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State v. Hillary

Court of Appeals of Wisconsin, District II

September 20, 2017

State of Wisconsin, Plaintiff-Respondent,
v.
Guy S. Hillary, Defendant-Appellant.

         APPEAL from a judgment of the circuit court for Walworth County No. 2015CF167 DAVID M. REDDY, Judge.

          Before Neubauer, C.J., Gundrum and Hagedorn, JJ.

          GUNDRUM, J.

         ¶1 Guy Hillary appeals from a judgment of conviction for manufacturing and possession with the intent to deliver THC. He argues the circuit court erred in denying his motion to suppress evidence procured pursuant to a subpoena and a search warrant he challenges. We conclude the court did not err in denying the motion.

         Background

         ¶2 Following up on an anonymous tip he received, Deputy Daniel Winger of the Walworth County Drug Enforcement Unit applied for a subpoena for electrical usage records related to Guy Hillary's residence and the two surrounding properties. In his affidavit in support of his application, Winger attested that he

received anonymous information on June 13, 2014 that subject went to Guy S Hillary's residence to fix a vehicle when Hillary showed complainant a very large marijuana grow in a garage on Hillary's property. Complainant stated that there are several grow rooms with several large marijuana plants. Complainant stated that Hillary was bragging about how much money he makes.

Winger further attested that he checked in-house sheriff department records as well as Wisconsin Department of Transportation (DOT) records to confirm the correct address for Hillary's residence. Based upon Winger's affidavit and pursuant to WIS . STAT . § 968.135 (2015-16), [1] the Honorable James Carlson issued a subpoena based upon "probable cause" for the electrical usage records Winger requested.

         ¶3 After receiving the records, Winger applied for a search warrant for Hillary's residence. In his warrant affidavit, Winger provided electrical usage details from the records and stated that the records showed "a considerable amount more of electricity being used" at Hillary's residence than at the two surrounding residences. Winger also attested to speaking with an individual from Cannabis Enforcement and Suppression Effort (CEASE) who stated that the amount of electrical usage at Hillary's residence was an indicator of an indoor marijuana grow operation.

         ¶4 In the warrant affidavit, Winger described the location to be searched-Hillary's residence in the Town of Bloomfield in Walworth County- as well as items sought, which were items related to the manufacture, distribution or delivery of marijuana. In addition to including the electrical usage and CEASE information in the affidavit, Winger stated he was a Walworth County Drug Enforcement Unit officer, had been an officer for twenty-five years, and had conducted numerous criminal investigations. Winger attested that he

received anonymous information on June 13, 2014 that a subject went to Guy S Hillary's residence to fix a vehicle and Hillary proceeded to show the complainant a very large marijuana grow in a garage on Hillary's property. Complainant stated that there are several grow rooms within the garage containing several large marijuana plants. Complainant stated that Hillary was bragging about how much money he makes selling marijuana.

         As with the subpoena application, Winger stated he checked the in-house records of the sheriff's department, as well as DOT records, to confirm the address for Hillary's residence. Winger also attested that he checked Walworth County Drug Enforcement Unit in-house records and that those records "showed that in November 2012, a Crime Stoppers tip came into the Town of Bloomfield Police Office stating that Guy Hillary resides at W1434 County Road B, in the Town of Bloomfield, Walworth County, Wisconsin, and has an ongoing marijuana grow at his residence." Winger further attested that he drove by this address, Hillary's residence. He attested to various characteristics of the home that he observed, including that Hillary's home was a "single family residence with an attached two car garage."

         ¶5 The Honorable Phillip A. Koss signed a warrant to search Hillary's residence. Evidence discovered during that search led to Hillary being charged with one felony count of manufacturing THC, one felony count of possession with intent to deliver THC, and one misdemeanor count of possession of drug paraphernalia. Hillary moved to suppress the evidence on various grounds. The circuit court, the Honorable David M. Reddy presiding, denied the motions. Hillary pled to the two felony counts and the misdemeanor count was dismissed and read in. Following his sentencing, Hillary filed this appeal.

         Discussion

         ¶6 Hillary asserts that the evidence against him should have been suppressed because "the subpoena lacked probable cause to issue, " and because of that, the electrical usage information procured via the subpoena was unlawfully obtained, i.e., "tainted, " and should be "excised" from the search warrant affidavit. He further asserts that whether or not the electrical usage information is excised from the warrant affidavit, the affidavit lacked the probable cause necessary for its issuance. We affirm the circuit court's denial of Hillary's suppression motion because we conclude probable cause to issue the warrant existed even if the electrical usage information was tainted and should be excised from the warrant affidavit.[2] In so concluding, we assume, without deciding, that the electrical usage information was tainted.

         ¶7 "[W]here a search warrant [is] issued based on both tainted and untainted evidence, [a reviewing court may] independently 'determine that the [untainted evidence is] sufficient to support a finding of probable cause to issue the search warrant.'" State v. Herrmann, 2000 WI.App. 38, ¶21, 233 Wis.2d 135, 608 N.W.2d 406 (discussing our supreme court's holding in State v. O'Brien, 70 Wis.2d 414, 234 N.W.2d 362 (1975)). And "where there is sufficient untainted evidence presented in the warrant affidavit to establish probable cause, the warrant is valid." State v. St. Martin, 2011 WI 44, ¶17, 334 Wis.2d 290, 800 N.W.2d 858 (citation omitted). Thus, we will uphold the validity of the search warrant in this case if, after striking the electrical usage-related information, Winger's affidavit contains sufficient information to establish probable cause.

         ¶8 Whether undisputed facts satisfy a particular constitutional standard is a question of law we determine independently. State v. Verhagen, 2013 WI.App. 16, ¶17, 346 Wis.2d 196, 827 N.W.2d 891. Probable cause to issue a warrant exists if the information set forth in support of the warrant establishes a "fair probability that a search of the specified premises would uncover evidence of wrongdoing." State v. Romero, 2009 WI 32, ¶4, 317 Wis.2d 12, 765 N.W.2d 756. "'[T]he probable cause standard … is a practical, nontechnical conception' requiring a court to deal with 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Id., ¶17 (citation omitted). It is a "flexible, common-sense measure of the plausibility of particular conclusions about human behavior." Herrmann, 233 Wis.2d 135, ¶22 (citation omitted). In deciding whether probable cause exists, a court "may make the usual inferences reasonable persons would draw from the facts presented." St. Martin, 334 Wis.2d 290, ¶16 (quoting Bast v. State, 87 Wis.2d ...


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