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Good faith exception inapplicable

By: dmc-admin//May 21, 2007//

Good faith exception inapplicable

By: dmc-admin//May 21, 2007//

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What the court held

Case: State v. Sloan, No. 2006AP1271-CR

Issue: Where a suspect mails contraband, can police obtain a search warrant for the sender’s home?

If not, does the good faith exception to the exclusionary rule apply?

Holding: No. There is an insufficient nexus between the illegal activity and the home.

No. The requirements for the good faith exception are not met.

Attorneys: For Appellant: Hayes, Thomas E., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Wren, Christopher G., Madison

A suspect’s sending marijuana through the mail, standing alone, is insufficient grounds to support a search warrant for the sender’s home, the Wisconsin Court of Appeals held on May 15.

In addition, the good faith exception to the exclusionary rule does not apply, although it clearly would if the case were charged in federal court.

Christopher Sloan took a box to a UPS station to ship to “Dave Slaon” [sic] in Florida. UPS has a sign posted, reserving the right to open any parcels.

Based on the clerk’s suspicions, the UPS supervisor opened the box and called to police to report what he suspected was a canister containing marijuana. The responding police officer inspected the package and confirmed that it contained marijuana.

Based on this evidence, a search warrant was issued for Sloan’s residence. There, police discovered a grow operation, and Sloan was charged with manufacture of a controlled substance.

He moved to suppress all the evidence, but the trial court denied the motion.

Sloan appealed, and, in a decision written by Judge Joan F. Kessler and joined by Judge Patricia S. Curley, the court affirmed the denial of the suppression motion concerning the evidence discovered in the package, but reversed the denial of the motion as it concerned the evidence found at Sloan’s home.

Judge Ralph Adam Fine dissented from the latter holding.

In affirming the denial of the motion regarding the evidence in the UPS package, the court concluded that officer did no more than replicate the search of the UPS supervisor, which indisputably did not violate the Fourth Amendment.

However, the court concluded the evidence was insufficient to support the search warrant for Sloan’s home.

The trial court had concluded that there was an insufficient nexus between the information in the affidavit and the house to be searched, so probable cause was lacking. However, the court held the Leon good faith exception to the exclusionary rule applicable, stating, “If I were confronted with this affidavit, I think I would have issued the warrant.”

Turning to probable cause, the court distinguished the search warrant from those which authorize a search of the contraband’s destination, after contraband is found in the mail.

The affidavit stated that, in the officer’s experience, persons who traffic in controlled substances usually keep records of their transactions at home.

However, the court found this insufficient, observing, “What [the officer] does not describe in his affidavit is critical to our analysis. He never tells the reader that he believes Sloan is, or has recently been, engaged in any criminal activity at the residence to be searched, or why he believes that is the case.”

The court noted the absence of any surveillance of the house or prior police of reports of drug activity at the house, or by Sloan. The court added, “Indeed, if Sloan’s statement to UPS was to be believed, it was unlikely that contraband would be found at the residence since he said he was leaving for Florida the next day.”

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The court concluded, “The affidavit certainly contains probable cause to believe Sloan possessed marijuana in Elm Grove at the UPS facility. But it provides no facts to link his Elm Grove possession to the West Allis residence. There is no evidence Sloan had the marijuana at the West Allis residence before taking it to UPS, no evidence that anyone had ever seen him with marijuana at the West Allis residence, and no evidence that he had possessed marijuana in his vehicles at the West Allis residence.”

Likewise, the court found nothing in the affidavit to support probable cause that a search of the home would lead to discovery of evidence tending to identify persons involved in the distribution of marijuana.

The court acknowledged that, with more investigation, a factual link could have been developed to support a search of the residence. In the absence of such invest
igation, however, he court held that probable cause was lacking, and reversed.

The Dissent

Judge Fine dissented. Noting, “Common sense tells us that any substance — whether contraband or not — does not just materialize out of thin air; it has to come from someplace, where it is either made, grown, or stored,” Fine concluded that it was “perfectly reasonable” to conclude there was probable cause that the marijuana came from Sloan’s home and that there was some marijuana still there.

Click here for Case Analysis.

David Ziemer can be reached by email.

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