Warrant invalidated because primary basis consisted of information the police garthered by trespassing

State v. Jeremiah R. Popp & Christopher A. Thomas, 2014 WI App 100; case activity: Popp; Thomas

The search warrant for the home shared by Popp and Thomas was invalid because the primary basis for the warrant was derived from observations made by police when they trespassed on the defendants’ property and peered into their windows.

After an anonymous caller “looking for some kind of consideration” in another drug investigation left a message with police that there was someone moving bins of illegal mushrooms outside Popp and Thomas’s trailer home, police went to the residence and encountered Thomas. (¶¶3-6). Thomas refused the officers’ request for consent to search, but “the officers starting snooping around outside of the trailer anyway,” including peering into a small window with the aid of a flashlight after climbing up some steps attached to the wall. (¶¶6-7). Seeing indications of some sort of grow operation or drug lab, the police decided to apply for a search warrant. (¶¶7-8) While police were drafting the application, the anonymous caller phoned again, saying he’d been in the trailer and personally observed a mushroom growing operation. (¶9). The warrant was issued and executed, revealing a mushroom growing operation. (¶10).

The court of appeals agrees with Popp and Thomas that the police observations were derived from an illegal search, stopping first to criticize the state’s advocacy:

¶15     While the State claims in its brief that it “does not concede that the officers’ actions of climbing the back stairs of the trailer and stepping onto the lawn to look through the window were unlawful infringements on [the defendants’] Fourth Amendment rights,” it does not provide a single record citation, a single case citation, or a single supporting argument of any kind to persuade us that the officers’ actions were in fact lawful. All it provides is a single, conclusory statement that the State does not concede that the officers’ actions were unlawful. …

Though the court notes it could decline to consider the state’s arguments at all, it goes on to explain the reasons for its decision, starting with the the fact that after United States v. Jones, 132 S. Ct. 945 (2012), and Florida v. Jardines, 133 S. Ct. 1409 (2013), a Fourth Amendment violation may established by showing either a reasonable expectation of privacy or an unauthorized physical intrusion or trespass into a constitutionally protected area, the court holds the police conduct here invalid under the latter standard:

¶20     Applying the intrusion or trespass standard, we conclude that Lieutenant Marks and Corporal Zientek trespassed on the defendants’ property when they, without permission, went up the back steps and onto the porch on the west side of the defendants’ trailer to peer into the window and when they peered into the window on the north end of the trailer. As noted, Thomas expressly told the officers that they could not search the trailer, but the officers went up to the windows, occupied areas that were indisputably protected, see Jardines, 133 S. Ct. at 1414 .., and used their flashlights to peer inside, anyway. Moreover, this was not a situation where the officers went to the areas in question to simply knock on the door and ask a few questions. See id. at 1416 (“a police officer not armed with a warrant may approach a home and knock, precisely because that is ‘no more than any private citizen might do’”) … As the defendants point out in their briefs, the officers walked into the yard and onto the back porch “with the sole, express purpose of peering inside … the windows.” “They had no other reason for being in those areas,” and “candidly acknowledged that they could not have seen what they saw within the trailer if they had not been standing” in the yard or on the back porch. Cf. Jardines, 133 S. Ct. at 1416 … Consequently, the officers conducted an illegal search of the defendants’ property.

The court curtly dispenses with the state’s claim that the initial illegality was “attenuated” by the fact the police procured a warrant:

¶25     We must reject the State’s argument because it is not only illogical but completely unsupported by law. Contrary to what the State argues, the act of procuring a warrant cannot in itself legitimize the substance within the warrant. By the State’s logic, police officers would be able to sneak into someone’s house without permission, snoop around, find contraband, and later arrest them for it under any circumstances so long as a warrant was later procured and so long as an interval of time lapsed between the snooping and the obtaining of the warrant. This makes no sense. Cf. Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385, 391-92 (1920) (Allowing the Government to utilize unlawfully seized evidence not otherwise obtainable through legitimate means would “reduce[] the Fourth Amendment to a form of words.”). …

With the observations gained from the trespass excised, the warrant was not supported by probable cause, applying State v. Romero, 2009 WI 32, 317 Wis. 2d 12, 765 N.W.2d 756. First, there’s no way to verify the veracity of the information from the anonymous caller, as there’s no showing the caller has previously provided reliable information and the details the caller gave were not corroborated beyond the location of the trailer. (¶30). Further, the evidence for the basis of the caller’s knowledge was extremely weak, as he did not say how he knew the defendants, his relationship to them, or the circumstances that brought him to the trailer in the past, and he did not demonstrate a “wealth of detail” that would have been “sufficient to permit an inference that the basis of the declarant’s knowledge is sound.” (¶31 (quoting Romero, ¶22.)).

 ¶32     Thus, given that we cannot verify the veracity and basis of knowledge for the facts derived from the anonymous caller, we are left with little more than the observations that the trailer’s windows were covered and that Thomas was visibly nervous when being questioned about alleged illegal activity. This is not enough to support a search warrant. Indeed, not only does the State fail to provide us with a single example of a warrant that was declared valid upon such an incredible dearth of detail, but it is also clear that Romero, which the State cites to repeatedly in its brief, involved a situation where police had far greater and more reliable detail than what the West Allis police had in this case. …