State v. Theus H. Thomas

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 23, 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. 2023AP815-CR Cir. Ct. No. 2018CF380

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

THEUS H. THOMAS,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Kenosha County:
JASON A. ROSSELL, 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. 2023AP815-CR

¶1 PER CURIAM. Theus H. Thomas appeals from a judgment of
conviction for possession of heroin with intent to deliver, on or near school
premises, as a second or subsequent offense. Thomas argues that the circuit court
should have granted his motion to suppress evidence obtained through execution
of a search warrant. More specifically, Thomas contends that the court erred in
concluding that the affidavit in support of the search warrant established probable
cause that a search of Thomas’ residence would disclose evidence of a “Len Bias”
homicide.1 Thomas also argues that the court erred in finding reasonable
suspicion to support the no-knock provision of the warrant. We affirm.

BACKGROUND

¶2 Thomas was arrested based on evidence found when police executed
a no-knock search warrant at his residence in Kenosha. The warrant was based
primarily on the following facts provided by Detective Eric Traxler of the
Kenosha Police Department: (1) Young, who was forty-nine years old, collapsed
on a sidewalk and died; (2) Young had a baggie of a substance that looked like
heroin and a rolled up dollar bill with residue of that heroin-like substance on it in
his pocket when he died; (3) After Young collapsed, his girlfriend, Camesia
Moore, told police and bystanders that she thought Young was overdosing;
(4) Moore told police that Young had purchased heroin from Thomas the

1
A “Len Bias” homicide refers to “[f]irst-degree reckless homicide by delivery of a
controlled substance” and “was created … to prosecute anyone who provides a fatal dose of a
controlled substance.” State v. Patterson, 2010 WI 130, ¶37, 329 Wis. 2d 599, 790 N.W.2d 909;
see WIS. STAT. § 940.02(2)(a) (2021-22). “The legislature developed this law … in the wake of
the tragic death of a University of Maryland basketball star by the same name from a cocaine
overdose.” Patterson, 329 Wis. 2d 599, ¶37.

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2023AP815-CR

afternoon before he died; (5) Moore said that she had bought heroin from Thomas
a week earlier; (6) Moore told police that Young regularly sold heroin for Thomas;
and (7) Thomas called Moore while she was still at the hospital with Young and
acknowledged that he had sold heroin to Young the day before; and (8) Thomas
instructed Moore not to talk to “the police about this.”

¶3 Before seeking a search warrant for Thomas’ residence, police
confirmed Thomas’ identity with Moore. Police further corroborated the address
that Moore gave for Thomas. They also learned that Thomas was on active
supervision for a felony drug conviction for manufacture or delivery of cocaine at
the time of Young’s death.

¶4 Traxler indicated in his affidavit that police believed they would find
evidence in Thomas’ residence to support a Len Bias homicide. When executing
the search warrant for Thomas’ residence, officers found significant amounts of
heroin and marijuana, items used for packaging and selling drugs, and a
substantial amount of cash. Preliminary autopsy results released after the
execution of the warrant reflected an opinion that Young died of natural causes
“not directly related to his heroin usage.” Therefore, the State chose not to charge
Thomas with a Len Bias homicide and instead charged him with possession with
intent to deliver heroin, and several other drug-related offenses, based on evidence
seized during the warrant search.

¶5 Thomas filed a motion to suppress the fruits of the search, arguing
that all such evidence was unlawfully obtained. The circuit court held a hearing at
which Traxler testified. After considering arguments from the parties, the court
denied the suppression motion. The court held that probable cause supported the
issuance of the warrant and that reasonable suspicion supported the no-knock

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No. 2023AP815-CR

provision. Thomas later entered a plea to possession with intent to deliver heroin,
and the four remaining charges were dismissed and read in. He was sentenced to
five years of initial confinement and four years of extended supervision. Thomas
appeals.

DISCUSSION

¶6 On appeal, Thomas argues that the circuit court erred in denying his
motion to suppress because the search warrant was unsupported by probable
cause. He further contends that there was not reasonable suspicion sufficient to
justify the no-knock provision in the warrant.

¶7 In our review of a motion to suppress, we apply a two-step standard
of review: (1) we first review the trial court’s findings of fact, and will uphold
them unless they are clearly erroneous; and (2) we then “review the application of
constitutional principles to those facts de novo.” See State v. Eason, 2001 WI 98,
¶9, 245 Wis. 2d 206, 629 N.W.2d 625.

Probable Cause for the Search Warrant

¶8 In reviewing whether the circuit court erred in denying the motion to
suppress, we first discuss the sufficiency of the search warrant. A search warrant
will “pass constitutional muster” as long as it complies with three requirements:

(1) prior authorization by a neutral, detached magistrate;
(2) a demonstration upon oath or affirmation that there is
probable cause to believe that evidence sought will aid in a
particular conviction for a particular offense; and (3) a
particularized description of the place to be searched and
items to be seized.

State v. Tate, 2014 WI 89, ¶28, 357 Wis. 2d 172, 849 N.W.2d 798 (citation
omitted). Thomas argues that the second requirement was not met because

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No. 2023AP815-CR

Traxler’s affidavit made at the time of Young’s death did not establish probable
cause to believe that Young died as a result of heroin use.2

¶9 “Probable cause to issue a warrant exists if the information set forth
in support of the warrant establishes a ‘fair probability that a search of the
specified premises would uncover evidence of wrongdoing.’” State v. Hillary,
2017 WI App 67, ¶8, 378 Wis. 2d 267, 903 N.W.2d 311 (citation omitted). In our
review, 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. Romero, 2009 WI 32, ¶3, 317 Wis. 2d 12, 765 N.W.2d
756. “This court ‘accord[s] 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.’” Id., ¶18 (citation omitted).

¶10 Considering the totality of the circumstances, the facts available to
the issuing judge when considering the warrant, set forth in the background
section above, support the following inferences: that heroin use had some role in
Young’s death; that Young obtained the heroin that he likely used before his death
from Thomas; that Thomas had been regularly dealing heroin; that Thomas had

2
Thomas made additional arguments in the circuit court regarding the alleged lack of
probable cause that he does not raise in his brief to this court. We deem these arguments
abandoned on appeal and do not address them further. See State ex rel. Peckham v. Krenke, 229
Wis. 2d 778, 782 n.3, 601 N.W.2d 287 (Ct. App. 1999) (explaining that issues raised in the circuit
court but not argued in a party’s appellate brief are deemed abandoned and will not be
considered).

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No. 2023AP815-CR

dealt heroin to Young as recently as the day before Young’s death; that Thomas
was aware that the heroin he sold Young may have contributed to his death; and
that heroin would be found in Thomas’ residence, where he had been living for at
least a month. Those facts and inferences are sufficient to support the issuing
judge’s determination that there was a fair probability that police would find
evidence of a crime in Thomas’ residence. See id,; see also State v. Ward, 2000
WI 3, ¶¶29–30, 231 Wis. 2d 723, 604 N.W.2d 517 (holding facts that suspect sold
large amounts of drugs and there was only one address associated with suspect
established probable cause to search that address). A fair probability was
sufficient, see Romero, 317 Wis. 2d 12, ¶18, and at least a fair probability that
Young had overdosed on heroin existed.

¶11 Implicit in our conclusion that the facts and inferences from the
affidavit supported issuance of the warrant is a rejection of Thomas’ argument that
there was insufficient probable cause because police lacked certainty when
seeking the warrant that Young had used heroin and died therefrom. Probable
cause simply requires a probability, not absolute certainty. State v. Robinson,
2010 WI 80, ¶29, 327 Wis. 2d 302, 786 N.W.2d 463. The police and the issuing
judge did not need to be certain that heroin caused Young’s death before seeking
and issuing a warrant to investigate Thomas. As the circuit court aptly observed:
“It’s common sense. A person’s got heroin on their person, they become
unresponsive and die, the common sense answer is they died of a heroin overdose
because that’s all the test requires.” We agree, and we thus conclude that probable
cause supported the issuance of the search warrant. Therefore, the court did not
err in denying Thomas’ motion to suppress the fruits of the warrant on that basis.

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No. 2023AP815-CR

Reasonable Suspicion for the No-Knock Provision

¶12 We turn next to Thomas’ argument that the evidence from the search
must be suppressed because the no-knock provision of the warrant was not
justified. Specifically, Thomas contends that there was insufficient evidence to
support a reasonable suspicion that knocking and announcing would have been
dangerous or allowed for the destruction of evidence, as required to justify the
issuance of a no-knock warrant. See Richards v. Wisconsin, 520 U.S. 385, 394
(1997).

¶13 Our supreme court has explained that “the required showing of
reasonable suspicion is low, and depends upon the facts and circumstances of each
case.” Eason, 245 Wis. 2d 206, ¶19 (citing Richards, 520 U.S. at 394). In this
case, several specific facts relevant to Thomas and the investigation of Young’s
death supported reasonable suspicion for the no-knock provision. As discussed
above, the facts and circumstances of the case reflected that Thomas was dealing
heroin, he sold Young heroin hours before he died, Thomas was aware of Young’s
death, and Thomas knew that he might be implicated in a law enforcement
investigation of Young’s death. In addition, Thomas was on probation for a
felony drug delivery conviction, which meant that he had experience with drugs
and law enforcement and was potentially motivated to destroy evidence of his
dealing heroin to avoid revocation and new charges. Finally, Traxler’s training
reflecting the connection between guns and drugs and the risk that Thomas would
destroy drug evidence added to the quantum of evidence supporting reasonable
suspicion for the no-knock provision.

¶14 Under the circumstances, we conclude that the issuing judge
properly authorized the no-knock provision, and the circuit court correctly upheld

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No. 2023AP815-CR

that decision in denying the motion to suppress. Because the no-knock provision
in the warrant did not violate Thomas’ constitutional rights, it does not provide a
basis to suppress the fruits of the search.

CONCLUSION

¶15 Based on our conclusions that probable cause supported the issuance
of the search warrant and there was reasonable suspicion to justify the no-knock
provision in the warrant, we conclude that the circuit court properly denied
Thomas’ motion to suppress the evidence obtained through execution of the search
warrant.

By the Court.—Judgment affirmed.

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

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