In this case, a deputy applied for a warrant, saying he had
received anonymous information on June 13, 2014 that a subject went to Guy S Hillary’s residence to fix a vehicle and Hillary proceeded to show the complainant a very large marijuana grow in a garage on Hillary’s property. Complainant stated that there are several grow rooms within the garage containing several large marijuana plants. Complainant stated that Hillary was bragging about how much money he makes selling marijuana.
Both parties agree that this did not establish probable cause–their dispute is about whether other information in the affidavit was lawfully obtained and, if not, whether it had to be excised. The court of appeals, however, rejects the state’s concession and declares this tip good enough.
In the view of the parties, as well as the trial court, this case was about the subpoena the state used to get records of Mr. Hillary’s electricity use. (He used a lot, it turned out, consistent with growing a bunch of plants indoors.) Hillary argued the above-mentioned tip failed to supply probable cause for the subpoena under Wis. Stat. § 968.135, and should have been suppressed under State v. Popenhagen, 2008 WI 55, 309 Wis. 2d 601, 749 N.W.2d 611. The state contends that the probable cause standard for a subpoena is lower than that for a warrant, and further that even if this lower bar wasn’t met, suppression of the subpoena’s fruits (and thus their excision from the warrant application) is not the proper remedy.
The court of appeals short-circuits the argument. Assuming without deciding that the electrical use information shouldn’t be considered, it holds the remainder of the warrant affidavit satisfies the probable cause standard. Besides the tip information quoted in full above, there was also a tip from 2012, which accused Hillary of running a grow operation but provided no detail whatsoever. There was also, per the court, the fact that the deputy was able to verify that Hillary lived at the address given in the 2012 tip, and that his house had–wait for it–a garage.
A garage! How could the 2014 tipster possibly have known Hillary’s house had a garage unless his story was true? This is the glaring problem with the court’s analysis. While it acknowledges the rule that it must evaluate both the tipster’s “veracity” and his “basis of knowledge,” it really only considers the latter. Sure, the the story the informant tells is plausible. People sometimes fix other people’s cars, and surely sometimes drug dealers unwisely brag about their business acumen (though it’s a stretch to imply, as the court does, that the above tip demonstrates the “richness and detail of a first hand observation”(¶16)). So, we understand how the informant claims to know what he claims to know.
But how do we know his claim is truthful? He’s anonymous, and there’s no indication he’s given useful information before. The court stresses the car-fixing story and the fact that some extremely public details of the tip (address and garage-existence) were confirmed, but really, would a malicious and false tip fail to contain these basic facts?
The court thus struggles to distinguish State v. Popp, 2014 WI App 100, ¶28, 357 Wis. 2d 696, 855 N.W.2d 471, in which it found an anonymous tip insufficient to support a warrant for an alleged mushroom grow. There, the affidavit
explained that an anonymous caller reported that a man in a full body suit was removing large Tupperware containers with mushrooms from the trailer west of Trailer 23 at an identified trailer park. Popp, 357 Wis. 2d 696, ¶¶3, 29. The caller did not identify himself except to say he had an outstanding criminal warrant and “hoped to use the information about the drug case ‘in consideration’ for leniency in his own case.” Id. The caller stated he had been in the trailer west of Trailer 23 “millions” of times and had observed a mushroom grow operation there. Id., ¶¶9, 29.
(¶12). The police were unable to confirm much in the way of detail, though they did find that another anonymous tip two or three years before had led to a search of the trailer that turned up nothing.
In the eyes of the court here, the tip in Popp was far less convincing than the one about Hillary. You can judge for yourself whether the one here has, as the court claims, “the ring of truth.” You can also ask yourself whether it matters much that the Popp caller was seeking leniency in his own case. The court here thinks it makes him less credible (¶20)–but what “consideration” would such a tipster hope to receive for making a false report?
One final question to ponder: why this opinion is recommended for publication. With the court having cast the Popenhagen issue aside, it seems like a pretty run-of-the-mill, fact-bound case. But, recommended it is, so best refrain from bragging to your auto mechanic about your grow operation.