concluding it was “reasonable to infer that a person who has been arrested for a crime involving a gun will keep in his or her home the ‘fruits and instrumentalities’ of the crime”
How later courts described this case
- concluding it was “reasonable to infer that a person who has been arrested for a crime involving a gun will keep in his or her home the ‘fruits and instrumentalities’ of the crime”
Written by the judges who cited it.
The opinion
CURLEY, EJ.
¶ 23. (dissenting). I respectfully dissent.
*675 ¶ 24. The issuance of a search warrant permitting the invasion of one's home is governed by several rules of law.
¶ 25. Whether there is probable cause that evidence is located at a particular place is determined by examining the " 'totality of the circumstances.'" State v. DeSmidt, 155 Wis. 2d 119, 131 , 454 N.W.2d 780 (1990) (citation omitted). Therefore, we consider "whether objectively viewed, the record before the warrant-issuing judge provided '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.'" State v. Ward, 2000 WI 3, ¶ 27 , 231 Wis. 2d 723 , 604 N.W.2d 517 (emphasis added; citation and one set of internal quotation marks omitted).
¶ 26. " '[Pjrobable cause to believe that a person has committed a crime does not automatically give the police probable cause to search his house for evidence of that crime.'" State v. Higginbotham, 162 Wis. 2d 978, 995 , 471 N.W.2d 24 (1991) (quoting United States v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982)).
¶ 27. The affidavit in support of the search warrant for Casarez's home, when distilled to its essence, provides only the following information. Casarez was involved in a bar fight, where he struck the victim in the face with a beer bottle and shot at the victim's legs. Witnesses provided the police with a license plate number and the make of the vehicle that left the scene. Shortly thereafter, the police spotted the car and discovered that Casarez was the driver, the front-seat passenger was Casarez's wife, and the back seat passenger was a man by the name of Michael Cornelius. A gun was found under Casarez's wife's seat. She told police that when the police stopped the car, Cornelius said he *676 was carrying a gun which he gave to Casarez, who handed it to his wife, who put it under the seat. If Casarez's wife's statement is to be believed, it was the back-seat passenger who possessed the gun, not Casarez. At best, Casarez may have used this gun in the bar fight, but nothing in this scenario connects Casarez's house with the recovered gun.
¶ 28. The trial court never explained exactly how these facts gave rise to an "honest belief in a reasonable mind" that evidence of other guns and ammunition would be found in Casarez's home, except to say that:
[S]o for [the police] to get information as to identifiers which connect this gun up specifically with one person is certainly appropriate investigatory work.
Now, in your [hypothetical] where he is the only fellow in the car and he has complete control of the car and there's nobody else there, I may even agree with you that [there is no connection to search the home,] that could be just, you know, pretense for doing this or that, but in this case here there was complete testimony even from statements of the witnesses involved, so I believe that certainly the warrant has -has a validity of appropriateness and I think that under the totality of the circumstances and the -the -even though the differences may not be as great as some differences, there were still differences in the statements which I think the police had a right to go and determine by obtaining various identifiers, et cetera, that are -that would connect this particular person with this particular activity that was in question just because of the difference of the information they had already.
In other words, if I am interpreting the trial court's logic correctly, it is perfectly fine to search Casarez's house to determine whether he actually owned the gun and not Cornelius, but, had Casarez been alone in the *677 car, such a search may not have been valid. The Majority opinion contains a similar theme. In assuring us that the holding will not create a dangerous precedent, the Majority states:
If Casarez had been arrested as a felon in possession of a firearm as he was walking along the street, or if he had committed a traffic violation and was pulled over while driving alone in his car, such facts standing alone would be insufficient to support the search of his residence.
Majority, ¶ 16. I ask, why? Here, the trial court approved the search on the strength of the police doing "investigatory work." In future cases, the police may petition for a search warrant claiming they need additional information to better their case, or need to be assured no other guns or ammunition remain in the offender's home. Not only is the trial court's and the Majority's logic flawed, but also, despite the Majority's claim to the contrary, this ruling permits the police to apply and obtain search warrants for the homes of anyone arrested with a gun. This is a troubling development in the law and eviscerates the protections traditionally given to the sanctity of one's home.
¶ 29. For the reasons stated, I would reverse. Accordingly, I respectfully dissent.