State v. Sloan

2007 WI App 146, 736 N.W.2d 189, 303 Wis. 2d 438, 2007 Wisc. App. LEXIS 443
CourtCourt of Appeals of Wisconsin
DecidedMay 15, 2007
Docket2006AP1271-CR
StatusPublished
Cited by32 cases

This text of 2007 WI App 146 (State v. Sloan) 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. Sloan, 2007 WI App 146, 736 N.W.2d 189, 303 Wis. 2d 438, 2007 Wisc. App. LEXIS 443 (Wis. Ct. App. 2007).

Opinions

KESSLER, J.

¶ 1. Christopher D. Sloan appeals from a judgment of conviction entered on a guilty plea after denial of his motion to suppress material seized from a box- he deposited at a United Parcel Service (UPS) facility in Waukesha County because no warrant was obtained, and to suppress material seized later from a residence in Milwaukee County pursuant to a search warrant. We affirm the denial of the motion to suppress the material contained in the box at the UPS facility because no warrant was required as the material was not originally discovered by a government agent; however, we reverse the denial of the motion to suppress material seized in the residential search because we conclude that the affidavit in support of the search warrant did not establish probable cause to believe a nexus existed between the items sought and the residence searched.

Background

¶ 2.' On January 4, 2005, Christopher Sloan took a box to the UPS station in Elm Grove, Wisconsin to ship to "Dave Slaon" [sic] in Florida. "Chris Sloan" was listed as the sender with a return address of 1005 South 114th Street, West Allis, Wisconsin. The UPS counter surveillance video recorded Sloan's transaction. UPS has a sign posted that reserved the right of UPS to open any parcels shipped. Sloan aroused the suspicion of the UPS counter clerk because, according to the clerk, he did not [444]*444want anyone to inspect the package, and he wanted to ship the package with next day delivery to himself in Florida in spite of the fact that this was very expensive. Sloan told the clerk he had shipped this way before.

¶ 3. After accepting the box from Sloan, the counter clerk took the box to her supervisor in the UPS back office, who opened the box, which contained toys, pictures and a plastic canister. The supervisor then also opened the canister. This supervisor thought the package looked suspicious and took it to the UPS security supervisor, Michael Weber. Weber looked in the open box and found an opened canister that had previously been sealed with silver duct tape. Weber thought the canister contained marijuana, but he did not smell marijuana. He called the Elm Grove Police Department to report the package with the possible marijuana. Weber took pictures of the box, he believes, after the police confirmed it contained marijuana.

¶ 4. Sergeant Jason Hennen of the Elm Grove Police Department went to the UPS facility where he was shown the box in question. The box had been opened, but had one or more flaps closed when he arrived. Hennen testified that Weber handed him the canister with the duct tape. Weber testified that he showed Hennen the opened box with the canister still in the box. The canister was heavy duty plastic, partially closed but the lid was not on tight. -Hennen recognized the odor of marijuana. He took the lid off of the canister, saw a plastic bag inside which contained a green leafy substance, suspected marijuana, and did a field test on the substance which confirmed that the substance was marijuana.

¶ 5. Further investigation ensued. Hennen's affidavit in support of a search warrant describes additional information he obtained by the following day, [445]*445January 5, 2005. Hennen described viewing the UPS videotape of the person shipping the package, learning that Christopher Sloan had a Florida driver's license with a photograph, determining that the license photo was of the same person Hennen saw on the UPS videotape, and determining that the person in the videotape was same person who was depicted in a photograph contained in the box. In addition, Hennen learned that Wisconsin Department of Transportation records2 listed Sloan's residence as 1005 South 114th Street in West Allis, which is the same address listed as the return address on the package. Hennen also described information from WE Energies that Christopher Sloan had paid the utilities at the 1005 South 114th Street residence. The residence is owned by Leslee Ericksen, born October 19, 1957, who Wisconsin DOT records show was formerly known as Leslee J. Sloan.3 Sloan was born February 26, 1982.

¶ 6. Based on this investigation, which included evidence seized pursuant to the search warrant issued for 1005 South 114th Street, Sloan was charged with one count of manufacture of a controlled substance— tetrahydrocannabinols (marijuana) (more than twenty but not more than fifty plants), in violation of Wis. Stat. §§ 961.14(4)(t) and 961.41(l)(h)3. (2003-04).4 Sloan moved to suppress the admission of evidence from both the search of the box and from the search warrant issued for his residence. After a hearing, the trial court [446]*446denied the motion. Thereafter, Sloan pled guilty and was sentenced. Sloan has appealed his judgment of conviction and sentence.

Standard of Review

¶ 7. We review a motion to suppress applying a two-step standard of review. State v. Eason, 2001 WI 98, ¶ 9, 245 Wis. 2d 206, 629 N.W.2d 625. "First, we review the [trial] court's findings of historical fact, and will uphold them unless they are clearly erroneous. Second, we review the application of constitutional principles to those facts de novo." Id. (citations omitted).

¶ 8. In reviewing whether probable cause exists to issue a search warrant, we give great deference to the warrant-issuing magistrate. See State v. Kerr, 181 Wis. 2d 372, 379, 511 N.W.2d 586 (1994). We are confined to the record as it existed before the magistrate 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.'" Id. at 378 (quoting State v. Starke, 81 Wis. 2d 399, 408, 260 N.W.2d 739 (1978)). The magistrate's decision to issue a warrant will be upheld unless the facts before the magistrate at the time the warrant was issued were " 'clearly insufficient to support a finding of probable cause.'" Id. at 380 (quoting State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991)); see also State v. Meyer, 216 Wis. 2d 729, 742, 576 N.W.2d 260 (1998). We consider the search of the box and of the residence separately.

[447]*447A SEARCH OF THE BOX

Did the police search of the box exceed the scope of the private search?

¶ 9. Sloan argues that a warrant was required for the police to search the box because Hennen exceeded the scope of the UPS search. Sloan does not dispute the original search by UPS was a private-party search. The trial court found that the police did no more than replicate the UPS search of the box and the container. Further, the trial court found that inconsistencies between the testimony of Weber and Hennen (whether some, all, or none of the flaps on the box were open when Hennen first saw the box; whether the container was in the box when Hennen arrived or was handed to Hennen by Weber) were not material and were nothing more than normal failures of human recollection. The evidence supports that inference. When supported by evidence, the trial court is free to determine which of conflicting inferences to choose. State v.

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Cite This Page — Counsel Stack

Bluebook (online)
2007 WI App 146, 736 N.W.2d 189, 303 Wis. 2d 438, 2007 Wisc. App. LEXIS 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sloan-wisctapp-2007.