State v. Pluim

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis Stat. 808.10 and Rule 809.62

State of Wisconsin, Plaintiff-Respondent v Calvin Pluim, Defendant-Appellant

No. 99-1793-CR99-0618-CR

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

January 19, 2000

APPEAL from judgments and an order of the circuit court for Fond du Lac County: HENRY B. BUSLEE, Judge. Affirmed.

Before Brown, P.J., Nettesheim and Anderson, JJ.

1. ANDERSON, J.

Calvin Pluim appeals from judgments convicting him of possession of and delivery of marijuana and keeping a house for its manufacture contrary to Wis. Stat. 961.41(1)(h)3, (1m)(h) and 961.42(1) (1997-98).¹ He contends that his five-year prison sentence was a misuse of the court's sentencing discretion. He also appeals from the court's order denying his motion to quash the search warrant executed upon his home and to suppress the evidence obtained during that search. In the affidavit requesting the issuance of the search warrant, the affiant included misleading information and omitted material facts, Pluim argues, that would have weakened the informant's reliability. Reviewing the search warrant with these allegations in mind, he contends it fails to establish probable cause. We disagree and affirm.

2. While conducting surveillance during a controlled drug buy, Officer Randy Woldt of the Lake Winnebago Metropolitan Drug Enforcement Unit (LWDEU) observed Michael Datta speak with another person in Datta's backyard, walk over to a lumber pile, pick up two boxes and place the boxes in the trunk of a car. Datta drove off in the car and was followed by the police. After losing sight of Datta's vehicle, Woldt located it in a restaurant parking lot and called a canine unit to the scene. Datta was arrested after six pounds of marijuana were found in the boxes in the car's trunk.

3. After his arrest, Datta was interviewed by Officer Joseph Framke, also of the LWDEU. During this interview, Datta confessed that he received the six pounds of marijuana from a Jamaican drug dealer in Chicago. He claimed that he had had a ten-year business relationship with the Chicago dealer and had gotten the marijuana in exchange for cocaine.

4. Datta had previously been convicted of drug offenses. He was aware that he faced a lengthy prison sentence if convicted again for the current drug offense. The day after his arrest, Datta entered into a plea agreement with the prosecutors. He agreed to provide information about Pluim in exchange for a sentence under which he would not be incarcerated.

5. During a second interview with Framke, the prosecutor and Datta's attorney present, Datta informed them that he had received the marijuana from Pluim. He claimed he had been trafficking drugs with Pluim for nine months and that his most recent drug pickup from Pluim had occurred just the day before. He stated that a few nights ago he was in Pluim's barn and saw ten upright freezers full of marijuana. He reported that Pluim planted marijuana in the fields on his property.

6. Framke prepared an affidavit requesting a search warrant for Pluim's property. He relayed the information Datta gave him in the affidavit. The search warrant was issued and the officers retrieved approximately 900 pounds of marijuana from Pluim's house and barn. Pluim was arrested.

7. After his arrest, Pluim moved the court to quash the search warrant and suppress the evidence seized during the search. Pluim argued that the search warrant lacked probable cause because "the State recklessly or intentionally omitted from the affidavit in support of that search warrant certain facts that, had they been included," the search warrant would not have been issued. The court denied the motion. Pluim subsequently pled no contest to the charges against him and was sentenced. Pluim appeals.

Validity of the Search Warrant

8. On appeal, Pluim reasserts his arguments that Framke's affidavit requesting the search warrant made material misrepresentations and omissions, and, when setting aside the false material and including the pertinent omissions, the affidavit lacked the necessary probable cause. The controversy over the veracity of the supporting affidavit concerns the way Datta's interview statements, personal information and criminal history were conveyed to the magistrate.

9. A defendant may contest the finding of probable cause to issue a search warrant in a hearing if he or she "makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause." Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (quoted in State v. Marshall, 92 Wis. 2d 101, 112, 284 N.W.2d 592 (1979)). The search warrant will be voided and the seized evidence suppressed if the defendant establishes by a preponderance of the evidence that: (1) a factual statement made in an affidavit supporting a warrant is false; (2) the affiant committed perjury or recklessly disregarded material information; and (3) after setting aside the affiant's false material, the remaining content of the affidavit fails to establish probable cause. See id. at 156.

10. Our review of the magistrate's probable cause determination is not de novo, even though it presents a question of law; rather, we give "great deference" to the magistrate's decision. See Illinois v. Gates, 462 U.S. 213, 236 (1983); State v. DeSmidt, 155 Wis. 2d 119, 132, 454 N.W.2d 780 (1990). "Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." United States v. Ventresca, 380 U.S. 102, 109 (1965). "The deferential standard of review is `appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant.'" State v. Kerr, 181 Wis. 2d 372, 379, 511 N.W.2d 586 (1994) (citations omitted).

11. Pluim contests the adequacy of the search warrant because of omissions and misrepresentations made by affiant Framke.³ He insists that the magistrate would not have found the informant to be credible if Framke had informed him that Datta initially lied about the source of the marijuana, received substantial charging and sentencing concessions from the State for his information, and had a criminal record. The State concedes that this information was excluded from the affidavit but argues that it was not required to be divulged. Additionally, Pluim argues that Framke made factual misrepresentations in the supporting affidavit. Specifically, he contends that the following assertions in the affidavit are false: (1) Framke states that he personally observed the drug activity, and (2) he claims that he gained knowledge of the drug activity by reviewing LWDEU records. The State disagrees.

12. Under Franks, the warrant will not be voided unless the statements at issue were made intentionally or with reckless disregard for the truth. See Franks, 438 U.S. at 155-56. The Franks principle applies to material omissions as well as deliberately false statements. See State v. Mann, 123 Wis. 2d 375, 385, 367 N.W. 2d 209 (1985). The purpose of this principle is simple.

[A] warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter. If an informant's tip is the source of information, the affidavit must recite "some of the underlying circumstances from which the informant concluded" that relevant evidence might be discovered, and "some of the underlying circumstances from which the officer concluded that the informant ... was credible or his information reliable." Because it is the magistrate who must determine independently whether there is probable cause, it would be an unthinkable imposition upon his [or her] authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment.

Franks, 438 U.S. at 165 (citations omitted).

13. Upon reviewing the affidavit and the Franks hearing record, we conclude that Framke knew of but omitted numerous facts from the affidavit that were important to the magistrate's determination of the informant's reliability and credibility.⁴ "For an omitted fact to be the equivalent of `a deliberate falsehood or a reckless disregard for the truth,' it must be an undisputed fact that is critical to an impartial judge's fair determination of probable cause." Mann, 123 Wis. 2d at 388 (citations omitted). Although we agree with the State that an affiant is only required to detail some of his or her reasons for believing an informant to be credible, Framke's omissions were material facts to the credibility determination and, taken together, amount to a reckless disregard for the truth.⁵

14. Because we determine that Framke recklessly disregarded the truth, our next step is to determine whether, if the omitted material had been provided, the affidavit would still have shown probable cause to believe that evidence of criminal activity would be found with the search warrant. However, we first will answer Pluim's allegations that Framke also made factual misrepresentations in the affidavit.

15. We determine that the statements Pluim argues are factual misrepresentations were not falsehoods but were unclear and unartfully worded statements. For instance, Pluim takes issue with Framke's claims that he visually observed the drug activity and consulted LWDEU records for information. The State responds that...