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Defense win! Warrant can’t be based on anonymous tip lacking detail; exclusionary rule applies

State v. Paul L. Linde, 2014AP2445-CR, 8/2/16, District 3 (not recommended for publication); case activity (including briefs)

A court commissioner issued a warrant to search Linde’s cabin for evidence of drug manufacturing and for drug paraphernalia. It was based in part on a tip by an anonymous informant, a fact that proved decisive in the court of appeals decision to reverse the circuit court’s denial of Linde’s suppression motion.

With respect to the probable cause inquiry, not all informants’ tips carry the same weight.  The magistrate must consider the reliability of the source and the quantity or quality of the information provided. If the informant is reliable, less detail in the tip and less corroboration by the police is required. If the informant has limited reliability, more detail and more police corroboration is necessary. Slip op. ¶5 (citing State v. Miller, 2012 WI 61, ¶31, 341 Wis. 2d 307, 815 N.W.2d 349). The court explained:

¶6 Regarding the first factor, the informant’s reliability turns on his or her classification as either a citizen/confidential informant or an anonymous informant. State v. Kolk, 2006 WI App 261, ¶12, 298 Wis. 2d 99, 726 N.W.2d 337; see also Miller, 341 Wis. 2d 307, ¶31 n.18. Citizen and confidential informants are known persons. See Kolk, 298 Wis. 2d 99, ¶12. “[A] confidential informant may be trustworthy where he or she has previously provided truthful information, while a citizen informant’s reliability is subject to a much less stringent standard.” Id. (citations omitted). We view citizen informants “as reliable, and allow the police to act accordingly, even though other indicia of reliability have not yet been established.” State v. Williams, 2001 WI 21, ¶36, 241 Wis. 2d 631, 623 N.W.2d 106. On the other hand, both confidential and citizen informants “may be distinguished from an anonymous informer, one whose identity is unknown even to the police and whose veracity must therefore be assessed by other means, particularly police corroboration.” Kolk, 298 Wis. 2d 99, ¶12 (citing Alabama v. White, 496 U.S. 325, 329 (1990)).

¶7 Additionally, there is variation “within the realm of informants who wish to remain anonymous depending upon whether the informant risked disclosing his or her identity to police.” Miller, 341 Wis. 2d 307, ¶33. An informant “who reveals some self-identifying information is likely more reliable than an [entirely] anonymous informant because ‘[r]isking one’s identification intimates that, more likely than not, the informant is a genuinely concerned citizen as opposed to a fallacious prankster.’” Id. (citing Williams, 241 Wis. 2d 631, ¶35) . . . Consequently, an entirely anonymous informant is subject to the most stringent test of reliability. See id., ¶37  . . .

According to the court of appeals, the tip at issue in Linde’s case “was entirely anonymous and unreliable.” Moreover, the informant did not risk anonymity by using a traceable phone number, as the State claimed. The number belonged to a cell phone but there was no indication whether the cell phone was a prepaid “burner phone,” which preserves anonymity or one tied to an identifiable phone carrier. ¶9. Plus the informant failed to provide details about the alleged grow operation, other verifiable nonpublic information or any predictions. Indeed the informant provided only information available in telephone books or online property records. ¶10.

Nor was the court impressed by the warrant’s reference to marijuana plants found in Linde’s truck 13 months earlier. It would be unreasonable to conclude on this basis that there was an ongoing grow operation at Linde’s cabin now. ¶12.

The State’s assertion that police acted in good faith in reliance on a search warrant issued by a neutral and detached magistrate also failed.  ¶¶15-17. The police merely ran a records check and confirmed Linde’s address before requesting a warrant days later. They did not conduct a “significant investigation prior to obtaining a warrant”–the first requirement of the good faith exception per State v. Scull, 2015 WI 22, ¶38, 361 Wis. 2d 288, 862 N.W.2d 562 and State v. Eason, 2001 WI 98, ¶27, 245 Wis. 2d 206, 629 N.W.2d 625.

 

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