State v. King

2008 WI App 129, 758 N.W.2d 131, 313 Wis. 2d 673, 2008 Wisc. App. LEXIS 557
CourtCourt of Appeals of Wisconsin
DecidedJuly 22, 2008
Docket2007AP1420-CR
StatusPublished
Cited by1 cases

This text of 2008 WI App 129 (State v. King) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. King, 2008 WI App 129, 758 N.W.2d 131, 313 Wis. 2d 673, 2008 Wisc. App. LEXIS 557 (Wis. Ct. App. 2008).

Opinions

CURLEY, PJ.

¶ 1. Michael Anthony King appeals from a corrected judgment of conviction entered after a jury found him guilty of possession with intent to deliver cocaine (more than five grams but less than fifteen grams) and possession of tetrahydrocan-nabinols (THC), second offense, contrary to Wis. Stat. §§ 961.41(lm)(cm)2., 961.41(3g)(e), and 961.48 (2001-02).2 King argues that the trial court erred in denying his motion to suppress physical evidence seized during the execution of what he contends was an [676]*676invalid anticipatory search warrant. In addition, he argues that the trial court erred in failing to give a lesser-included offense jury instruction. Because King has established that the warrant was not a valid anticipatory search warrant and thus, that the evidence seized during the search should have been suppressed, we do not address the latter issue he raises regarding the lesser-included offense instruction. Accordingly, we reverse the judgment and remand the cause for such further proceedings consistent with this opinion as may be appropriate.

I. Background.

¶ 2. The underlying facts are undisputed for purposes of our review. A Milwaukee detective applied for a warrant related to "certain premises located at 8811, 8813, 8815 West Mitchell, West Allis, Wisconsin, more particularly described as a three-unit townhouse . . . ." The warrant stated: "This authorization is contingent upon law enforcement officers identifying the precise unit, 8811, 8813 or 8815, in which Michael King resides. No search of any unit is authorized absent such a [677]*677verification, and the authorization extends only to that unit in which Michael King resides."

¶ 3. In a forty-two page affidavit supporting the search warrant related to King (and presumably other search warrants), a detective detailed his investigation of a narcotics trafficking organization believed to be led by Samuel Caraballo.3 The affidavit referenced numerous individuals believed to be involved in the organization, one of whom was King. With respect to the various addresses and locations identified, the detective stated in the affidavit: "Specific information relating to each location is detailed below, however, I submit that the affidavit in its entirety should also be considered for each location, given the connection and contribution of each of these locations and the associated individuals to the continuing operation of the organization as a whole."

¶ 4. The portions of the affidavit directly pertinent to King provided:

MICHAEL KING
8811/8813/8815 West Mitchell Street, West Allis
* 8811/8813/8815 West Mitchell Street is a three-unit townhouse with reddish brown and light colored brick on the lower, beige siding on the upper, and the numbers "8811", "8813", and "8815" in black numerals on white plates affixed to the entrance door of the unit. West Allis Police Detective Lonnie Averkamp reports that he has spoken to Officer Coolidge assigned to the [678]*678West Allis schools. The officer recently had a truancy case with. .. Michael King's son. [King's son], who resides at Michael King's former address of 856 South 86th Street, then took Officer Coolidge to Michael King's new residence of 8811/8813/8815 West Mitchell Street, West Allis. Officer Coolidge reports that Michael King's blue pickup truck is parked in front of that location. NOTE: This is a request for an anticipatory search warrant, as the unit in which Michael King resides has not been verified.
A. On March 16, 2004, at 5:02 EM., CARABALLO receives a call from Michael [K]ing regarding the purchase of "half a thing". King tells CARABALLO that he'll meet with CARABALLO to conduct the transaction (call #81).
B. On March 20, 2004, at 6:13 EM., I observed CARABALLO meet with King in CARABALLO'S vehicle outside of 3135 South 92nd Street, a pizza parlor supposedly owned by King. Afterwards, King exits and walks into the pizza parlor, and CARA-BALLO leaves and is followed. CARABALLO is observed on his cell phone at this time, and at 6:24 EM. he calls [another individual believed to be involved] and tells her that his friend needs the other ones not in the baggies (call #633).
C. On April 3, 2004, at 12:15 EM., CARABALLO calls King, who tells him that he is "moving shit". King also tells him that he has about "fifteen" for him, and that he is bringing a load of "shit" down here and will call CAR[A]BALLO in an hour and a half (call #2319).
D. On April 20, 2004, King calls and asks what's up, and CARABALLO replies nothing, he's waiting for his guy. King tells him to call him at the shop whenever (call #4359).

(Bold and capitalization in original.)

[679]*679¶ 5. On May 19, 2004, one month after the last phone call between King and Caraballo, the trial court issued a search warrant allowing officers to look for a plethora of items, including the following: cocaine; paraphernalia related to the sale, packaging, or distribution of cocaine; drug-related paraphernalia; photographs, videotapes, utility bills, canceled mail envelopes, bank statements, or other documentation establishing the identity of the individuals in control of the residence; and so on. The search warrant was executed the following day at 8813 West Mitchell Street. The officers found, among other things, approximately 7.7 grams of cocaine, 30.7 grams of marijuana, a digital scale, and $1900 in a pair of men's jeans. King, who was in the residence at the time of the search, was taken into custody.

¶ 6. One of the detectives involved in executing the search warrant testified as to how they came to search 8813 West Mitchell Street:

[Prosecutor:] And can you just describe to the jury how the search warrant was conducted at the home?
[Detective:] We were briefed prior to getting to the residence, and we were notified by Detective Lonnie Avercamp that the search warrant was anticipatory in nature, that the search warrant - someone was to knock on the door and observe the target, Mr. King, inside the residence. Upon observing Mr. King in the residence, we were then allowed to make entry into the residence and secure the residence.
[Prosecutor:] Can you describe what "anticipatory in nature" means, was there a question about his living arrangement, or how did that work, Detective?
[Detective:] My understanding is that there was information that Mr. King was currently residing at this [680]*680residence, but there was no direct link; for example, like utilities or such, there was no direct link. We believed he lived at the address, but I don't believe there was any direct evidence.

The prosecutor proceeded to ask the detective for details regarding how the search warrant was executed:

[Prosecutor:] Now, did you, in fact, go to the residence, and how was the search warrant executed, how did that work?
[Detective:] There was a swat team that makes entry. There is a canine officer who knocked on the door of the residence. Shortly after that the residence door was opened, that officer observed Mr. King inside of the residence. Upon observing Mr.

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Related

State v. King
2008 WI App 129 (Court of Appeals of Wisconsin, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
2008 WI App 129, 758 N.W.2d 131, 313 Wis. 2d 673, 2008 Wisc. App. LEXIS 557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-king-wisctapp-2008.