State v. Jackson
State v. Jackson
Dissenting Opinion
¶ 29. (dissenting). The Majority recognizes that in reviewing whether there is probable cause for the issuance of a search warrant we are " 'limited to the record established before the court at the time it issued the warrant.'" Majority, ¶ 5 (quoted source omitted). Thus, where the issuance is based on an affidavit, our review is limited to the " 'facts shown in the affidavit before the issuing authority.'" Ibid, (quoted source omitted). Further, we must consider the "totality of the circumstances" as revealed by the affidavit and the "reasonable inferences" that permit the issuing magistrate "to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 230-231, 238, 240 (1983). Additionally, "we give great deference to the warrant-issuing magistrate." State v. Sloan, 2007 WI App 146, ¶ 8, 303 Wis. 2d 438, 446, 736 N.W.2d 189, 193. With these elemental principles in mind, I turn to the affidavit submitted to the magistrate in support of the search warrant here.
¶ 30. The affidavit said that:
• Adrian J. Jackson was a convicted felon;
• Jackson gave his address when booked at the Milwaukee County Jail as "4124 N. 21st Street";
• "Address of 4124 N. 21st Street is a two-story duplex residence"; and
• "[A] reliable confidential informant... within the past eight days, went to 4124 N. 21st Street and observed Adrian Jackson in possession of two-semi automatic pistols at the residence of 4124 N. 21st Street in the City and County of Milwaukee."
(Bolding in original.) Inexplicably, the Majority says in ¶ 26 that the affidavit's averment that the informant
¶ 31. Although the Majority concedes that we may not look outside the affidavit, the Majority does so in holding that the word "duplex" meant that the two-story building at 4124 North 21st Street was a "multifamily residence," and that therefore the affidavit should have specified for which "unit" the search warrant was sought. Majority, ¶ 1. There is nothing in the affidavit, however, that says 4124 North 21st Street was a "multifamily residence." The affidavit merely says that it was a "duplex" that had but one address. The Majority, however, interposes a dictionary definition and holds as a matter of law that in every case a description of a building as a "duplex" invariably means that the building is a two-unit structure where the units are as separate from each other as were the two Berlins before the wall was torn down. But, of course, that is not always the case; indeed, that was not the case here because Jackson shared the "duplex" with his mother. (I mention this not, as the Majority says in footnote 7, to add gloss to the affidavit submitted in support of the search warrant, but to demonstrate that the Majority's iron-clad presumption about the living arrangements in a building that is structurally a duplex is wrong.)
¶ 32. Although the Majority conclusively presumes as a matter of law that persons living in duplexes confine their occupancy to either the top or the bottom
[T]he [Fourth] Amendment has not heen a barrier to warrants to search property on which there is probable cause to believe that fruits, instrumentalities, or evidence of crime is located, whether or not the owner or possessor of the premises to be searched is himself reasonably suspected of complicity in the crime being investigated.
Id. at 549-550.
¶ 33. The magistrate was fully justified in issuing the search warrant for the entire two-story building. Accordingly, I would affirm.
Opinion of the Court
¶ 1. Adrian J. Jackson appeals from a judgment of conviction and sentence which followed his guilty plea after the trial court denied his motion to suppress certain evidence obtained pursuant to a search warrant. Jackson asserts the warrant was in
Background
¶ 2. A judicial court commissioner issued a warrant for "certain premises ... occupied by. . . Adrian Jermaine Jackson" described as: "Address of 4124 N. 21st Street is a two-story duplex residence" with the physical description of the exterior of the building repeated verbatim from the affidavit presented in support of the warrant. There is no description of any portion of the interior of the residence. The warrant identifies the crime for which evidence is sought as "[possession of a [fjirearm by convicted felon" in violation of Wis. Stat. § 941.29 (2005-06).
¶ 3. The affidavit
*168 [A] reliable confidential informant... within the past eight days, went to 4124 N. 21st Street and observed Adrian Jackson in possession of two-semi [sic] automatic pistols at the residence of 4124 N. 21st Street in the City and County of Milwaukee.
A check of records also showed that Adrian J. Jackson listed the same address (4124 N. 21st Street) under County Jail Booking Records as of 02/13/04.
¶ 4. The Affidavit describes Thrower's experience in investigating firearm offenses and other offenses, his work with a specific confidential informant, including why Thrower believes the informant is reliable, and a physical description of the exterior of the building that Thrower wishes to search. Thrower identifies Jackson's prior felony conviction for endangering safety by use of a dangerous weapon, and discloses that a county jail booking record from February 13, 2004, lists Jackson's address as 4124 North 21st Street. Curiously, Thrower asks to search the building for evidence of who controls the duplex, but the Affidavit provides the issuing magistrate with no factual information (e.g. utility billing, property tax records, driver's license, vehicle registration at the address, or reports from neighbors or police surveillance) which tends to indicate what, if any, portion of the duplex Jackson lives in or controls.
Standard of Review
¶ 5. In State v. Stank, 2005 WI App 236, ¶ 30, 288 Wis. 2d 414, 708 N.W.2d 43, where we refused to allow an after-the-warrant attempt to challenge the credibility of a witness who testified before the warrant-issuing court, we noted that any challenge to the warrant-issuing court's finding is "limited to the record estab
Whether there is probable cause to believe that evidence is located in a particular place is determined by examining the "totality of the circumstances."... [A] probable cause determination must be based upon what a reasonable magistrate can infer from the information presented by the police .... We therefore consider only the facts presented to the magistrate.
State v. Ward, 2000 WI 3, ¶ 26, 231 Wis. 2d 723, 604 N.W.2d 517 (internal citations omitted). "It is the duty of the reviewing court to ensure that the magistrate had a substantial basis to conclude that the probable cause existed." Id., ¶ 21 (internal citations omitted); see also Stank, 288 Wis. 2d 414, ¶ 30.
¶ 6. The trial court held a hearing on Jackson's motion challenging the validity of the warrant. The State requested permission, and was allowed, to present extraneous evidence well beyond that which had been before the issuing magistrate. Because, as we have seen, the validity of the warrant cannot be established by material not before the magistrate, see Lindgren, 275 Wis. 2d 851, ¶ 16; Ward, 231 Wis. 2d 723, ¶ 26, and because the State agreed at oral argument before this court that the only proper measure of the validity of the warrant is the information that was presented to the issuing magistrate, we do not consider
Discussion.
¶ 7. The validity of a search warrant is measured against the requirements of the Fourth Amendment of the United States Constitution,
I. Particular description of place to be searched
¶ 8. In State v. Schaefer, 2003 WI App 164, 266 Wis. 2d 719, 668 N.W.2d 760, we noted that: "The particularity requirement serves three purposes by preventing general searches, the issuance of warrants
¶ 9. If the location to be searched is not described with sufficient particularity to inform officers which unit in a multi-unit building they are to search, the particularity required by the Fourth Amendment has not been satisfied. Hinton, 219 F.2d at 325-26. "[A] warrant which describes an entire building when cause is shown for searching only one apartment is void." Id. at 326 (citations omitted); see also United States v. Votteller, 544 F.2d 1355, 1363 (6th Cir. 1976). "For purposes of satisfying the Fourth Amendment, searching two or more apartments in the same building is no different than searching two or more completely separate houses. Probable cause must be shown for searching each house or, in this case, each apartment." Hinton, 219 F.2d at 325-26.
[I]f the officers had known, or ... should have known, that there were two separate dwelling units on the third floor ... they would have been obligated to exclude respondent's apartment from the scope of the requested warrant.... The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate.
Garrison, 480 U.S. at 85. Where the officer concluded, after making a reasonable investigation (including verifying information from a confidential informant, inquiring from the utility company about billing records,
¶ 10. Where probable cause is provided for a search of a location, and the description of the location specifically identifies it as part of an obviously multi-unit building, a search conducted within the premises included within the description set forth in the warrant, but in a place that was unknown to the officers at the time the warrant was issued, is permitted. Rainey v. State, 74 Wis. 2d 189, 205, 246 N.W.2d 529 (1976). In Rainey, the warrant authorized search of the "[e]ntire first floor premises" of a building which contained a business. Id. at 201. The officers discovered a balcony area raised up from the first floor, but which did not reach the second floor and which was accessible only from the first floor. Id. at 204. Noting the significant detailed description of the interior of the premises, and the detailed description of personally observed drug transactions in the building which was provided by the informant in support of the warrant,
¶ 11. In a case dating from the Prohibition Era, the description of the place to be searched for "intoxicating liquors" was sufficiently particular when, although two addresses applied to the building, the search was requested of "the garage located in the building at 611 West Forty-Sixth street," together with "any building or rooms connected or used in connection with said garage, the basement or subcellar beneath the same." Steele, 267 U.S. at 500 (italics supplied). Evidence seized from rooms on each floor of the building that were connected to the garage by an elevator was properly obtained because, the supreme court explained, the place to be searched had been particularly described. Id. at 503.
¶ 12. In Morales v. State, 44 Wis. 2d 96, 170 N.W.2d 684 (1969), a warrant was issued for the upstairs portion of a two-family dwelling. Id. at 99. Probable cause for issuing the warrant was challenged for a variety of reasons, of relevance here is the claim that the property to be searched was inadequately described. Id. at 104. As the court explained, "[t]he prevailing rule is that the place to be searched is sufficiently described if the officer to whom the warrant is directed is enabled to locate it with certainty" but that an exact legal description is not required. Id. at 104 (quoting Chruscicki v. Hinrichs, 197
¶ 13. Both the Affidavit and the warrant in this case identify the place to be searched as 4124 North 21st Street, "a two-story duplex residence." A "duplex" is defined as "having two parts or elements" and as "a two-family house."
¶ 14. The Affidavit does say that Jackson was seen with guns at the common address of the duplex units, but it does not say Jackson was seen in the duplex or any specific part thereof. Contrary to the inference of the dissent, that the informant reported that he or she saw Jackson in the duplex, Dissent ¶ 30, the Affidavit reports only that the informant "observed Adrian Jackson in possession of two-semi [sic] automatic pistols at the residence." See ¶ 3, supra. The Affidavit does not report that anyone — informant, officer, or neighbor — has ever seen guns in any particular part of the building. The Affidavit does not report anyone saying they have seen Jackson (with or without guns) in any particular unit of the building.
¶ 16. More is needed than was presented here to move from a general warrant for a multi-unit building to a warrant that describes with particularity the unit in a multi-unit building which is to be searched. See Garrison, 480 U.S. at 91; Morales, 44 Wis. 2d at 105; Hinton, 219 F.2d at 325-26.
II. Probable cause to search the entire building
¶ 17. The warrant describes the place to be searched as "certain premises ... occupied by ... Adrian Jermaine Jackson (M/B 09/21/76)" followed by:
1. DESCRIBE PREMISES: Address of 4124 N. 21st Street is a two-story duplex residence. The residence has a reddish brown colored roof, tan siding, and dark brown trim and a green upper dormer. The residence has silver in color aluminum storm windows!.] The front door faces south towards W Atkinson Ave. The front door has a black-gated storm door and a brown inner door. The numbers "4124" are black in color over a white background and is [sic] located on the south corner of the house. There is an upper porch on the front of the residence with a black railing and a door leading to it. The residence is on the east side of the street (N. 21st) in the City and County of Milwaukee.
¶ 18. The State argues that the Affidavit establishes probable cause to search the entire building. To prevail on the State’s "whole building" theory of the search warrant, there must be probable cause in the Affidavit to search each unit in the building, or there must be probable cause to search the entire building. We consider each alternative.
¶ 20. It is also long established that the location of the object of the search (here primarily the semiautomatic guns) must be described with sufficient specificity to establish probable cause to believe the things sought will be found in the location described. See, e.g., Illinois v. Gates, 462 U.S. 213, 238 (1983) (For probable cause to exist, police affidavits must contain sufficient evidence to show that a "fair probability [exists] that contraband or evidence of a crime" will be found at the location specified in the search warrant.); United States v. Jones, 54 F.3d 1285, 1290 (7th Cir. 1995) ("In practice, courts have therefore demanded that the executing officers be able to identify the things to be seized with reasonable certainty and that the warrant description must be as particular as circumstances permit." (citation omitted)).
¶ 22. The Affidavit contained nothing suggesting the duplex was anything other than a two-family residential building. That Jackson may have used an address common to both units of the duplex in no way particularizes his residence to a specific unit. Nor does use of an address common to more than one unit of a building permit the reasonable inference that the duplex was actually a one-family residence. If one person's use of a common address in a multi-unit building permitted the reasonable inference that this person occupied the entire building, then a search warrant for a person using the address of 633 West Wisconsin Avenue, Milwaukee, Wisconsin, would permit search of all units in that building.
¶ 23
"Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase."
Garrison, 480 U.S. at 85 (quoting United States v. Ross, 456 U.S. 798, 824 (1982)). From the meager information in the Affidavit here, a magistrate could not reasonably infer that there is probable cause to believe Jackson had control of and/or unrestricted access to both of the two living units in the building searched or that evidence of Jackson's possession of guns was probably going to be found in the upper unit, in the lower unit, in the basement, in the garage, or in the trash can.
¶ 25. Where the warrant does not distinguish between units in a multi-unit building, but where the officer testifies to the magistrate that he intends to search the entire building, a subsequent challenge to the warrant based on overbreadth was denied where, at the time the officer applied for the warrant, the officer had additional knowledge which supported probable cause to search the entire building. In United States v. Johnson, 26 F.3d 669 (7th Cir. 1994), probable cause for a search warrant for an entire building, a two-story duplex in Milwaukee, was established where the supporting affidavit described, among other things: (1) three controlled buys of cocaine by an informant with the cocaine having been retrieved by the seller in each instance from the building to be searched; (2) the informant had been inside the building and observed cocaine there; (3) the detective described a two-year investigation which included police surveillance; and (4) the detective testified before the magistrate that the house was a duplex and that he wanted the warrant to cover the entire building. Id. at 695. At the hearing challenging the overbreadth of the warrant and testing the reasonableness of the officer's belief, as part of a large investigation of conspiracy to distribute cocaine, that he had probable cause to search the entire building, id. at 688 n.14, the officer established that the confidential informant accompanied the primary target to this duplex on three occasions to
¶ 26. No detailed information of the type provided to the magistrate by affidavit and testimony in Johnson was provided here in support of the warrant. In Johnson, in addition to the experience of the officer and the address and physical description of the building, the
¶ 27. Further, in the later challenge to the over-breadth of the warrant, the record here does not establish, as was established in Johnson, that there was additional information in the possession of the officer at the time of the warrant application, but not disclosed to the magistrate, from which the officer could reasonably conclude he had probable cause to search the entire building.
¶ 28. For the reasons explained above, we conclude that the warrant did not describe with particularity the unit in a duplex to be searched as required by the Fourth Amendment and did not provide probable cause to issue a warrant to search either the entire building or a specific unit thereof.
By the Court. — Judgment reversed.
All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
The copy of the Affidavit in the record before us is unsigned and undated. However, there is no dispute that the original was signed and there is no dispute that the copy before us accurately reflects the original affidavit.
The Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article I, Section 11 of the Wisconsin Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
This warrant was based on sworn testimony before the magistrate rather than an affidavit. Rainey v. State, 74 Wis. 2d 189, 195, 246 N.W.2d 529 (1976). The witness, who was not identified on the record, described the business as including a shoeshine parlor with pool tables and a juke box, all on the first floor. Id. The witness testified that he had been at the premises about a dozen times in the past year, had been inside within the last forty-eight hours, and that he had witnessed the person who ran the business (Wendall) sell heroin. Id. The witness described seeing a customer give Wendall cash, and then the witness, the customer and Wendall went to "a small room in the
Additionally, a "duplex house" is defined as a "two family house." Webster's Third New Internat'l Dictionary, unabridged, 702 (Merriam Webster, Inc. 1993).
The Dissent, ¶¶ 30-31, seems to suggest that unless the affidavit establishes that a "two-story duplex residence" is
The Dissent ¶ 31, argues that Jackson's mother lived in the lower unit, therefore the officer properly concluded that Jackson had access to both dwelling units. The Dissent ignores the fact that this was unknown to the magistrate when he issued the warrant, and that there is no evidence in the record that the officer was aware of which unit either Jackson or his mother lived in when he applied for the warrant. As we have seen, when determining the sufficiency of the warrant, we may consider only the facts known to the magistrate when he issued the warrant. See State v. Stank, 2005 WI App 236, ¶ 30, 288 Wis. 2d 414, 708 N.W.2d 43 (any challenge to the warrant-issuing court's finding is "limited to the record established before the court at the time it issued the warrant.") State v. Lindgren, 2004 WI App 159, ¶ 16, 275 Wis. 2d 851, 687 N.W.2d 60, United States v. Hinton, 219 F.2d 324, 326 (7th Cir. 1955).
This is the address of the Court of Appeals, District I, as well as numerous other individuals, businesses and agencies.
Reference
- Full Case Name
- State of Wisconsin, Plaintiff-Respondent, v. Adrian J. Jackson, Defendant-Appellant
- Cited By
- 4 cases
- Status
- Published