State v. Phillip J. Zadurski

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.
October 9, 2024
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. 2023AP1342-CR Cir. Ct. No. 2019CF911

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PHILLIP J. ZADURSKI,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Racine County:
WYNNE P. LAUFENBERG, Judge. Affirmed.

Before Gundrum, P.J., Grogan and Lazar, 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. 2023AP1342-CR

¶1 PER CURIAM. Phillip J. Zadurski, pro se, appeals from a
judgment of conviction entered after his no contest pleas to three charges of
possession with intent to distribute various illegal drugs. Zadurski contends that
the search warrant pursuant to which evidence against him was obtained was
insufficient under the Fourth Amendment1 because it falsely described the duplex
in which he lived as a “single-family residence” and that there was no probable
cause to search both units of the building. We conclude that the search warrant
was sufficiently particular and supported by probable cause and that even if
Zadurski’s contention that the building was a duplex is correct, he has failed to
establish that any false information in the affidavit supporting the search warrant
was the product of a reckless disregard for the truth as required to prove a Franks-
Mann2 violation. We therefore affirm.

¶2 Deputy Sheriff James Muller applied for a warrant to search the
premises at 409 West Market Street in the City of Burlington on July 10, 2019.
His supporting affidavit alleged that, with his oversight, a “Reliable Confidential
Informant” had purchased cocaine from Zadurski at this address on three separate
occasions in the four weeks preceding July 10. Muller had observed a vehicle
registered to Zadurski at the house—the same vehicle the informant had advised
was used by Zadurski to transport narcotics. Muller’s affidavit further stated that
police had received numerous complaints of drug activity at the house and that the
informant had advised Muller that Jillian Leighton rented the entire house, which
“at one time … had two addresses, 409 and 411.” Muller attested that he

1
U.S. CONST. amend. IV.
2
Franks v. Delaware, 438 U.S. 154 (1978); State v. Mann, 123 Wis. 2d 375, 367
N.W.2d 209 (1985).

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No. 2023AP1342-CR

conducted a “utilities check,” which showed Leighton on the account for 409 West
Market Street and an inactive account for 411 West Market Street. He also
checked the county tax records, which showed 409 West Market Street as a
“viable parcel” and “411 W. Market Street did not exist as a separate address.”
Finally, Muller personally viewed the building at issue, finding it to be a “[t]wo-
story single-family residence” and recording the following observations:

The exterior is off white sided with white trim. There is a
wraparound porch that has five white pillars and 409 on it.
From the porch is a door to the first floor. There is also a
door on the northwest corner of the residence with access to
the second floor.

¶3 A judge signed the warrant, authorizing a search of “409 W. Market
Street” and describing the property as a “[t]wo-story single-family residence” as
Muller had done in his affidavit. Pursuant to Muller’s request, the signed warrant
listed various particular “Things to be Seized,” including cocaine and other
controlled substances, items often used in drug trafficking, and “documents …
which can establish who is in control of the premises.”

¶4 Prior to conducting the search, police went to Zadurski’s workplace
and took him into custody. In their subsequent search of the residence on West
Market Street, they found a locked bedroom on the second floor, which they
opened using keys found on Zadurski. In that room, they found a locked toolbox
that, when opened with another of Zadurski’s keys, contained drugs and other
incriminating evidence. The State charged Zadurski with possession with intent to
deliver for each of the drugs found (psilocybin, cocaine, tetrahydrocannabinols,
methamphetamine, and amphetamine), as well as with maintaining a drug
trafficking place.

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No. 2023AP1342-CR

¶5 Zadurski moved to suppress the evidence discovered in the home,
arguing that the residence consisted of two units—409 and 411 West Market
Street—and that the upper unit, 411, was not within the scope of the warrant,
which was directed to only the lower unit, 409. He also argued that Muller’s
identification of the residence as a “single-family residence” was made with a
reckless disregard for the truth and that the complaint against him must be
dismissed pursuant to Franks and Mann.

¶6 The circuit court denied Zadurski’s motion after a hearing
(conducted over several separate days) at which Muller, Leighton, and a private
investigator hired by the defense testified. Based on the witnesses’ testimony and
other evidence in the record, the court rejected Zadurski’s argument that “since
both addresses weren’t put into the search warrant … the search of the entire home
was outside the scope of the warrant.” Without explicitly determining whether the
residence was a duplex or a single-unit building, the court found that Muller’s
“efforts to obtain the address on Market Street house were diligent and, honestly,
thorough”; in other words, that Muller conducted sufficient investigation into that
question such that he did not “act[] with reckless disregard for the truth with
respect to the other address being added to the affidavit supporting the … search
warrant.” Zadurski subsequently pled no contest to three of his charges and was
sentenced to five years of initial confinement and five years of extended
supervision.

¶7 This appeal follows, with Zadurski challenging the circuit court’s
denial of his motion to suppress evidence under the Fourth Amendment. Whether
a motion to suppress was correctly decided is a question of constitutional fact.
State v. Iverson, 2015 WI 101, ¶17, 365 Wis. 2d 302, 871 N.W.2d 661. Thus, our
analysis includes two steps. First, we give deference to a circuit court’s findings

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No. 2023AP1342-CR

of historical fact, upholding those findings unless they are clearly erroneous. Id.,
¶18. Second, we apply the relevant constitutional principals to those facts
de novo. Id.

¶8 Zadurski argues that the warrant at issue violated his Fourth
Amendment rights because it “did not describe the place to be searched with
sufficient particularity” and “[t]here was not probable cause to search both
apartments in the building.” See State v. Sveum, 2010 WI 92, ¶¶18, 20, 328
Wis. 2d 369, 787 N.W.2d 317 (citing Dalia v. United States, 441 U.S. 238, 255
(1979) and explaining that the Fourth Amendment of the United States
Constitution requires that a search warrant be supported by probable cause and
include a particular description of the place to be searched as well as the items to
be seized). Zadurski relies on United States v. Hinton, 219 F.2d 324, 326 (7th
Cir. 1955), in which the Seventh Circuit held a warrant void as insufficiently
particular because it authorized the search of an entire apartment building,
including its basement and three stories, instead of identifying a particular unit (or
units) of the building in which drug dealing by several individuals had allegedly
been witnessed. Id. Because the affidavit supporting the search warrant in
Hinton directed authorities to search “an entire apartment building” without
connecting the multiple apartments in the building to the alleged drug sales or
dealers, probable cause did not extend to each of the units searched and the
warrant was insufficiently particular. Id.

¶9 The particularity requirement serves multiple important objectives,
among them to ensure against “general searches” and to prevent “seizure of
objects other than those described in the warrant.” Sveum, 328 Wis. 2d 369, ¶28.
But what Zadurski misses is that, as Hinton itself states, “[t]he validity of the
warrant is dependent on the facts shown in the affidavit before the issuing

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No. 2023AP1342-CR

authority.” Hinton, 219 F.2d at 326; see also Sveum, 328 Wis. 2d 369, ¶25.
Here, the evidence before the judge who signed the search warrant included
evidence of Leighton’s control over the entire building, Zadurski dealing illegal
drugs out of that building on multiple occasions, and the building’s present status
as a single-unit residence. Although the affidavit recounted the informant’s
communication to Muller that the residence “at one time” had two house numbers,
the warrant judge had evidence corroborating the informant’s characterization of
the home as a single-unit residence at the time the warrant was signed: Muller’s
inclusion of electric company records indicating only one current address, tax
records showing only one “viable parcel,” and his own observation that the
residence looked like a single-family home. This case is not like Hinton, where
the search warrant was insufficiently particular because it directed a search of all
the apartments in a known multi-apartment building without probable cause
supporting a search of each of those apartments. Instead, this case is based on the
search of a building reasonably believed to be a single-family home with, as
discussed next, probable cause supporting the search.

¶10 Probable cause exists when, “under the totality of the circumstances,
given all the facts and circumstances set forth in the affidavit, ‘there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.’” Sveum, 328 Wis. 2d 369, ¶24 (citation omitted). Zadurski has failed to
meet the heavy burden of establishing that the warrant judge’s determination of
probable cause was in error. See id., ¶25 (“We accord 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.” (Citation omitted.)). Apart from his
argument that the building in question consisted of two separate units and that

6
No. 2023AP1342-CR

there was no probable cause connecting him to one or the other, which we have
already rejected, he does not suggest that there was insufficient evidence to
support probable cause before the warrant judge. Indeed, Muller’s affidavit
recounting multiple controlled buys from Zadurski in this building by a reliable
informant and the rest of the information detailed above is clearly sufficient to
provide the warrant judge a substantial basis for concluding that there was a fair
probability of finding contraband or evidence in the building.

¶11 This brings us to Zadurski’s final argument: that the search warrant
was invalid because Muller acted with a reckless disregard for the truth in falsely
stating in the affidavit supporting the warrant that the building in question was a
“single-family residence” in violation of Franks and Mann. In Franks, the
United States Supreme Court held that a defendant can overcome the presumption
of validity that attaches to an affidavit supporting a search warrant by
demonstrating “deliberate falsehood” or “reckless disregard for the truth” on the
part of the affiant. Franks v. Delaware, 438 U.S. 154, 171 (1978). In Mann,
where our state supreme court extended the Franks principles to permit challenges
to criminal complaints, the court explicitly pointed out that Franks puts the
burden on the defendant to establish that a misstatement (or omission) was made
“‘deliberately’ or ‘recklessly’” as opposed to “‘negligently’ or ‘innocently.’”
State v. Mann, 123 Wis. 2d 375, 385-87, 367 N.W.2d 209 (1985) (citation
omitted). If a defendant can establish such motivation on the part of the
government affiant, and if a warrant fails to establish probable cause independent
of the false statement, evidence resulting from the search must be suppressed. See
Franks, 438 U.S. at 171; see also Mann, 123 Wis. 2d at 388.

¶12 Our supreme court has defined statements made with “reckless
disregard for the truth” as ones that were made by an affiant that “in fact

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No. 2023AP1342-CR

entertained serious doubts as to the truth of the allegations or had obvious reasons
to doubt the veracity of the allegations.” State v. Anderson, 138 Wis. 2d 451,
463-64, 406 N.W.2d 398 (1987). Like the circuit court, we conclude that even if
Zadurski’s allegation is true that the building at issue was a duplex consisting of
two separate units rather than a single-unit home,3 Muller did not act with reckless
disregard for the truth in alleging that it was a “single-family residence.”

¶13 Based on the testimony at Zadurski’s suppression hearing, the circuit
court found as a matter of fact that Muller’s efforts to ascertain the nature of the
building included investigation into the electric company’s account for the
residence and tax records as stated in his affidavit—both of which indicated that
409 was the single address for the property. With respect to Zadurski’s argument
based on Leighton’s testimony that both house numbers “409” and “411” were
affixed to the residence, the court referred to testimony from both Muller and
Zadurski’s private investigator’s testimony suggesting that one could not clearly
see the front of the home when driving by on the street, because it “does not sit
right on top of the road” and there are trees. The court stated that it “would not
expect [Muller] to come upon the premises and walk around the house,” which

3
In its decision denying Zadurski’s motion to suppress, the circuit court noted Muller’s
testimony that the owner of the house on West Market Street told him that he rented the entire
house to only Jillian Leighton, the lack of written leases for either Zadurski (who Leighton
testified lived upstairs with her) or the downstairs tenant despite Leighton’s testimony that both
men rented from her, and the police report indicating that the landlord said after he inherited the
house, “411 West Market Street was added for the second floor” but that Leighton was “the main
renter and was in control of the residence.” Also relevant to the question of whether the house
consisted of a single unit or two separate ones (but not to the question of Muller’s culpability for
any falsehood or the adequacy of the search warrant) is the fact that police found Leighton’s
children on the first floor of the house and “a children’s bedroom with an open door way to stairs
for the second floor.” Again, because we conclude that Muller’s affidavit was not the product of
a deliberate or reckless disregard for the truth, we need not seek a finding from the circuit court as
to whether the house was or was not a duplex.

8
No. 2023AP1342-CR

could have led to seeing both house numbers and an additional water meter
attached to the house, because, as Muller explained, that could have compromised
the investigation.

¶14 Zadurski does not argue that these facts are clearly erroneous, but
only that Muller should have done more—namely, investigate water bills and
municipal tax records and notice that there were two mailboxes for the property
across the street.4 He does not establish that, despite the investigation Muller did
to put to rest any concern that the house was still a duplex after the informant told
him that “at one time” it had two house numbers, Muller still “entertained serious
doubts as to the truth of the allegation[] or had obvious reasons to doubt the
veracity of the allegation[]” that the building in question was presently a single-
unit residence. See id. at 463. Thus, Zadurski has not established a Franks-Mann
violation.

¶15 Because, as discussed above, the search warrant was sufficiently
particular and supported by probable cause and because Zadurski has failed to
establish that any false information in the affidavit supporting the search warrant
was the product of a reckless disregard for the truth, we affirm.

By the Court.—Judgment affirmed.

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

4
With respect to the mailboxes, the circuit court indicated that in “the picture of the
mailboxes [there is not] one designated as 409, and the one that presumably is 411 is actually
scratched out … the 4 and the 1 … are scratched on the picture of that particular mailbox.”

9