On Point: 3. Franks Doctrine

State v. Mark T. Solheim, 2024AP239, District II, 9/18/24 (one-judge decision; ineligible for publication); case activity

In its decision reversing the circuit court’s order suppressing evidence obtained pursuant to a warrant for a blood draw, the Court of Appeals reminds that Franks and its Wisconsin counterpart Anderson require defendants challenging the veracity of an affidavit in support of a search warrant to do more than show the affidavit contained false information, but also that the officer knew the information was false at the time it was asserted and included it intentionally or with a reckless disregard for the truth.

State v. Jacob Richard Beyer, 2022AP2051, 1/11/24, District 4 (not recommended for publication); case activity (including briefs)

Although Beyer labors mightily at conjuring up legal arguments for reversal, COA is uniformly unpersuaded and unimpressed by his arguments and affirms.

State v. Calvin Lee Brown, 2018AP766-CR, District 1, 4/9/19 (not recommended for publication); case activity (including briefs)

Brown challenged a search warrant that was executed at his home, arguing the police omitted information about J.R.R., an informant who was cited in the warrant application, and that the information provided reason to doubt J.R.R.’s credibility. The court of appeals rejects the challenge.

State v. Andrew Anton Sabo, 2017AP2289-CR, District 1, 1/29/19 (not recommended for publication); case activity (including briefs)

Sabo challenges the search warrant that led to the seizure of evidence from his home, arguing that the affidavit in support of the warrant didn’t establish probable cause, that he is entitled to a Franks-Mann hearing because the affidavit contained false information, and that the identity of the citizen informant who was the source of much of the information in the affidavit should be disclosed because there are reasons to doubt the informant’s reliability and credibility. The court of appeals disagrees.

State v. Lauren Ann Erstad, 2015AP2675-CR, 7/28/16, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Convicted of an OWI 2nd, Erstad challenged the search warrant relied upon to collect and test her blood because: (1) the affidavit supporting the warrant contained false information; and (2) the warrant authorized the “collection” of her blood but not the “testing” of it. The court of appeals rejected both arguments.

State v. Roberto F. Orozco-Angulo, 2014AP1744-CR, District 2, 4/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The procedure used to obtain a telephonic search warrant for a blood draw following Orozco-Angulo’s arrest for OWI and his refusal to submit to a blood test complied with the requirements of § 968.12(3) and therefore suppression of the evidence was not appropriate.

State v. Lester C. Gilmore, 2013AP2186-CR, District 2, 7/30/14 (not recommended for publication); case activity

Trial counsel wasn’t ineffective for failing to call a witness at a Franks v. Delaware, 438 U.S. 154 (1978), hearing because counsel was concerned the witness was unpredictable and might undermine his argument and because he was instead able to rely on the witness’s written statement to the police, which itself showed the discrepancy between the witness’s statement and the information in the search warrant affidavit.

State v. Nick E. Sammon, District 2, 2011AP682-CR, 7/25/12

court of appeals decision (not recommended for publication); case activity

Search Warrant – Erroneous Information in Application

A detective’s application for a search warrant of Sammons’ residence asserted that Sammons had been convicted in Texas for drug and burglary offenses (in fact, both had been dismissed after deferred adjudication of guilt). The assertions in the warrant application were based on the NCIC database,

State v. Christopher D. Sloan, 2007 WI App 146
For Sloan: Thomas E. Hayes

Issue/Holding: Immaterial differences of memory don’t establish the “deliberate falsity or reckless disregard” for truth required to trigger a Franks hearing, ¶¶17-21; nor is such a hearing mandated in the absence of specific request, ¶22.

State v. Jeffrey L. Loranger, 2002 WI App 5, PFR filed 1/22/02
For Loranger: Richard B. Jacobson, James C. Murray

Issue: Whether the search warrant was based on intentionally or recklessly false averments, Franks v. Delaware, 438 U.S. 154 (1978).

Holding:

¶23. Viewing the totality of the circumstances, we conclude that the issuing court commissioner had a substantial basis for concluding that probable cause existed.