State v. Casarez
State v. Casarez
Concurring Opinion
¶ 21. (concurring). I fully join in the Majority opinion, with the exception of ¶ 16, which discusses matters that need not be analyzed in this case.
¶ 22. The key as I see it is that the gun found in Juan A. Casarez's car might have been his irrespective of what Michael Cornelius and Casarez's wife told the police. Certainly, the items for which the police sought the warrant are, as the Majority correctly observes, things that someone owning a gun would naturally have in his or her home. Thus, I disagree with the Dissent's comment that "nothing ... connects Casarez's house with the recovered gun." Dissent, ¶ 27. As the Majority recognizes, the stuff for which the police sought the warrant had the potential to nail down whether the gun was Casarez's; the police were not bound by the passengers' attempt to shift the blame from Casarez.
Dissenting Opinion
¶ 23. (dissenting). I respectfully dissent.
¶ 25. Whether there is probable cause that evidence is located at a particular place is determined by examining the " 'totality of the circumstances.'" State v. DeSmidt, 155 Wis. 2d 119, 131, 454 N.W.2d 780 (1990) (citation omitted). Therefore, we consider "whether objectively viewed, the record before the warrant-issuing judge provided '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.'" State v. Ward, 2000 WI 3, ¶ 27, 231 Wis. 2d 723, 604 N.W.2d 517 (emphasis added; citation and one set of internal quotation marks omitted).
¶ 26. " '[Pjrobable cause to believe that a person has committed a crime does not automatically give the police probable cause to search his house for evidence of that crime.'" State v. Higginbotham, 162 Wis. 2d 978, 995, 471 N.W.2d 24 (1991) (quoting United States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982)).
¶ 27. The affidavit in support of the search warrant for Casarez's home, when distilled to its essence, provides only the following information. Casarez was involved in a bar fight, where he struck the victim in the face with a beer bottle and shot at the victim's legs. Witnesses provided the police with a license plate number and the make of the vehicle that left the scene. Shortly thereafter, the police spotted the car and discovered that Casarez was the driver, the front-seat passenger was Casarez's wife, and the back seat passenger was a man by the name of Michael Cornelius. A gun was found under Casarez's wife's seat. She told police that when the police stopped the car, Cornelius said he
¶ 28. The trial court never explained exactly how these facts gave rise to an "honest belief in a reasonable mind" that evidence of other guns and ammunition would be found in Casarez's home, except to say that:
[S]o for [the police] to get information as to identifiers which connect this gun up specifically with one person is certainly appropriate investigatory work.
Now, in your [hypothetical] where he is the only fellow in the car and he has complete control of the car and there's nobody else there, I may even agree with you that [there is no connection to search the home,] that could be just, you know, pretense for doing this or that, but in this case here there was complete testimony even from statements of the witnesses involved, so I believe that certainly the warrant has -has a validity of appropriateness and I think that under the totality of the circumstances and the -the -even though the differences may not be as great as some differences, there were still differences in the statements which I think the police had a right to go and determine by obtaining various identifiers, et cetera, that are -that would connect this particular person with this particular activity that was in question just because of the difference of the information they had already.
In other words, if I am interpreting the trial court's logic correctly, it is perfectly fine to search Casarez's house to determine whether he actually owned the gun and not Cornelius, but, had Casarez been alone in the
If Casarez had been arrested as a felon in possession of a firearm as he was walking along the street, or if he had committed a traffic violation and was pulled over while driving alone in his car, such facts standing alone would be insufficient to support the search of his residence.
Majority, ¶ 16. I ask, why? Here, the trial court approved the search on the strength of the police doing "investigatory work." In future cases, the police may petition for a search warrant claiming they need additional information to better their case, or need to be assured no other guns or ammunition remain in the offender's home. Not only is the trial court's and the Majority's logic flawed, but also, despite the Majority's claim to the contrary, this ruling permits the police to apply and obtain search warrants for the homes of anyone arrested with a gun. This is a troubling development in the law and eviscerates the protections traditionally given to the sanctity of one's home.
¶ 29. For the reasons stated, I would reverse. Accordingly, I respectfully dissent.
Opinion of the Court
¶ 1. Juan A. Casarez appeals from a judgment entered after a jury found him guilty of possession with intent to deliver a controlled substance, cocaine (fifteen to forty grams), as party to a crime, second or subsequent offense, contrary to Wis. Stat. §§ 961.16(2)(b)l., 961.41(lm)(cm)3., 939.05, and 961.48 (2005-06).
BACKGROUND
¶ 2. On February 11, 2007, at approximately 1:50 a.m. there was a shooting at a tavern located at 1101 North Astor Street. During the investigation, Milwaukee Police Detectives Dolores Applegate and Joseph McLin learned from Fernando Hernandez that as he was walking near the bar, he was struck in the face with a beer bottle. Hernandez stated he then punched the person who struck him in the jaw. Hernandez described the perpetrator as a shorter Hispanic male. The perpetrator then shot at Hernandez twice. A bullet was recovered from Hernandez's shoe and other bullet fragments were recovered from the tavern.
¶ 3. Witness interviews revealed that after the shooting, a white Escalade with license plate
¶ 4. The police discovered a .45-caliber Smith & Wesson semi-automatic handgun under the front passenger seat. Sosa gave a statement to police that at the time they were stopped by the squad car, Cornelius stated that he had "heat" (a street term for a weapon). Cornelius passed the gun to Casarez, who then gave it to Sosa, who then placed the gun under her seat. At that time the gun was recovered and Casarez was arrested.
¶ 5. On February 12, 2007, a request was made based on an affidavit from Detective Gerald Stanaszak for a search warrant for Casarez's home, located at 2731 South 49th Street. The affidavit set forth the facts pertinent to the tavern shooting and sought permission to search the home for:
[a]mmunition, cartridges, holsters, additional magazines, cleaning supplies, photographs, videotapes, utility bills, canceled mail envelopes, bank statements or other documentation establishing the identity of the individuals in control of the above residence; any firearms, all of the above evidence related to the following offenses: First Degree Recklessly Endangering Safety while Armed (PTAC) and Felon in Possession of a Firearm (PTAC).
¶ 6. The Court Commissioner found probable cause existed to issue the search warrant and a search of Casarez's home was conducted on February 13, 2007. Milwaukee Police Detective Eugene Nagler began a search of the closet in Casarez's bedroom. He immediately detected a strong odor of cocaine. When he patted
¶ 7. On February 18, 2007, Casarez was charged with possession with intent to deliver a controlled substance, cocaine (more than fifteen grams but not more than forty grams), as party to a crime, second or subsequent offense.
Whenever you have . . . three people in a car, three persons in a car and you have this whole thing where now there's competing evidence as to "a" Michael Cornelius having this gun and not this man, where you've got now a citizen witness that shows this guy, or at least the allegation is that this guy was the shooter and now you also have a statement from his wife that at best he was . .. part of the transitory act of. . . passing the gun as opposed [to being the shooter] . . . that's an issue.
Whose gun is this... so for [the police] to get information as to identifiers which connect this gun up*667 specifically with one person is certainly appropriate investigatory work.
... I]n [the] case where he ... is ... only [one] fellow in the car and he has complete control of the car and there's nobody else there, I may even agree [there is no connection to search the home] ... but in this case here there was complete testimony even from statements of the witnesses involved, so I believe that certainly the warrant has ... a validity of appropriateness and I think that under the totality of the circumstances and ... there were still differences in the statements which I think the police had a right to go and determine by obtaining various identifiers... that would connect this particular person with this particular activity that was in question.
... [T]herefore I'm going to find that the warrant in this case under the totality of the circumstances test had validity from the get-go. ... On its face they had a reason for being there legitimately and they went with that.
¶ 8. After the denial of the suppression motion, the case was tried to a jury in July 2007. The jury found Casarez guilty, and he was sentenced to ten years in prison, consisting of five years of initial confinement followed by five years of extended supervision. Judgment was entered. He now appeals.
DISCUSSION
¶ 9. Casarez claims the trial court erred in denying his motion to suppress. He argues that the affidavit submitted to the court commissioner failed to establish probable cause and the search warrant should not have
¶ 10. In reviewing whether a warrant was properly issued, we give deference to the court commissioner 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." State v. Sloan, 2007 WI App 146, ¶ 8, 303 Wis. 2d 438, 736 N.W.2d 189 (quotation marks omitted). We will uphold the decision to issue the warrant unless the facts in the supporting
¶ 11. Here, the court commissioner determined the affidavit contained sufficient facts to support a finding of probable cause to believe that the police would locate ancillary materials relating to the gun used in the tavern shooting and information as to the ownership of the gun. We agree with the trial court's assessment.
¶ 12. Although Casarez concedes the affidavit establishes probable cause that he committed a crime, he asserts that it contains no evidence to establish that a crime was committed at his home, that the gun was ever observed at his home, or that he was ever seen with the gun at his home. He also points out that the police stopped his vehicle ten minutes after the shooting; and, thus, there would have been no time for him to go to his home.
¶ 13. The dispositive issue, therefore, is whether the affidavit sufficiently averred that the objects sought were reasonably thought to be linked to the commission of a crime. Here, the objects sought included: "the location of ammunition, gun cleaning products, receipts related to the purchase and possession of firearms, ammunition, gun case, and other evidence relating to establishing dominion and control in the possession of firearm(s) by" Casarez. The crimes being investigated were first-degree recklessly endangering safety while armed and felon in possession of a firearm.
¶ 14. We conclude that the objects sought related directly to both crimes as both involved a firearm.
¶ 15. Under the circumstances here, it was reasonable for the police to continue the investigation. Although the police had recovered the gun and apprehended potential suspects of the shooting, the fact that there were three individuals in the car when the gun was recovered presented potential issues with proof of who committed the crime. The witnesses had described Casarez as the shooter, but the gun was found under the seat of Sosa. Sosa told police that Cornelius was the one who had the gun and passed it forward when the police stopped their car. Given the standard of proof, requiring the State to prove its case beyond a reasonable doubt, it was not unreasonable for the police to seek further evidence to prove the crimes being investigated.
¶ 16. Casarez asserts that affirming in the case would create a dangerous precedent allowing the search of an individual's home whenever contraband is located in a vehicle. He argues that if we uphold the search, a "bright line" rule will be created allowing the police to search a residence any time they locate contraband on a person, or in the car the person is driving. We disagree. Each case is evaluated on the facts and circumstances specific to that case. Here, the gun was recovered from
¶ 17. We are further not persuaded by Casarez's reliance on Sloan. In Sloan, we held that under the totality of the circumstances, there was no "probable cause to believe a nexus existed between the items sought and the residence searched." Id., 303 Wis. 2d 438, ¶ 1. In that case, Sloan attempted to ship a package containing marijuana to Florida. Id., ¶ 2. He listed a return address of 1005 South 114th Street on the package. Id. The shipping employee was suspicious and, with the assistance of her supervisor and security discovered what was believed to be marijuana. Id., ¶ 3. Police were called and further investigation ensued. Id., ¶¶ 4-5. As a part of that investigation, a search warrant was issued to search the return address listed on the package, wherein the police discovered a large number of marijuana plants. Id., ¶ 6. Sloan moved to suppress the admission of evidence. Id. The Sloan trial
¶ 18. There are several factors that distinguish this case from Sloan. First, Casarez's connection to the residence to be searched did not come from a return address on a package as in Sloan; rather, it came from Casarez himself (and his wife). Second, unlike Sloan, who reported he was leaving the state for Florida the next day, making it "unlikely that contraband would be found at the residence," id., ¶ 32, there is no suggestion here that Casarez was going anywhere (except to jail). Third, the search warrant in Sloan sought evidence of items to show who was in control of the premises, relating to the crime of maintaining a drug house, but the affidavit in support did not present evidence to show the premises was. Id., ¶ 35. Whereas in the instant case, the search warrant was considerably narrower: "The objects of the search . . . may constitute evidence of crimes, to wit: 1st degree reckless endangering safety while armed and felon in possession of a firearm." Fourth, unlike the failure in the Sloan affidavit to justify a search for evidence of a drug house, the affidavit here shows substantial probable cause tending to show that Casarez was involved in those particular crimes named, hours before his arrest. Finally, Sloan is distinguishable from the instant case because it addressed the good faith exception. We do not reach the good faith doctrine in the instant case because
¶ 19. Moreover, this case adheres to the Wisconsin Supreme Court's longstanding precedential standards on probable cause set forth in Ward:
Where there is evidence that would lead a reasonable person to conclude "that the evidence sought is likely to be in a particular location," there is probable cause for a search of that location, even if it may also be reasonable to conclude that the evidence may be in a second or third location as well.
Id., 231 Wis. 2d 723, ¶ 34 (citation omitted). In Ward, the supreme court held that where a reasonable inference can be drawn linking the evidence to the home searched, we will affirm the probable cause determination. Id., ¶¶ 30-31. The inference need not be the only inference which can be drawn, but it must be a reasonable inference. Id. The supreme court rejected Ward's argument that the affidavit in support of the search warrant failed to establish with more specificity a connection between the items sought and the residence searched: "[T]his level of formalism is not in keeping with the totality of the circumstances test." Id., ¶ 33.
¶ 20. Based on the totality of the circumstances here, one reasonable inference was that the ancillary materials sought in the search warrant would be found at Casarez’s home. It is reasonable to infer that if Casarez was the shooter and the gun belonged to him, he would have at his residence additional ammunition
By the Court. — Judgment affirmed.
All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
Certified judgment rolls established that Casarez was a convicted felon as he had been convicted of a 1994 charge of possession with intent to deliver cocaine and possession with intent to deliver marijuana.
The Fourth Amendment to the United States Constitution provides:
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 provides:
Searches and seizures. Section 11. 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.
Reference
- Full Case Name
- State of Wisconsin, Plaintiff-Respondent, v. Juan A. Casarez, Defendant-Appellant
- Cited By
- 21 cases
- Status
- Published