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