COURT OF APPEALS
DATED AND FILED
August 10, 2010
A. John Voelker
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
IN COURT OF APPEALS
Troy Edward Lang,
from a judgment and an order of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶<![if !supportFields]>1<![endif]> BRENNAN, J. Troy Edward Lang appeals from a circuit court’s judgment of conviction, entered after he pled guilty to multiple drug crimes and to receiving stolen property, and from a circuit court’s order denying his postconviction motion for relief. He argues that he was denied the effective assistance of his trial counsel because his trial counsel failed to file a motion to suppress evidence obtained pursuant to a search warrant that Lang believes was not based upon probable cause. We disagree and affirm.
¶<![if !supportFields]>2<![endif]> On or about December 22, 2007, the State filed a criminal
complaint against Lang, alleging that he participated in numerous drug crimes
and received stolen goods. The charges
arose following the execution of a search warrant on December 18, 2007, at
Lang’s residence at
¶<![if !supportFields]>3<![endif]> Lang was present in the residence during the search. According to the criminal complaint, at some time during the search, Lang told police that the cocaine, marijuana, and cash located in a bedroom in the residence belonged to him, and that the property found in the basement of the residence was property that he had received in exchange for drugs. Lang said that he assumed the property was stolen.
¶<![if !supportFields]>4<![endif]> The search warrant authorized the search of a premises located at 5382 South 8th Street and occupied by “Troy”—a white male, in his late twenties, about five feet and four inches tall, and weighing 140 pounds. The search warrant described the location as a single-family, ranch-style residence with tan siding and brown trim. The search warrant allowed police to search the residence for snow blowers, shovels, an ice auger, cocaine, scales, packaging items, drug paraphernalia and records, items showing control of the premises, weapons, and cell phones.
¶<![if !supportFields]>5<![endif]> The search warrant was wholly based upon the affidavit of
Milwaukee Police Detective Timothy Behning.
According to Detective Behning’s affidavit, a confidential citizen
informant had been arrested in the forty-eight hours prior to December 18,
2007, in connection with a burglary at
¶<![if !supportFields]>6<![endif]> The informant also told police that two of his prior
burglaries had taken place at a garage on the 1500 block of
¶<![if !supportFields]>7<![endif]> According to his affidavit, following the informant’s
admissions, Detective Behning located two open criminal complaints for burglaries
that occurred at
¶<![if !supportFields]>8<![endif]> When discussing his involvement in two of the other
burglaries, the informant admitted to removing an ice auger and an additional
snow blower, respectively, both in the City of
¶<![if !supportFields]>9<![endif]> Following the search of Lang’s residence, the State filed a criminal complaint against Lang. Pursuant to a plea agreement, Lang pled guilty to: (count two) possession with intent to deliver more than 2500 grams but not more than 10,000 grams of marijuana, as party to a crime, second or subsequent offense; (count four) receiving stolen property, as party to a crime; and (count five) possession with intent to deliver more than fifteen grams but less than forty grams of cocaine, as party to a crime, second or subsequent offense. Keeping a drug house, as party to a crime, (count 1) was dismissed but read in for sentencing purposes.<![if !supportFootnotes]><![endif]>
¶<![if !supportFields]>10<![endif]> Lang filed a timely motion for postconviction relief, claiming ineffective assistance of counsel because his trial counsel did not file a motion to suppress evidence seized during the search on the grounds that the search warrant was issued without probable cause. In his motion, Lang requested a Machner hearing,<![if !supportFootnotes]><![endif]> as well as an order to suppress all evidence seized during the search and Lang’s statements made during the search.
¶<![if !supportFields]>11<![endif]> The circuit court denied Lang’s motion and his request for a Machner hearing, finding “that the search warrant was supported by probable cause under the circumstances and that even if probable cause was lacking, the good faith exception … appli[ed].” Lang appeals.
STANDARD OF REVIEW
¶<![if !supportFields]>12<![endif]> A defendant asserting an ineffective assistance of counsel claim
must demonstrate that: (1) trial
counsel’s performance was deficient; and (2) trial counsel’s deficient
performance prejudiced the defendant. Strickland
¶<![if !supportFields]>13<![endif]> To satisfy a showing of deficient performance, a defendant must
allege specific acts or omissions of trial counsel that are “outside the wide
range of professionally competent assistance.”
¶<![if !supportFields]>14<![endif]> To prove prejudice, the defendant must demonstrate “that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.”
¶<![if !supportFields]>15<![endif]> Whether counsel’s performance constitutes ineffective
assistance is a mixed question of fact and law. Johnson, 153
¶<![if !supportFields]>16<![endif]> Lang argues that his trial counsel was ineffective because: (1) trial counsel acted deficiently by failing
to file a motion to suppress the evidence obtained by police during the search
of his residence; and (2) Lang was prejudiced by counsel’s deficient
performance because had the evidence been suppressed there is a reasonable
probability that he would not have pled guilty.
Because we conclude that trial counsel’s performance was not deficient,
we need not determine whether that performance prejudiced Lang. See Strickland, 466
¶<![if !supportFields]>17<![endif]> “Trial counsel’s failure to bring a meritless motion does not
constitute deficient performance.” State
v. Wheat, 2002 WI App 153, ¶23, 256
¶<![if !supportFields]>18<![endif]> It is well-established that a “search warrant may issue only on
probable cause.”<![if !supportFootnotes]><![endif]> State v. Romero, 2009 WI 32, ¶16,
The task of the issuing [court commissioner] is simply to make a practical, commonsense 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.
¶<![if !supportFields]>19<![endif]> “This court ‘accords great deference to the warrant-issuing judge’s
determination of probable cause, and that determination will stand unless the
defendant establishes that the facts are clearly insufficient to support a
finding of probable cause.’” Romero,
¶<![if !supportFields]>20<![endif]> To determine whether a confidential informant is a reliable
source on which to base probable cause, an issuing judicial officer must “‘consider
all of the circumstances set forth in the affidavit, including the veracity and
basis of knowledge of persons supplying hearsay information.’”
¶<![if !supportFields]>21<![endif]> First,
we conclude that the fact that the information the informant provided to police
was made against his penal interests supports the court commissioner’s probable
cause finding. “When a declarant makes
statements against his penal interest that are closely related to the criminal
activity being investigated … such statements may be taken as establishing the
declarant’s credibility and thus his veracity.”
¶<![if !supportFields]>22<![endif]> Second,
we note that the confidential informant personally observed the incriminating
information that he relayed to Detective Behning, thereby demonstrating a
reliable basis for the information.
According to the informant, he knew that the police would likely find drugs
and stolen property at the address he provided because the informant had
personally delivered the stolen goods to “
¶<![if !supportFields]>23<![endif]> Third, the informant gave a detailed statement of: his own crimes, the items that would likely be
found in “
¶<![if !supportFields]>24<![endif]> Finally, the police were able to independently corroborate many
of the details provided by the confidential informant. See Romero, 317
¶<![if !supportFields]>25<![endif]> We reject Lang’s assertion that the search warrant was not based upon probable cause because: (1) “[t]he affidavit did not contain any specific detail regarding the storage of ‘stolen goods’ or drugs within the residence”; (2) “[t]he affidavit contained no information to establish that the informant had provided reliable information in the past”; (3) “[t]here was no evidence that the informant appeared in person before the magistrate issuing the warrant”; (4) “[t]he police did not independently corroborate any of the information obtained from the ‘confidential citizen informant’ as it pertained to ‘Troy’ or the residence at 5382 S[outh] 8[th] Street”; and (5) the facts of this case are “strikingly similar” to those in Mykytiuk and United States v. Koerth, 312 F.3d 862 (7th Cir. 2002), in which the Seventh Circuit Court of Appeals held that search warrants based on information obtained from confidential informants were not sufficiently supported by probable cause. We address each assertion in turn.
¶<![if !supportFields]>26<![endif]> First, we re-emphasize that whether an affidavit sets forth
probable cause on which to issue a search warrant is based upon the totality of
the circumstances. See Jones, 257
¶<![if !supportFields]>27<![endif]> Second, we conclude that, when combined with the other evidence
demonstrating the informant’s reliability, Detective Behning’s corroboration of
some of the facts provided by the informant was enough to demonstrate the
informant’s reliability. Again, we note
that “[i]f a declarant is shown to be right about some things, it may be
inferred that he is probably right about other facts alleged.” Romero, 317
¶<![if !supportFields]>28<![endif]> Finally, we are unpersuaded that this case is sufficiently similar to either Mykytiuk or Koerth to conclude that the warrant lacked probable cause. In both Mykytiuk and Koerth, officers obtained search warrants based solely upon information retrieved from an informant. Mykytiuk, 402 F.3d at 774-75; Koerth, 312 F.3d at 867. In both cases, the informants gave statements against their own penal interests regarding the criminal activities of another. Mykytiuk, 402 F.3d at 774-75; Koerth, 312 F.3d at 867. And in each case, the Seventh Circuit Court of Appeals concluded (and notably, in each case the government conceded) that there was no probable cause on which to obtain a search warrant. Mykytiuk, 402 F.3d at 775-77; Koerth, 312 F.3d at 867-68. Lang argues that these facts alone demonstrate that Mykytiuk and Koerth are sufficiently similar to this case to necessitate that we conclude no probable cause existed here.
¶<![if !supportFields]>29<![endif]> However, this case differs from both Mykytiuk and Koerth in at least one important way—in neither of those cases did the police corroborate or provide foundation for any of the information provided to them by the confidential informants. See Mykytiuk, 402 F.3d at 776; Koerth, 312 F.3d at 868. Accordingly, in those cases, the Seventh Circuit Court of Appeals concluded that, because the information was uncorroborated, the informants’ statements were conclusory, and therefore, on their own, they could not form the basis of probable cause. Mykytiuk, 402 F.3d at 776-77; Koerth, 312 F.3d at 868. Those are not the facts before us. Here, Detective Behning was able to corroborate several of the facts set forth by the confidential informant—that the informant had participated in multiple burglaries in the area, the detailed descriptions of the items stolen, and that a residence existed at the address provided. That corroboration distinguishes this case from both Mykytiuk and Koerth.<![if !supportFootnotes]><![endif]>
¶<![if !supportFields]>30<![endif]> In sum, the specificity of the informant’s statements, which
were based upon his own personal observations and made against his own penal
interest, and which were independently corroborated by police, imparted a high
degree of reliability to the information.
Accordingly, the facts alleged in Detective Behning’s affidavit are
sufficient to support the conclusion that the confidential informant provided
reliable information and thereby set forth sufficient probable cause to support
the search warrant. Therefore, Lang’s
trial counsel did not act deficiently by failing to file a motion to
suppress. See Wheat, 256
¶<![if !supportFields]>31<![endif]> As a final matter, Lang argues that the circuit court erred
when it denied his postconviction motion outright without holding a Machner
hearing. “If the [circuit] court refuses
to hold a hearing based on its finding that the record as a whole conclusively
demonstrates that the defendant is not entitled to relief,” as is the case
here, “our review … is limited to whether the court erroneously exercised its
discretion in making this determination.”
See State v. Winters, 2009 WI App 48, ¶29, 317
¶<![if !supportFields]>32<![endif]> “[I]f the record conclusively shows the [defendant] is not
entitled to relief, the [circuit] court may deny the motion without an
By the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.
<![if !supportFootnotes]><![endif]> The briefs and Detective Behning’s affidavit do not identify the gender of the informant. However, for ease of writing, we refer to the informant as a man.
<![if !supportFootnotes]><![endif]> The complaint also included charges against two co-defendants who lived with Lang. Count three of the complaint set forth charges against the co-defendants but not Lang.
<![if !supportFootnotes]><![endif]> “Under
v. Machner, 92
<![if !supportFootnotes]><![endif]> “‘We
have consistently and routinely conformed the law of search and seizure under
the Wisconsin Constitution to the law developed by the United States Supreme
Court under the Fourth Amendment.’” State
v. Duchow, 2008 WI 57, ¶18 n.14, 310
<![if !supportFootnotes]><![endif]> Because
we conclude that the search warrant was properly based upon probable cause, we
do not address Lang’s argument that the circuit court erred in determining that
even if the search warrant was not based upon probable cause, the warrant was
executed in good faith. We note,
however, that in both Mykytiuk and Koerth the Seventh
Circuit Court of Appeals upheld the searches under the good faith exception to
the Fourth Amendment.