Court: Court of Appeals of Wisconsin; January 28, 2019; Wisconsin; State Appellate Court
Andrew Anton Sabo appeals his conviction for possession of cocaine with intent to deliver and two counts of being a felon in possession of a firearm. He argues that the evidence obtained during a search of his residence should have been suppressed due to a lack of probable cause in the affidavit supporting the search warrant. Sabo claims he met the preliminary requirements for a Franks-Mann hearing to address alleged false statements in the affidavit, and asserts that the trial court erred by not hearing his motion. Additionally, he contends that the court wrongly denied his request for the informant's identity, whose information was included in the affidavit.
The background reveals that in January 2015, Officer Rodolfo Ayala received a tip from a citizen informant about Sabo, known as 'Drew,' who was allegedly involved in criminal activities, including possessing a firearm as a convicted felon and conducting drug transactions. The informant provided details about seeing Sabo load a firearm and package cocaine for distribution, as well as a name and contact number. Officer Ayala confirmed Sabo's identity through police records and conducted surveillance, which led to a no-knock search warrant being issued. The subsequent search yielded substantial evidence of drug dealing and firearms. Sabo's motion to suppress the evidence was based on his belief that the informant's credibility was unverified and the affidavit lacked sufficient detail.
Sabo requested the trial court to compel the State to reveal the identity of the informant based on WIS. STAT. 905.10(3)(c), which allows for such disclosure if the court doubts the informant's reliability. He also sought a Franks-Mann hearing, arguing that Officer Ayala's affidavit included false statements crucial to establishing probable cause, particularly disputing the use of the nickname 'Drew' and the lack of details regarding the informant's relationship with him and the residence's layout. Sabo claimed surveillance footage would show several individuals present at the residence, potentially indicating they were not the informant.
During a hearing in August 2015, the trial court sided with the State, ruling that the affidavit's vagueness could protect the informant's identity and that the informant's claims about witnessing drug activity and Sabo with a firearm were sufficiently credible. The court noted that Officer Ayala had corroborated Sabo's felony record and residence prior to the warrant request. Consequently, Sabo's motions to suppress evidence and disclose the informant's identity were denied.
The court also rejected Sabo's request for a Franks-Mann hearing, agreeing with the State that he failed to demonstrate that false statements were included in the affidavit. Despite multiple continuances granted for Sabo to provide affidavits proving that the individuals captured on surveillance were not the informant, he did not submit these affidavits. Sabo later renewed both motions, asserting that Officer Ayala's affidavit was based on information from a January 2015 911 call, which he claimed was falsified by the officer. He further alleged that the 911 caller admitted to Sabo's attorney that the information provided was false, stemming from a past altercation between them.
At the January 2016 hearing on Sabo's renewed motion, the State argued that there was no corroboration for the 911 call due to the purging of call records. Consequently, the State maintained that Sabo failed to demonstrate a substantial preliminary showing for a Franks-Mann hearing. The trial court concurred, noting the defense's contradictory position on the 911 caller's credibility—discounting the caller's initial report while acknowledging his later confession to defense counsel that the information was false. The court highlighted that the caller's subsequent arrest for serious crimes further diminished his credibility compared to the affidavit provided by Officer Ayala. Thus, the court denied Sabo's renewed motion.
Sabo later pled guilty in September 2016, receiving a sixteen-year sentence divided into eight years of initial confinement and eight years of extended supervision. On appeal, Sabo contended that the search warrant affidavit lacked probable cause, sought a Franks-Mann hearing due to alleged false information in the affidavit, and requested disclosure of Officer Ayala's informant's identity. These arguments centered on the credibility of Ayala's informant, which Sabo claimed was unproven, leading him to seek suppression of evidence seized during the search.
The review of a motion to suppress follows a two-step standard: first, the trial court's factual findings are upheld unless clearly erroneous, and second, the application of constitutional principles is reviewed de novo. For a search warrant to be constitutional, it must have prior authorization from a neutral magistrate, demonstrate probable cause, and provide a particularized description of the search location and items to be seized. Sabo argued that probable cause was not met because the affidavit relied on unproven informant information. Probable cause exists if the supporting information establishes a fair probability of uncovering evidence of wrongdoing. The court evaluates the totality of circumstances to determine if there was a substantial basis for the probable cause conclusion, deferring to the warrant-issuing judge unless Sabo can show the facts were clearly insufficient.
The affidavit supporting the warrant included hearsay from an informant, which the court assessed for both the informant's reliability and the basis of their knowledge. In cases involving citizen informants, a relaxed reliability test is applied, focusing on observational reliability rather than personal reliability. This involves evaluating the nature of the report, the informant's opportunity to observe, and the possibility of independent verification by police. The trial court found that the informant's detailed account regarding a handgun and cocaine was credible, especially since it was corroborated by Officer Ayala's identification of Sabo and verification of prior criminal activity.
Sabo's request for a Franks-Mann hearing—intended to challenge the truthfulness of statements in the affidavit—was denied. For such a hearing to be granted, a defendant must demonstrate a substantial preliminary showing of a false statement made knowingly or with reckless disregard for the truth, which is essential for probable cause. Sabo argued that the informant's claims about his nickname and the description of his pistol were erroneous and contested the informant's access to his home based on surveillance footage.
However, the trial court determined that these alleged inaccuracies did not indicate deliberate falsehood or reckless disregard for the truth and noted that some details might have been intentionally vague to protect the informant's identity.
The trial court reviewed the 911 caller's information in Sabo's renewed motion and determined it was insufficient for a Franks-Mann hearing, concluding that the caller lacked credibility to prove any deliberate false statements in the affidavit. This conclusion was supported by the facts in the record and the applicable law regarding Franks-Mann hearings, as noted in Anderson, 138 Wis. 2d at 462. The court's credibility assessment influenced its decision not to compel the disclosure of the informant's identity, as WIS. STAT. 905.10(3)(c) allows for such disclosure only if the informer is not deemed reliable or credible. The trial court's discretion in this matter was upheld, following the standard that a reasonable judge could reach the same conclusion after examining relevant facts. The court denied Sabo's motion based on its findings regarding the informant's credibility and the affidavit's sufficiency, which were found to be reasonable. Sabo did not demonstrate that the trial court's factual findings were clearly erroneous, and it was affirmed that the court correctly applied the law to the motions. The judgment was affirmed and not recommended for publication in official reports. References to the Wisconsin Statutes pertain to the 2015-16 version unless specified otherwise.
