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COURT OF APPEALS
DECISION
DATED AND RELEASED
NOTICE
June 19, 1996
A party may file with the Supreme Court                                              This opinion is subject to further editing.
a petition to review an adverse decision                                             If  published,  the  official  version  will
by the Court of Appeals.  See § 808.10 and                                           appear  in  the  bound  volume  of  the
RULE 809.62, STATS.                                                                  Official Reports.
No.   96-0066-CR
STATE OF WISCONSIN                                                                   IN COURT OF APPEALS
                                                                                     DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES E. SCHULTZ,
Defendant-Appellant.
APPEAL  from  a  judgment  of  the  circuit  court  for  Walworth
County: ROBERT J. KENNEDY, Judge.  Affirmed.
ANDERSON, P.J.                                                                       James   E.   Schultz   appeals   from   a
judgment of conviction for possession of controlled substances, contrary to
§ 161.41(3r), STATS.  We conclude that even with the omitted facts inserted in the
officer's affidavit, probable cause to search Schultz's residence was not erased.
Accordingly, the judgment of the trial court is affirmed.




No.  96-0066-CR
According  to  the  search  warrant  affidavit,  Detective  James
Nevicosi of the Walworth County Sheriff's Department obtained and searched,
on four separate occasions, several bags of garbage set out for collection at
W4120 Bray Road.    Each search uncovered garbage bags which contained both
evidence of controlled substances and items of correspondence in Schultz's and
his wife's names.1
The affidavit also stated that Nevicosi ran a driver's license check
and tax record search verifying that Schultz and his wife's address was W4120
Bray Road.    Nevicosi also described the property based upon his personal
observation.
The search warrant was signed and executed, yielding various
quantities of marijuana throughout the W4120 Bray Road residence and on
Schultz's person.   Subsequently, Schultz was charged with unlawful possession
of a controlled substance.
Schultz filed a motion for a “Mann hearing”2 and for an order to
suppress the evidence seized from his residence, claiming that material facts
1   The four searches uncovered the following:                                                        (1) March 3, 1995, 8 marijuana seeds, 1 plant
stem, and correspondence in the name of Ruth L. Swisher; (2) March 10, 1995, 70 marijuana seeds,
2 marijuana stems, and correspondence addressed to Ruth L. Swisher-Schultz; (3) March 17, 1995,
approximately  38 marijuana seeds,  4 plant stems, and correspondence to Ruth Schultz, Ruth
Swisher, J. Schultz, and James Schultz and Ruth Swisher; and (4) April 7, 1995, 2 plant stems, 1
marijuana roach, 7 marijuana seeds, a letter to Ruth Swisher-Schultz, and two separate bills in the
name of Jim Schultz and Ruth Swisher.
2 State v. Mann, 123 Wis.2d 375, 367 N.W.2d 209 (1985).   While Schultz refers to a “Mann
hearing,” we interpret this to refer to a Franks hearing.   See Franks v. Delaware, 438 U.S. 154
(1978).
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No.  96-0066-CR
were intentionally or recklessly omitted by Nevicosi.   The trial court denied his
motion.   Schultz subsequently pled guilty to criminal charges.   A judgment of
conviction  was  entered  against  him  for  possession  of  marijuana.    Schultz
appeals.
Schultz argues that the trial court erred by denying his motion for
a “Mann hearing” and by denying his motion to suppress physical evidence
seized from his residence.   When we review a trial court's decision regarding a
motion to suppress evidence, the court's findings of fact will be sustained unless
they are contrary to the great weight and clear preponderance of the evidence.
State v. Callaway, 106 Wis.2d 503, 511, 317 N.W.2d 428, 433, cert. denied, 459
U.S.  967  (1982).    However, we independently review the application of the
Franks rule.3  State v. Mann, 123 Wis.2d 375, 384, 367 N.W.2d 209, 212-13 (1985).
3  The Franks Court stated:
where  the  defendant  makes  a  substantial  preliminary  showing  that  a  false
statement  was included by the affiant in the warrant affidavit,
and if the allegedly false statement is necessary to the finding of
probable  cause,                                                                                     [then]  a  hearing   [must]  be  held  at  the
defendant's request.
Franks v. Delaware, 438 U.S. 154, 155-56 (1978).   The Franks rule was extended in Mann, 123
Wis.2d at 388, 367 N.W.2d at 214-15 (1985), to include omissions from a warrant affidavit if the
omission is the equivalent of a deliberate falsehood or reckless disregard for the truth.
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No.  96-0066-CR
Schultz contends that there were material facts omitted from the
warrant affidavit which would have undermined the existence of probable
cause to search his home.   He argues that if the court would have known that
there was a second residence on the property and that the garbage was common
to both residences, then the court would not have found probable cause to
search his residence.
In Mann, the Wisconsin supreme court held that the Franks rule
applies to “specific and limited material evidentiary facts omitted from a search
warrant affidavit.”   Mann, 123 Wis.2d at 386, 367 N.W.2d at 213.   The omitted
facts must be undisputed, capable of single meanings and critical to a probable
cause determination to be viewed as the reckless disregard for truth required by
Franks.   See Mann, 123 Wis.2d at 388, 367 N.W.2d at 214-15.   The court must
determine, when the omitted facts are inserted into the search warrant, whether
there remains sufficient probable cause for the search.   Id.   If probable cause is
not erased, then a Franks hearing is not required.   Mann, 123 Wis.2d at 388, 367
N.W.2d at 215.
Here,  the  identified  omissions  are  not  sufficient  to  meet  the
threshold requirements warranting a Franks hearing or requiring suppression
of the seized evidence.   Although undisputed, the omissions are not critical to
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No.  96-0066-CR
the finding of probable cause.   Rather, the averments that marijuana stems and
seeds were found in the same garbage bag as correspondence addressed to
Schultz and his wife are more critical.   These allegations, combined with the
officer's confirmation that Schultz and his wife lived in the house described in
the affidavit, support probable cause that Schultz's residence might contain
marijuana and/or drug paraphernalia.  Even if the omitted facts are included in
the warrant affidavit, probable cause is not erased.  We therefore affirm the trial
court.
By the Court.—Judgment affirmed.
This opinion will not be published. See RULE 809.23(1)(b)4, STATS.
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