State v. Manuel, 96-2427-CR

• Decision Date: 14 August 1997
• Docket Number: No. 96-2427-CR,96-2427-CR
• Citation: 570 N.W.2d 601,213 Wis.2d 308
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Roosevelt MANUEL, III, Defendant-Appellant. d . Oral Argument
• Court: Wisconsin Court of Appeals

Page 601

570 N.W.2d 601

213 Wis.2d 308

STATE of Wisconsin, Plaintiff-Respondent, v. Roosevelt MANUEL, III, Defendant-Appellant. ^d

No. 96-2427-CR.

Court of Appeals of Wisconsin.

Oral Argument Aug. 14, 1997.

Opinion Released Sept. 16, 1997.

Opinion Filed Sept. 16, 1997.

On behalf of the defendant-appellant, the cause was submitted on the briefs of David Ziemer of Milwaukee. There was oral argument by David Ziemer.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Marguerite M. Moeller, Assistant Attorney General. There was oral argument by Marguerite M. Moeller.

Before WEDEMEYER, P.J., and FINE and SCHUDSON, JJ.

SCHUDSON, Judge.

Roosevelt Manuel, III, appeals from the judgment of conviction, following his no contest pleas, for two counts of armed robbery (concealing identity), party to a crime. He challenges his arrest. Manuel argues that the trial court erred in denying him a Franks ¹ hearing at which he would have sought to establish that the detective who provided information forming the basis for the arrest warrant recklessly omitted information that, if included, would have led the court commissioner to refuse to issue the warrant for lack of probable cause. Thus, he seeks the remand of this case for the trial court to hold a Franks hearing. We conclude that under some circumstances a Franks hearing may be appropriate to challenge the basis for an arrest warrant. We also conclude, however, that in this case Manuel failed to make the substantial preliminary showing necessary to gain a Franks hearing. Therefore, we affirm.

On October 18, 1995, Court Commissioner George W. Greene issued an arrest warrant for Manuel for the October 7, 1995 armed robbery (concealing identity) of a McDonald's restaurant. The warrant was based on a criminal complaint that provided factual allegations summarized by Milwaukee Police Detective Jeffrey Wiesmueller, referring to police reports prepared by three other detectives who had interviewed witnesses to the crime. The witnesses--a McDonald's cashier who was inside the restaurant, a maintenance man who was exiting the restaurant, and a citizen who was in the McDonald's parking lot--described the entry of two armed and masked men, their confrontations with the cashiers, the fatal shooting of one of the robbers by an elderly customer, and the identification of Manuel who fled. ²

What the criminal complaint presented to the court commissioner did not state, however, was that another man, Priest Butler, had been arrested for the McDonald's crime. Because the second McDonald's robber had been fatally shot during the robbery, only one suspect remained at large. Manuel argues, therefore, that if the evidence leading to the arrest of Butler was far more substantial and reliable than that against him, disclosure of that evidence to the commissioner would have precluded a finding of probable cause to issue the arrest warrant.

In support of his argument in the trial court and on appeal, Manuel pointed to numerous factors that he contended were undisputed: (1) Butler had been arrested for the McDonald's crime and remained in custody at the time the commissioner issued the arrest warrant; (2) Mr. Hazelwood, the witness in the parking lot, identified the missing suspect as wearing "a brown or beige jacket," but the surveillance tape of the crime showed that the suspect was wearing a white and dark checkered shirt or jacket; (3) only Hazelwood identified Manuel, but two other witnesses identified Butler and did not identify Manuel; (4) Hazelwood stated that the robbers "entered the north entrance of the restaurant" but "VHS surveillance of the robbery clearly indicates that the armed robbery was perpetrated by persons entering through the south door of the restaurant", and (5) additional circumstantial evidence connected Butler to the crime and established "the implausibility of accusations against [Manuel] relative to the accusations against Priest Butler." Thus, Manuel argued, after "substantial non-custodial evidence had been methodically gathered[, o]ne long line of evidence pointed to suspect Priest Butler, and one short line pointed to Appellant."

At oral argument before this court, however, counsel for Manuel informed us that the lines had changed. He explained that Butler had been released from custody prior to the issuance of the arrest warrant for Manuel. ³ He also abandoned his argument regarding the door of entry, conceding that his appellate brief's characterization of Hazelwood's statement about the robbers' entry through "the north entrance" overstated what the complaint actually presented. ⁴ Nevertheless, while conceding that probable cause may exist to arrest more than one possible suspect even when only one suspect is at large, counsel for Manuel still maintained that under the unusual facts of this case, probable cause was so clear against Butler that it would have precluded probable cause to arrest Manuel.

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court held:

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676. In State v. Marshall, 92 Wis.2d 101, 284 N.W.2d 592 (1979), the Wisconsin Supreme Court "implicitly held a Franks hearing was applicable" not only to challenge the basis for a search warrant, but also to challenge misstatements forming the basis for a criminal complaint. State v. Mann, 123 Wis.2d 375, 385, 367 N.W.2d 209, 213 (1985). Further, in Mann, a case in which a defendant sought a Franks hearing to challenge a complaint "on the ground certain facts were either intentionally or recklessly omitted," Mann, 123 Wis.2d at 381, 367 N.W.2d at 211, our supreme court declared that "[t]here is nothing in the Franks or Marshall decisions that would lead to the conclusion that the rule should not apply to specific and limited material evidentiary facts omitted from a search warrant affidavit." Id. at 386, 367 N.W.2d at 213. Thus, our supreme court concluded:

Because we can find no real difference in effect between a false statement made knowingly and intentionally or with reckless disregard for the truth and a critical omission from the complaint, we hold the principles of Franks permit an attack on criminal complaints where there has been an omission of critical material where inclusion is necessary for an impartial judge to fairly determine probable cause.

Id. at 385-86, 367 N.W.2d at 213. Similarly, we read nothing in Franks, Marshall, or Mann to suggest that a Franks hearing would be any less available to a defendant who seeks to challenge critical omissions from a complaint establishing the basis for an arrest warrant.

In some cases, including the instant one, the criminal complaint ultimately charging a defendant with a crime is drafted and filed after the arrest. That subsequent complaint often contains factual allegations different from and/or additional to those contained in the initial complaint presented to a judge or court commissioner to support an arrest...