State v. Lindgren

ANDERSON, RJ.

¶ 30. (dissenting). I respectfully dissent from that portion of the majority opinion holding that the search warrant for Lindgren's home was supported by probable cause. I cannot join in the conclusion that Detective Ruben Silguero's affidavit and Attachment B, titled "Preferential Child Molester Information" pass muster. I part company with the majority because there is nothing in the record that tells me why the issuing magistrate should have relied upon Silguero's experience and special knowledge.

¶ 31. In Wisconsin, a warrant-issuing magistrate may rely upon the experience and special knowledge of the police officer applying for a search warrant. State v. Harris, 256 Wis. 93, 100, 39 N.W.2d 912 (1949). Two recent decisions demonstrate what is needed to establish the experience and special knowledge of the officer. First, in State v. Multaler (Multaler II), 2002 WI 35, 252 Wis. 2d 54, 643 N.W.2d 437, there was a challenge to the sufficiency of the affidavit accompanying the application for a search warrant. Multaler was the suspect in the disappearance and murder of four young women in 1974 and 1975; it was not until 1998 that the police were able to apply for a search warrant for Multaler's residence. Id., ¶ 3. The core of the affidavit submitted in support of a request for a search warrant was that the applying officer and another detective were investigating the disappearance and murder of four young women and not only was Multaler the prime suspect

but also was a serial killer as evidenced by his behavior that was consistent with that expected of serial homi*869cide offenders; as serial killers are wont to do, he collected and retained various mementos to remind him of the murders, including items taken from the victims; although it was more than 20 years since the time of the murders, these items were likely to be found in his house because serial killers retain such items indefinitely.

Id., ¶ 9. The affidavit being reviewed by the supreme court in Multaler II, painstakingly details the pertinent facts the investigating officer had accumulated, the officer's experience and training, and only then does the affidavit begin to meticulously match pieces of evidence to the characteristics of serial homicide offenders. Appendix for Appellant at 14-30, State v. Multaler (Multaler I), 2001 WI App 149, 246 Wis. 2d 752, 632 N.W.2d 89 (No. 00-1846-CR).

¶ 32. Multaler directly challenged reliance upon the investigator's opinion that he was a serial killer, asserting that the detective had no personal experience investigating serial killers, and he did not cite the sources upon which he based his opinion. The supreme court rejected Multaler's argument:

The affidavit shows that Investigator Hanrahan exhaustively researched and studied the patterns of serial homicide offenders. His statements regarding the typical characteristics of serial killers were based upon a number of expert sources, for which he supplied names, authors, and credentials. In addition, Hanrahan stated in the affidavit that he attended various training courses or symposia on the subject of serial killers, some of which were taught by the experts who had written materials Hanrahan studied.
There can be no question that Investigator Hanra-han possessed specialized knowledge pertaining to traits common to serial killers based on his extensive *870study of the topic. His lack of previous field experience investigating serial homicide is not a bar to his qualifications to give opinions about the behavior of serial killers for purposes of a warrant.

Multaler II, 252 Wis. 2d 54, ¶¶ 44-45.1

*871¶ 33. The second case is State v. Schaefer, 2003 WI App 164, 266 Wis. 2d 719, 668 N.W.2d 760, review denied, 2003 WI 140, 266 Wis. 2d 61, 671 N.W.2d 848 (Wis. Oct. 1, 2003). At issue in Schaefer was the sufficiency of the probable cause supporting a search warrant for Schaefer's residence, issued upon the affidavit of Special Agent Michael J. Vendóla, of the Division of Criminal Investigation of the State's Department of Justice. A very lengthy affidavit described in thorough detail evidence law enforcement had gathered from interviews and searches of other locations. See id., ¶¶ 8-13. The affidavit incorporated a document labeled Attachment A, entitled "Michael J. Vendóla Qualifications as of 07/01/98"2 and a document labeled Attach*872ment B, without a title, that is a two-page document containing eighteen characteristics of preferential child *873molesters.3 See id., ¶ 6. Similar to the affidavit in Multaler I and II, the affidavit in Schaefer methodically matches the detailed evidence with the characteristics of preferential child molesters to support the affiant's conclusion that Schaefer is a preferential child molester. Appendix for Appellant at 128-30, Schaefer, 266 Wis. 2d 719. Citing from Multaler II, 252 Wis. 2d 54, ¶ 34, that "every probable cause determination must be made on a case-by-case basis, looking at the totality of the circumstances," we rejected Schaefer's challenge to the search warrant. Schaefer, 266 Wis. 2d 719, ¶¶ 17, 29.

*874¶ 34. Silguero's two-and-one-half page affidavit in this case lacks any information detailing his experience and specialized training. While his affidavit incorporates the same Attachment B from Schaefer with the same introductory phrase, "[f]rom affiant's training, experience, and consultations with professionals dealing with preferential child molesters, affiant has learned that," it does not provide the magistrate with the experience and special knowledge of Silguero. In Multaler I and II and Schaefer, the affidavits carefully set forth the evidence that has been gathered, thoroughly describe the police officer's extensive experience and training; and, after establishing a solid foundation, the affidavits systematically offer the affiant's opinion why a piece of evidence is consistent with the characteristics of either a serial homicide offender or a preferential child molester. Unfortunately, in this case, the affidavit has only two paragraphs of evidence that has been gathered by Silguero; it does not establish his credentials, and it does not offer his opinion of why the evidence establishes that Lindgren is a preferential child molester.

¶ 35. I recognize that the application for a search warrant is not a research paper in which each fact and conclusion must be extensively annotated. Multaler II, 252 Wis. 2d 54, ¶ 47. Nevertheless, the affidavit must provide a substantial basis to support the conclusion that probable cause existed. State v. Higginbotham, 162 Wis. 2d 978, 988-89, 471 N.W.2d 24 (1991). The warrant-issuing magistrate cannot go outside of the application for a search warrant to find probable cause but must limit review to the facts presented. See State v. Ward, 2000 WI 3, ¶ 26, 231 Wis. 2d 723, 604 N.W.2d 517. Similarly, the warrant-issuing magistrate cannot base a finding of probable cause upon suspicions and *875conclusions in the application for a search warrant. Id., ¶ 28; Higginbotham, 162 Wis. 2d at 992. The failure to provide Silguero's experience and special knowledge and to use his background to match the evidence gathered to the characteristics of preferential child molesters leads to the result the supreme court warned about in Multaler II:

[W]e agree with the analysis the State gives in its brief:
The affidavit might have been flawed as conclusory if Hanrahan had merely asserted the general proposition that he was qualified to offer information about serial killers. That is not what Hanrahan did. He identified the authority underlying his statements, and established that his reliance on the sources was reasonable.

Multaler II, 252 Wis. 2d 54, ¶ 48.

¶ 36. Silguero's affidavit is fatally flawed. He generally asserts that because of his training, experience and consultations with professionals, he is qualified to describe the eighteen characteristics of preferential child molesters and to conclude that based upon his investigation, Lindgren is a preferential child molester. Silguero fails to identify his training, experience and the professionals he has consulted; he fails to establish any support for his statements; and he fails to establish that his reliance on his sources was reasonable. Therefore, the affidavit and Attachment B consist only of eighteen conclusory statements and unspoken suspicions that Lindgren's behavior is consistent with the behavior of preferential child molesters. Consequently, I conclude that the application for a search warrant lacks a substantial basis to support a finding of probable cause.

*876¶ 37. While I would reverse the circuit court's finding that there was probable cause to support the search warrant of Lindgren's home, I would not suppress the evidence seized during the search. Because our supreme court has adopted the good faith exception to the exclusionary rule, State v. Eason, 2001 WI 98, ¶ 74, 245 Wis. 2d 206, 629 N.W.2d 625, I would remand for a determination of Silguero's experience and specialized knowledge, whether it supports his assertion that Attachment B accurately describes the characteristics of a preferential child molester and whether under the totality of the circumstances it is reasonable for Silguero to conclude that evidence he has gathered permits the conclusion that Lindgren is a preferential child molester.

The investigating detective's affidavit was lengthy and devoted several paragraphs to his experience and training:

Your affiant states that he has read, studied and researched numerous books, texts and articles on the subject of Serial Homicide.
Your affiant states that he has attended a number of training courses and symposiums relative to Criminal Profiling and Serial Homicide.
Your affiant states that he has read four books on the topic of Serial/Sexual Homicide authored by John Douglas, Ph.D. Mr. Douglas is a retired Supervisory Special Agent for the Federal Bureau of Investigation, and the former Head of the FBI's Behavioral Science Unit in Quantico, VA.
Your affiant states that he has read two books on Serial Homicide and Signature Killers authored by Robert D. Keppel, Ph.D. Mr. Keppel is currently the Chief Criminal Investigator for the Washington State Attorney General's Office and was formerly a Detective with the King County (WA) Sheriffs Office. Mr. Keppel was the Lead Investigator in the investigation of the numerous serial homicides committed in King County Washington by Ted Bundy. Mr. Keppel was also the Lead Investigator in the investigation of numerous serial homicides in King County Washington called the Green River Murders, where there are at least 49 victims. Mr. Keppel was also called in as a consultant for the Atlanta Child Murders.
Your affiant states that he has read three books on Serial Homicide authored by Robert K. Ressler. Mr. Ressler is a retired Special Agent for the FBI, also having been assigned to the FBI Behavioral Science Unit in Quantico, VA.
Your affiant states that he has read the text Practical Homicide Investigation authored by Vernon J. Geberth, a retired Lieutenant Commander with the New York City Police Department Homicide Division.
*871Your affiant states that he has attended two multiple day training courses on Criminal Profiling and Criminal Investigative Analysis, both with regard to Serial Homicide. The courses were from the FBI and taught by Neil Purtell, a Special Agent with the Federal Bureau of Investigation in Madison, Wisconsin.
Your affiant states that in April of 1998, he attended a three day Homicide symposium in Green Bay, Wisconsin. The symposium was put on by the Wisconsin Association of Homicide Investigators, of which your affiant is a member.
Lecturers for that symposium were the aforementioned John Douglas, Ph.D., and Robert Keppel, Ph.D. Messrs. Douglas and Keppel covered at length, all aspects of Serial Homicide and Signature Killers.

Appendix for Appellant at 26-27, State v. Multaler (Multaler I), 2001 WI App 149, 246 Wis. 2d 752, 632 N.W.2d 89 (No. 00-1846-CR).

Attachment A is properly characterized as a resume and includes the following information:

Received Bachelor of Arts Degree, University of Illinois, Psychology Major;
Police Officer since 1969;
*872Hired by Wisconsin Department of Justice on 05/05/72 and certified as police officer since 1972;
Investigated child pornography and child molestation since 1984;
Has focused on preferential child molesters;
Has authored five articles; "Use Of Wisconsin Statutes as an Aid in the Investigation of Child Sexual Assault," "Use of Wisconsin Statutes as an Aid in Investigation of Child Abuse," "Child Pornography and Sexual Exploitation," "Covert Phone Calls Using Juveniles," and ''Validation of Child Sexual Abuse";
Has developed sexually exploited child offender (SECO) format for classifying offenders;
Has examined hundreds of nude/sexually explicit visual depictions of juveniles;
Has interviewed scores of juvenile sexual assault victims;
Has received awards from the United States Customs Service for participating in a 1985 child pornography importation case; the Winnebago County District Attorney's office in a 1994 investigation, arrest and conviction of a preferential child molester; the Outagamie County District Attorney's office in a 1994 investigation, arrest and conviction of a serial murderer whose victims included two juveniles;
Has submitted examples of child pornography and child erotica, in 1986, to the Midwest Regional Meeting of the Attorney General's Commission on Pornography;
Has interviewed or had covert contact with numerous convicted child molesters, and has read scores of correspondence sent to and from preferential child molesters;
Has assisted in preparing 26 search warrants whose basis, in part, relied on preferential child molester traits — not one search warrant has been suppressed and all defendants have been convicted of criminal charges, with one exception, and one Lafayette County case is charged and pending;
Has assisted in approximately 74 child pornography/child sexual assault investigations;
*873Has provided consultation to local law enforcement agencies on approximately 62 additional cases;
Member of American Professional Society on the Abuse of Children (APSAC);
Has provided instruction to law enforcement officers, probation and parole officers, juvenile intake officers, and prosecutors, totaling approximately 257 hours and over 2065 students;
Has consulted regularly with law enforcement officers across the United States who investigate child sexual assault/exploitation;
Has read numerous articles, publications and books from noted authorities in the fields of child abuse and sexual abuse;
From 1982 through 07/01/98, has received approximately 236 hours of training relating to child sexual abuse/exploitation and child abuse.

Appendix for Appellant at 133, State v. Schaefer, 2003 WI App 164, 266 Wis. 2d 719, 668 N.W.2d 760 (No. 01-2691-CR).

I have carefully examined Attachment B from the affidavit in support of the application for a search warrant in this case and Attachment B from Schaefer: There is no substantive difference between the two, the only reasonable inference is that Attachment B in this case is an exact copy of Attachment B in Schaefer. Appendix for Appellant at 134-35, Schaefer, 266 Wis. 2d 719.