MADISON — A state appeals court Thursday restored evidence that a rural Darlington couple were allegedly growing marijuana in the basement of their residence.
The District IV Court of Appeals’ decision reversed Green County Circuit Judge Thomas Vale’s order to suppress evidence seized in October 2017 at Kristen D. and Eric D. Switzky’s Lake Road home in the town of Fayette.
Lafayette County Circuit Judge Duane Jorgenson had issued a search warrant based largely on an affidavit of a confidential informant. The CI stated that he had been in the Switzkys’ home “numerous times” and saw a hydroponic indoor marijuana grow operation inside and outside of the residence.
The CI said about “100 seedling marijuana plants” about 2 inches tall were in the basement, which was improperly ventilated into the living room. Also, the CI said marijuana grown outdoors on the property had been harvested on Oct. 15, 2017, two days before the search warrant was executed.
Each harvested plant could produce about three-quarters of a pound of marijuana and there was about five to 20 pounds on the premises at the time, according to the CI.
The CI also saw hashish oil being made from marijuana in first-floor fitness room. The hashish oil was produced using butane, which is considered to be extremely flammable and a danger to the residents, including the Switzkys’ three children.
After the Switzkys were charged with manufacturing and delivery of marijuana and three misdemeanor counts of child neglect, Vale was substituted for Jorgenson on a request from Kristen Switzky’s attorney, Mark Eisenberg.
Eisenberg and Eric Switzky’s attorney, Luke Steiner, asked Vale to toss out the evidence, and argued that the search warrant was invalid. They contended that the CI’s information was insufficient to establish probable cause to issue a search warrant, as it was unsupported by other statements or records.
Lafayette County Sheriff Detective Erik Longseth prepared the search warrant application and claimed the Switzkys’ utility bills would be higher than a comparable residence due to their alleged marijuana grown operation. However, Longseth never produced the records for Jorgenson.
In his order, Vale was troubled by Longseth’s failure to obtain utility records to help establish probable cause of the alleged grow operation and by the lack of information about the CI and his motives.
The state appealed, arguing that Jorgenson made a “practical, common sense determination,” that the CI, known to law enforcement, had sufficient, accurate knowledge to convince the detective there was a probability that the Switzkys were growing and processing marijuana.
Eisenberg countered that the Longseth didn’t know the CI’s identity until the day the search warrant was executed, giving him little or no time to verify the information the CI alleged.
The appeals court stated that whether the warrant affidavit establishes probable cause is a “close call” given the lack of corroboration of the CI’s statements but ruled for the state.
“(W)e conclude that, under the totality of the circumstances, in particular given the detailed information provided by the informant, along with the reasonable inference that the identity of the informant was known to the police, the affidavit provides a basis for finding probable cause for the issuance of the warrant,” according to the nine-page unsigned opinion.
Eisenberg said he was “extremely disappointed with the appeals decision.”
“This is another disappointment in the criminal justice system. Judge Vale got it 100% correct. The case law was 100% correct,” said Eisenberg, who hadn’t decided whether to further appeal the opinion.
Lafayette County District Attorney Jenna Gill said she hadn’t read the opinion, but remained confident in the validity of the information used to obtain the search warrant.
The charges against the Switzkys were put on hold pending the outcome of the appeal. Convictions for the marijuana charges in the case have a maximum penalty of 15 years in prison and a $50,000 fine. The maximum penalties for the misdemeanor charges are nine months in jail and a $10,000 fine.