State v. Jackson

• Decision Date: 10 June 2008
• Docket Number: No. 2007AP1362-CR.,2007AP1362-CR.
• Citation: 756 N.W.2d 623,2008 WI App 109
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Adrian J. JACKSON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

756 N.W.2d 623

2008 WI App 109

STATE of Wisconsin, Plaintiff-Respondent, v. Adrian J. JACKSON, Defendant-Appellant.

No. 2007AP1362-CR.

Court of Appeals of Wisconsin.

Oral Argument April 1, 2008.

Opinion Filed June 10, 2008.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Martin E. Kohler and Craig S. Powell of Kohler & Hart LLP, of Milwaukee. There was oral argument by Brian Kinstler.

On behalf of the defendant-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general and Juan B. Colas, assistant attorney general. There was oral argument by Sally L. Wellman, assistant attorney general.

Before CURLEY, P.J., FINE and KESSLER, JJ.

¶ 1 KESSLER, J

Adrian J. Jackson appeals from a judgment of conviction and sentence which followed his guilty plea after the trial court denied his motion to suppress certain evidence obtained pursuant to a search warrant. Jackson asserts the warrant was invalid. We conclude that the warrant failed to establish the particularity required for the search of one unit in a multifamily residence, and failed to establish probable cause for the search of the building as a whole or either unit therein. Consequently, we reverse.

Background

¶ 2 A judicial court commissioner issued a warrant for "certain premises ... occupied by ... Adrian Jermaine Jackson" described as: "Address of 4124 N. 21st Street is a two-story duplex residence" with the physical description of the exterior of the building repeated verbatim from the affidavit presented in support of the warrant. There is no description of any portion of the interior of the residence. The warrant identifies the crime for which evidence is sought as "[p]ossession of a [f]irearm by convicted felon" in violation of

WIS. STAT. § 941.29 (2005-06).¹

¶ 3 The affidavit² (Affidavit) of Milwaukee County Sheriff's Detective Keith P. Thrower in support of the warrant issued November 1, 2004, is relied upon as establishing probable cause to believe that Jackson committed the crime of possession of a firearm by a felon, and that evidence of that crime would be in the building for which the warrant was issued. The Affidavit is composed of eleven paragraphs. The connection between Jackson, the residence, and Jackson's possession of any firearms is mentioned only in parts of two paragraphs in the Affidavit:

[A] reliable confidential informant ... within the past eight days, went to 4124 N. 21st Street and observed Adrian Jackson in possession of two-semi [sic] automatic pistols at the residence of 4124 N. 21st Street in the City and County of Milwaukee.

A check of records also showed that Adrian J. Jackson listed the same address (4124 N. 21st Street) under County Jail Booking Records as of 02/13/04.

¶ 4 The Affidavit describes Thrower's experience in investigating firearm offenses and other offenses, his work with a specific confidential informant, including why Thrower believes the informant is reliable, and a physical description of the exterior of the building that Thrower wishes to search. Thrower identifies Jackson's prior felony conviction for endangering safety by use of a dangerous weapon, and discloses that a county jail booking record from February 13, 2004, lists Jackson's address as 4124 North 21st Street. Curiously, Thrower asks to search the building for evidence of who controls the duplex, but the Affidavit provides the issuing magistrate with no factual information (e.g. utility billing, property tax records, driver's license, vehicle registration at the address, or reports from neighbors or police surveillance) which tends to indicate what, if any, portion of the duplex Jackson lives in or controls.

Standard of Review

¶ 5 In State v. Stank, 2005 WI App 236, ¶ 30, 288 Wis.2d 414, 708 N.W.2d 43, where we refused to allow an after-the-warrant attempt to challenge the credibility of a witness who testified before the warrant-issuing court, we noted that any challenge to the warrant-issuing court's finding is "limited to the record established before the court at the time it issued the warrant." Id., 288 Wis.2d 414, ¶ 30, 708 N.W.2d 43; see also State v. Lindgren, 2004 WI App 159, ¶ 16, 275 Wis.2d 851, 687 N.W.2d 60; United States v. Hinton, 219 F.2d 324, 326 (7th Cir.1955) ("The validity of the warrant is dependent on the facts shown in the affidavit before the issuing authority.").

Whether there is probable cause to believe that evidence is located in a particular place is determined by examining the "totality of the circumstances." ... [A] probable cause determination must be based upon what a reasonable magistrate can infer from the information presented by the police.... We therefore consider only the facts presented to the magistrate.

State v. Ward, 2000 WI 3, ¶ 26, 231 Wis.2d 723, 604 N.W.2d 517 (internal citations omitted). "It is the duty of the reviewing court to ensure that the magistrate had a substantial basis to conclude that the probable cause existed." Id., ¶ 21 (internal citations omitted); see also Stank, 288 Wis.2d 414, ¶ 30, 708 N.W.2d 43.

¶ 6 The trial court held a hearing on Jackson's motion challenging the validity of the warrant. The State requested permission, and was allowed, to present extraneous evidence well beyond that which had been before the issuing magistrate. Because, as we have seen, the validity of the warrant cannot be established by material not before the magistrate, see Lindgren, 275 Wis.2d 851, ¶ 16, 687 N.W.2d 60; Ward, 231 Wis.2d 723, ¶ 26, 604 N.W.2d 517, and because the State agreed at oral argument before this court that the only proper measure of the validity of the warrant is the information that was presented to the issuing magistrate, we do not consider the testimony from the suppression hearing nor do we defer to the trial court's factual findings based on that evidence.

Discussion

¶ 7 The validity of a search warrant is measured against the requirements of the Fourth Amendment of the United States Constitution,³ and Article I, Section 11 of the Wisconsin Constitution.⁴ The parties here make no argument that the Wisconsin Constitution provides broader protections than those found in the Fourth Amendment; hence, we assume for purposes of this decision that the two provisions provide coterminous protection.

I. Particular description of place to be searched

¶ 8 In State v. Schaefer, 2003 WI App 164, 266 Wis.2d 719, 668 N.W.2d 760, we noted that: "The particularity requirement serves three purposes by preventing general searches, the issuance of warrants on less than probable cause, and the seizure of items different from those described in the warrant." Id., ¶ 23. A warrant must sufficiently describe the place to be searched so that the officer "can with reasonable effort ascertain and identify the place intended." Maryland v. Garrison, 480 U.S. 79, 91, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) (quoting Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925)).

¶ 9 If the location to be searched is not described with sufficient particularity to inform officers which unit in a multi-unit building they are to search, the particularity required by the Fourth Amendment has not been satisfied. Hinton, 219 F.2d at 325-26. "[A] warrant which describes an entire building when cause is shown for searching only one apartment is void." Id. at 326 (citations omitted); see also United States v. Votteller, 544 F.2d 1355, 1363 (6th Cir.1976). "For purposes of satisfying the Fourth Amendment, searching two or more apartments in the same building is no different than searching two or more completely separate houses. Probable cause must be shown for searching each house or, in this case, each apartment." Hinton, 219 F.2d at 325-26.

[I]f the officers had known, or ... should have known, that there were two separate dwelling units on the third floor ... they would have been obligated to exclude respondent's apartment from the scope of the requested warrant.... The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate.

Garrison, 480 U.S. at 85, 107 S.Ct. 1013. Where the officer concluded, after making a reasonable investigation (including verifying information from a confidential informant, inquiring from the utility company about billing records, and exterior examination of a three-story building), that there was only one third floor apartment at the specified address and that it was inhabited by McWebb, a warrant to search "the third floor apartment" and "the person of McWebb" was a valid warrant. Id. at 81-82, 107 S.Ct. 1013.

¶ 10 Where probable cause is provided for a search of a location, and the description of the location specifically identifies it as part of an obviously multi-unit building, a search conducted within the premises included within the description set forth in the warrant, but in a place that was unknown to the officers at the time the warrant was issued, is permitted. Rainey v. State, 74 Wis.2d 189, 205, 246 N.W.2d 529 (1976). In Rainey, the warrant authorized search of the "[e]ntire first floor premises" of a building which contained a business. Id. at 201, 246 N.W.2d 529. The officers discovered a balcony area raised up from the first floor, but which did not reach the second floor and which was accessible only from the first floor. Id. at 204, 246 N.W.2d 529. Noting the significant detailed description of the interior of the premises, and the detailed description of personally observed drug transactions in the building which was provided by the informant in support of the warrant,⁵ our supreme court approved the search of a balcony area as included within "the entire first floor" authorized by the warrant. See id. at 205, 246 N.W.2d 529 ("The obvious purpose of designating the entire first floor premises in the warrant was not to limit the search literally to the first...