State v. Raymond R. Lewis

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 7, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2022AP1135-CR Cir. Ct. No. 2017CF612

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

RAYMOND R. LEWIS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for La Crosse County:
RAMONA A. GONZALEZ, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Raymond Lewis appeals a judgment of conviction
for delivery of cocaine, as a party to a crime. Lewis argues that the circuit court
No. 2022AP1135-CR

should have granted his motion to suppress evidence obtained through execution of
a search warrant. Specifically, Lewis contends that the search warrant lacked
probable cause after correcting for deliberate falsehoods and omissions in the
warrant application. We conclude that, even after correcting for the claimed
falsehoods and omissions, the warrant was supported by probable cause. We affirm.

Background

¶2 In June 2017, law enforcement sought a warrant to search Lewis’s
home. In support of the warrant application, a drug investigator with the City of
La Crosse Police Department testified in a telephone call with the circuit court as
follows. The investigator made contact with a confidential informant (“CI”), who
advised the investigator that he could purchase cocaine and methamphetamine from
Lewis. The investigator knew the CI to provide truthful information in the past
when the investigator worked with the CI previously.

¶3 The investigator met with the CI at the police station and recorded a
phone call between the CI and Lewis, during which they made plans to meet on the
south side of La Crosse. The investigator searched the CI and did not locate any
contraband, and the investigator provided the CI with $300 police recorded “buy
money” and an audio/video recording device. The investigator then drove the CI to
the south side of La Crosse. Other surveillance investigators witnessed the CI
approach the residence at the “target location.” The investigator heard the CI make
contact with Lewis at that location on the recording device the investigator had
provided him. About 25 minutes later, the CI left the location and made contact
with the investigator. The CI turned over three small baggies of methamphetamine

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No. 2022AP1135-CR

and two small baggies of cocaine.1 The investigator transported the CI to the police
station where the investigator searched the CI and discovered another small baggie
of methamphetamine.

¶4 The investigator viewed the video recording of the controlled buy and
determined that the CI clearly received the drugs from Lewis as shown on the
recording. The investigator also observed that a ten-year-old child and additional
drugs were present in the residence.

¶5 The CI informed the investigator that the CI had observed Lewis with
a handgun the previous week. The investigator also knew that Lewis was “out on
parole” based on convictions for possession with intent to deliver cocaine and
battery to a police officer that resulted from a prior execution of a search warrant.
The circuit court found probable cause and issued a warrant to search Lewis’s
residence. The court also authorized a no-knock execution of the search warrant,
citing the testimony as to Lewis’s possession of a firearm, his prior conviction, that
he was on supervision, and that a child was present in the residence.

¶6 Police executed the search warrant at Lewis’s residence with a no-
knock entry and recovered a handgun, methamphetamine, heroin, cocaine, and
scales. Based on the search results, the State charged Lewis with multiple criminal
offenses.

¶7 Lewis moved to suppress the evidence obtained through the execution
of the search warrant. He argued that the testifying investigator deliberately omitted
material facts and misrepresented other material facts when he testified in support

1
The investigator described the baggies as “bindles,” “corner baggies,” or “small gem
baggies.”

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No. 2022AP1135-CR

of the warrant application. Lewis argued that, once those errors are corrected, the
investigator and the CI lack any reliability, and the information they provided could
not establish probable cause.

¶8 On May 6, 2021, the circuit court held a suppression hearing. At the
hearing, the investigator who testified in support of the warrant provided the
following further testimony related to the controlled buy. The investigator’s first
contact with the CI was in connection with this case, when he was contacted by
representatives of another police department who advised him that the CI would be
able to conduct a controlled buy from Lewis. The representatives of the other
department informed the investigator that the other department had worked with the
informant and that he was reliable. The other department’s representatives informed
the investigator that the CI had recently been arrested and was hoping to receive
consideration for his cooperation with police. The investigator asked the CI if he
was on probation and the CI stated that he was not. The investigator told the CI
that, if he cooperated, the investigator would try to contact someone for the CI so
that the CI could use his cooperation as leverage in sentencing.

¶9 When the investigator searched the CI at the police station after the
controlled buy, he discovered the additional small baggie of methamphetamine
inside a cigarette pack. The CI explained to the investigator that he was nervous
and had forgotten to turn that methamphetamine over. While the CI told the
investigator that he had observed Lewis with a black .45 caliber handgun at the
house in which the controlled buy took place “within the week,” the CI
acknowledged that he had not seen this gun during the controlled buy.

¶10 The investigator was familiar with Lewis from a previous drug raid.
The investigator knew that, during the execution of the prior search warrant, an

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No. 2022AP1135-CR

officer was injured while attempting to arrest Lewis, resulting in the officer needing
to have surgery on his hand. However, when he testified in support of the warrant,
the investigator had mistakenly believed that Lewis had been convicted of battery
to an officer, when in fact the resulting conviction was resisting arrest, causing
injury.

¶11 The investigator learned from the suppression motion that the CI had
lied about his probationary status and in fact had been on probation and had a
warrant for his arrest at the time of the controlled buy. The investigator stated that
it was department policy to gather background information on a CI, but the
background investigation would not usually include examining the CI’s criminal
history, so the investigator did not check the CI’s criminal history prior to working
with him.

¶12 The circuit court determined that the factual corrections asserted by
Lewis would not have changed its decision regarding the warrant and therefore
denied the motion to suppress.

¶13 Lewis pled no contest to one count of delivery of cocaine, as a party
to crime, and the court sentenced him. Lewis appeals, challenging the circuit court’s
decision denying his suppression motion.

Discussion

¶14 “The Fourth Amendment of the United States Constitution guarantees
that persons shall be secure from ‘unreasonable searches and seizures and sets forth
the manner in which warrants shall issue.’” State v. Sveum, 2010 WI 92, ¶18, 328
Wis. 2d 369, 787 N.W.2d 317 (citation omitted). A constitutionally valid warrant
requires “a demonstration upon oath or affirmation that there is probable cause to

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No. 2022AP1135-CR

believe that evidence sought will aid in a particular conviction for a particular
offense ....” Id., ¶20. A search warrant is supported by probable cause if the
warrant-issuing judge “had a substantial basis for concluding that there was a fair
probability that a search of the specified premises would uncover evidence of
wrongdoing.” State v. Romero, 2009 WI 32, ¶3, 317 Wis. 2d 12, 765 N.W.2d 756.

¶15 Here, Lewis brought a Franks/Mann challenge to the validity of the
search warrant. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (recognizing
challenge to search warrant on claim that the warrant application included a false
statement that was made deliberately or with reckless disregard for the truth, where
the statement was necessary to finding of probable cause); see also State v. Mann,
123 Wis. 2d 375, 388, 367 N.W.2d 209 (1985) (“[A]n omitted fact [is] the
equivalent of ‘a deliberate falsehood or a reckless disregard for the truth’” if it is
“an undisputed fact that is critical to an impartial judge’s fair determination of
probable cause.” (citation omitted)). If a defendant establishes that the search
warrant application included false information or omitted material information,
either deliberately or with reckless disregard for the truth, the court must assess
probable cause after that information is corrected. See Franks, 438 U.S. at 155-56;
Mann, 123 Wis. 2d at 388-89. We independently review whether the warrant
application establishes probable cause after Franks/Mann corrections. See State v.
Manuel, 213 Wis. 2d 308, 315, 570 N.W.2d 601 (Ct. App. 1997).

¶16 Lewis argues that the testifying investigator omitted the following
material information during the warrant application: (1) that the investigator failed
to follow the police department policies to ensure the reliability of the CI, including
conducting a background check; (2) that the CI lied about his probationary status;
(3) that the CI had an extensive criminal background; (4) that the CI had an active
warrant for his arrest; (5) that the CI had hidden the fourth baggie of drugs inside a

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No. 2022AP1135-CR

cigarette pack, supporting an inference that the CI had tried to hide those drugs from
the police; (6) that the CI was seeking consideration for his pending criminal case,
and the investigator told the CI that, if he cooperated, the investigator would try to
contact the district attorney and tell him the CI provided helpful information; and
(7) that the CI did not see Lewis possess a gun on the day of the controlled buy.
Lewis also asserts that the investigator included the following false information in
support of the search warrant: (1) that the investigator had worked with the CI in
the past and found him reliable, when in fact the current controlled buy was the first
time the investigator worked with the CI; and (2) that Lewis had a prior conviction
for battery to an officer, when in fact his prior conviction was for resisting arrest,
causing injury.

¶17 Lewis contends that, with the above information corrected, the
warrant lacked probable cause. Lewis argues that, because the investigator withheld
material information and presented false information, the investigator’s testimony
was insufficiently reliable and should have been afforded no weight by the warrant-
issuing judge. Lewis contends that the CI also lacked any reliability and the
information he provided should not have been afforded any weight, either.

¶18 Lewis contends that the recording of the controlled buy was also
insufficiently reliable to establish probable cause for the search warrant. He argues
that the investigator did not explain how he knew that the person in the recording
was Lewis and that the CI was insufficiently reliable to identify him. He also argues
that the quality of the recording was questionable because the investigator admitted
that, when he reviewed the recording, he did not see the CI place the baggie of drugs
inside a cigarette pack.

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No. 2022AP1135-CR

¶19 The State responds that Lewis has not shown that the investigator
omitted any material information or offered any false information in support of the
search warrant. It then contends that, even if Lewis has made that showing, the
warrant was supported by probable cause with any missing or false information
corrected. It contends that Lewis’s argument that the investigator and the CI were
entirely lacking in reliability—and that all of the information they provided should
therefore be disregarded—misapplies the legal standard under Franks/Mann. The
State asserts that the proper test is whether, with the alleged omitted and false
information corrected, the warrant is supported by probable cause. See Mann, 123
Wis. 2d at 387. It contends that Lewis has offered no legal authority for the
proposition that this court should disregard all of the facts offered by the investigator
in support of the warrant based on the alleged omissions and misstatements. It
contends that Lewis’s arguments may reflect on to whether the investigator should
have utilized the CI as an initial matter, but that that inquiry is not relevant to the
determination of whether the search warrant was supported by probable cause. It
argues that the issue at this point of the proceedings is limited to whether, with the
alleged omissions and misrepresentations corrected, the warrant is still supported
by probable cause.

¶20 The State also disputes Lewis’s contention that the recording of the
controlled buy was unreliable. It asserts that the investigator explained that he
watched the recording and could see the CI receive the drugs from Lewis, and that
the buy occurred at Lewis’s residence following a recorded phone call with Lewis.
It asserts that Lewis’s claim that identity is at issue defies logic and common sense.
It also asserts that it was reasonable that the recording device worn on the CI’s body
would not capture the CI placing a small baggie of drugs in a cigarette pack in his
pocket. It contends that, even accepting that the CI’s credibility was called into

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No. 2022AP1135-CR

question, the recording of the controlled buy provided probable cause for the search
warrant.

¶21 In reply, Lewis contends that the State is wrong that the reliability of
the CI is not critical to this case. He contends that his argument does not reflect on
whether the investigator should have utilized the CI in the first place but, rather,
whether the investigator’s testimony (and, in turn, the information the investigator
received from the CI) was reliable given the investigator’s disregard for
departmental policies designed to ensure the reliability of CIs. He contends that the
reliability of the investigator’s testimony and his questionable use of an unreliable
CI are relevant to our determination of probable cause. He contends that, under the
legal standard identified by the State, the information provided by the investigator
and the CI in the corrected warrant application was so unreliable that it did not
provide probable cause.

¶22 We begin by assuming without deciding, for purposes of this opinion
only, that Lewis has established that the investigator provided false information and
omitted other material information in support of the warrant application, either
deliberately or with reckless disregard for the truth. We conclude, however, that,
with that information corrected, the warrant was supported by probable cause.2

¶23 First, we are not persuaded by Lewis’s argument that, based on the
investigator omitting material facts and offering false information, the investigator’s
testimony lacks any credibility and may not be considered in the probable cause
analysis. As the State points out, Lewis has not provided any authority for the

2
In his reply brief, Lewis argues that the State improperly cites to facts outside the warrant
application as supporting probable cause for the search warrant. Our probable cause analysis is
limited to the facts provided in support of the search warrant, as corrected in the ways that Lewis
argues for.

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No. 2022AP1135-CR

proposition that this court should weigh the credibility of the investigator on appeal
and disregard all of the information he provided. We also are not persuaded that the
video recording cannot be considered because the investigator did not explain how
he recognized Lewis or because he did not see the CI place a small baggie inside a
cigarette pack. Rather, the facts offered by the investigator as part of the search
warrant application, and which Lewis has not argued are false, remain part of the
totality of the circumstances we consider in our probable cause analysis. See Illinois
v. Gates, 462 U.S. 213, 238 (1983).

¶24 We conclude that, with the corrections to the search warrant
application as posited by Lewis, the search warrant was supported by probable
cause. The facts in support of the search warrant continue to include the
investigator’s testimony that he arranged a controlled buy between the CI and
Lewis; that he searched the CI, found no drugs, and provided the CI with buy
money; that the investigator met with the CI at the police station and recorded a
phone call between the CI and Lewis, setting up the controlled buy; that the
investigator viewed the videotape recording and saw Lewis provide the drugs to the
CI; and that the CI made contact with the investigator after the buy and turned over
several baggies of methamphetamine and cocaine. Those facts are sufficient to
establish probable cause for the search warrant. See State v. Bruckner, 151 Wis. 2d
833, 861, 447 N.W.2d 376 (Ct. App. 1989) (probable cause requires only a fair
probability that evidence of a crime will be found at a particular place).

¶25 Because we conclude that the investigator’s testimony as to the
controlled buy—including the video recording of the drug transaction—established
probable cause for the search warrant, we reject Lewis’s contention that the CI’s
reliability is a significant factor in our probable cause analysis. That is, this is not a
case where the CI provided information that depended on the CI’s veracity. Rather,

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No. 2022AP1135-CR

as explained, we conclude that probable cause was established by the investigator’s
testimony as to the facts of the controlled buy that the investigator verified,
including that the investigator was able to view the drug transaction on the video
recording. Because that testimony was sufficient to support probable cause for the
search warrant after the Frank/Mann corrections asserted by Lewis, the circuit
court properly denied Lewis’s motion to suppress the evidence obtained through
execution of the search warrant.3

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

3
Lewis also argues in his brief-in-chief that the circuit court erred by issuing a no-knock
warrant. Specifically, he argues that the court erred by considering the presence of a child as a
supporting factor, pointing out that the considerations for a no-knock warrant are whether the facts
present a threat of violence or reason to believe that evidence will likely be destroyed. See Wilson
v. Arkansas, 514 U.S. 927, 936 (1995). He also asserts that the CI’s report that Lewis had possessed
a gun the prior week did not support a no-knock warrant, both because the CI lacked reliability and
because the CI did not see Lewis with a gun on the day of the controlled buy. However, in his
reply brief, Lewis concedes the State’s points that the no-knock execution of a search warrant does
not require prior judicial authorization, see State v. Henderson, 2001 WI 97, ¶29, 245 Wis. 2d 345,
629 N.W.2d 613, and that the information known to police need only support reasonable suspicion
that announcement would be dangerous or would allow for the destruction of evidence to support
a no-knock execution of a search warrant, see Richards v. Wisconsin, 520 U.S. 385, 394 (1997).
Lewis then contends, however, that the facts known to police did not provide reasonable suspicion
for the no-knock execution of the search warrant. He argues that, because the investigator sought
a warrant for the nighttime, there would not have been issues present that typically occur during
drug investigations. He also contends that it was unclear why the officers would have believed that
knocking and announcing would have been dangerous based on the presence of a child. Lewis’s
claim that the no-knock execution of the search warrant was not supported by reasonable suspicion
at the time of execution is both raised for the first time in reply and insufficiently developed. We
do not address it further. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App.
1992) (undeveloped arguments not considered); Vermont Yogurt Co. v. Blanke Baer Fruit &
Flavor Co., 107 Wis. 2d 603, 613, 321 N.W.2d 315 (Ct. App. 1982) (appellant’s arguments must
be developed in brief-in-chief).

11