State v. Sloan

*464 FINE, J.

¶ 39. (dissenting). I respectfully dissent from the Majority's conclusion that the police officer's affidavit was insufficient to establish probable cause that Christopher D. Sloan, who had just tried to ship marijuana from a return address, had marijuana-contraband at that address. Common sense tells us that any substance — whether contraband or not — does not just materialize out of thin air; it has to come from someplace, where it is either made, grown, or stored.

When analyzing probable cause to search, "the proper inquiry is whether evidence of a crime will be found. The quantum of evidence required to establish probable cause to search is a 'fair probability' that contraband or evidence of a crime will be found in a particular place." Whether probable cause for a search exists is determined by analyzing the totality of the circumstances. "The test is objective: what a reasonable police officer would reasonably believe under the circumstances ... ." Probable cause is assessed by looking at practical considerations on which reasonable people, not legal technicians, act. Probable cause does not mean more likely than not. It is only necessary that the information support a reasonable belief that guilt is more than a possibility.

State v. Erickson, 2003 WI App 43, ¶ 14 , 260 Wis. 2d 279, 288 , 659 N.W.2d 407, 411-412 (quoted sources and citations omitted; ellipsis by Erickson).

¶ 40. Here it was perfectly reasonable and proper for the judicial officer who issued the search warrant to conclude that there was a "fair probability," that is, "probable cause," to believe that Sloan's return address, which was where he lived, was the place from where the marijuana had come, and that there was a "fair probability," which, as we have seen, does not require a *465 "more likely than not" showing, that some marijuana contraband was still there. I would affirm and, accordingly, respectfully dissent.