State v. Joshua D. Johnson

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.
April 9, 2026
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. 2024AP2232-CR Cir. Ct. No. 2022CF518

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOSHUA D. JOHNSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Dane County:
MARIO WHITE, Judge. Affirmed.

Before Blanchard, Kloppenburg, and Nashold, 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. Joshua D. Johnson appeals a judgment of
conviction for possession of a firearm by a felon. Johnson argues that the circuit
No. 2024AP2232-CR

court erred by denying his motion to suppress evidence before he entered a plea to
the charge. The suppression motion challenged the sufficiency of the affidavit
submitted by police to support the issuance of a judicial warrant that police relied
on to search a vehicle associated with Johnson.1 We conclude that the court did
not err in denying the motion to suppress the warrant based on an insufficient
affidavit.

BACKGROUND

¶2 On July 7, 2017, a Madison police detective submitted an affidavit to
the warrant-issuing judge as support for a warrant to search a 2006 black Chrysler
Pacifica (“the Chrysler”) bearing a Wisconsin license plate that is identified in the
affidavit. Items identified for the search of the Chrysler included firearms, drug-
related contraband, biological and trace evidence, and personal property that might
establish the identity of the person in control or ownership of the Chrysler. The
detective averred the following in support of the warrant.

¶3 The detective was investigating a “shooting incident” that had
occurred that day, July 7, in the 1700 block of Fordem Avenue in Madison. The
detective had reviewed records from the Dane County Communications Center
and discovered that Joshua D. Johnson had called 911 to report that he had been
shot and that he was then sitting in a vehicle. A witness reported that the witness
had observed an individual, who was later identified as Joshua D. Johnson, exit the
driver’s side of the Chrysler. Another police detective reported that Johnson had a

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The warrant was issued by the Hon. John Hyland. All other circuit court actions
referred to in this opinion were by the Hon. Mario White. For the most part, we refer to Judge
Hyland as “the warrant-issuing judge” and to Judge White as “the circuit court.”

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No. 2024AP2232-CR

“through-and-through gunshot wound to his right elbow.” A police sergeant
located the Chrysler. The sergeant reported that, while she was near the Chrysler,
she detected an odor of marijuana and observed cash in the Chrysler’s front
driver’s side door.

¶4 After the warrant-issuing judge approved a search warrant based on
this affidavit, the police searched the Chrysler and recovered Johnson’s driver’s
license, cash, and a loaded handgun. Johnson was charged with one count of felon
in possession of a firearm and one count of concealing a stolen firearm.

¶5 Johnson filed a motion in the circuit court to suppress the evidence
from the search of the Chrysler. Johnson asserted that, although the affidavit
averred that the sergeant had detected marijuana odor while at the Chrysler and
observed cash in the front driver’s side door, the police report written by the
sergeant made no mention of marijuana odor or cash. Johnson also asserted that
the affidavit left out the information that the sergeant had discovered the cash only
after she opened the door of the Chrysler, at a time when police lacked probable
cause and had not yet obtained the warrant. Accordingly, Johnson argued, when
the statements regarding the marijuana odor and cash were excluded from the
affidavit, the search warrant was not supported by probable cause.

¶6 The circuit court took evidence at a hearing on the suppression
motion and then considered arguments from the parties on issues that included
whether, if statements regarding the marijuana odor and cash are excluded from
the search warrant affidavit, the affidavit still supported probable cause. The court
issued a written decision and order denying Johnson’s motion to suppress
evidence. The court defined the central issue as “whether police had sufficient

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No. 2024AP2232-CR

probable cause to obtain the search warrant without the information regarding the
odor of marijuana and the observation of cash in the car.”

¶7 Johnson pled guilty to one count of felon in possession of a firearm,
and the count of concealing a stolen firearm was dismissed. After the circuit court
sentenced Johnson, he appealed the suppression ruling. See WIS. STAT.
§ 971.31(10) (2023-24)2 (“An order denying a motion to suppress evidence …
may be reviewed upon appeal from a final judgment or order notwithstanding the
fact that the judgment or order was entered upon a plea of guilty or no contest to
the information or criminal complaint.”).

DISCUSSION

¶8 On appeal, Johnson’s only developed argument is that the circuit
court erred when it denied his motion to suppress. Specifically, Johnson argues
that, when one ignores the allegations in the affidavit regarding the marijuana odor
and cash in the door of the Chrysler, the affidavit does not establish probable
cause. We conclude that Johnson has not met his burden to establish that the
affidavit, when one excludes these topics, is clearly insufficient to provide a
substantial basis to determine that there was a fair probability that a search of the
Chrysler would uncover evidence related to a crime.

¶9 The Fourth Amendment to the United States Constitution protects
individuals against unreasonable searches. See U.S. CONST. amend. IV.
“[Article I, section 11 of the] Wisconsin Constitution contains nearly identical

2
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP2232-CR

protections … which we have interpreted consistent with its federal counterpart.”
State v. VanBeek, 2021 WI 51, ¶23, 397 Wis. 2d 311, 960 N.W.2d 32.

¶10 “A search warrant may issue only on probable cause.” State v.
Romero, 2009 WI 32, ¶16, 317 Wis. 2d 12, 765 N.W.2d 756. An affidavit for a
search warrant provides probable cause when it sets forth “‘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. Jackson, 2016 WI 56, ¶79,
369 Wis. 2d 673, 882 N.W.2d 422 (quoted source omitted). Whether a warrant is
supported by probable cause is a “‘practical, commonsense decision’” that is made
by examining the totality of the circumstances. State v. Ward, 2000 WI 3, ¶¶23,
26, 231 Wis. 2d 723, 604 N.W.2d 517 (quoting Illinois v. Gates, 462 U.S. 213,
238 (1983)).

¶11 “In reviewing whether probable cause existed for the issuance of a
search warrant, we are confined to the record that was before the warrant-issuing
judge.” State v. DeSmidt, 155 Wis. 2d 119, 132, 454 N.W.2d 780 (1990). Our
“[r]eview of the warrant-issuing judge’s finding of probable cause is not de novo.”
Id. Rather, we give “‘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, 317 Wis. 2d 12, ¶18 (quoted source omitted). This deferential
standard of review is “‘appropriate to further the Fourth Amendment’s strong
preference for searches conducted pursuant to a warrant.’” DeSmidt, 155 Wis. 2d
at 133 (quoting Massachusetts v. Upton, 466 U.S. 727, 733 (1984)).

¶12 In determining whether a search warrant affidavit provides probable
cause, a warrant-issuing magistrate is permitted to make the “‘usual inferences

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No. 2024AP2232-CR

[that] reasonable persons would draw from the facts’” averred in the affidavit.
Ward, 231 Wis. 2d 723, ¶28 (quoted source omitted). “The test is not whether the
inference drawn is the only reasonable inference. The test is whether the inference
drawn is a reasonable one.” Id., ¶30.

¶13 We conclude that the following allegations are sufficient to allow the
warrant-issuing judge to determine that there was probable cause to believe that
evidence related to a crime would be found in a search of the Chrysler. On the
same day the police were investigating a shooting incident in Madison, Johnson
called 911 and reported that he had been shot and that he was sitting in a vehicle.
Johnson had a serious gunshot wound to his right elbow. A witness observed an
individual, later identified as Johnson, exit the driver’s side of the Chrysler.
Putting these allegations together, this was enough to support a “practical,
commonsense decision” that Johnson had been shot in a manner that would
constitute, or at a minimum relate to, a crime and that he was in the Chrysler at
some point after he was shot, resulting in a fair probability that evidence related to
the shooting would be found in the Chrysler.

¶14 Johnson argues that these facts are insufficient because they do not
definitively place him or the Chrysler “at the scene of the shooting at Fordem
Avenue.” However, the issue is not whether the averments in the affidavit are
sufficient to place Johnson or the searched vehicle at the scene of the shooting.
Rather, we review whether the affidavit sets forth “a substantial basis for
concluding that there was a fair probability that a search of the specified premises
would uncover evidence of wrongdoing.” See Jackson, 369 Wis. 2d 673, ¶79.
The warrant-issuing judge was presented with a series of reasonable inferences
related to a shooting of Johnson and the Chrysler, one of which is that Johnson

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No. 2024AP2232-CR

was in the Chrysler after he had been shot, creating a fair probability that evidence
related to a crime would be found in the Chrysler.

¶15 Johnson directs our attention to State v. Clark, 2003 WI App 121,
265 Wis. 2d 557, 666 N.W.2d 112, but Clark has nothing to say on the issue here,
namely, whether the affidavit (with the two topics excluded) provided probable
cause for the search warrant. In Clark, this court determined that towing a vehicle
was not a proper exercise of the police’s community caretaker function, and as a
result, the subsequent, warrantless inventory search by police violated the
defendant’s constitutional rights. See Clark, 265 Wis. 2d 557, ¶¶1, 19-27.

¶16 In an unclear argument, Johnson also asserts that the circuit court
erred in denying the suppression motion because, in explaining its conclusion that
the affidavit supported probable cause, the court referred to evidence not contained
in the affidavit. However, Johnson fails to develop an argument as to how the
circuit court’s reliance on this evidence has any bearing on the only issue that
Johnson has developed on appeal, which is whether the warrant-issuing magistrate
could properly find probable cause based on the affidavit (as interpreted without
the two topics discussed above), and we reject this argument on that basis. See
State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (We
need not address arguments that are undeveloped and unsupported by legal
authority.).

CONCLUSION

¶17 For these reasons, we affirm the judgment of the circuit court.

By the Court.—Judgment affirmed.

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No. 2024AP2232-CR

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

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