STATE OF WISCONSIN SUPREME COURT ____________________________________________________ STATE OF WISCONSIN, Plaintiff-Respondent, v. JAMES MULTALER, Defendant-Appellant. ____________________________________________________ REVIEW OF AN OPINION OF THE WISCONSIN COURT OF APPEALS, DISTRICT I, AFFIRMING A JUDGMENT OF THE MILWAUKEE COUNTY CIRCUIT COURT, THE HON. JEFFREY WAGNER, PRESIDING ____________________________________________________ DEFENDANT-APPELLANT’S BRIEF AND APPENDIX ____________________________________________________ LAW OFFICES OF JEFFREY W. JENSEN 633 W. Wisconsin Ave., Suite 1515 Milwaukee, WI 53203 (414) 224-9484 Attorneys for Defendant-Appellant By: Jeffrey W. Jensen State Bar No. 01012529 1 TABLE OF AUTHORITY Cases Andreson v. Maryland, 427 U.S. 463 (1976) ............................... 7 Aguilar v. Texas, 378 U.S. 108 (1964) ......................................... 10 Bast v. State, 87 Wis.2d 689, 275 N.W.2d 682 (1979) ............... 7 Bastida v. Henderson, 487 F.2d 860 (5th Cir. 1973) .................. 8 Cresci v. State, 89 Wis.2d 495, 278 N.W.2d 850 (1979) .............. 18 Harrell v. State, 88 Wis.2d 546, 277 N.W.2d 462 (Wis.App. 1979) 15 Leroux v. State, 58 Wis.2d 671, 207 N.W.2d 589 (1973) ............ 10 Lincoln Savings Bank, SA v. Wisconsin Department of Revenue, 215 Wis. 2d 430, 573 N.W.2d 522 (1998) .................................... 20 Rice v. Wolff, 513 F.2d 1280, 1285 (8th Cir. 1975) ..................... 7 State v. A.H., 211 Wis. 2d 561, 566 N.W.2d 858 (Ct. App 1997) ............................................................................... 19 State v. Anderson, 149 Wis.2d 663, 439 N.W.2d 840 (Wis.App. 1989) 6 State v. Benoit, 83 Wis.2d 389, 399-400, 265 N.W.2d 298, 303 (1978) 7 State v. Carol M.D., 198 Wis.2d 162, 542 N.W.2d 476 (Ct.App.1995) 18 State v. Davis, 171 Wis.2d 711, 492 N.W.2d 174 (Ct.App.1992) ................................................................................ 18 State ex rel. White v. Simpson, 28 Wis. 2d 590, 137 N.W.2d 391 (1965) 9 State v. Harris, 256 Wis. 93, 39 N.W.2d 912 (1949) ................... 10 2 State v. Hubbard, 206 Wis.2d 651, 558 N.W.2d 126 (Wis.App. 1996) 17 State v. J.E.B., 161 Wis. 2d 655, 469 N.W.2d 192 (Ct. App. 1991) .............................................................................. 18 State v. Johnson, 158 Wis. 2d 352, 463 N.W.2d 352 (Ct. App. 1990) 18 State v. Multaler, 2001 WL 641802 (Ct. App. 2001) ................... 10 State v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646, 292 N.W.2d 807 (1980) ................................................................. 18 State v. Secrist, 224 Wis.2d 201, 589 N.W.2d 387 (1999) ........... 12 State v. Warren, 229 Wis.2d 172, 599 N.W.2d 431 (Ct. App. 1999) .............................................................................. 19 Steele v. United States, 267 U.S. 498 (1925) ................................ 9 Stone v. Powell, 428 U.S. 465 (1976) ........................................... 7 United States v. Boyd, 422 F.2d 791 (6th Cir. 1970) ................. 7 United States v. Brinklow, 560 F.2d 1003 (10th Cir. 1977) ......... 7 United States v. Damitz, 495 F.2d 50 (9th Cir. 1974) .................. 7 United States v. Hyde, 574 F.2d 856 (5th Cir. 1978) ................... 8 United States v. Singleton, 125 F.3d 1097 (7th Cir. 1997) .......... 10 United States v. Steeves, 525 F.2d 33 (8th Cir. 1975) .................. 8 United States v. Tucker, 404 U.S. 443(1972) ............................... 18 United States v. Weinrich, 586 F.2d 481 (5th Cir. 1978) ............. 7 Statutes Sec. 948.12, STATS. ........................................................................ 2 3 4 TABLE OF CONTENTS STATEMENT ON ORAL ARGUMENT AND PUBLICATION .................................................................... 1 STATEMENT OF THE ISSUE ....................................................... 1 STATEMENT OF THE CASE I. PROCEDURAL BACKGROUND ....................................... 2 II. FACTUAL BACKGROUND .............................................. 3 ARGUMENT ................................................................................... 6 I.. THE AFFIDAVIT SUBMITTED IN SUPPORT OF THE APPLICATION FOR A WARRANT TO SEARCH MULTALER’S HOME ON ARROW STREET WAS INSUFFICIENT TO ESTABLISH PROBABLE CAUSE AND INCLUDED FALSE INFORMATION WHICH WAS MATERIAL TO THE COURT’S PROBABLE CAUSE DETERMINATION ....................... 6 II. THE INFORMATION WAS MULTIPLICITOUS ... 16 CONCLUSION ............................................................................. 23 APPENDIX 5 STATEMENT ON ORAL ARGUMENT AND PUBLICATION The issues presented by this appeal are complex and, therefore, oral argument will materially assist the court in deciding the matter. Likewise, the issues are of statewide importance and, therefore, publication is recommended. ISSUES PRESENTED I. Whether, based upon the affidavit of a police detective, probable cause existed in 1998 for the issuance of a search warrant to search Multaler’s home for evidence of a series of strangulation deaths of young women in the Milwaukee area which occurred in the early 1970s where: A. The existence of probable cause to search depended upon there being probable cause to believe that Multaler was the killer of the women; and, B. There being probable cause to believe that Multaler was a “serial killer”; and, C. There being probable cause to believe that Multaler would still possess items of personal property belonging to the victims after twenty-four years despite the fact that Multaler had been incarcerated in prison for nearly ten of those twenty-four years. The issue was presented to the Court of Appeals in the following manner: I. Whether the affidavit presented in support of the state’s application for a warrant to search Multaler’s home established probable cause to believe that Multaler was in possession of the items sought and that the items were likely to be found in the area searched. ANSWERED BY THE TRIAL COURT: Yes. The Court of Appeals held that the affidavit of the investigating detective did establish probable cause to search Multaler’s home. While recognizing that, in some instances, the facts were more than twenty years old, the majority held that, “[T]he ‘old’ evidence was not stale; it had been revived by (the detective’s) . . . fresh analysis of ‘the nature of the criminal activity’ and the nature of the evidence that, Hanrahan reasonably believed, remained at Multaler’s residence.” (Opinion p. 14). 6 II. Whether the criminal complaint filed against Multaler alleging twenty-eight counts of possession of child pornography was multiplicitous for the reason that the state charged an additional count for each pornographic digital image found on two computer diskettes seized from Multaler’s home. ANSWERED BY THE TRIAL COURT: No. This issue was presented to the Court of Appeals in an identical fashion and the court held that the criminal complaint was not multiplicitous. STATEMENT OF THE CASE I. PROCEDURAL BACKGROUND. The defendant-appellant in this case, James Multaler (hereinafter referred to as “Multaler”), was originally charged with numerous counts of possession of child pornography contrary to sec. 948.12, STATS. 1 The complaint alleged that police raided Multaler’s home with a search warrant 2 and during the process of the search discovered two computer diskettes which contained images of children engaged in explicit sexual acts. The state charged one count for each separate image found on the diskette. (R:2) Multaler entered pleas of not guilty to all counts. He then filed a motion suppress all evidence on the grounds that the affidavit filed in support of the application for the search warrant failed to establish probable cause to believe that the items would be located in Multaler’s home. (R:8). The parties filed a number of briefs on the issue and the court eventually denied the motion by written decision. (R:43-3; R:12 attached hereto as Exhibit B). 1 948.12 Possession of child pornography. Whoever possesses any undeveloped film, photographic negative, photograph, motion picture, videotape or other pictorial reproduction or audio recording of a child engaged in sexually explicit conduct under all of the following circumstances is guilty of a Class E felony: (1) The person knows that he or she possesses the material. (2) The person knows the character and content of the sexually explicit conduct shown in the material. (3) The person knows or reasonably should know that the child engaged in sexually explicit conduct has not attained the age of 18 years. 2 The search warrant was issued based upon a finding of probable cause by a judge in Racine County that Multaler’s home might contain evidence of a series of strangling murders in the Milwaukee and Racine area during the 1970’s. 7 The information was later amended to allege twenty-eight counts and Multaler pleaded no contest pursuant to Alford (i.e. maintaining his innocence) to all twenty-eight counts (R:47-2). The court sentenced Multaler to the maximum of two years in prison on each count, consecutive, for a total of fifty-six years in prison. (R:24; R:48-45). Multaler then filed postconviction motions alleging that the criminal complaint was multiplicitous because it alleged an additional count for each digital image contained on the diskettes. He also alleged that the sentence imposed by the court was unduly harsh. The court denied both motions by memorandum decision without a hearing. (R:34). Multaler timely filed a notice of appeal to this court. II. FACTUAL BACKGROUND In May of 1998 police detectives for the City of Racine were still attempting to solve a series of strangulation murders of young women which occurred on Milwaukee’s south side in 1974-1975. Three of the bodies were located near the Root River in Racine County. (R:8; affidavit attached as Exhibit C). On May 18, 1998 Investigator John Hanrahan signed an affidavit3 in support of an application made to the Racine County Circuit Court for a warrant to search Multaler’s residence at 1858 W. Arrow Street in the City of Milwaukee. The affidavit may be summarized as follows. In a relatively short period of time in 1974 four young women were found dead in Milwaukee County and in Racine County. In two of the deaths it was determined that the cause was “ligature strangulation.” (i.e. the use of a cord or some similar implement to strangle the victim). Three of the women were found near the Root River in Racine County in a similar condition with their clothing pulled up over their breasts. In none of the cases was there evidence of sexual assault. According to Hanrahan, each of the victims were missing items of personal property which, according to witnesses interviewed by Hanrahan, the victims were very likely to have had on their person at the time of their deaths. Police also found at one of the scenes a “bungee” cord which had one of its hooks bent into an “L” shape. Unless otherwise noted, all of the following facts are taken from Investigator Hanrahan’s affidavit which is attached hereto as Exhibit C 3 8 Additionally, the affidavit recited that in 1975 Debra Whitaker was traveling alone in her vehicle on I-94 in Milwaukee County when a man approached her from behind in a vehicle and through a loudspeaker ordered her to pull over claiming that he was a state police officer. Whitaker pulled over but when she questioned the man he pulled pistol and forced her into his automobile. He handcuffed her to the steering wheel. Whitaker asked the man to turn off the headlights of her car and when the man did so she drove away in his vehicle. She immediately located a police officer who went back to the scene. Multaler was arrested and convicted of the kidnapping of Whitaker. Hanrahan also alleged that he interviewed a former girlfriend of Multaler, Mary Fairbanks, who claimed that she dated Multaler in 1970 and that in order to become sexually aroused Multaler needed to place his fingers on her neck until she lost consciousness. Fairbanks also claimed that she had seen Multaler with a bungee cord with one of its hooks bent into an “L” shape. Another former girlfriend, Audrey Novak, stated that she dated Multaler in 1975 and that it was his habit to choke her during sexual intercourse and that on several occasions she lost consciousness. Finally, the affidavit also alleged that police interviewed Multaler’s current wife, Patricia, in 1975 and that she also told police that Multaler choked her during sex. The affidavit then restates at some length the status of the police investigation in 1975. Hanrahan claims that police interviewed Multaler regarding one of the victims, Wendy Gail Brown, and that Multaler admitted to being with her on the night she was murdered but that he claimed not to know what happened to her. Additionally, the affidavit alleges that Multaler kept a scrap book of news reports concerning the victims of the so-called “South Side Strangler.” Hanrahan claimed that the Milwaukee District Attorney received in the mail a copy of a newspaper article detailing Multaler’s arrest for the Whitaker kidnapping with a handwritten note reading, “This man is the South Side Killer (7 Mile Rd.) He has raped 36 girls”. According to the affidavit, the handwriting was analyzed and determined to be Multaler’s. The affidavit concludes by reciting that Hanrahan has read a number of books concerning serial killers and that he has attended a number of symposia on the topic. Based on this research, Hanrahan alleged that serial killers will frequently keep newspaper clippings and personal items from their victims and at great risk to themselves maintain them. According the books, this is to permit the killer to relive his experiences. 9 Significantly, the affidavit alleges that, “James I. Multaler resides at 1858 West Arrow Street in the City of Milwaukee, and has resided there since this investigation. Your affiant states that Milwaukee Police reports indicate that the suspect has resided at the same residence with his wife and daughter for over twenty years.” (paragraph 76). At a motion hearing Multaler established that he had not lived at that address with his wife for twenty years. Rather, at the time of the murders he was living at a different address and that during that period of time he also spent significant amounts of time in prison. (R:6). Upon this showing, the Racine County Circuit Court issued a search warrant for Multaler’s home in Milwaukee. The stated purpose was to search for items of personal property belonging to the murder victims. Police executed the search warrant and did not find any evidence connecting Multaler to the stranglings. They did, however, find two computer diskettes which contained a number of images of child pornography. 10 ARGUMENT I. THE AFFIDAVIT SUBMITTED IN SUPPORT OF THE APPLICATION FOR A WARRANT TO SEARCH MULTALER’S HOME ON ARROW STREET WAS INSUFFICIENT TO ESTABLISH PROBABLE CAUSE AND INCLUDED FALSE INFORMATION WHICH WAS MATERIAL TO THE TRIAL COURT’S PROBABLE CAUSE DETERMINATION. Probable cause to search Multaler’s home in this case depends upon a rather lengthy syllogism: (1) That “serial killers” tend to retain mementos taken from their victims; (2) That serial killers tend to retain such mementos indefinitely even after they are no longer killing victims; (3) That James Multaler is a serial killer; (4) That James Multaler killed the victims alleged in the affidavit; and, therefore, mementos from the victims are likely to still be in Multaler’s home twenty-four years after the last victims was killed despite the fact that Multaler had been in prison for a lengthy period of time after the murders. The affidavit filed in support of the search warrant application fails to establish probable cause on three important points: (1) That Hanrahan was an expert in detecting serial killers such that the issuing judge was permitted to accept Hanrahan’s opinions concerning the propensities of serial killers; (2) Even if Hanrahan’s opinions are sufficient, there was no probable cause to believe that Multaler was the person who strangled the four victims; much less that he is a serial killer (however that term is defined) who is likely to remove items of personal property from a victim and save them); and, (3) That, under the circumstances of this case, Multaler is likely to have maintained possession of any such items for nearly twenty-four years. As will be set forth in more detail below, in order to establish that Multaler ever had possession of the personal items there must be probable cause to believe that he is the killer and there is not. Moreover, even if he did at some point have possession of the items, the information in the affidavit is stale- that is, there is no reason to believe that the items would still be located in Multaler’s home. On review of a denial of a suppression motion, (the appellate court) will uphold the trial court's findings of historical fact unless they are against the great weight and clear preponderance of the evidence. Jackson, 147 Wis.2d at 829, 434 N.W.2d at 388. This is the equivalent of the "clearly erroneous" test set forth in sec. 805.17(2), Stats. Noll v. Dimiceli's, Inc., 115 Wis.2d 641, 643, 340 N.W.2d 575, 577 (Ct.App.1983). Whether those facts satisfy the constitutional requirement of reasonableness presents a question of law, and therefore 11 we are not bound by the trial court's decisions on that issue. (citation omitted). State v. Anderson, 149 Wis.2d 663, 439 N.W.2d 840, 847 (Wis.App. 1989). Here, no findings of fact were made by the trial court. Rather, the trial court merely applied the facts alleged in the affidavit to the constitutional standard of reasonableness under the Fourth Amendment. Therefore, this court reviews the matter as a question of law and the court need pay no deference to the determination of the trial court. Probable cause must exist, at the time the warrant is issued, to believe that the objects sought would be found at the defendant’s residence. Rice v. Wolff, 513 F.2d 1280, 1285 (8th Cir. 1975), rev'd on other grounds sub nom. Stone v. Powell, 428 U.S. 465 (1976); United States v. Damitz, 495 F.2d 50, 54 (9th Cir. 1974): United States v. Boyd, 422 F.2d 791, 792 (6th Cir. 1970). It is not required, however, that the judge “determine whether in fact the items to be searched for are located at the premises to be searched, but only whether there is reasonable ground to believe that they are there.” Damitz, 495 F.2d at 55 (emphasis in original) (footnote omitted). Accord, State v. Benoit, 83 Wis.2d 389, 399-400, 265 N.W.2d 298, 303 (1978). The judge is permitted to make the usual inferences reasonable persons would draw from the facts presented. Bast v. State, 87 Wis.2d 689, 692-93, 275 N.W.2d 682, 684 (1979). However, probable cause ceases to exist when it is no longer reasonable to presume that items, once located on the premises, are still there. United States v. Brinklow, 560 F.2d 1003, 1005 (10th Cir. 1977), cert den. 434 U.S. 1047 (1978). The analysis to be employed in determining whether facts are too stale to give rise to probable cause was discussed in United States v. Weinrich, 586 F.2d 481, 49u (5th Cir. 1978), cert den. 441 U.S. 927 (1979). There, the court explained: The function of a staleness test in the search warrant context is not to create an arbitrary time limitation within which discovered facts must be presented to a magistrate. Rather, the assay focuses on one relevant part of the determination that reasonable probable cause exists to warrant the issuance of an order to perform a wiretap or make a search. Out-of-date information as to a single transaction could be seen to describe no more 12 than an isolated event in the past. Such an affidavit would not create probable cause to believe that similar or other improper conduct is continuing to occur. On the other hand, information which demonstrates a chain of related events covering a broad span of time continuing to the current period may furnish a most reliable indicia of present activity, thereby clearly demonstrating that probable cause exists for the order to intrude. Staleness is therefore an issue which must be determined on the particular facts of the case. The factors which must be considered are: (1) the lapse of time involved; (2) the nature of the criminal activity; and (3) the kind of property to be searched for and seized. United States v. Steeves, 525 F.2d 33, 38 (8th Cir. 1975). The interplay of these factors determines whether the recitations in the affidavit are too stale to support a finding of probable cause. Thus, while the element of time is “crucial,” Brinklow, 560 F.2d at 1005, “a mechanical count of the days is of little assistance in this determination.” United States v. Hyde, 574 F.2d 856, 865 (5th Cir. 1978). It is reasonable to suppose, for example, that business records will be maintained for an extensive period of time, and a three month delay in obtaining warrants to seize such records has been held not to preclude a determination that the records will probably be found if a search is conducted. Andreson v. Maryland, 427 U.S. 463, 478 n. 9 (1976). Similarly, if an affidavit recites “a mere isolated violation” it can be reasonably presumed that 'probable cause quickly dwindles with the passage of time. If the affidavit sets forth activity indicating “protracted or continuous conduct,” however, the passage of time becomes less significant. Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir. 1973). The test to be used to determine whether the relationship of the factors is such that the information in the affidavit is too stale to support a finding of probable cause “is one of common sense.” Brinklow, 560 F.2d at 1006. A. There are no facts set forth in the affidavit to support Hanrahan’s “mementos” opinion. The lynchpin in the probable cause syllogism is Hanrahan’s opinion that serial killers tend to maintain mementos from their victims. Here, that lynchpin is faulty because there is no factual basis stated in the affidavit to support the opinion. As will be set forth in more detail below, it is undisputed that a court may consider the opinions and inferences of the affiant in an application for a search warrant; however, it is imperative that a factual basis be 13 established for the the affiant’s opinion- otherwise, the court is left with no means of evaluating the opinion. When that happens the probable cause determination is made not by an impartial magistrate but, rather, by a police officer engaged in the competitive enterprise of ferreting out crime. Here, Hanrahan has no personal experience in investigating serial killers. Rather, everything he knows was told to him by some other person (i.e. books, speakers at symposia, etc). Nowhere does the affidavit recite that any of the experts in the area of serial killers hold the opinion that serial killers keep mementos. Rather, this “mementos opinion” is apparently Hanrahan’s own opinion and there is no factual basis in the affidavit for him to hold such an opinion. As such, the court must reject it. It is a rule of long standing that, The magistrate may not accept without question the suspicions or conclusions of a complainant but, on the contrary, must determine the existence of probable cause after being apprised of the relevant facts. In performing this function, the magistrate or court commissioner serves as a judicial officer and must act in a neutral and detached manner. He must receive an adequate answer to this hypothetical question: 'What makes you think that the defendant committed the offense charged?' Jaben v. United States (1965), 381 U.S. 214, 224, 85 S.Ct. 1365, 1371, 14 L.Ed.2d 345. (emphasis provided). State ex rel. White v. Simpson, 28 Wis.2d 590, 137 N.W.2d 391, 393 (Wis. 1965). It is not disputed that the experience and special knowledge of police officers who are applying for a search warrant are among the facts which may be considered. Steele v. United States, 267 U.S. 498 (1925). “There would be little merit in securing able, trained men to guard the public peace if they could not conclude from what they saw, heard and smelled, that the law was being violated. State v. Harris, 256 Wis. 93, 39 N.W.2d 912, 916 (Wis. 1949). Additionally, some federal courts have recognized that probable cause to search may be based upon who the subject of the warrant is (i.e. drugs are likely to be kept where drug dealers live). United States v. Singleton, 125 F.3d 1097, 1102 (7th Cir.1997). Nonetheless, the facts upon which the applicant for a search warrant bases his opinion must appear in the record, Harris, supra. Otherwise, "[T]he inferences from the facts which lead to the complaint will be drawn not ‘by a neutral and detached magistrate,’ as the Constitution requires, but instead, by a police officer ‘engaged in the often competitive enterprise of ferreting out crime’.” Aguilar v. Texas, 378 U.S. 108, 115 (1964). 14 Here, the Court of Appeals specifically relied upon Hanrahan’s “training and research.” State v. Multaler, 2001 WL 641802*16 (Wis.App. 2001); Appendix A. This “training and research” is set forth in paragraphs sixty through sixty-seven of Hanrahan’s affidavit (Appendix B) and amounts to him having attended several symposia on the topic of serial killers and having read a number of books on the topic. Significantly, the affidavit does not allege that Hanrahan has any personal experience in investigating serial killers. The sort of “propensity” opinion testimony at issue here presents a special challenge in a probable cause context. The law requires that the issuing judge be presented with the underlying facts upon which a police “propensity” opinion is based in order that the judge may draw his own conclusion- this is so that the court is not forced to blindly accept the opinion of the officer. It is very significant that Hanrahan’s opinion in this case is not based upon personal experience but, rather, on what he has read and what he has been told- in other words, it is based purely upon hearsay. Hearsay may be used to support probable cause but there must be some showing in the affidavit that the hearsay is reliable. Here, the affidavit lists in detail the sources from which Hanrahan received information, it does not set forth any of the information provided by each source. Rather, the affidavit merely recites the names of the books and the names of the symposia to which Hanrahan was exposed and then, in paragraph 68, Hanrahan states, “[T]hat based on his training and research, serial homicide offenders often take clothing, jewelry and other property . . .” The opinion, apparently, is Hanrahan’s own and is not something which was told to him by the persons with experience. The affidavit does not state, for example, that Robert D. Keppel, Ph.D. (mentioned in paragraph 63) discovered that Ted Bundy kept mementos from his victims, or that the Green River Murderer kept mementos from each of his 49 victims. The “mementos” opinion, according to the affidavit, is Hanrahan’s own opinion and it is not possible to determine how he arrived at it. One thing is for sure, the opinion was not arrived at through Hanrahan’s own experience. In other words, just because Hanrahan has read a few books on serial 15 killers does not mean that is permitted to offer any opinion at all concerning serial killers and that the trial court is obligated to accept that opinion without question. On the contrary, the trial court is required by law to question the basis for any opinion offered in an affidavit in support of a search warrant. Here, it is impossible to know whether the “mementos” opinion is based upon what some other investigator specifically told Hanrahan based upon an actual investigation or whether this is just some inference drawn by Hanrahan personally from what he has read. There simply is no way to judge the accuracy of the opinion and where there is no factual basis upon which to judge the accuracy of the opinion the court must reject it. B. There is no probable cause to believe that Multaler committed the murders and, in the absence of such probable cause, there cannot be probable cause to believe that his home contains evidence of the crimes. Even if one accepts the opinion that serial killers tend to maintain mementos of their victims, in this case there must also be probable cause to believe that Multaler killed the specific victims alleged and that he is a serial killer. As mentioned above, in order to issue a search warrant there must be probable cause to believe that the defendant’s home contains evidence of a crime. Under the facts of this case, then, it necessarily follows that in order for there to be probable cause to believe that Multaler’s home contains the personal items of the murder victims there must be probable cause to believe both that Multaler is the murderer and, further, that he is a “serial killer”. That is, the only way Multaler could have possession of the personal items of the victims at all is if he is the one who killed them; and, further, the only way the items are likely to still be in Multaler’s home is if he is a “serial killer” with the propensity to retain personal items of the victims. Therefore, the affidavit must establish probable cause to believe both that Multaler is the murderer and that he is a “serial killer.” On this point, the Court of Appeals wrote: First, the facts in Investigator Hanrahan's affidavit easily defeat Multaler's challenge to the circuit court's probable cause determination that he had killed the four females. Without revisiting all the details here, and having summarized the most salient portions of the affidavit in the factual background of this opinion, we merely observe that the affidavit carefully and comprehensively connected Multaler to the apparent murders. It related evidence, both direct and circumstantial, 16 that provided the circuit court with a substantial basis for finding probable cause to believe that Multaler had committed the apparent murders. State v. Multaler, 2001 WL 641802 *6; (Appendix A). Contrary to the opinion of the Court of Appeals, though, it is necessary to revisit all of the details. The details of this case do not “carefully and comprehensively” connect Multaler to the crimes. In , State v. Secrist, 224 Wis.2d 201, 589 N.W.2d 387, 391 (Wis. 1999) the Supreme Court of Wisconsin explained: It may be helpful at the beginning of our analysis to note the distinction between probable cause to search and probable cause to arrest. (FN6) Generally, the same quantum of evidence is required whether one is concerned with probable cause to search or probable cause to arrest. State v. Kiper, 193 Wis.2d 69, 82, 532 N.W.2d 698 (1995) (citing 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 3.1(b), at 544 (2d ed.1987)). However, while the two determinations are measured by similar objective standards, the two determinations require different inquiries. Under an analysis of probable cause to search, the relevant inquiry is whether evidence of a crime will be found. See 2 LaFave, Search and Seizure, § 3.1(b), at 7-8 (3rd ed.1996). Under an analysis of probable cause to arrest, the inquiry is whether the person to be arrested has committed a crime. See id. The affidavit goes into great length concerning suspicious circumstances surrounding Multaler and the stranglings; however, there is no basis to conclude, even to the level of probable cause for a search warrant, that Multaler is the one who committed the crimes. Obviously, then, there is no probable cause to believe that Multaler is a serial killer. On this point, the salient details fall into one of four categories: (1) Facts tending to establish Multaler’s unusual sexual proclivities; (2) Facts tending to establish Multaler’s interest in the cases; (3) Facts establishing opportunity for Multaler to have committed the crimes; and (4) Facts gleaned from books concerning the investigation of serial killers. Concerning the first category, the unusual sexual proclivities, the affidavit recites numerous facts tending to establish that Multaler evidently had a habit of choking women with whom he was having sexual intercourse (see, e.g. para. 43). In what is supposed to be privileged communications, Multaler told doctors at the Central State Hospital that he enjoys “playacting” with women concerning strangulation and that this 17 sexually arouses him. This information has almost no tendency to establish that Multaler is the killer. Firstly, the affidavit alleges no cause of death for Wendy Gail Brown nor for Sherry Lynn Moriarity. The cause of death for Cynthia Franckowiak and Susan Wicinski was ligature strangulation. There are no facts alleged from which it may be inferred that the deaths were in any way sexually motivated. The closest the affidavit comes is to allege that semen was found in the vagina of Sherry Moriarity (para. 80) and that two of the women had their shirts pulled up over their breasts. Thus, any unusual sexually proclivities on the part of Multaler make it no more or less likely that he is the killer. More importantly, though, the affidavit consistently alleges that the victims were strangled to death using a ligature of some sort. None of the women who were interviewed for the affidavit stated that Multaler used any sort of a ligature on them- much less did he strangle them to death. Rather, according to the affidavit Multaler used his fingers on the necks of the women (see para. 43, 42, 49, 30). Therefore, Multaler’s sexual proclivities are inconsistent with the evidence of the cause of death of the victims. The second category of facts in the affidavit is that Multaler may have had an interest in the cases. It is alleged that he kept a scrap book of newspaper clippings and that he may have inquired of a television station concerning video footage. An interest in the cases, even as part of the “totality of the circumstances” lends nothing to the probable cause determination as to whether Multaler is the killer. Finally, the third category of facts, that Multaler may have had an opportunity to kill the women is, basically, meaningless since thousands of people in Milwaukee were also in the same general area of the murders. The affidavit alleges that Multaler has frequented Racine County and that is where the bodies were found (para. 45). It also alleges that Multaler frequented places which were within blocks of where two of the bodies were found (para. 50, 52). Plainly, the fact that Multaler has been near the areas where the bodies were found does nothing the establish that he is the killer. That fact also applies to thousands of other people. Even taking all of these facts together (the so-called “totality of the circumstances”) and even taking into account the fourth category of facts in the affidavit (the information about serial killers) it does nothing more than make Multaler suspicious; and, as has been oft repeated, “Probable cause . . . requires more than an officer's subjective good faith belief or mere 18 suspicion.” Leroux v. State, 58 Wis.2d 671, 207 N.W.2d 589, 596 (Wis. 1973). If one is unable to conclude even to the level of probable cause that Multaler is neither the murderer nor a “serial killer” then it is logically impossible for there to be probable cause to believe that the personal items of the victims would be located in Multaler’s home. 19 C. Even if probable cause did exist to believe that Multaler was the murderer and a serial killer, the information in the affidavit was stalethat is, no inference may be drawn that the items would still be located in Multaler’s home. Even if this court were to assume, for the sake of discussion, that Multaler is the “South Side Killer” as insinuated in the affidavit, there still was no probable cause to believe the items would still be located in Multaler’s home some twenty-three years later. That is, the information in the affidavit is stale. The cases point out that the passage of time is critical but that it cannot be measured purely in the number of days, weeks, or years which have passed. The passage of time must be measured against the nature of the criminal activity involved and the sort of item which the police are attempting to find in the defendant’s home. Significantly, the courts have mentioned that where there is continuing or protracted criminal activity the passage of time is less important. Here, Paragraph 74 of the affidavit acknowledges, “[A]fter Multaler’s arrest for the kidnapping of Debra Whitaker, these strangulations stopped.” Multaler was arrested for the Whitaker case in 1975. Although he was imprisoned for a period time after that, he was also free for a significant period of time and still there were no additional stranglings. As such, there is no basis to conclude that the criminal behavior alleged in the affidavit was ongoing or protracted. Thus, the immense passage of time, combined with the fact that even if Multaler was a serial killer at some point in his life, he has controlled his impulses for a lengthy period of time continuing up to the present time, makes it virtually impossible that he would still have possession of the items that the state is looking for. Firstly, retaining possession of the victims’ items, according to the affidavit, is a propensity unique to a serial killer. Under the facts alleged in the affidavit there is no reason to believe that Multaler engaged in this sort of behavior for many years. Thus, there is no reason to believe that he continued to need possession of the items. More importantly, though, is the fact that Multaler was imprisoned for a period time after 1975. Thus, in order to maintain possession of these items it would have required the cooperation of Multaler’s friends and family. Under the facts of the affidavit, Multaler’s wife (at the time she 20 was a girlfriend), Patricia, was interviewed by police. Patricia made numerous statements to police which portrayed Multaler in a very negative light (i.e. choking, etc., see para. 43) but, significantly, she never mentioned to police finding any items of women’s property in her home. It simply is not reasonable to infer, given the information provided by Patricia to the police, that she would hide such a fact in order to protect Multaler. Also, the appellate courts have instructed that the “nature of the items” must also be considered. For example, business records might be expected to be retained longer than other items. Here, the items listed are things such as B-B sized ear rings, perfumes bottles, and the like. The odds of such things being retained by any person for any reason over the course of twenty years are exceedingly remote. Add to this the fact that Multaler was also in prison for nearly ten of the twenty-four years and it makes it virtually impossible that those sorts of small personal items could still be found in Multaler’s home in 1998. Therefore, the court should find that the affidavit filed in support of the application for the warrant to search Multaler’s home did not establish probable cause to believe that the items of personal property belonging to the victims would be located there. As such, all evidence seized by police during the search of Multaler’s home should have been suppressed. II. THE INFORMATION WAS MULTIPLICITOUS. It was not the legislature’s intent in creating sec. 948.12, STATS., (possession of child pornography) that the allowable unit of prosecution be for each image possessed; rather, like other contraband statutes, in order to charge a separate count there must be a significant difference in time or a significant difference in the nature of the conduct. Thus, since Multaler was found in possession of diskettes, without any significant difference in time or in the nature of the conduct, the allowable unit of prosecution is one. A. Multaler’s multiplicity claim was not waived by his Alford plea. Normally, a guilty or no contest plea waives all non-jurisdictional defects. However, because Multaler’s multiplicity claim may be determined by the matters of record this court must consider it. 21 The fact that Multaler’s double jeopardy claim was not waived by his no contest pleas is apparent from a reading of State v. Hubbard, 206 Wis.2d 651, 558 N.W.2d 126, 129 (Wis.App. 1996) where the court explained, In Broce, the defendants claimed double jeopardy as part of a collateral attack on allegedly multiplicitous charges, and a determination of the double jeopardy [206 Wis.2d 656] issue would have required the court to go beyond the record. Id. at 574-76, 109 S.Ct. at 764-66. Here, Hubbard's claim is on direct appeal from convictions where the potential double jeopardy violation is facially ascertainable on the record without supplementation. We conclude that Hubbard's no contest pleas establish his "factual guilt" on the six counts but do not bar his claim that, judged on their face, the charges violate double jeopardy. See Menna v. New York, 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 242 n. 2, 46 L.Ed.2d 195 (1975). (emphasis provided) Here, the facts of what Multaler pleaded guilty to are well-established- the police found two computer diskettes in his house which contained numerous individual digital images of child pornography. In his postconviction motion Multaler merely argued that his numerous convictions for child pornography violated the double jeopardy clause because the plain language of the statute involved makes it clear that the legislature intended the unit of prosecution to be for each separate medium containing illegal images- not for each separate image. There is absolutely no need to go beyond the record in order to decide the motion. Rather, Multaler encourages the court to primarily examine the language of the statute. Before the Court of Appeals, the State argued that waiver of multiplicity claims based upon the charges violating the will of the legislature should be treated differently than waiver of multiplicity claims based upon a double jeopardy violation. There is no reason in logic to distinguish between the two forms of multiplicity challenges. A guilty plea waives all non-jurisdictional defects including claims of constitutional error. State v. Princess Cinema of Milwaukee, Inc., 96 Wis.2d 646, 651, 292 N.W.2d 807, 810 (1980). However, the Hubbard decision carved an exception to the waiver rule for multiplicity challenges not because some claims are constitutional in nature but, rather, because the claims may be determined on the record without supplementation. 558 N.W.2d at 128, 129. Secondly, it would be a monumental waste of judicial resources to 22 require a defendant to go to trial in order to preserve his appellate rights where his only claim is that the charges are multiplicitous because they violate the will of the legislature. Moreover, there are circumstances where, as in this case, such a requirement might violate due process. As part of the plea agreement the state agreed to dismiss numerous counts. It would certainly seem unfair to force Multaler to choose between taking advantage of the plea agreement or giving up his appellate rights on the issue of multiplicity. B. The charges are multiplicitous Charges are multiplicitous if they are identical in law and in fact. See State v. Davis, 171 Wis.2d 711, 716, 492 N.W.2d 174, 176 (Ct.App.1992). Because Multaler was charged with multiple violations of § 948.12, STATS., those charges are the same in law. See Davis, 171 Wis.2d at 716, 492 N.W.2d at 176. However, whether they are the same in fact depends upon whether one count requires proof of an additional fact which the other does not. See id. Offenses are different in fact if they are separated in time, are significantly different in nature, or if each involves a separate volitional act. See id. at 717, 492 N.W.2d at 176. Separate volitional acts occur when there is sufficient time between the acts for the defendant to reflect upon his or her actions and recommit himself or herself to the criminal activity. See id. at 717-18, 492 N.W.2d at 176. Significantly, though, where a defendant is charged with multiple offenses which are the same in law but different in fact may still be multiplicitous if the legislature intended that only a single count should be charged. See State v. Carol M.D., 198 Wis.2d 162, 173, 542 N.W.2d 476, 480 (Ct.App.1995). Where the statute in question does not specifically state the allowable unit of prosecution the court must, “[C]onsider four factors to ascertain legislative intent: (1) the statutory language; (2) the legislative history and context; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishment. State v. Warren, 229 Wis.2d 172, 599 N.W.2d 431,438 (Wis.App. 1999). B. The statutory language makes plain that it is the possession of the medium containing the pornographic images which is the allowable unit of prosecution. The relevant language of sec. 948.12, STATS., is as follows: “Whoever possesses any undeveloped film, photographic negative, photograph, motion picture, videotape or other pictorial reproduction or audio recording of a child engaged in sexually explicit conduct . . . . .” is 23 guilty. Two points are very significant in determining the allowable unit of prosecution under sec. 948.12, STATS. Firstly, the legislature chose to itemize each medium on which a pornographic might be contained (i.e. film, photographic negative, etc.) Thus, it is plainly the possession of the medium containing the images which is outlawed. More importantly, though, is the fact that if the legislature intended that the allowable unit of prosecution to be for each image possessed, they would certainly have said so. In that case the statute would read, “Whoever possesses an image,. in whatever form, of a child engaged sexually explicit conduct is guilty . . . “ The Court of Appeals rejected Multaler’s argument in this regard focusing upon the “pictoral reproduction” phrase of the statute and also upon the legislative history. Moreover, the Court of Appeals relied upon its own comment in another context that, “[W]e are satisfied that the focus of the inquiry under the statute is the content of the photograph and how it was produced, not the particular location or manner in which it is ultimately stored or kept by the person possessing it.” State v. A.H., 211 Wis.2d 561, 566 N.W.2d 858, 860 (Wis.App. 1997) The Wisconsin Supreme Court, though, has not made a similar observation nor should such an observation be made in this case. The words of a statute must be given their plain meaning and the appellate court may refer to extrinsic aids only when the statute is vague. Here, the statute is not vague. Furthermore, under the principle expressio unius est exclusio alterius since the statute does not read, “Whoever possess an image, in whatever form, of a child engaged in sexually explicit conduct . . .” that interpretation is excluded. It is so well known that it is practically unnecessary to repeat it that: The purpose of statutory interpretation is to discern the intent of the legislature. See State ex rel. Jacobus v. State, 208 Wis.2d 39, 47-48, 559 N.W.2d 900 (1997). To discern that intent, we first consider the language of the statute. If the language of the statute clearly and unambiguously sets forth the legislative intent, we apply that intent to the case at hand and do not look beyond the legislative language to ascertain its meaning. See Kelley Co., Inc. v. Marquardt, 172 Wis.2d 234, 247, 493 N.W.2d 68 (1992); see also UFE Inc. v. LIRC, 201 Wis.2d 274, 281-82, 548 N.W.2d 57 (1996). Lincoln Sav. Bank, S.A. v. Wisconsin Dept. of Revenue, 215 Wis.2d 430, 24 573 N.W.2d 522, 527 (Wis. 1998). The reasoning of the Court of Appeals makes it apparent that the appellate court understood “reproduction” to be synonymous with image. This is simply not the case. The definition of “reproduction” is: re·pro·duc·tion [rpr dúkshn] (plural re·pro·duc·tions) noun 1. copy of object: a copy of something in an earlier style, especially a painting or a piece of furniture 2. reproducing of something: the act or process of reproducing something 3. print, electronic, or photographic duplicate: a copy of something printed, scanned, photographed, or produced by other means 4. RECORDING recording of sound: the recording of sound or the quality of recorded sound4 The plain meaning of “reproduction” refers to the act or the process of reproducing something or a copy of something printed, scanned, photographed, or produced by other means. If there were any doubt about the plain meaning, though, the context of the statute makes it clear. The phrase “pictorial reproduction” comes at the end of a list of media including photograph, moving picture, and so forth. There is absolutely no doubt that under the plain meaning of the statute it is the possession of the medium which contains a pornographic image which is prohibited. Just as clear is the fact that the legislature could have written the statute to prohibit the possession of individual images but did not do so. That is, instead of prohibiting the possession of images, in whatever form, the legislature instead chose to list each of the various media on which images might be stored. “[A] general rule of statutory construction, Expressio unius est exclusio alterius (the expression of one thing is the exclusion of another) . . . . provides that ‘. . . the express mention of one matter excludes other similar matters not mentioned." Columbia County v. Bylewski, 94 Wis.2d 153, 288 N.W.2d 129, 137 (1980). Thus, the fact that the legislature specifically mentioned the various forms of media containing pornographic images but did not simply prohibit 4 Encarta® World English Dictionary © & (P) 1999 Microsoft Corporation. All rights reserved. Developed for Microsoft by Bloomsbury Publishing Plc. 25 the possession of images in whatever form, is overwhelming evidence that it was not the intent of the legislature to permit one count for each image. It must be mentioned as a side note that the Court of Appeals’ description of the purpose of the statute (i.e. to prevent exploitation of children) is entirely consistent with the plain meaning of the statute. If the purpose of the statute is to prevent exploitation of children then Multaler’s view of the plain meaning is perfectly consistent but the state’s “interpretation” makes no sense. The children who are forced to engage in sexually explicit behavior are no more or less exploited whether one photograph of the act is taken or whether forty photographs are taken. Likewise, the child is not subject to greater harm if one photograph is taken but is printed fifty times. The damage is done. It is the sexual act which harms the children, not the number of images recorded. Therefore, the legislature chose to criminalize the recording of the acts regardless of the medium used. The state’s argument that the legislature intended to permit one count for each image would make sense only if it was the legislature’s determination that it is the images of child pornography, in and of themselves, which are evil. According to the state, though, this is not the case. Rather, the legislature sought to deter the exploitation of childrenthe legislature did so by prohibiting the recording of sexual acts by children. C. It is highly inappropriate to impose multiple punishments for each separate image possessed. In order to be consistent, if one defendant is charged with five counts of possession of child pornography for possessing five pictures in a magazine then a second defendant possessing a five minute pornographic movie must be charged with 9000 counts of possession of child pornography5 and would thereby be facing a maximum penalty of 180,000 years in prison for one five minute movie. There is no distinction in logic or in fact between the individual frames in a 35mm motion picture and the individual frames on a roll of 35mm photographic film. The only difference is that if the motion picture film is loaded into a machine it will project an image which appears to move. 5 At the standard rate of 30 frames per second a five minute movie would have 9000 separate images. 26 Likewise, there is no logical distinction between the frames on a roll of motion picture film and individual “files” (images) on a floppy disk. In fact, it is possible to store a two hour digital video in one large file on a DVD disk. Can any reasonable person really believe that it is fair and appropriate to charge Multaler with twenty-eight counts because his two floppy disks contained that number of “files” but a person who possessed a two hour pornographic digital video on a DVD disk may only be charged with one count because there was only one very large file? Thus, it is not appropriate to impose multiple punishments for each “image” of child pornography which a defendant possesses. Rather, the court may impose multiple punishments for possession of child pornography only where it can prove that there is a significant difference in time (i.e. the images were received by the defendant at different times) or where there is a significant difference in the conduct (i.e. possessed a video tape and a magazine). For these reasons it is respectfully requested that the court strike Multaler’s conviction on all counts except one and to resentence the defendant accordingly. CONCLUSION It is respectfully requested that the Supreme Court reverse the order of the Court of Appeals affirming the trial court’s order denying Multaler’s motion to suppress all evidence, vacate Multaler’s conviction on each count, and to remand the matter for further proceedings consistent with the court’s order. In the alternative, it is requested that the Supreme Court declare that the information filed against Multaler was multiplicitous and order that all counts except one be dismissed. Dated at Milwaukee, Wisconsin this ____ day of ____________, 2001. LAW OFFICES OF JEFFREY W. JENSEN Attorneys for Appellant 27 By:______________________________ Jeffrey W. Jensen State Bar No. 01012529 633 W. Wisconsin Ave. Suite 1515 Milwaukee, WI 53203 (414) 224-9484 28