State v. Marquardt

Decision Date21 August 2001
Docket NumberNo. 01-0065-CR.,01-0065-CR.
Citation2001 WI App 219,635 N.W.2d 188,247 Wis.2d 765
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Bill Paul MARQUARDT, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the briefs of James B. Connell of Crooks, Low, Connell & Rottier, S.C. of Wausau.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and James M. Freimuth, assistant attorney general. Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. CANE, C.J.

In this interlocutory appeal, Bill Paul Marquardt appeals from an order (1) denying his motion to suppress evidence seized pursuant to a search warrant for his home; (2) denying his request for a Franks3 hearing; and (3) denying his motion to suppress evidence from a warrantless search of his vehicle.

¶ 2. We conclude first that there was insufficient probable cause to justify the search warrant for Marquardt's home. Because our supreme court recently adopted the good faith exception to the exclusionary rule, see State v. Eason, 2001 WI 98, ¶ 74, 245 Wis. 2d 206, 629 N.W.2d 625,

we reverse that portion of the court's order and remand for a determination of whether the good faith exception to the exclusionary rule applies in this case. Second, we do not address Marquardt's request for a Franks hearing because we have concluded that there was insufficient probable cause to support the search warrant. Finally, we conclude that the automobile exception to the Fourth Amendment search warrant requirement applies to the warrantless search of Marquardt's vehicle. Thus, we affirm that portion of the court's order denying suppression of evidence from Marquardt's vehicle on warrantless search grounds.

BACKGROUND

¶ 3. On March 13, 2000, Alfred Marquardt found his wife, Mary, dead in their garage. Mary had been shot and stabbed. Officers investigating the death immediately obtained a warrant to search the home. ¶ 4. On March 15, officers obtained a warrant to search the home of Mary and Alfred's son, Bill Marquardt. Officers conducting the search found dead animals at Bill Marquardt's home and subsequently obtained an arrest warrant for Marquardt on a charge of cruelty to animals.

¶ 5. On March 18, Marquardt was arrested at his home. At the time of his arrest, Marquardt's locked vehicle was parked in his driveway. In the hours after Marquardt was arrested, the Eau Claire County Sheriff's Department arranged for the vehicle to be hauled to the department, where it was then searched. Two days later, the vehicle was transported to the State Crime Laboratory in Madison where it was again searched. No warrant was ever obtained for the search and seizure of the vehicle.

¶ 6. On May 4, Marquardt was charged with one count of first-degree intentional homicide and one count of possession of a firearm by a felon. Following a preliminary hearing and bindover, Marquardt filed several motions to suppress evidence. Two motions are relevant to this appeal: a motion to suppress evidence that was seized from Marquardt's home pursuant to the March 15 search warrant and a motion to suppress evidence that was seized from Marquardt's car without a search warrant.4

¶ 7. The circuit court conducted motion hearings on July 31 and December 8. At the first hearing, the court held that the search warrant for Marquardt's home was issued upon sufficient probable cause and denied Marquardt's request for a Franks hearing on the issue of whether the application for a search warrant contained material misstatements and omissions. Following the second day of hearings, the court issued a memorandum decision denying the motion to suppress evidence seized from the vehicle, concluding that the search was valid under the automobile exception to the Fourth Amendment's warrant requirement.

¶ 8. Marquardt seeks reversal of the circuit court's order finding probable cause in the search warrant application, denying his request for a Franks hearing, and denying the suppression of evidence derived from the warrantless vehicle search. By order of January 24, 2001, we granted Marquardt's request for leave to appeal the court's order.

STANDARD OF REVIEW

[1-3]

¶ 9. The Fourth and Fourteenth Amendments to the United States Constitution and art. I, § 11, of the Wisconsin Constitution guarantee Wisconsin citizens freedom from "unreasonable searches and seizures." State v. Griffith, 2000 WI 72, ¶ 25, 236 Wis. 2d 48, 613 N.W.2d 72. The question whether police conduct violated the constitutional guarantee against unreasonable searches and seizures is a question of constitutional fact. Id. at ¶ 23. On review, this court gives deference to the trial court's findings of evidentiary or historical fact, but determines the question of constitutional fact independently. Id.

DISCUSSION
I. Issuance of the initial search warrant for Marquardt's house

[4]

¶ 10. Marquardt argues that the March 15 search warrant for his house was issued based on insufficient probable cause. A search warrant may issue only when a neutral and detached magistrate (or judge, as in this case) finds probable cause to believe that evidence of a crime may be found in a particular place. See State v. Ward, 2000 WI 3, ¶ 21, 231 Wis. 2d 723, 604 N.W.2d 517

.

[5, 6]

¶ 11. Whether there is probable cause is determined by examining the "totality of the circumstances." Id. at ¶ 26. A finding of probable cause is a commonsense test:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Id. at ¶ 23 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)).

[7, 8]

¶ 12. A probable cause determination must be based upon what a reasonable judge can infer from the information presented by the police. Ward, 2000 WI 3 at ¶ 26. The issuing judge ordinarily considers only the facts set forth in supporting affidavits accompanying the warrant application. See id. [9-11]

¶ 13. It is the duty of the reviewing court to ensure that the judge had a substantial basis to conclude that probable cause existed. Id. at ¶ 21. We must consider whether, objectively viewed, the record before the judge provided sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that they will be found in the place to be searched. Id. at ¶ 27. We accord great deference to the determination made by the warrant-issuing judge. Id. at ¶ 21. Thus, the judge's determination will stand unless the defendant establishes that the facts are clearly insufficient to support a probable cause finding. Id.

[12]

¶ 14. With these standards in mind, we examine the facts that were presented to the judge. The judge did not take any testimony in support of the search warrant application. Instead, only written documents were provided. The application for Marquardt's home, dated March 15, was completed by a detective from the Eau Claire County Sheriff's Department, and was based upon the following statement of facts:

Affiant reports that on March 15, 2000, he received a copy of an affidavit for search warrant sworn and executed in Chippewa County on March 13, 2000, with respect to the suspected homicide of Mary J. Marquardt. A copy of said affidavit and search warrant is attached and hereby incorporated by reference.[5] Investigator Price reports that after finding the body of Mary J. Marquardt, he spoke with her husband, Alfred E. Marquardt. Mr. Marquardt informed him that he and Mary have a son, Bill Marquardt, who, since the location of Ms. Marquardt's body had not been seen or heard from. Alfred Marquardt further informed Investigator Price that Bill Marquardt owned with Alfred Marquardt a cabin in which Bill resided at E27505 County Highway M, Town of Fairchild, County of Eau Claire, Wisconsin.
Investigator Price further reports that in examining the body of Mary J. Marquardt and the scene where she was found, it appeared as though among the wounds incurred by her was a knife wound. Also at the scene, officers were able to locate a number of footprints that may be suitable for comparison with the shoes that made them.
Investigator Barnier reports that in checking Eau Claire County tax rolls, he learned that a cabin, storage building, pumphouse and out-house located at E27505 County Highway M . . . are owned by Alfred and Bill Marquardt.

¶ 15. The search warrant application sought permission to search for ammunition; firearms; clothing containing Mary's hair, blood or fibers; knives; shoes; and documents that may indicate Marquardt's whereabouts on or after March 13.

¶ 16. The March 13 search warrant for Mary's home that was referred to in the March 15 application contained the following statement of facts:

Inv[estigator] Price reports that on March 13, 2000, Chippewa County Sheriff's Dispatch received a 911 call from 11766 State Hwy 178, Chippewa Falls, Township of Eagle Point. The caller identified himself as Alfred E. Marquardt. . . . Marquardt reported that his wife was apparently dead at the residence.
Price continued that he responded to the Marquardt home and met with Marquardt. Marquardt relayed that he had left home at about 7 AM that morning and tried to call home about 11:50. The phone was busy and remained so the remainder of the day. Marquardt stated that he left work early and returned home because of the busy phone and upon arrival, found his wife, Mary J. Marquardt covered with a blanket in the garage. She was cold and unresponsive and appeared to have a head wound.
Price reports that a shell casing, tentatively identified as 9 mm, was observed
...

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