State v. Lopez
| Decision Date | 11 December 1996 |
| Docket Number | No. 95-3250-CR,95-3250-CR |
| Citation | 559 N.W.2d 264,207 Wis.2d 413 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Agustin LOPEZ, Defendant-Appellant. d |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Gill M. Semancik of Law Office of Brendan J. Rowen of Wauwatosa.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General and Thomas J. Balistreri, Assistant Attorney General.
Before ANDERSON, P.J., and NETTESHEIM and SNYDER, JJ.
Agustin Lopez appeals from a judgment of conviction and an order denying his postconviction motion. He contends that the search warrant of his home was not supported by probable cause, and thus, the evidence seized was found as part of an illegal search and was inadmissible. Lopez further argues that § 161.49, STATS., 1 the penalty enhancer, is void for vagueness. In the alternative, he maintains that the State violated his due process rights by seeking the enhancer because the park in question is a passive park, but is not a place where children congregate. We reject his arguments and affirm.
On June 9, 1994, the circuit court for Waukesha county issued a search warrant for N163 W19325 Cedar Run Drive, village of Jackson, which is approximately 480 feet from Cedar Run Park, a public park operated by the village. Detective David Janisch of the Waukesha County Metropolitan Drug Enforcement Group swore under oath to the facts as set forth in the affidavit which supported the search warrant. The affidavit stated that an informant, who had proven reliable in the past, 2 indicated that he had contact with Roger Lopez, who sold marijuana that he obtained from his brother "Gus." 3 According to the informant, Roger told him that "Gus" obtained thirty-five to forty pounds of marijuana from a source in Chicago, but he was having trouble getting rid of it. In fact, Roger indicated that "Gus" had most of the marijuana left, and he stored it at his house in the Mequon area. Roger also told the informant that "Gus" was about forty years old and was married.
Initially, Janisch corroborated the information regarding Roger and then conducted surveillance at Roger's residence in the village of Cudahy. During the surveillance, Janisch contacted the informant to have him order one pound of marijuana from Roger. When the informant placed his order, Roger told him that he would call him back in a few minutes. Shortly thereafter, Roger returned the call and said "Gus" was bringing the one pound of marijuana over to Roger's house and would be there within "half an hour."
Approximately twenty minutes later, Janisch observed a black 1989 Pontiac Grand Am arrive at Roger's residence. Janisch also noted that the individual who arrived in the Grand Am was a Hispanic male, approximately forty years old, six feet tall, slim and carrying a duffle bag. Janisch then confirmed through the Wisconsin Department of Transportation (DOT) records that the Grand Am was listed to "Gus" and Janice Lopez of N163 W19325 Cedar Run Drive and the individual driving the Grand Am matched the physical description and approximate age of Lopez's driver's license record. Janisch also verified through Wisconsin Electric Utilities that Lopez is the resident of N163 W19325 Cedar Run Drive and has been since August 1989.
Shortly after the individual with the duffle bag arrived at Roger's residence, Roger phoned the informant to let him know that the one pound of marijuana had just arrived. The informant set up a meeting to complete the one-pound transaction of marijuana for $1200. Janisch next observed a different Hispanic male leave Roger's residence in the Grand Am registered to "Gus" Lopez.
Janisch also conducted surveillance at the meeting place. There he observed the Grand Am arrive and the driver exit the vehicle, open the trunk, take out a Pepsi twelve-pack carton and walk to the informant's vehicle. The informant drove around the block with the driver. The informant wore a wire transmitter during the transaction and Janisch heard the individual identified as Roger state that a ten-pound deal would be "no problem," and that "Gus" had a lot left at "Gus's" house and the price would be approximately $1200 per pound. The driver also indicated that "Gus's" source in Chicago was still waiting for the money from the marijuana and that he had to give money to "Gus" for the pound. The informant returned and dropped off the driver of the Grand Am. The surveillance team followed the Grand Am back to Roger's residence and Janisch met with the informant. The informant turned over a Pepsi carton containing approximately one pound of marijuana.
Janisch returned to Roger's residence and noted that the Grand Am remained there for approximately three more hours. The driver who initially arrived in Lopez's vehicle exited Roger's residence and drove away in the Grand Am. The surveillance team followed According to the criminal complaint, during execution of the search warrant at the Lopez residence, the officers discovered thirty-five separately wrapped bags of greenish-brown material believed to be marijuana in the basement area in a freezer. The material tested positive for tetrahydrocannabinol, the active ingredient in marijuana. The total weight of the bags was approximately 48.5 pounds or 22,019 grams. The search also uncovered approximately $8500 in cash, an OHaus triple-beam scale and various drug paraphernalia.
[207 Wis.2d 424] the vehicle to Washington county where it was ordered to back off to avoid detection. Janisch simultaneously set up surveillance at Lopez's residence in the village of Jackson and within a short time observed Lopez's vehicle arrive and park in the rear parking lot. The individual who exited the car was the same individual observed leaving Roger's residence.
Lopez filed a motion to dismiss, a motion to suppress physical evidence and a motion to suppress statements. The trial court denied all of the motions, except the motion to suppress statements as it related to evidence concerning a key to the freezer in the basement. However, the trial court denied the motion to suppress the evidence based upon the statement. Lopez subsequently pled no contest to criminal charges. A judgment of conviction was entered against him for possession of marijuana with intent to deliver within 1000 feet of a park. Lopez filed a motion for postconviction relief, which was denied. Lopez appeals.
Lopez first argues that the search warrant was not based on probable cause and therefore the evidence seized from the freezer was the product of an illegal search. In deciding whether probable cause to issue a search warrant existed, we defer to the trial court's determination. Great deference should be given to the warrant-issuing court's determination of probable cause. The deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant. See State v. Falbo, 190 Wis.2d 328, 334, 526 N.W.2d 814, 816 (Ct.App.1994).
Lopez argues that there is no evidence in the affidavit to establish the veracity of the information provided by Roger to the confidential informant. "The only corroboration done by Detective Janisch was to stake out Roger's residence and arrange a purchase through the confidential informant." Thus, Lopez maintains that the only probable cause the affidavit supported was for a search of Roger's residence, but not his.
The existence of probable cause is determined by applying the totality of the circumstances test adopted in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). State v. Anderson, 138 Wis.2d 451, 468, 406 N.W.2d 398, 406 (1987). When issuing a search warrant, the issuing court must simply make a commonsense determination as to whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. See Falbo, 190 Wis.2d at 337, 526 N.W.2d at 817. In making this decision, the trial court must consider all of the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information. See id. However, elaborate specificity is not required, and the officers are entitled to the support of the usual inferences which reasonable people draw from facts. State v. Marten, 165 Wis.2d 70, 75, 477 N.W.2d 304, 306 (Ct.App.1991).
Under the totality of the circumstances of this case, we conclude that the search warrant affidavit provided a substantial basis for concluding that there was a "fair probability" that marijuana would be found on Lopez's premises. See Gates, 462 U.S. at 238, 103 S.Ct. at 2332. The informant provided details regarding Roger and a potential drug transaction with Roger, which were either verified or observed by Janisch. In addition, the informant relayed information about "Gus" that he received from Roger and Janisch verified much of this information as well.
When an informant is shown to be right about some things he or she has alleged, it is probable that the informant is also right Nevertheless, Lopez contends that the marijuana found in the freezer in the basement of his residence was found because of an illegal statement he gave to the police. He insists that the police would not have discovered the marijuana in the freezer but for the illegal search warrant and the illegal questioning of Lopez; and therefore the evidence should be suppressed. We are unpersuaded.
about others. State v. Richardson, 156 Wis.2d 128, 141, 456 N.W.2d 830, 835 (1990). Independent police corroboration of the informant's information imparts a degree of reliability to unverified details. Id. at 142-43, 456 N.W.2d at 836. Many of the details the informant...To continue reading
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