State v. Higginbotham

Decision Date24 June 1991
Docket NumberNo. 89-0884-CR,89-0884-CR
Citation162 Wis.2d 978,471 N.W.2d 24
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Brian A. HIGGINBOTHAM, Defendant-Appellant.
CourtWisconsin Supreme Court

Sally Wellman, argued, Sharon Ruhly, Donald J. Hanway, Atty. Gen. (past), James E. Doyle, Atty. Gen. (present), on the briefs, for plaintiff-respondent-petitioner.

Suzanne Hagopian, Asst. State Public Defenders, argued, Charles Bennett Vetzner, on brief, for defendant-appellant.

BABLITCH, Judge.

The State of Wisconsin (State) seeks review of a court of appeals' decision, 156 Wis.2d 824, 458 N.W.2d 390 (1990), which reversed the circuit court's judgment convicting the defendant, Brian J. Higginbotham (Higginbotham), on his no-contest plea to the charge of arson, party to the crime. The court of appeals held that evidence seized in the search of Higginbotham's home and automobile should have been suppressed because the warrant-issuing judge did not have a substantial basis for concluding that probable cause existed to issue the warrant. In view of our strong preference for search warrants and the great deference we accord to the issuing judge's determination of probable cause, we conclude that the issuing judge had a substantial basis for finding probable cause to issue the warrant to search the house in which Higginbotham was living and his automobile. Accordingly, we reverse the decision of the court of appeals and affirm Higginbotham's judgment of conviction.

A procedural issue is also raised: whether citing an unpublished court of appeals' decision in a petition to review violates sec. 809.23(3), Stats., when that citation is not used for the purpose of setting forth precedent or authority, but to demonstrate that there is a decisional conflict between two court of appeals' districts. We conclude that sec. 809.23(3) does not prohibit the citing of unpublished court of appeals' decisions for this purpose.

The facts are as follows. On February 21, 1988, Captain Dennis Kussmann of the Waupaca County Sheriff's Department responded to a call from the residence of Art Toppe regarding burn marks found on the outside of Toppe's home. After interviewing the occupants of the Toppe residence, examining the burn marks and the surrounding area, and conducting further investigation regarding the suspected arson, Kussmann applied to Waupaca County Circuit Court Judge John P. Hoffmann for the issuance of a search warrant to search a residence occupied by Donna Frasier, Brian Higginbotham and Miles Carpenter, and to search a red Ford Fairmont located at the residence. After reviewing Kussmann's affidavit and listening to his testimony, Judge Hoffmann issued the warrant, finding that there was probable cause to believe that evidence of the arson could be found at the residence of Donna Frasier and in a red Ford Fairmont with yellow Wisconsin license plates at that location.

The following facts were set forth in Kussmann's affidavit. Chester Wedde, who rented a room from Toppe, told Kussmann that he had smelled gas around the Toppe residence just before noon on February 21, 1988. After investigating the source of the gas odor, Wedde observed a large scorched area on the north side of Toppe's home and another large scorched area on the front porch.

George Babino, another tenant of Toppe's, told Kussmann that in the early morning hours of that day, February 21, 1988, he had twice been awakened by barking dogs. After being awakened the second time, at about 2:30 or 3:00 a.m., Babino looked out his window and observed a vehicle with its lights on going very slowly towards Highway 156. Donna Frasier's residence is located on Highway 156. Babino also reported that shortly before Kussmann arrived at the Toppe residence, he observed Donna Frasier, Brian Higginbotham, and another individual known to Babino as Miles, drive very slowly by the Toppe residence in a red Ford Fairmont with yellow license plates.

In addition, Kussmann's affidavit stated that Babino had provided the following information:

that George Babino and Donna Frasier had previously lived [sic] before separating in September, 1987; that he and Donna Frasier had subsequent disagreements over child custody and visitation, and about Donna Frasier living with the above mentioned two male subject [sic]; that George Babino believe [sic] Donna Frasier, Brian Higginbotham, and 'Miles' might be attempting to get even with him; that in November, 1987, George Babino found a five gallon square blue container containing a substance which appeared to him to be like turpentine, and placed said container at that time at Donna Frasier's residence on Highway 156; and that said container and its contents should still be at Donna Frasier's residence on Highway 156. Further, your affiant deems George Babino reliable as a citizen witness.

Kussmann's affidavit also stated that in the opinion of Kussmann and Assistant Clintonville Fire Chief Donald Krueger, a flammable liquid had been thrown against the Toppe residence in two separate places and ignited. During Kussmann's and Krueger's investigation of the area, they collected melted snow, charred soil, two burned matches, and wood and paint samples from the scorched north side of the Toppe residence. In addition, Kussmann discovered one yellow right-handed work glove with a burn spot and red stripes at the end of Toppe's driveway. Photographs of two separate sets of shoe prints left in the snow at Toppe's residence were also taken by Kussmann. Kussmann also stated in his affidavit that he had observed the car described by Babino, a red Ford Fairmont with yellow Wisconsin license plates, at the Frasier residence on Highway 156.

After reviewing the above information contained in Kussmann's affidavit, Judge Hoffmann heard additional testimony from Kussmann before issuing the warrant. Kussmann testified that Babino told him that Frasier and Babino had lived together for nineteen years before separating in November, 1987. Babino also told Kussmann that he had reported Frasier to the welfare department to inform them that Frasier was violating her conditions of welfare by not notifying the department that Higginbotham and Carpenter were staying at her home.

Based on the affidavit and testimony of Captain Kussmann, Judge Hoffmann found that there was probable cause to believe that things used in the commission of the crime of arson, such as would constitute evidence of the arson, would be located at Frasier's residence and in the red Ford Fairmont with yellow Wisconsin license plates located at that residence.

Judge Hoffmann stated that the items specifically authorized for search "will be the one 5-gallon square blue container containing a turpentine-like substance, a container or containers containing other flammable liquids, one single left yellow workman's glove with red stripes, and two pairs of shoes having soles which match those photographed by Cpt. Kussmann...."

The warrant was executed on March 1, 1988. During the search of Frasier's home, the officers seized a two gallon gas can, petroleum residue from the snow in Frasier's driveway, two pairs of hiking boots, two pairs of yellow chore gloves, and two State of Washington license plates found in a garbage bag on Frasier's property. The treads of one pair of boots, those worn by Miles Carpenter who was present during the search, matched one of the sets of boot prints photographed at the Toppe residence by Captain Kussmann.

After Frasier and Carpenter were taken to the police station and read their rights, each gave a statement. After taking Frasier's statement, which implicated both Carpenter and Higginbotham, officers arrested Higginbotham at work and impounded his car, the red Ford Fairmont described in the warrant. The search of the car resulted in the seizure of a two gallon gas can and one yellow left-handed chore glove. The boots Higginbotham was wearing when he was arrested were also seized. The treads of these boots matched the other set of boot prints photographed by Captain Kussmann at the Toppe residence.

On April 8, 1988, Higginbotham moved to suppress the evidence obtained by the police in the searches of the Frasier residence and of his automobile. Higginbotham also moved to suppress the statements made by Frasier, Carpenter, and himself as "fruit of the poisonous tree." Following Carpenter's suppression hearing on May 9, 1988, and Higginbotham's suppression hearing on May 12, 1988, the circuit court denied the motions to suppress in a written decision filed July 7, 1988. The court did, however, find that the seizure of the license plates and the two pairs of yellow chore gloves from the Frasier residence went beyond the scope of the warrant and that these items should be suppressed.

Subsequently, Higginbotham pled no contest to one count of arson to a building, party to a crime, pursuant to secs. 943.02 and 939.05, Stats. Higginbotham appealed his conviction. The court of appeals held that the affidavit and testimony of Kussmann did not establish probable cause for the issuance of the warrant because the facts did not provide a substantial basis for the issuing judge to conclude that the items sought would be in either the Frasier residence or in Higginbotham's car. Accordingly, the court of appeals concluded that the search was invalid and the evidence was inadmissible. The court remanded the case to the circuit court for determination of whether evidence that may have been obtained as a fruit of the illegal search should be suppressed. In addition, the court held that it was without authority to adopt the Leon good faith exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

The State petitioned for review, asserting that the warrant was based on probable cause, and that even if it was not, this court should adopt the Leon good faith exception to the...

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