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Experts: Warrant could have been pursued in Carlton County | Duluth News Tribune | Duluth, Minnesota

Published October 28, 2013, 12:00 AM

Experts: Warrant could have been pursued in Carlton County

Legal experts are disputing the contention by Carlton County authorities that they could not act on a burglar’s 2010 description of hoarded cash and receipts in the home of alleged landfill embezzler Joanne Wappes because the information was obtained illegally.

By: Robin Washington, Duluth News Tribune

Legal experts are disputing the contention by Carlton County authorities that they could not act on a burglar’s 2010 description of hoarded cash and receipts in the home of alleged landfill embezzler Joanne Wappes because the information was obtained illegally.

“They could have gotten a warrant based on what that guy said. They could certainly present it to a judge, and a judge could look at it and decide whether to enter a warrant,” Robert D. Sicoli, a longtime Minneapolis criminal defense lawyer not involved in the case, told the News Tribune on Sunday.

Wappes, who worked at the landfill for nearly 30 years, was charged Sept. 20 in State District Court with theft by swindle and theft of public funds. According to the criminal complaint, the Carlton County Sheriff’s Office began its investigation after being made aware of a complaint on July 10, 2013 — nearly three years after David Michael Smith said he told authorities about the contents of the home he was arrested for burglarizing in October 2010.

In a January 2011 letter to Judge Robert Macaulay, copied to County Attorney Thom Pertler’s office, Smith described “zippered bank bags marked ‘landfill’ on each of them, also containing receipts and cash,” and “bank statements showing in excess of $600,000.”

In an interview with the News Tribune last week, Carlton County Sheriff Kelly Lake confirmed Smith’s account, saying her office followed with an investigation at the landfill, finding “there was nothing in the books showing any suspicious activity at that time.”

Because of that, Lake said, her office did not interview Wappes or request a search warrant of her home.

Also, former Assistant Carlton County Attorney Nichole Carter said last week that she told other county authorities about Smith’s allegations — for which Smith wanted a reduced sentence and was denied — and asked them to investigate. But she said because information Smith gathered against Wappes was obtained illegally, it could not be used against her.

Yet that doctrine — called “fruit of the poisonous tree” — only would apply if an agent of the state had obtained the information illegally, Sicoli said.

“In order for it to be fruit of the poisonous tree, that’s when the government does something wrong” — such as police officers breaking into the house without a warrant, he said.

“If the party is not part of the state, they can always turn it (the evidence) over to the police,” Sicoli said, qualifying his remarks to say he did not know the specifics of the case.

Ohio State University law professor Joshua Dressler, a nationally recognized expert on criminal law who wrote specifically about the topic in his 2005 text, “Understanding Criminal Procedure,” gave a similar opinion.

“Because the burglar is not an agent of the state, his burglary and criminality does not prevent the police from using the information they received from him,” he told the News Tribune. “Therefore, they should have gone to get a search warrant, and if they could have convinced the judge that the burglar’s information was reasonably reliable, they would have been able to secure a valid search warrant.”

A review of news reports from across the country show instances in which authorities have launched investigations stemming from evidence uncovered by burglars:

  • In Houston in September 2012, police launched an investigation after a man broke into a car and found a body in the trunk. The dead man had been shot at least once in what investigators initially said was possibly a drug-related killing. 
  • In a well-publicized case a decade ago, an Ohio burglar found a metal box filled with graphic images of underage girls, including the burglar’s 4-year-old sister. The owner of the box, a registered sex offender, subsequently was charged. 
  • In Kissimmee, Fla., in 2001, a man told authorities that he found 101 marijuana plants filling two bedrooms of a house he was breaking into. The plants were confiscated.Dressler said a snag could have come up in pursuing Wappes based on Smith’s information, “if the magistrate said ‘I don’t trust the burglar’s information.’ OK, they would be out of luck. But, they should have tried.”

via Experts: Warrant could have been pursued in Carlton County | Duluth News Tribune | Duluth, Minnesota.

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