from a judgment of the circuit court for Walworth County No.
2015CF167 DAVID M. REDDY, Judge.
Neubauer, C.J., Gundrum and Hagedorn, JJ.
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.
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),  the Honorable James Carlson issued a
subpoena based upon "probable cause" for the
electrical usage records Winger requested.
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.
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.
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
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.
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. In so concluding, we assume, without
deciding, that the electrical usage information was tainted.
"[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.
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