State v. Osborne, No. 2008AP1519-CR (Wis. App. 9/15/2009)

Decision Date15 September 2009
Docket NumberNo. 2008AP1519-CR.,2008AP1519-CR.
PartiesState of Wisconsin, Plaintiff-Respondent, v. Joshua J. Osborne, Defendant-Appellant.
CourtWisconsin Court of Appeals

APPEAL from an order of the circuit court for Marathon County: DOROTHY L. BAIN, Judge. Affirmed.

Before Hoover, P.J., Peterson and Brunner, JJ.


Joshua Osborne appeals a nonfinal order denying his motion to suppress evidence obtained during the execution of an allegedly defective search warrant.1 Osborne argues the warrant does not satisfy the definition of a search warrant set forth in Wis. Stat. § 968.12(1).2 Specifically, he contends the issuing judge's failure to include language directing the officer to conduct the search violates the statute. We conclude this omission is merely a technical irregularity under Wis. Stat. § 968.22 that does not affect Osborne's substantial rights. We therefore affirm the order denying Osborne's suppression motion.


¶ 2 The relevant facts are not in dispute. On July 3, 2007, officer Shawn Fritsch prepared a document titled "Complaint for Search Warrant" (the complaint), requesting a warrant to search Osborne's residence. The affidavit supporting the warrant request stated Kent Lorenzen had reported several items missing from his garage, including two fishing poles and several packages of venison. Fritsch, who knew of complaints against the residents of a neighboring house, approached the house and observed in plain view items matching the description of those missing from Lorenzen's garage.

¶ 3 A search warrant was issued on the same day. In substance, it is an exact copy of the complaint. However, the issuing judge modified the title of the complaint to read "Search Warrant" and substituted his signature for that of Fritsch. But instead of directing the officers to search the premises, the document concludes by requesting that the judge issue a search warrant. Fritsch executed the warrant and seized the evidence.

¶ 4 Osborne was charged with burglary, bail jumping, and theft. He moved to suppress the evidence, contending the search was unconstitutional because the warrant was defective. The circuit court denied the motion, applying the good-faith exception to the exclusionary rule. Osborne appeals the court's nonfinal order.


¶ 5 Osborne contends the warrant issued for the search of his residence did not comply with WIS. STAT. § 968.12(1). He argues the search was therefore executed without a valid warrant and in violation of his constitutional rights. Statutory interpretation presents a question of law that we decide independently of the circuit court. Rechsteiner v. Hazelden, 2008 WI 97, ¶26, 313 Wis. 2d 542, 753 N.W.2d 496. Similarly, whether a search and seizure is constitutional is a question of law that we review without deference to the circuit court, but benefitting from its analysis. State v. LaCount, 2008 WI 59, ¶34, 310 Wis. 2d 85, 750 N.W.2d 780.

¶ 6 WISCONSIN STAT. § 968.12(1) provides a one-sentence description of a search warrant: "A search warrant is an order signed by a judge directing a law enforcement officer to conduct a search of a designated person ... object or ... place for the purpose of seizing designated property or kinds of property." Osborne emphasizes that the document authorizing the search does not fit the statutory description because it does not specifically direct a law enforcement officer to conduct a search.

¶ 7 The statute, however, does not require that the direction to law enforcement officers be spelled out explicitly in every warrant. Although the search warrant form provided by WIS. STAT. § 968.23 includes such explicit direction, that statute also states the forms "are illustrative and not mandatory[.]"3 Osborne cites no legal authority holding that every search warrant must contain specific language directing a law enforcement officer to execute it in order to be valid. The State argues, and we agree, that the failure to include explicit directory language in a search warrant constitutes a technical irregularity under Wis. Stat. § 968.22. That statute provides that "[n]o evidence seized under a search warrant shall be suppressed because of technical irregularities not affecting the substantial rights of the defendant." Id.

¶ 8 No substantial right is implicated by the failure of the issuing judge to include language directing law enforcement to execute the warrant in this case. Osborne argues the issuing judge's omission demonstrates a "wholesale failure in the constitutionally required process of obtaining a search warrant" similar to that in State v. Tye, 2001 WI 124, ¶23, 248 Wis. 2d 530, 636 N.W.2d 473. In Tye, the Wisconsin Supreme Court considered the constitutionality of a search where the authorizing warrant was not supported by an oath or affirmation. The court concluded the oath requirement was a "matter of substance, not form, and ... is an essential component of the Fourth Amendment and legal proceedings." Id., ¶19. The court explained that the oath or affirmation requirement "protects the target of the search from impermissible state action by creating liability for perjury or false swearing for those who abuse the warrant process by giving false or fraudulent information." Id. (footnotes omitted). Thus, the oath requirement "preserves the integrity of the search warrant process and ... protects the constitutionally guaranteed fundamental right of people to be secure ... against unreasonable searches and seizures" in a way that requiring an explicit directive to law enforcement would not. Id.

¶ 9 Although Osborne does not contend the warrant was unsupported by probable cause, he does argue the warrant is constitutionally defective under Groh v. Ramirez, 540 U.S. 551 (2004). The warrant in Groh was defective because it did not contain any description of the thing to be seized. Id. at 587. Here, the document authorizing the search described with specificity the location to be searched, as well as the evidence sought: a "[b]lack leather jacket," "[t]wo St. Croix fishing poles and reels-6 foot 6 inches in length with cork handles," a "Plano tackle box with approximately $1,000 in lures," a "[b]ottle of home made wine," and "[s]everal packages of venison hamburger, steaks and sticks." Thus, there is no concern that the officers would have searched the wrong location or improperly seized any property beyond the scope of the warrant. In short, the omission of an explicit directive to the officers affected neither Osborne's right to be free from unreasonable searches and seizures nor his right to have warrants issued "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. CONST. amend. IV.

¶ 10 We therefore conclude the omission of explicit language directing law enforcement officers to execute the warrant was a mere technical irregularity. The warrant provided sufficient detail and guidance such that, in light of the modification to the document's title and the presence of a judge's signature, the only reasonable inference is that the document directed police to execute the requested search. While we do not endorse the practice of issuing search warrants that are near-verbatim copies of the warrant application, we conclude Osborne's substantial rights were not affected by the omission of a specific directive to execute the warrant.

¶ 11 Given the fluid nature of probable cause—evidence of a crime is often easily concealed, destroyed, or transported—search warrants are often times hurriedly sought at odd hours. It is not unreasonable that documents that must be quickly prepared, presented, and executed might not be in perfect form. We therefore neither anticipate nor require perfection in their drafting. Indeed, WIS. STAT. § 968.22 specifically recognizes both the likelihood of drafting errors and their inconsequence. Instead, it is the process and the substance of the information conveyed that are important:

Our law strongly favors searches conducted pursuant to a warrant. State v. Kerr, 181 Wis. 2d 372, 379, 511 N.W.2d 586 (1994). The warrant process not only places a neutral and detached magistrate between government intrusion and the people but also obligates government officials to demonstrate to that magistrate a substantial basis for their proposed intrusive conduct.

State v. Ward, 2000 WI 3, 231 Wis. 2d 723, ¶98, 604 N.W.2d 517 (Prosser, J., dissenting). In Kerr, the court noted that the orderly procedure of applying for a warrant presented an opportunity to prevent unjustified intrusions by law enforcement officers. Kerr, 181 Wis. 2d at 379 n.2 (citing 1 LAFAVE, SEARCH AND SEIZURE 549 (1987)). "Warrants are also preferred because a `warrant assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.'" Id. (quoting United States v. Chadwick, 433 U.S. 1, 9 (1977), abrogated on other grounds, California v. Acevedo, 500 U.S. 565 (1991)).

¶ 12 Because we conclude that the evidence obtained from the search is admissible under WIS. STAT. § 968.22, we need not consider the applicability of the good-faith exception to the exclusionary rule under United States v. Leon, 468 U.S. 897 (1984), and State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

¶ 13 BRUNNER, J. (dissenting).

I respectfully dissent. "A fundamental safeguard against unnecessary invasions into private homes is the Fourth Amendment's warrant requirement, imposed on all government agents who seek to enter the home for purposes of search or arrest." State v. Larson, 2003 WI App 150, ¶8, 266 Wis. 2d 236, 668 N.W.2d 338. A constitutionally valid warrant is based upon probable cause, supported by an oath or...

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