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  • WisBar News
    October 02, 2014

    Police Search Illegal: Court Reverses Psilocybin Convictions

    Oct. 2, 2014 – Christopher Thomas refused when police asked to search the trailer that he shared with Jeremiah Popp. But officers peered inside windows with flashlights, revealing equipment commonly associated with manufacturing illegal drugs. The two were arrested and ultimately convicted.

    Recently, in State v. Thomas and State v. Popp, 2013AP1916-CR and 2014AP166-CR (Sept. 30, 2014, consolidated), a three-judge panel for the District I Appeals Court reversed their convictions for the manufacture of psilocybin, commonly known as magic mushrooms.

    The panel ruled that police violated the defendants’ Fourth Amendment rights by trespassing on home’s curtilage and peering in windows. The observations were illegally obtained, the panel explained, and police could not obtain a probable cause warrant without the observations.

    “[W]e conclude that the warrant is invalid because it is not supported by probable cause,” wrote Judge Patricia Curley. “As such, the search of the defendants’ trailer predicated on the warrant was illegal, and the fruits of that search must be suppressed.”

    The panel also ruled that an anonymous tip could not support the warrant, because police could not corroborate the tipster’s statements and the caller could not be verified as reliable.

    A West Allis police officer had a received a voicemail message by an anonymous caller who said he was watching an individual, dressed in a sterile suit, move mushroom-filled Tupperware out of a neighboring trailer. The tipster did not say how he knew that information.

    Detectives visited the trailer park. When they arrived, a 23-year-old Thomas approached and said he was waiting for someone who was delivering a broken computer for him to fix. When he learned that police were investigating a drug complaint, Thomas became visibly nervous.

    The detective asked to search the residence, and Thomas said no, noting that his roommate Jeremiah Popp would be angry if Thomas consented to a police search of their home.

    Despite this refusal, the detective and other officers started snooping. They walked up some steps to the residence and peered inside a window. Using flashlights, they observed an oxygen tank and glass beakers. They looked in a bay window on the other side of the trailer, where they observed foil, jars, and a surgical mask. They believed these to be drug-making tools.

    They did not detain Thomas but told him they would return with a warrant. One officer stayed on scene and the detective left with the lieutenant to obtain a search warrant. The anonymous tipster called again and said he knew about the mushrooms from personal observation.

    Police obtained a search warrant. Upon execution, they found a grow operation with mushrooms in different stages of growth. The state charged Thomas and Popp for manufacturing psilocybin, more than 100 grams but not more than 500 grams.

    Popp and Thomas filed motions to suppress evidence, but those were denied. Convictions followed. On appeal, the panel reversed based on an illegal search.

    Search was Illegal

    Police violated the Fourth Amendment when they searched the curtilage of the premises and peered inside windows without a warrant, the three-judge appeals court panel ruled. The panel cited numerous cases for support, including two U.S. Supreme Court cases and a case from Florida with nearly identical facts.

    The panel also rejected the state’s argument that the warrant and subsequent search were lawful because they were “sufficiently attenuated” from the first search.

    “By the State’s logic, police officers would be able to sneak into someone’s house without permission, snoop around, find contraband, and later arrest them for it under any circumstances so long as a warrant was later procured and so long as an interval of time lapsed between the snooping and the obtaining of the warrant,” Curley wrote.

    Warrant Not Valid

    Once the police observations were removed from the affidavit that supported the warrant, there was not sufficient probable cause to support the warrant, the panel ruled.

    All the police had, the panel noted, was information from the anonymous tipster, who supplied information that police were not able to corroborate at the scene.

    “In sum, there was no way to infer that the anonymous caller was ‘probably right about’ the facts alleged,” Judge Curley explained.  

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