State v. Popp
| Decision Date | 30 September 2014 |
| Docket Number | 2014AP166–CR.,Nos. 2013AP1916–CR,s. 2013AP1916–CR |
| Citation | 855 N.W.2d 471,357 Wis.2d 696 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Jeremiah R. POPP, Defendant–Appellant. State of Wisconsin, Plaintiff–Respondent, v. Christopher A. Thomas, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant Jeremiah Popp, the cause was submitted on the briefs of Amelia L. Bizzaro of Bizzaro Law, LLC, of Milwaukee.
On behalf of the defendant-appellant Christopher A. Thomas, the cause was submitted on the briefs of Benjamin James Peirce of Wauwatosa.
On behalf of the plaintiffs-respondents Jeremiah Popp and Christopher A. Thomas, the cause was submitted on the briefs of J.B. Van Hollen, attorney general, and Christine A. Remington, assistant attorney general.
Before CURLEY, P.J., FINE and KESSLER, JJ.
¶ 1 In these consolidated appeals, Jeremiah R. Popp and Christopher A. Thomas appeal the judgments convicting each of them of one count of manufacturing or delivering 100 grams or less of psilocin or psilocybin, contrary to Wis. Stat. § 961.41(1)(g)1. (2011–12).1 Thomas and Popp pled guilty after the trial court denied their motions to suppress evidence, including mushrooms and mushroom-growing materials, that was discovered after police executed a search warrant for their trailer home.2 On appeal, Thomas and Popp argue that the trial court erred in denying their motions to suppress because the warrant was invalid. Specifically, they contend that the primary basis for the warrant—observations made by police when they trespassed on the defendants' property and peered into their windows—resulted from an illegal search, and further, that when the illegally-obtained observations are excised from the affidavit made in support of the warrant, there is no probable cause. We agree, and therefore reverse the convictions and remand the cases to the trial court for further proceedings consistent with this opinion.
¶ 2 We derive much of the background information from the trial court's findings of fact at the suppression hearing, as well as from the police affidavit submitted in support of the search warrant. The facts of this case are not in dispute.
¶ 3 On February 21, 2012, West Allis Police Lieutenant Christopher Marks arrived at work to a voicemail message left at about 4:40 a.m. by an anonymous caller who reported an “active drug complaint” at the Hillside Trailer Court on 10211 West Greenfield Avenue. In the message, the caller said that he was watching a resident in a full body sterile suit leave the trailer directly west of Trailer 23 and move big, blue Tupperware bins containing mushrooms from inside the trailer. There is no information relating how the caller knew that the individual moving the bins was a resident of the aforementioned trailer, nor is there any information explaining how the caller knew that there were mushrooms in the bins. What was related in the voicemail message, however, was that the caller, who did not identify himself in any way, “was looking for some kind of consideration in a different investigation outside the drug unit.”
¶ 4 After hearing the message, Lieutenant Marks, along with Detective Brian Beyer, went to the trailer park to investigate. They determined that the trailer directly west of Trailer 23 was Trailer 22.
¶ 5 After determining that Trailer 22 was the trailer the caller identified, Lieutenant Marks and Detective Beyer returned to the police station to obtain more information. They learned that Trailer 22 had been the subject of a call in 2009 “regarding a possible meth lab involving Jeremiah Popp and Christopher Thomas.”3 Department of Transportation records confirmed that Trailer 22 was the address for both men.
¶ 6 Lieutenant Marks and Detective Beyer then went back to the trailer park, where they encountered Thomas and began questioning him. When Marks and Beyer first arrived, they saw Thomas standing outside, appearing to be waiting for someone. Thomas approached the officers, “stating he was waiting for someone to drop off a computer for him to fix and thinking that [the police] were that person.” He was cordial with the officers until he learned that the men were police officers and why they were there. At that point, Thomas, who was twenty-three years old, became visibly nervous—“[h]is hands were shaking, his face became very red, his speech was slowed and softened and he wouldn't look directly at the officers.” Detective Beyer told Thomas that police had information that drugs were being manufactured from his residence, and asked Thomas for consent to search the trailer. Thomas refused, saying that Popp, his domestic partner, was very upset with him for allowing police to enter the trailer in 2009 and was afraid that if he allowed them to search this time, Popp would force him to move out.
¶ 7 Despite the fact that Thomas told the officers they could not search the trailer, the officers started snooping around the outside of the trailer anyway. Lieutenant Marks and Corporal Jeffrey Zientek, another officer who had arrived on the scene, poked around the outside of the trailer while Detective Beyer stayed with Thomas. Zientek and Marks went to the west side of the trailer, walked up the steps attached to the wall, and peered in a small, vertical window—a window the officers could not have seen into from the road. Using a flashlight to see into this window, Marks saw what appeared to be an oxygen tank on the floor and reflective paper wrapping of some sort in glass beakers. Zientek saw an oxygen tank, some glass tubing, and a “reflective barrier with light shining off of it.” They also went to the north end of the trailer, where there was a large bay window with three sections, and walked on the grass and snow right next to the window so that they could peer inside. The blinds on the left section of the window were closed, and there were sheets covering the middle and right sections, but the officers, being as close to the windows as they were, were able to observe the inside of the trailer through some portions of the blinds that were not functioning properly. Through the north window Marks saw, among other things, “some tinfoil that had some ... circular indentations as though they were on top of jars and a surgical mask.” Zientek, in addition to seeing the foil and jars, also “saw a mask like a doctor or nurse would wear.”
¶ 8 Lieutenant Marks surmised that there was “some sort of grow operation or lab inside” the trailer and told Detective Beyer as much in Thomas's presence. The police then questioned Thomas about the oxygen tank, and Thomas explained he liked to breathe oxygen. The police continued asking Thomas questions about the items they saw in the house, at which point Thomas asked if he was being detained. Detective Beyer told Thomas that he was free to go, but that police would be applying for a search warrant. Thomas then left the scene without returning to the trailer.
¶ 9 Thereafter, Corporal Zientek stayed with the trailer while Detective Beyer and Lieutenant Marks returned to the police station to continue their investigation and to draft a search warrant. While Beyer and Marks were at the station, at about 2:30 p.m., the anonymous caller phoned and spoke to Beyer. Although it appears from the search warrant that the anonymous caller who called the second time was the same as the person who called early in the morning, Beyer testified that the caller provided no identifying information, nor did the caller raise the issue of consideration. The caller said he had been in Trailer 22 “millions” of times and had personally observed a mushroom grow operation there.
¶ 10 The officers obtained a search warrant, and, upon execution of the warrant, discovered a lab for the creation of mushrooms as well as mushrooms in various stages of growth. Consequently, the State charged Popp and Thomas each with one count of manufacture of more than 100 but not more than 500 grams of psilocin or psilocybin as party to a crime, contrary to Wis. Stat. §§ 961.41(1)(g)2., 939.05.
¶ 11 Thomas and Popp both challenged the search. They argued that the primary basis for the search warrant, the officers' observations, resulted from an illegal search and the anonymous caller was unreliable and untrustworthy. They further argued that if the illegally obtained information was excised from the affidavit in support of the warrant, there would be no probable cause to support a search warrant.
¶ 12 After an evidentiary hearing, the trial court denied the defendants' motions. Popp and Thomas each subsequently pled guilty to one count of manufacturing or delivering 100 grams or less of psilocin or psilocybin, contrary to Wis. Stat. § 961.41(1)(g)1. Their appeals follow.
¶ 13 On appeal, Thomas and Popp challenge the trial court's denial of their motions to suppress the evidence obtained from their trailer. “Ordinarily, a guilty plea waives all nonjurisdictional defects and defenses.” State v. Hampton, 2010 WI App 169, ¶ 23, 330 Wis.2d 531, 793 N.W.2d 901. However, “[a] narrowly crafted exception to this rule exists ... which permits appellate review of an order denying a motion to suppress evidence, notwithstanding a guilty plea.” See id. We review the denial of the defendants' motion to suppress under a two-part standard of review: we uphold the trial court's findings of fact unless they are clearly erroneous, but review de novo whether those facts warrant suppression. See id.
¶ 14 Specifically, the defendants argue that because police violated their Fourth Amendment rights by trespassing on their property and the surrounding curtilage and peering into their windows, the observations resulting from that trespass should not have been used to support the search warrant. They further argue that when the illegally-obtained observations are excised from the affidavit made in support of the warrant, there is no probable cause....
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