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Circuit court erred in ordering disclosure of confidential informant

State v. Robert Billings, 2017AP2272-CR, District 1, 1/15/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Billings sought disclosure of the identity of the confidential informant who supplied information that was used to get a search warrant for his apartment. The circuit court granted his request. The circuit court erroneously exercised its discretion because it didn’t apply the correct legal standard.

Billings was charged with possession of cocaine based in the evidence found after the search warrant was executed. He sought the informant’s identity to challenge the information from the CI that was cited in the affidavit in support of the search warrant. (¶¶6-17, 23-25). To get disclosure in order to challenge a warrant, the defendant must convince the judge that the CI or the CI’s information can’t reasonably be believed to be reliable or credible. § 905.10(3)(c); State v. Fischer, 147 Wis. 2d 694, 703, 433 N.W.2d 647 (Ct. App. 1988) (“the disclosure statute pertinent to a suppression motion is [§] 905.10(3)(c).”) But Billings’s never developed an argument under this standard, and the circuit court didn’t make a finding the standard was satisfied. (¶¶28-33).

Instead, Billings’s argument essentially relied on the standard from § 905.10(3)(b), under which a defendant must show a reasonable probability that the CI “may be able to give testimony necessary to the fair determination of the issue of guilt or innocence”—for instance, because the CI is an eyewitness to the offense. Trial counsel apparently relied on that standard because Billings’s only defense to the charge was to challenge the search warrant and get the evidence suppressed, so he argued that because the warrant was based on the CI doing a controlled buy at the apartment the CI was a transactional witness. (¶¶10-13, 38-42). The circuit court seemingly accepted this argument—though that’s not entirely clear, as the court’s reasoning is brief and not illuminating as to the facts and law it was relying on. (¶¶32-33, 46-49).

And that was an erroneous exercise of discretion. The proper legal standard for deciding Billings’s claim in § 905.10(3)(c), and Billings didn’t meet that because he made no showing the CI or the CI’s information was not reliable or credible. (¶28). And if the circuit court granted the request under § 905.10(3)(b), that was error because the CI wasn’t a transactional witness and there’s no showing the CI had information material to a defense of the charge. (¶¶41-49). Moreover, even if Billings met the sub. (3)(b) standard, the circuit court erred in not giving the state the opportunity for an in camera review of what the CI would have said, as the statute requires. (¶50).

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