Arrest, Search, Seizure, Warrant s this enough probable cause for search warrant?

[Frozen Tundra]

Jurisdiction

Wisconsin

My question involves criminal law for the state of: Wisconsin

Search warrant was obtained based off of anonymous tip and contraband in trash pull. I am not disputing legality of trash pull.

4/15: Anonymous tip to crimestoppers suggesting 200 plant marijuana grow at 123 main street

4/15: old house 123 main street-Trash pull finding high times magazine seed advertisement, and empty seed package. no thc found. Indices (mail) found in same bag

5/16: New House 123 new street-Trash pull finding 4 bags. Three white bags and one black bag. Black bag contained .01 grams of marijuana and fertilizer bottle. NO mail or indices or any nexus in black bag.

5/16: Administrative subpoena from electric company showing higher than normal usage.

Affidavit for search warrant is bare bones and rest of it is boilerplate language. Training and expertise etc. There is no other surveillance, and none showing that defendant was seen placing that particular bag in garbage.

My analysis is search violated 4th amendment and any evidence is fruit of the poisonous tree. At quick glance, the affidavit seems to suggest indices was in same bag. If read quickly. Cloer read shows otherwise. Perhaps Judge missed this? Furthermore, since affiant is same investigator who served warrant, good faith exception does not apply. What are your quick thoughts?

 

[army judge]

My analysis is search violated 4th amendment and any evidence is fruit of the poisonous tree. At quick glance, the affidavit seems to suggest indices was in same bag. If read quickly. Cloer read shows otherwise. Perhaps Judge missed this? Furthermore, since affiant is same investigator who served warrant, good faith exception does not apply. What are your quick thoughts?

Have you succeeded in regard to your legal analysis of the search warrant?

I doubt that you will.

That isn't dispositive of the matter, as you will be able to make a much more detailed and lengthy argument at trial before a jury of your peers, not just a judge.

As an aside, marijuana use and growth is illegal under federal law, and the laws of many states (including yours).
...
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Wisconsin Marijuana Laws - FindLaw
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...

If people persist in growing or using marijuana, they will encounter continuing criminal law trouble.

 

[Frozen Tundra]

Have you succeeded in regard to your legal analysis of the search warrant?

I doubt that you will.

That isn't dispositive of the matter, as you will be able to make a much more detailed and lengthy argument at trial before a jury of your peers, not just a judge.

My cousin is facing this dilemma. Judge refused to hold a motion to suppress hearing. It is in the beginnings of appeal stage. His appeals attorney is optimistic and I am genuinely concerned in validating her optimism.

I am in Law School at Marquette.

 

[mightymoose]

Your problem is that the search warrant does not require evidence or undisputed facts. It requires probable cause.

Based on the information you give it seems the approval of the warrant was easily granted. Police did not simply act on an anonymous tip but took some extra steps to obtain more information that supported the anonymous tip. That still did not mean they would find what they were looking for at that location, but they had probable cause to believe they would.

You would need a much stronger argument than this to prevail against the warrant.

 

[mightymoose]

My analysis is search violated 4th amendment and any evidence is fruit of the poisonous tree.

On what basis do you come to that conclusion?

At quick glance, the affidavit seems to suggest indices was in same bag. If read quickly. Cloer read shows otherwise. Perhaps Judge missed this?

This seems irrelevant. The mail was found in the trash and is used to identify people having control over the property.

Furthermore, since affiant is same investigator who served warrant, good faith exception does not apply. What are your quick thoughts?

The affiant is almost always the same person who serves the warrant. What good faith exception do you believe is being asserted here?

You don't dispute the validity of the trash pull. Unfortunately that was probably the best place to find any error in this.

 

[Frozen Tundra]

On what basis do you come to that conclusion?



This seems irrelevant. The owns were found in the trash. The mail is used to identify people control over the property.



The affiant is almost always the same person who serves the warrant. What good faith exception do you believe is being asserted here?

You don't dispute the validity of the trash pull. Unfortunately that was probably the best place to find any error in this.

please take a look. FindLaw's Appellate Court of Illinois case and opinions.

 

[mightymoose]

Ok.... So the question remains.

On what basis do you believe there was a 4th Amendment issue? What parallel are you wanting to make with the case you linked?

 

[Frozen Tundra]

Ok.... So the question remains.

On what basis do you believe there was a 4th Amendment issue? What parallel are you wanting to make with the case you linked?

the case I linked to has nearly identical circumstances. So I would assert that the search warrant was not supported by probable cause, and thus the fruits of the search must be suppressed.

Kansas and Illinois supreme courts have adopted this rule. there must be a nexus between contraband and residence to be searched. can in front of house is not enough.

 

[army judge]

please take a look. FindLaw's Appellate Court of Illinois case and opinions.

I read the appellate decision in full.

To be sure I fully comprehended the decision and the court's reasoning, I read it again.

Even if the court erred, which it appears not to have done, the matter has long been decided.

Res Judicata, counselor, the matter has been adjudicated by a competent appellate court, therefore it may not be retried.

I may be unclear as to what it is you wish to prove, so please clarify for me if I'm missing something.

 

[army judge]

If you're asking if the issues can be raised at trial, it would certainly seem so.
A pre-trial motion to quash is often denied.

 

[adjusterjack]

I hope your cousin isn't relying on your meager knowledge of criminal law.

 

[Frozen Tundra]

If you're asking if the issues can be raised at trial, it would certainly seem so.
A pre-trial motion to quash is often denied.

Yes, I am asking if this defense is worth hiring a appeals attorney at $10,000.

Case you read that I linked is an example. Wisconsin does not have any similiar cases, and this case is in same district for court of appeals. I understand Wisconsin does not have to follow Illinois, but all cases that I have found with contraband in different bag, with no surveillance of defendant placing the bag, is suppressed. All those cases are in different districts and they point to Illinois case. Kansas has adopted this as a brighline rule.

 

[Frozen Tundra]

I hope your cousin isn't relying on your meager knowledge of criminal law.

He is ready to hire an appeals attorney, however he seeks wisdom from others. Hence polling this forum for any advice.

I have told him appeals attorneys are bound by ethics and cannot or should not file a appeals brief if they feel there is no merit. He has been overpromised and underdelivered by his trial attorney. so he fears appeals attorneys may be full of BS too.

 

[mightymoose]

the case I linked to has nearly identical circumstances.

I don't know the details of your friend's case, but what you have provided here is not nearly identical as the one you link to.

A major difference is that the police used mail in the trash to link the occupants to the residence. The mail is what creates that nexus, and in modern policing it is common to seize mail items around the residence to show who is linked to that residence. That was not done in the previous case. They apparently relied solely on the location of the trash.
The old case also had incorrect information describing the residence to be searched. You gave no indication there was a mistake of residence in your friend's case.

There appears to be nothing in that case to support anything was done inappropriately in the current case.

 

[mightymoose]

..., but all cases that I have found with contraband in different bag, with no surveillance of defendant placing the bag, is suppressed.

Suppression of evidence is much different than shooting down a search warrant. The search warrant only needed to show probable cause that evidence of the crime was likely to be found at the location searched.
Had your friend been charged with possession of contraband found in the trash bag that was separate from the mail then your argument might have merit... However the issue is regarding the evidence seized from the residence, not from the trash.

 

[Frozen Tundra]

I don't know the details of your friend's case, but what you have provided here is not nearly identical as the one you link to.

A major difference is that the police used mail in the trash to link the occupants to the residence. The mail is what creates that nexus, and in modern policing it is common to seize mail items around the residence to show who is linked to that residence. That was not done in the previous case. They apparently relied solely on the location of the trash.
The old case also had incorrect information describing the residence to be searched. You gave no indication there was a mistake of residence in your friend's case.

There appears to be nothing in that case to support anything was done inappropriately in the current case.

True, and I completely understand what youre saying, however it seems that the judges reason for suppression was based mainly on nexus of the contraband and the other factors were irrelevant.

but please correct me if im wrong. I appreciate your time and response

 

[mightymoose]

He is ready to hire an appeals attorney, however he seeks wisdom from others. Hence polling this forum for any advice.

He should only consider advice from someone who has full access to the relevant information.
Based on what you have provided I would encourage looking deeper for something to work with. The issues you are presenting are very weak.
More often than not there is nothing to appeal.

 

[mightymoose]

however it seems that the judges reason for suppression was based mainly on nexus of the contraband...

Yes, that seems to be the main reason, but that is NOT the issue with your case.
The police in your case retrieved mail from the same trash that links the occupants of the residence to the trash.

Yes, someone else may have come along and stored their trash in the bin, but that does not mean there was no probable cause for the warrant to be issued.

As you presented it here the probable cause for the warrant seems solid.

 

[Frozen Tundra]

please consider the age of the tip as well. 16 months old.

 

[Frozen Tundra]

the anonymous tip was given 16 months ago. house was raided 16 months later. STale.

only fresh info was contraband in black bag with no indices or nexus to residence in same bag.