State v. Sloan

• Decision Date: 15 May 2007
• Docket Number: No. 2006AP1271-CR.,2006AP1271-CR.
• Citation: 2007 WI App 146,736 N.W.2d 189
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Christopher D. SLOAN, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

736 N.W.2d 189

2007 WI App 146

STATE of Wisconsin, Plaintiff-Respondent, v. Christopher D. SLOAN, Defendant-Appellant.

No. 2006AP1271-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs February 27, 2007.

Opinion Filed May 15, 2007.

Appeal from a judgment of the circuit court for Milwaukee County: Dennis P. Moroney,¹ Judge. Affirmed in part, reversed in part and cause remanded for further proceedings.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Thomas E. Hayes of Law Offices of Thomas E. Hayes of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christopher G. Wren, Assistant Attorney General and Peggy A. Lautenschlager, Attorney General.

Before FINE, CURLEY and KESSLER, JJ.

¶ 1 KESSLER, J

Christopher D. Sloan appeals from a judgment of conviction entered on a guilty plea after denial of his motion to suppress material seized from a box he deposited at a United Parcel Service (UPS) facility in Waukesha County because no warrant was obtained, and to suppress material seized later from a residence in Milwaukee County pursuant to a search warrant. We affirm the denial of the motion to suppress the material contained in the box at the UPS facility because no warrant was required as the material was not originally discovered by a government agent; however, we reverse the denial of the motion to suppress material seized in the residential search because we conclude that the affidavit in support of the search warrant did not establish probable cause to believe a nexus existed between the items sought and the residence searched.

Background

¶ 2 On January 4, 2005, Christopher Sloan took a box to the UPS station in Elm Grove, Wisconsin to ship to "Dave Slaon" [sic] in Florida. "Chris Sloan" was listed as the sender with a return address of 1005 South 114th Street, West Allis, Wisconsin. The UPS counter surveillance video recorded Sloan's transaction. UPS has a sign posted that reserved the right of UPS to open any parcels shipped. Sloan aroused the suspicion of the UPS counter clerk because, according to the clerk, he did not want anyone to inspect the package, and he wanted to ship the package with next day delivery to himself in Florida in spite of the fact that this was very expensive. Sloan told the clerk he had shipped this way before.

¶ 3 After accepting the box from Sloan, the counter clerk took the box to her supervisor in the UPS back office, who opened the box, which contained toys, pictures and a plastic canister. The supervisor then also opened the canister. This supervisor thought the package looked suspicious and took it to the UPS security supervisor, Michael Weber. Weber looked in the open box and found an opened canister that had previously been sealed with silver duct tape. Weber thought the canister contained marijuana, but he did not smell marijuana. He called the Elm Grove Police Department to report the package with the possible marijuana. Weber took pictures of the box, he believes, after the police confirmed it contained marijuana.

¶ 4 Sergeant Jason Hennen of the Elm Grove Police Department went to the UPS facility where he was shown the box in question. The box had been opened, but had one or more flaps closed when he arrived. Hennen testified that Weber handed him the canister with the duct tape. Weber testified that he showed Hennen the opened box with the canister still in the box. The canister was heavy duty plastic, partially closed but the lid was not on tight. Hennen recognized the odor of marijuana. He took the lid off of the canister, saw a plastic bag inside which contained a green leafy substance, suspected marijuana, and did a field test on the substance which confirmed that the substance was marijuana.

¶ 5 Further investigation ensued. Hennen's affidavit in support of a search warrant describes additional information he obtained by the following day, January 5, 2005. Hennen described viewing the UPS videotape of the person shipping the package, learning that Christopher Sloan had a Florida driver's license with a photograph, determining that the license photo was of the same person Hennen saw on the UPS videotape, and determining that the person in the videotape was same person who was depicted in a photograph contained in the box. In addition, Hennen learned that Wisconsin Department of Transportation records² listed Sloan's residence as 1005 South 114th Street in West Allis, which is the same address listed as the return address on the package. Hennen also described information from WE Energies that Christopher Sloan had paid the utilities at the 1005 South 114th Street residence. The residence is owned by Leslee Ericksen, born October 19, 1957, who Wisconsin DOT records show was formerly known as Leslee J. Sloan.³ Sloan was born February 26, 1982.

¶ 6 Based on this investigation, which included evidence seized pursuant to the search warrant issued for 1005 South 114th Street, Sloan was charged with one count of manufacture of a controlled substance — tetrahydrocannabinols (marijuana) (more than twenty but not more than fifty plants), in violation of WIS. STAT. §§ 961.14(4)(t) and 961.41(1)(h)3. (2003-04).⁴ Sloan moved to suppress the admission of evidence from both the search of the box and from the search warrant issued for his residence. After a hearing, the trial court denied the motion. Thereafter, Sloan pled guilty and was sentenced. Sloan has appealed his judgment of conviction and sentence.

Standard of Review

¶ 7 We review a motion to suppress applying a two-step standard of review. State v. Eason, 2001 WI 98, ¶ 9, 245 Wis.2d 206, 629 N.W.2d 625. "First, we review the [trial] court's findings of historical fact, and will uphold them unless they are clearly erroneous. Second, we review the application of constitutional principles to those facts de novo." Id. (citations omitted).

¶ 8 In reviewing whether probable cause exists to issue a search warrant, we give great deference to the warrant-issuing magistrate. See State v. Kerr, 181 Wis.2d 372, 379, 511 N.W.2d 586 (1994). We are confined to the record as it existed before the magistrate and must consider whether he or she was "`apprised of 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 378, 511 N.W.2d 586 (quoting State v. Starke, 81 Wis.2d 399, 408, 260 N.W.2d 739 (1978)). The magistrate's decision to issue a warrant will be upheld unless the facts before the magistrate at the time the warrant was issued were "`clearly insufficient to support a finding of probable cause.'" Id. at 380, 511 N.W.2d 586 (quoting State v. Higginbotham, 162 Wis.2d 978, 989, 471 N.W.2d 24 (1991)); see also State v. Meyer, 216 Wis.2d 729, 742, 576 N.W.2d 260 (1998). We consider the search of the box and of the residence separately.

A. SEARCH OF THE BOX

Did the police search of the box exceed the scope of the private search?

¶ 9 Sloan argues that a warrant was required for the police to search the box because Hennen exceeded the scope of the UPS search. Sloan does not dispute the original search by UPS was a private-party search. The trial court found that the police did no more than replicate the UPS search of the box and the container. Further, the trial court found that inconsistencies between the testimony of Weber and Hennen (whether some, all, or none of the flaps on the box were open when Hennen first saw the box; whether the container was in the box when Hennen arrived or was handed to Hennen by Weber) were not material and were nothing more than normal failures of human recollection. The evidence supports that inference. When supported by evidence, the trial court is free to determine which of conflicting inferences to choose. State v. Friday, 147 Wis.2d 359, 370-71, 434 N.W.2d 85 (1989) ("The drawing of an inference ... when more than one inference is possible is a finding of fact which is binding upon an appellate court. It is not within the province of ... any appellate court to choose not to accept an inference drawn by a factfinder when the inference drawn is a reasonable one.").

¶ 10 A private party's discovery, and subsequent disclosure to law enforcement, of contraband is not prohibited by the Fourth Amendment where there is not a reasonable expectation of privacy in dealings with the private party. See United States v. Jacobsen, 466 U.S. 109, 113, 115, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). One does not generally have a reasonable expectation of privacy when delivering property to a private shipping company, particularly when the shipping company posts a sign reserving its right to inspect parcels left with it for shipping. See id. at 117-18, 104 S.Ct. 1652.

¶ 11 In Jacobsen, a Federal Express employee discovered a white powdery substance concealed in a plastic tube that was contained in a damaged shipping package. Id. at 111, 104 S.Ct. 1652. Rejecting Jacobsen's arguments of an expectation of privacy protected by the Fourth Amendment, the Court held that an employee of a private company was not acting on behalf of the government, and therefore was free to disclose the package and material to law enforcement. Id. at 115, 104 S.Ct. 1652. The Court further held that law enforcement, without a warrant and without violating the Fourth Amendment, could properly replicate the search the Federal Express employees had already conducted. Id. at 119-20, 104 S.Ct. 1652 ("[T]he [governmental] agent's viewing of what a private party had freely made available for his inspection did not violate the Fourth Amendment."). Additionally, the Court held that law enforcement could properly field test the substance so obtained to determine whether it was, in fact, contraband. Id. at 123, 104 S.Ct. 1652.

¶ 12 Wisconsin courts addressed a case with very similar facts well before the Jacobsen decision. I...