State v. Romero M. Watson

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.
March 1, 2022
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2019AP1982-CR Cir. Ct. No. 2017CF2671

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROMERO M. WATSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Milwaukee County:
FREDERICK C. ROSA, Judge. Affirmed.

Before Donald, P.J., Dugan 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).
No. 2019AP1982-CR

¶1 PER CURIAM. Romero M. Watson appeals from a judgment,
following a jury trial, in which he was convicted of three drug charges and two gun
charges. He argues that the circuit court erred when it refused an evidentiary hearing
and denied his motion to suppress. Watson also argues there was insufficient
evidence to support three of the convictions. We affirm.

BACKGROUND

¶2 Milwaukee police officers received information from a confidential
informant, who had previously provided credible information, that a man he knew
as “RoRo” was selling cocaine, marijuana, and pills from a residence. The
informant also told police he had seen RoRo with a gun. The informant described
RoRo and identified Watson as RoRo from a booking photo. The police had the
informant engage Watson in a controlled buy of cocaine. Officer Christopher
Conway then completed a search warrant affidavit and obtained a no-knock warrant.

¶3 When police executed the warrant, there were seven people at the
residence, including Watson. Watson ran out the back door towards a fence, then
doubled back towards an SUV. After officers took Watson into custody, they found
a handgun under the SUV.

¶4 In the residence’s dining room, police recovered drug paraphernalia
and baggies of cocaine, along with various identifiers for Watson, including his
driver’s license, an energy bill, and other mail addressed to him at the residence.
There were photos of Watson located near the dining room china cabinet, including
photos of Watson in that very room. In the northwest bedroom, police found
cocaine, marijuana, and pills in a dresser. There were additional identifiers for
Watson in that bedroom, including a vehicle title, his social security card, a debit

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card, and more mail addressed to him. In a backpack in the bedroom’s closet, police
found marijuana, cocaine, and a loaded semi-automatic 9mm handgun.

¶5 In the second amended information filed in this case, Watson was
charged with possession with intent to deliver more than forty grams of cocaine as
a second or subsequent offense; possession with intent to deliver between 200 and
1000 grams of tetrahydrocannabinols as a second or subsequent offense; possession
with intent to deliver between ten and fifty grams of methamphetamine as a second
or subsequent offense; and two counts of possession of a firearm by a felon.

¶6 Watson moved to suppress all evidence obtained from execution of
the search warrant, alleging that the warrant application failed to establish probable
cause to issue the warrant. He also asserted that “information regarding the
credibility of the informant was omitted from the affidavit in reckless disregard for
the truth.” The circuit court denied the motion without an evidentiary hearing, and
the case was tried to a jury. The jury convicted Watson of all five offenses, and he
was ultimately given concurrent and consecutive sentences totaling thirteen years
of initial confinement and seven years of extended supervision. Watson appeals.

DISCUSSION

Motion to Suppress/Search Warrant Application

¶7 A circuit court’s decision on a motion to suppress evidence presents a
mixed question of fact and law. See State v. Casarez, 2008 WI App 166, ¶9, 314
Wis. 2d 661, 762 N.W.2d 385. We do not reverse the court’s factual findings unless
clearly erroneous, but the application of constitutional principles to those findings
is reviewed de novo. See id.

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¶8 “A search warrant may issue only upon probable cause.” State v.
Jones, 2002 WI App 196, ¶10, 257 Wis. 2d 319, 651 N.W.2d 305. On review of a
challenge to probable cause for issuance of a search warrant, we examine “‘the
totality of the circumstances presented to the warrant-issuing commissioner to
determine whether the warrant-issuing commissioner 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. Silverstein, 2017 WI App 64,
¶13, 378 Wis. 2d 42, 902 N.W.2d 550 (citation omitted). We accord great deference
to the warrant-issuer’s determination of probable cause. See State v. Kerr, 181
Wis. 2d 372, 379, 511 N.W.2d 586 (1994).

¶9 In Franks v. Delaware, 438 U.S. 154, 155-56 (1978), the United
States Supreme Court determined that a defendant was entitled to a hearing upon “a
substantial preliminary showing that a false statement knowingly and intentionally,
or with reckless disregard for the truth, was included by the affiant in the [search]
warrant affidavit, and if the allegedly false statement is necessary to the finding of
probable cause.” In State v. Mann, 123 Wis. 2d 375, 385-87, 367 N.W.2d 209
(1985), our supreme court recognized that Franks could also be applied to the
omission of critical material from a warrant application. Then, “‘[t]he defendant
must show that the information omitted was material to the determination of
probable cause and that it was omitted for the purpose of misleading the
magistrate.’” Mann, 123 Wis. 2d at 390 (quoting Illinois v. Stewart, 473 N.E.2d
840, 851 (Ill. 1984)). “To mandate an evidentiary hearing, the challenger’s attack
must be more than conclusory and must be supported by more than a mere desire to
cross-examine.” Franks, 438 U.S. at 171.

¶10 In his suppression motion, Watson asserted that the warrant
application and affidavit were insufficient to establish probable cause for a warrant

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because they were “based on the claims of one unnamed informant,” some
information was “either stale or completely void of reference to time frames,” and
the affidavit “does not provide sufficient or adequate information related to the
credibility of the informant upon whom it relies.” In an oral ruling, the circuit court
acknowledged Franks, and that, under Mann, the holding from Franks applies to
omissions. It went through the warrant application, noting the information within
it. For instance, the informant had been used and found to be reliable in the past,
which resulted in a prior search warrant, recovery of contraband, and the filing of
criminal charges. The court further noted that police in this case actually conducted
a controlled buy, so “it isn’t just the word of the informant.”

¶11 Based on the information that was in the warrant application, the
circuit court believed there was probable cause for the warrant to be issued. It
explained that Watson “basically … speculated as to different explanations as to
what might have occurred, could have occurred,” but that he offered nothing to
support those assertions. The court determined Watson had not alleged, much less
shown, what information was “knowingly and intentionally or with reckless
disregard for the truth” omitted from the application. Instead, the court perceived,
Watson was simply saying he “would like to know more about the confidential
informant and we don’t believe that person is reliable.” Thus, the circuit court
denied the motion to suppress.

¶12 On appeal, Watson’s brief similarly contains facts Watson would have
liked to know, but no explanation as to how that omitted information was “‘material
to the determination of probable cause’” and nothing to demonstrate that the
information “‘was omitted for the purpose of misleading the magistrate.’” See
Mann, 123 Wis. 2d at 390 (citation omitted). He points out, for instance, that a
specific date and time for the controlled buy were not provided. However, the

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warrant application specified that the buy had occurred within the preceding
seventy-two hours. Watson cites no authority for the proposition that greater
specificity is required. While he asserts that a Franks/Mann hearing would have
shown that the controlled buy could not have occurred, that assertion is entirely
conclusory and, thus, it is insufficient to mandate a hearing. See Franks, 438 U.S.
at 171.

¶13 Citing federal cases, Watson also argues that the circuit court failed to
consider several factors for determining probable cause, including whether the
informant personally presented an affidavit, the extent of police corroboration of the
informant’s statement, and the amount of detail provided. See United States v.
Jones, 208 F.3d 603, 609 (7th Cir. 2000); United States v. Reddrick, 90 F.3d 1276,
1281 (7th Cir. 1996). As noted, however, we examine the totality of the
circumstances surrounding the warrant application. See Jones, 257 Wis. 2d 319,
¶10. “There are no longer specific prerequisites to a finding of confidential
informant reliability. Rather, the current test simply requires courts to ‘consider all
of the circumstances set forth in the affidavit, including the veracity and basis of
knowledge of persons supplying hearsay information.’” Id., ¶13 (citation omitted).
The warrant issuer may draw reasonable inferences from the facts set forth in the
affidavit, and the test is simply whether the inference drawn was reasonable, not
that it was the only reasonable inference. See id., ¶10. A determination of probable
cause “will stand unless the defendant establishes that the facts are clearly
insufficient to support a finding of probable cause.” Id., ¶11.

¶14 We agree with the circuit court that the search warrant affidavit
supplied probable cause for a warrant to issue and that Watson has not identified
any critical omission from the warrant application that would have defeated
probable cause. Though Watson might have liked to challenge the informant’s

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credibility through cross-examination, that is not the appropriate test. See Franks,
438 U.S. at 171. The circuit court properly denied the motion to suppress and
request for a Franks/Mann hearing.

Sufficiency of the Evidence

¶15 Watson also contends that there was insufficient evidence to support
his convictions relating to the cocaine, the marijuana, and one of the guns;
specifically, Watson argues that, although the evidence was sufficient to support an
inference that he possessed some of the drugs found in the residence, the evidence
was insufficient to prove that he possessed the backpack that was found in the
bedroom and contained drugs and a gun. At best, Watson contends, the State shows
he was within the backpack’s presence, not in possession of it, as police testified
that the backpack was readily moveable and had no identifiers in it. He asks that
the drug counts be modified to lesser felonies to account for smaller quantities of
drugs that could be attributed to him, and that the associated felon in possession
charge be vacated.

¶16 “When a defendant challenges a verdict based on sufficiency of the
evidence, we give deference to the jury’s determination and view the evidence in
the light most favorable to the State.” State v. Long, 2009 WI 36, ¶19, 317 Wis. 2d
92, 765 N.W.2d 557. Whether the evidence is direct or circumstantial, this court
“may not substitute its judgment for that of the trier of fact unless the evidence,
viewed most favorably to the [S]tate and the conviction, is so lacking in probative
value and force that no trier of fact, acting reasonably, could have found guilt
beyond a reasonable doubt.” State v. Poellinger, 153 Wis. 2d 493, 501, 507, 451
N.W.2d 752 (1990). “If any possibility exists that the trier of fact could have drawn
the appropriate inferences from the evidence adduced at trial to find the requisite

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guilt, an appellate court may not overturn a verdict even if it believes that the trier
of fact should not have found guilt based on the evidence before it.” Id. at 507.

¶17 Although there were no identifiers for Watson in the backpack, it was
recovered from the closet of a bedroom with numerous identifiers for Watson found
throughout. No identifiers for any other person were found in the bedroom,
suggesting that Watson had exclusive control of the bedroom.

¶18 Actual physical possession of an item is not required; an item is also
“in a person’s possession if it is in an area over which the person has control and the
person intends to exercise control over the item.” WIS JI—CRIMINAL 920; State v.
Allbaugh, 148 Wis. 2d 807, 813-14, 436 N.W.2d 898 (Ct. App. 1989). It would
have been more than reasonable for the jury to infer that the drugs and gun found in
a backpack belonged to the backpack’s owner; that a backpack found in the closet
of a bedroom belonged to the person who controlled the bedroom; and that, in this
case, the person who controlled the bedroom was Watson. Accordingly, sufficient
evidence supports the verdicts.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2019-20).

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