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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.
January 22, 1998
A party may file with the Supreme Court a
                                                                                       Marilyn L. Graves         petition  to  review  an  adverse  decision  by  the
                                                                                       Clerk, Court of Appeals   Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                       of Wisconsin              STATS.
No.                                                                                    97-1511-CR
STATE OF WISCONSIN                                                                     IN COURT OF APPEALS
                                                                                       DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
STEVEN H. ROBINSON,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Lafayette County:
WILLIAM D. JOHNSTON, Judge.  Affirmed.
Before Eich, C.J., Dykman, P.J., and Vergeront, J.
EICH, C.J.     Steven Robinson appeals from a judgment, entered on
his plea of guilty, convicting him of manufacturing a controlled substance.   His
plea followed the trial court’s denial of his motion to suppress the fruits of a
search of his residence.   He argued to the trial court that the application for the
search  warrant  lacked  probable  cause  because  it  contained                       “presumptively




No. 97-1511-CR
unreliable”  statements  of  a  police  informant  which  were  not  sufficiently
corroborated by independent police investigation.    He renews the argument on
appeal.   We affirm.
The warrant was issued pursuant to the affidavit of Green County
Sheriff’s Deputy Jeffery Skatrud, which contained an account of the arrest of
Nelson Ellis, who provided the information that led to Robinson’s arrest.   Skatrud
and  other  officers  had  executed  a  search  warrant  at  Ellis’s  home  and  found
equipment and supplies used in the manufacture of controlled substances.   Ellis
was  charged  with  possession  of  marijuana  with  intent  to  deliver  and  with  a
marijuana tax-stamp violation.   After his arrest Ellis told Skatrud that he wished to
provide  information  on  a                                                                  “marijuana  grow”  in  Blanchardville  and  asked  for
“consideration on pending criminal charges.”    After speaking with an assistant
district attorney, Skatrud told Ellis that if the information led to a successful search
warrant and criminal prosecution of the grower, he would recommend that Ellis’s
wife not be charged with being a party to the controlled substance violations and,
further, that Ellis would not be charged with possession of a firearm by a felon.
According  to  Skatrud’s  affidavit,  Ellis  then  provided  specific
information  about  Robinson’s  marijuana-growing  enterprise,  describing  in
considerable  detail  Robinson’s  house  and  the  growing  room,  its  lighting  and
equipment, the plants, and paraphernalia.1    He also described Robinson’s two
1  According  to  Skatrud’s  affidavit,  Ellis  had  visited  Robinson’s  home,  which  he
described in detail, and had
been shown a basement marijuana grow room, concealed in the
corner of Robinson’s basement, where about twelve marijuana
plants were growing.   Robinson also reportedly possessed grow
lights, pots, and other growing equipment.   Ellis continued to
indicate that Robinson possessed … processed marijuana … in
ice cream containers in a freezer in the basement.   Ellis said that
(continued)
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No. 97-1511-CR
automobiles.    Skatrud  verified  Robinson’s  ownership  of  the  automobiles  and
drove past Robinson’s house, ascertaining that it, too, matched the location and
description provided by Ellis.   Skatrud also checked out a prior “tip” received by
his department that Robinson may have been growing marijuana at that location
and researched court records indicating that Robinson had a past arrest for a
marijuana violation.   Finally, Skatrud states in the affidavit that Ellis’s information
about indoor marijuana cultivation—such as growing seasons, seed production,
and heat and light sources—was consistent with his own knowledge gained over
several years’ experience as a narcotics officer.
On the basis of Skatrud’s affidavit, a search warrant was issued for
Robinson’s residence.   There officers found various and sundry items associated
with  the  manufacture  of  controlled  substances—including  dried  and  growing
marijuana plants, heat lamps, and cash and other records relating to the production
and sale of marijuana.
on or about February 20, 1995, Robinson had visited his home
and that Robinson had told him that he was still growing the
plants, with the intent to have them produce seeds.   Robinson
then apparently intended to germinate the seeds, start the plants
and  replant  them  outside  on  his  farm  when  the  weather
permitted.    Ellis indicated that to the best of his knowledge,
Robinson had been growing marijuana outdoors for a long time
and had recently rebuilt his grow room, concealing it in the
corner  of  his  basement.    Ellis  indicated  that  based  on  his
experience growing marijuana, that Robinson would still have
the grow room in operation, as if he was waiting for the plants to
provide seeds, they would not have reached that stage of growth
as of this time. Ellis further indicated that when he had seen the
plants, which he knew to be marijuana plants, that they were one
to two feet in height, and again, would probably not yet [have]
matured to the point that they would produce seeds.   Ellis ….
also indicated that Robinson owns two vehicles that he knows of,
one being an older beat up Chevrolet Malibu, white in color with
wood  grain  sides,  and  the  other  an  older  Chevrolet  station
wagon, maroon in color.
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No. 97-1511-CR
The ultimate test for issuance of a search warrant is whether there is
probable cause to believe that objects linked to the commission of a crime are
likely to be found in the place designated in the warrant.   State v. Ehnert, 160
Wis.2d 464, 470, 466 N.W.2d 237, 239 (Ct. App. 1991).   Stated another way, the
warrant-issuing  magistrate  “must  be  apprised  of  ‘sufficient  facts  to  excite  an
honest belief in a reasonable mind that the objects sought are linked with the
commission  of  a  crime,  and  that  the[y]  …  will  be  found  in  the  place  to  be
searched.’”   State v. DeSmidt,  155 Wis.2d  119,  131-32,  454 N.W.2d  780,  785
(1990)  (quoted source omitted).    The magistrate  “is entitled to go beyond the
averred facts [in the affidavit] and draw upon common sense in making reasonable
inferences from those facts.”    Id. at  135,  454 N.W.2d at  787  (quotations and
quoted sources omitted).
The existence of probable cause is determined by an analysis of the
“totality of the circumstances.”   Id. at 131, 454 N.W.2d at 785 (quoting Illinois v.
Gates, 462 U.S. 213, 238 (1983)).   Because probable cause “is not a technical,
legalistic concept but a flexible, common-sense measure of the plausibility of
particular conclusions about human behavior,” the evidence necessary to establish
its existence in support of a search warrant is less than that required to support a
bindover following a preliminary examination.   State v. Kerr, 181 Wis.2d 372,
379, 511 N.W.2d 586, 588 (1994) (quotations and quoted source omitted).                    “What
is required is more than a possibility, but not a probability, that the [magistrate’s]
conclusion is more likely than not.”   DeSmidt, 155 Wis.2d at 132, 454 N.W.2d at
785 (quotations and quoted source omitted).
Thus, the task of the warrant-issuing magistrate “is simply to make a
practical, common-sense decision whether, given all the circumstances set forth in
the affidavit  …, including the  ‘veracity’ and  ‘basis of knowledge’ of persons
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No. 97-1511-CR
supplying  hearsay  information,  there  is  a  fair  probability  that  contraband  or
evidence of a crime will be found in a particular place.”   Kerr, 181 Wis.2d at 379,
511 N.W.2d at 588 (quoting Gates, 462 U.S. at 238).
A reviewing court will pay  “great deference” to the magistrate’s
determination of probable cause, and his or her determination will prevail unless
the defendant is able to establish that the facts are clearly insufficient to support a
finding of probable cause.   Id. at 380, 511 N.W.2d at 589.   Indeed, the supreme
court has said that “doubtful or marginal cases” should be resolved in favor of the
magistrate’s decision that probable cause existed.   DeSmidt, 155 Wis.2d at 133,
454  N.W.2d  at  786  (quoting  United  States  v.  Ventresca,  380  U.S.  102,  109
(1965)).
Citing generally to State v. Myren,  133 Wis.2d 430,  395 N.W.2d
818  (Ct. App.  1986), Robinson argues that the information Ellis provided was
“presumptively unreliable” because it was given “in consideration for the [S]tate
agreeing not to issue certain charges against [Ellis] and his wife.”   In Myren, a co-
defendant’s  confession  implicated  Myren  in  the  crime  for  which  both  were
arrested.                                                                                  The  co-defendant  also  testified  at  Myren’s  preliminary  hearing,
implicating him in a number of offenses, including the one with which he had
been  charged.     Over  Myren’s  objection,  the  co-defendant’s  confession  and
preliminary-hearing testimony were read to the jury.   On appeal, Myren argued
that  admission  of  the  confession  violated  his  constitutional  right  to  confront
witnesses.   We agreed, quoting as follows from Lee v. Illinois, 476 U.S. 530, 541
(1986): “[W]hen one person accuses another of a crime under circumstances in
which  the  declarant  stands  to  gain  by  inculpating  another,  the  accusation  is
presumptively  suspect  and  must  be  subjected  to  the  scrutiny  of  cross-
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No. 97-1511-CR
examination.”2   Myren, 133 Wis.2d at 436, 395 N.W.2d at 821.   We concluded
that because Myren had no opportunity to face and “contradict” his co-defendant’s
accusations, his confrontation rights were abridged.3
Because Myren involved factual and legal issues wholly distinct
from those before us here, the case is of slight, if any, precedential value.   That is
not to say, however, that an inquiry into Ellis’s veracity and the basis of his
knowledge of the facts he provided to Skatrud is not material to our discussion, for
the supreme court has held that the veracity and basis of knowledge of persons
supplying  hearsay  information  in  support  of  a  search-warrant  application  are
among  the  totality  of  the  circumstances  to  be  considered  in  determining  the
existence of probable cause.   Kerr, 181 Wis.2d at 379, 511 N.W.2d at 588.   It is
equally true that, in considering the reliability of  information provided by an
informant, the totality-of-the-circumstances test permits a strong showing of other
indicia of reliability to compensate for a deficiency in one indicator of reliability.
State v. Anderson, 138 Wis.2d 451, 469, 406 N.W.2d 398, 406 (1987).   We have
also stated, “When an informant is shown to be right about some things he has
alleged, it is probable that he is also right about others,” and “[i]ndependent police
corroboration of the informant’s tip imparts a degree of reliability to the unverified
details.”   State v. Marten, 165 Wis.2d 70, 75, 477 N.W.2d 304, 306 (Ct. App.
2 We went on to note: “The presumption of unreliability may be rebutted and such a
statement  may  meet  Confrontation  Clause  standards  if  it  is  supported  by  a                ‘showing  of
particularized guarantees of trustworthiness.’”  State v. Myren, 133 Wis.2d 430, 436, 395 N.W.2d
818, 821-22 (Ct. App. 1986) (quoting Lee v. Illinois, 476 U.S. 530, 543 (1986)).
3 We rejected—unfortunately without explanation or discussion—the State’s argument
that  the  co-defendant’s  statements  were  trustworthy  because  other  evidence  substantially
corroborated them.   Myren, 133 Wis.2d at 436, 395 N.W.2d at 822.  And we went on to hold that
the error was harmless because of other evidence of Myren’s guilt and his acquittal on three
counts “where there was no physical evidence to corroborate [the co-defendant]’s confession.”
Id. at 442, 395 N.W.2d at 824.
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No. 97-1511-CR
1991).   We also may consider the officer’s experience in similar investigations in
determining the existence of probable cause.   DeSmidt, 155 Wis.2d at 135, 454
N.W.2d at 787.
We are satisfied that Skatrud’s affidavit sufficiently indicates the
overall reliability of the information Ellis provided.   Ellis had personally observed
Robinson’s marijuana-growing operation and, in a conversation occurring just two
weeks before the warrant was issued, Robinson verified that the operation was
ongoing.    Additionally,  as  described  above,  Ellis’s  description  of  Robinson’s
operation was extremely detailed, down to the number and size of the plants, a list
of  equipment  and  drug-related  paraphernalia,  and  the  quantity  of  processed
marijuana on the premises.   As the United States Supreme Court stated in Gates,
462 U.S. at  234,  “[E]ven  [where courts might] entertain some doubt as to an
informant’s motives, his explicit and detailed description of alleged wrongdoing,
along with a statement that the event was observed firsthand, entitles his tip to
greater weight than might otherwise be the case.”   Finally, we note that both Ellis
and Skatrud were quite knowledgeable about the process of growing marijuana.
As to Robinson’s argument that Ellis was seeking favor from the
authorities,  we  agree  with  the  State  that  this  fact  does  not  undermine  the
magistrate’s determination of probable cause for issuance of the warrant.   First,
Skatrud  did  not,  as  Robinson  suggests,                                              “agree”  that,  in  exchange  for  the
information, the State would not charge the additional offenses.   Indeed, we do not
see how Skatrud, a deputy sheriff, on his own could bind the district attorney in
the ultimate charging decision.   Skatrud’s only “agreement”—as he made clear to
Ellis—was that he would recommend to the prosecutor that the additional charges
not be brought.   Second, Skatrud’s recommendation was conditioned upon Ellis’s
information bearing fruit: not only must it lead to the issuance of a warrant and the
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No. 97-1511-CR
seizure of evidence from Robinson’s residence, but the evidence must be sufficient
to permit Robinson to be charged.   Thus, even if these conditions were met—if
Ellis’s  information  led  to  Robinson’s  prosecution—Ellis  would  receive  in
exchange only Skatrud’s recommendation to the district attorney that the two
ancillary charges be dropped.
Nor do we believe, as Robinson suggests, that we must presume that
Ellis was lying to Skatrud.   The police knew Ellis well and had him in custody on
his own drug charges.    Ellis might face additional charges for lying, or, at a
minimum, his misconduct could be used against him in some other fashion—at
sentencing,  perhaps,  or  with  respect  to  parole  consideration.    This  is  not  a
situation, as in Myren and Lee, where a co-defendant’s blame-shifting testimony
was considered suspect.   Ellis was not trying to shift the blame for a joint criminal
act to a co-perpetrator.   He had accepted responsibility for his actions in his own
case, and the circumstances were such that incorrect or false information provided
to the police could only harm him, not help him.
In addition, Skatrud personally corroborated some of the information
Ellis  gave  him—the  location  and  description  of  Robinson’s  house  and
automobiles,  and  Robinson’s  previous  involvement  with  marijuana—and  we
believe this bolsters Ellis’s veracity.    In State v. Falbo,  190 Wis.2d  328,  526
N.W.2d 814 (Ct. App. 1994), a police officer’s affidavit in support of   a search
warrant relied on information from an informant that Falbo was selling cocaine.
The  informant  said  he  had  accompanied  another  man,  Creasy,  in  a  Buick
automobile to an address he said was Falbo’s and waited outside while Creasy
entered the house and came out with a packet of cocaine.   The officer ascertained
Creasy’s full name and address from a telephone book and confirmed that he
owned a Buick.   He also confirmed the address the informant said was Falbo’s and
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No. 97-1511-CR
obtained an “anticipatory” search warrant for Falbo’s residence.   We held that the
officer’s   affidavit—which   was,   as   indicated,   based   on   the   informant’s
information—“established circumstances from which the [officer] could conclude
that  the  information  was  reliable.”    Id.  at                                                          337,  526  N.W.2d  at  817  (citation
omitted).   And we concluded that the affidavit satisfied the test for probable cause.
[The police officer] independently verified the informant’s
information about the type of car Creasy owned and the
street  where  Creasy  lived.                                                                               [He]  also  independently
observed Creasy’s residence and saw a blue Buick on the
premises.     Additionally,  he  confirmed  Falbo’s  address
through the Racine Police Department Record Bureau files
as   well   as   through   the   Wisconsin   Department   of
Transportation.   We conclude that the veracity element of
the probable cause determination is satisfied. 4
Id. at 337, 526 N.W.2d at 817-18.
4 Robinson argues that Falbo is inapposite because it involved an “anticipatory” search
warrant—one that is issued  “before the necessary events have occurred which will allow a
constitutional search of the premises.”   State v. Falbo, 190 Wis.2d 328, 334, 526 N.W.2d 814,
816 (Ct. App. 1994) (quotations and quoted source omitted).   If the events do not transpire, the
warrant is void.   Id.   In Falbo, execution of the warrant was conditioned on surveillance of
Falbo’s house on a certain date, the presence of a Buick at the house, and a man fitting Creasy’s
description entering the residence.  If those conditions were met, the warrant authorized searching
the men and Creasy’s car, and if drugs were found, police could then search Falbo’s residence for
additional drugs and paraphernalia.  Id. at 332-33, 526 N.W.2d at 816.
We agree that an anticipatory warrant—where probable cause is, in effect, established in
stages—differs from the warrant at issue in this case.   Our probable cause analysis, however,
addresses a narrower issue: whether under the totality of the circumstances the complainant’s
statement was reliable.   That was the issue we considered in Falbo: (1) “whether the ... affidavit
established  circumstances  from which  the  affiant  could  conclude  that  the  information  was
reliable”; and (2) “whether the trial court had enough information upon which to determine that
the  underlying  circumstances  or  the  manner  in  which  the  informant  obtained  his  or  her
information was reliable.”   Id. at 337-38, 526 N.W.2d at 817-18.   In framing those “reliability”
issues, we referred to State v. Anderson, 138 Wis.2d 451, 406 N.W.2d 398 (1987), a “regular”
search-warrant  case,  as  this  one  is.    We  consider  our  discussion  of  the  reliability  of  the
information in the affidavit supporting issuance of the warrant in Falbo to be equally applicable
here.    The differences between a  “regular” and an  “anticipatory” search warrant were not
implicated  in  Falbo’s  limited  discussion  of  the  reliability  of  the  informant’s  information
recounted in the affidavit supporting the warrant.
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No. 97-1511-CR
Finally, Robinson makes a cursory argument that Skatrud’s affidavit
was insufficient to establish probable cause that the described items were likely to
be in Robinson’s home at the time of the search because Ellis’s visit to Robinson’s
residence occurred some two months earlier and “no evidence [was] presented to
the magistrate to prove that the grow operation was still progressing.”
As we noted above, the affidavit must provide probable cause to
believe that contraband would be on the premises at the time of the search.   See
DeSmidt,  155 Wis.2d at  131-32,  454 N.W.2d at  785.    Timeliness, of course,
depends on the nature of the underlying circumstances.   Ehnert, 160 Wis.2d at
469, 466 N.W.2d at 239.   Probable cause is, after all, “a fluid concept, turning on
the assessment of probabilities in a particular factual context.”   Id. at 469, 466
N.W.2d at 238 (citation omitted).   And where, as here, the activity involved is of
“a  protracted  and  continuous  nature,  the  passage  of  time  diminishes  in
significance.”   Id. at 469-70, 466 N.W.2d at 239.   Robinson’s enterprise, as Ellis
described it, was not an isolated event but was large in scale and, as Robinson told
Ellis two weeks before the search, ongoing.   Ellis, himself experienced in growing
marijuana, stated that the plants he saw in Robinson’s basement were still several
weeks away from producing seeds,  which  was Robinson’s stated  intention in
growing them.   Skatrud, who also was knowledgeable about marijuana growth and
use, stated that indoor marijuana plants require several months to produce seeds
and the operation Ellis described requires large and bulky equipment that could
not be easily or quickly dismantled and moved.
The totality of the circumstances surrounding the issuance of the
search  warrant  for  Robinson’s  residence  satisfies  us  that  Skatrud’s  affidavit
contained information that was sufficiently reliable, and was such as would excite
an honest belief in a reasonable magistrate’s mind that the sought-after objects
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No. 97-1511-CR
were  linked  with  the  commission  of  a  crime  and  would  likely  be  found  at
Robinson’s home at the time the warrant was to be executed.
By the Court.-Judgment affirmed.
Not recommended for publication in the official reports.
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