v. Diaz
... ... Adams, 291 S.C. 132, 352 S.E.2d 483 (1987); State v. O'Connor, 378 N.W.2d 248 (S.D.1985); State v. Ballard, 836 S.W.2d 560 (Tenn.1992); Hennessy v. State, 660 S.W.2d 87 (Tex.Crim.App.1983); State v. Anderson, 701 P.2d 1099 (Utah 1985); State v. Jackson, 102 Wash.2d 432, 688 P.2d 136 (1984); State v. Hlavacek, 185 W.Va. 371, 407 S.E.2d 375 (1991); State v. Anderson, 138 ... Page 582 ... Wis.2d 451, 406 N.W.2d 398 (1987); Bland v. State, 803 P.2d 856 (Wyo.1990) ... We turn ... ...
-
State v. Romero
...great deference to a magistrate's decision to issue a search warrant. Gates, 462 U.S. at 236, 103 S.Ct. 2317; State v. Anderson, 138 Wis.2d 451, 469, 406 N.W.2d 398 (1987). In so doing, we review as a matter of law whether the magistrate had a substantial basis for concluding that a search ......
-
State v. DeSmidt
...Wisconsin Constitution and the Fourth Amendment of the United States Constitution are substantially the same. See State v. Anderson, 138 Wis.2d 451, 461, 406 N.W.2d 398 (1987); State v. Fry, 131 Wis.2d 153, 172, 388 N.W.2d 565 (1986), cert. denied, 479 U.S. 989, 107 S.Ct. 583, 93 L.Ed.2d 58......
-
State v. Silverstein, Appeal No. 2016AP1464-CR.
...reliability of the ESP. Therefore, applying the "great deference" we pay to a determination of probable cause, see State v. Anderson , 138 Wis. 2d 451, 469, 406 N.W.2d 398 (1987), we conclude that the warrant-issuing magistrate "had a substantial basis for concluding that a search would unc......
-
Bearing false witness: perjured affidavits and the Fourth Amendment.
...States, 376 U.S. 528, 533 (1964). (172.) Rugendorf, 376 U.S. at 532; see also Franks, 438 U.S. at 164-65. (173.) State v. Anderson, 406 N.W.2d 398, 404 (Wis. 1987); see also United States v. Cican, 63 F. App'x 832, 835-37 (6th Cir. 2003); Turner v. Lotspeich, No. 95-1063, 1996 WL 23195, at ......