01-0065-CR State v. Marquardt

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“[T]he State admits that the facts recited in the affidavits are ‘scant,’ but argues that they are not so thin as to be insufficient for probable cause. The State points to several facts in the affidavits: (1) Mary’s telephone was off the hook the day she was killed, suggesting ‘that the perpetrator had been inside the residence’; (2) Mary was shot and stabbed, and no valuables were taken, suggesting the crime was an intentional homicide, as opposed to a break-in, and that the perpetrator was probably a male; (3) there were footprints at the crime scene that could be compared with footware if any are located; (4) Mary was covered with a blanket, which suggests the perpetrator knew, or was familiar with the victim; and (5) Marquardt’s father stated that his son had not been heard from since Mary’s body was discovered.

“Although these facts may lead a reasonable police officer to pursue further investigation of Marquardt, we conclude that there is nothing in the facts to tie Marquardt to the crime, much less to tie his home to the crime. Although the warrant-issuing judge may have been provided sufficient facts to excite an honest belief in a reasonable mind that the particular types of objects sought – including shoes, knives, and guns – could be linked with the commission of the crime, there was no fact that suggested those items would be found in Marquardt’s cabin. We conclude that Marquardt has established that the facts are clearly insufficient to support a probable cause finding and, therefore, we reject the judge’s probable cause determination.”

Affirmed in part, reversed in part, and remanded.

Recommended for publication in the official reports.

Dist III, Chippewa County, Cameron, J., Cane, J.

Attorneys:

For Appellant: James B. Connell, Wausau

For Respondent: James M. Freimuth, Madison; Timothy F. Scobie, Chippewa Falls