DocketNumber: Appeal No. 2017AP2311-CR
Citation Numbers: 921 N.W.2d 522, 2018 WI App 66, 384 Wis. 2d 415
Judges: Brennan
Filed Date: 9/25/2018
Status: Precedential
Modified Date: 10/16/2022
¶1 Brinkley L. Bridges appeals a judgment of conviction, entered on his guilty plea, for three felony drug counts and two felony gun counts. He moved unsuccessfully for plea withdrawal on the grounds of ineffective assistance of counsel, and he appeals the order denying his postconviction motion without a hearing.
¶2 We conclude that Bridges has failed to meet his burden of establishing that the facts in the affidavit were clearly insufficient to support probable cause. See WIS. STAT. § 968.373(3)(e) (2015-16).
BACKGROUND
¶3 A Drug Enforcement Agency (DEA) special agent obtained a warrant to track Bridges' cell phone as a part of an ongoing investigation into Bridges' involvement in selling heroin. In the affidavit submitted with the warrant application on January 20, 2015, the agent averred the following:
- Bridges was a primary target of an investigation into heroin distribution and "has been using the telephone number of 414-469-6376[.]"
- A confidential informant "provided additional detailed information regarding vehicles owned and/or used by Bridges as well as Bridges possessing a cellular phone number of 414-469-6376; that affiant was able to corroborate this information through examining records maintained on other data bases as being truthful and accurate[.]"
- The confidential informant had, in 2014, conducted "numerous heroin transactions with Bridges receiving, in total, an estimated one-half kilogram of heroin[.]"
- The confidential informant made statements against penal interest about participating in the distribution of heroin, "indicating the price and amount of heroin purchased from [Bridges], the delivery arrangements, the date and time of the most recent delivery to the confidential informant[.]"
- The confidential informant stated that Bridges sold heroin out of a business named C&B Computers, and affiant was able to confirm the location of the business. The confidential informant stated that Bridges had been traveling to Chicago every three weeks to obtain a kilogram of heroin and sometimes obtained cocaine as well.
- The confidential informant stated that Bridges had a residence in an apartment complex on West Pierce Street in Milwaukee. The affiant confirmed the address of an apartment where Bridges paid the rent by obtaining confirmation from the manager of the apartment.
- The affiant confirmed that the vehicle assigned to the parking space at that apartment was registered to Bridges.
¶4 Information that the police gathered from tracking the cell phone was subsequently used in a January 28, 2015 search warrant application for a residence on North 60th Street in Milwaukee. When the search warrant was executed at 7:15 a.m. January 29, 2015, police seized evidence and arrested Bridges. Bridges gave police a statement.
¶5 Bridges was charged with two counts of possession of a firearm by a felon and three counts of possession with intent to deliver as a second or subsequent offense (one count each for possession of heroin, cocaine, and marijuana). He entered a guilty plea to all five counts and was sentenced. Following sentencing, Bridges moved to withdraw his guilty plea, alleging ineffective assistance of counsel for failing to argue that the affidavit did not establish probable cause for the search warrant. The postconviction court denied his motion without a hearing on the grounds that "the defendant's motion entirely fails to address any of the prevailing standards under Wisconsin law governing the requisite showing of probable cause" and instead had relied on case law from other jurisdictions. It further rejected Bridges' unsupported claim that the affidavit contained a false statement and concluded that the allegedly false statement was in any event unnecessary to find probable cause. Bridges appeals the judgment of conviction and postconviction order.
DISCUSSION
I. Standard of review and relevant law.
Ineffectiveness Standard
¶6 The issue in this case arises in the context of an attempt at plea withdrawal based on ineffective assistance of counsel. A defendant seeking to withdraw a guilty plea must establish that plea withdrawal is necessary to correct a manifest injustice. See State v. Cain ,
Probable Cause for Cell Phone Tracking Search Warrant
¶7 "Review of the warrant-issuing judge's finding of probable cause is not de novo ." State v. DeSmidt ,
II. It is well-established law that the test for probable cause in a warrant affidavit is whether there is a fair probability that evidence of a crime will be in a particular place.
¶8 Bridges' argument on review is that the facts in the affidavit were insufficient allegations linking the phone to be searched with the drug trafficking being investigated . He asserts that as a matter of law, two federal district court cases require specific allegations, based on personal knowledge, that the phone to be searched was used in the crime to be investigated. Relatedly, he argues that none of the confidential informant's allegations about the phone were credible or corroborated. We conclude that he is wrong on the law regarding what allegations are required to establish a link between the phone and the criminal activity, and wrong in his assessment of the weight of the evidence in the affidavit that supports the confidential informant's credibility.
¶9 We first examine the law. The rule governing warrants for cell phone tracking is established by Wisconsin statute, which provides in relevant part:
(3) Application for warrant. Upon the request of a district attorney or the attorney general, an investigative or law enforcement officer may apply to a judge for a warrant to authorize a person to identify or track the location of a communications device. The application shall be under oath or affirmation, may be in writing or oral, and may be based upon personal knowledge or information and belief. In the application, the investigative or law enforcement officer shall do all of the following:
(a) Identify the communications device.
(b) Identify, if known, the owners or possessors of the communications device.
(c) Identify, if known, the person who is the subject of the investigation.
(d) Provide a statement of the criminal offense to which the information likely to be obtained relates.
(e) Provide a statement that sets forth facts and circumstances that provide probable cause to believe the criminal activity has been, is, or will be in progress and that identifying or tracking the communications device will yield information relevant to an ongoing criminal investigation.
WIS. STAT. § 968.373(3). It is this last paragraph on which Bridges' linkage argument is based. We thus examine whether the affidavit provided "clearly insufficient" allegations that the communications device here, i.e., the phone, would yield information relevant to the drug trafficking investigation.
¶10 We employ the United States Supreme Court and Wisconsin tests for probable cause in a search warrant. The analysis of this question is well-settled law. The warrant-issuing court must "make a practical, common-sense decision whether," under the totality of the circumstances, "there is a fair probability that ... evidence of a crime will be found in a particular place." Multaler ,
¶11 Bridges argues that the affidavit does not contain an allegation that a witness personally observed the phone being used to sell drugs, and the affidavit cannot establish probable cause without such personal knowledge. For support he relies on two outlier federal district court decisions. See United States v. Powell ,
¶12 In Powell , the court found that probable cause had not been established for a cell phone tracking warrant because "although the affidavit states that [an informant] communicated with Powell in furtherance of the narcotics trafficking, it does not state that [the informant] and Powell communicated by cell phone, or that [the informant] contacted Powell at the specific cell-phone number at issue here."
¶13 We find no controlling law that establishes such a specific "use of the phone" requirement. We apply the law governing probable cause determinations as set forth by the Supreme Court in Gates :
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.
¶14 That standard cannot be reconciled with the per se rule for which Bridges argues: that probable cause for purposes of WIS. STAT. § 968.373 cannot be established without an explicit statement of an affiant's personal knowledge of a cell phone's use in criminal activity. Under the statute, the affidavit must establish probable cause that "tracking the communications device will yield information relevant to an ongoing criminal investigation." See § 968.373. Probable cause-a "fair probability" that relevant evidence will be found in a particular place-must be established by sufficient evidence set forth in the affidavit, but neither the probable cause standard nor the statute demands that an affiant or witness must personally witness the phone being used in criminal activity. See
III. The evidence in the affidavit here met the test for probable cause.
¶15 We apply the above principles here and conclude that the "linkage" evidence created more than a fair probability, viewed objectively, under the totality of the circumstances review, that tracking this cell phone would yield information relevant to Bridges' drug dealing. See Multaler ,
¶16 Likewise, we conclude that the evidence supporting the confidential informant's credibility was sufficient to create probable cause to the minimal level required of a search warrant affidavit. The credibility of a confidential informant does not rest on the corroboration of any particular piece of information. A court assesses a confidential informant's reliability considering the totality of the circumstances. State v. Boggess ,
¶17 Bridges argues that there is no proof that the confidential informant's statements about his involvement in the drug transactions were true, and therefore they cannot be considered statements against his penal interest. He even goes so far as to argue, without any support, that the informant intentionally lied about his involvement in the heroin sales. This argument is neither developed nor supported so we need not address it. See State v. Pettit ,
¶18 Similarly Bridges argues that there was no proof that the informant gave them Bridges' true phone number, car, residence, or employment. But the affiant specifically corroborated all of those facts independently. Thus the evidence shows that there was at least a fair probability that the informant was reliable and that Bridges' phone would reveal evidence of the drug transactions. It also meets the test articulated in Ward :
Therefore, we must 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."
Ward ,
¶19 Bridges cites to cases that set forth the rule requiring corroboration of a defendant's confession to a crime and argues that this level of corroboration is lacking here. See , e.g., State v. Verhasselt ,
CONCLUSION
¶20 We therefore reject Bridges' arguments on the insufficiency of the affidavit to support probable cause and the claim of ineffective assistance of counsel that was premised on his warrant arguments. We affirm the trial court's order denying without a hearing his motion for a new trial. The judgment of conviction is also affirmed.
By the Court. -Judgment and order affirmed.
Not recommended for publication in the official reports.
The Honorable Daniel L. Konkol entered the judgment of conviction and the Honorable David C. Swanson denied Bridges' postconviction motion.
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted.