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Traffic Stop – Informant Reliability

State v. John J. Neff, 2010AP1092-CR, District 2, 11/10/10

court of appeals decision (1-judge, not for publication); for Neff: Dennis P. Coffey; BiC; Resp.; Reply

Report that intoxicated individual had urinated in public and was driving away held  sufficiently reliable to support stop:

¶12      We now turn to the anonymous tip in this case.  The tip was that two individuals were possibly intoxicated in the Sybaris parking lot, one of them had urinated on the property and they refused to leave.  The tip contains an assertion of criminal activity:  urinating in public could be a violation of the city of Mequon’s municipal ordinances.[3]  The tip was more than a bare-boned tip.  See Williams, 241 Wis. 2d 631, ¶32.  It contained more than information readily observable by a passerby.  See id., ¶30.  (1) There is a reasonable inference that the tipster observed the parties from inside of the Sybaris; (2) Another reasonable inference is that the tipster talked to the parties because she reported that they refused to leave; (3) The tipster put her identity at risk by reporting the activity in a telephone call to the City of Mequon Police Department.  See id., ¶34; (4) The tipster further identified herself by waiting outside of the Sybaris and talking face-to-face with Rudolph.  This is significant because “more likely than not, the informant is a genuinely concerned citizen as opposed to a fallacious prankster.”  See id., ¶35; (5) The tipster pointed out the vehicles being driven by the parties as they exited the parking lot of the Sybaris; (6) The parties exiting the parking lot shortly after Rudolph arrived creates the reasonable inference of their consciousness of guilt.  See State v. Winston, 120 Wis. 2d 500, 505, 355 N.W.2d 553 (Ct. App. 1984).

Detailed discussion by the court of: Florida v. J.L., 529 U.S. 266 (2000); State v. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, 623 N.W.2d 516; and Williams – all dealing one way or another with corroborating an anonymous tip for purposes of reasonable suspicion and temporary stops. Add to that mix, State v. Limon, 2008 WI App 77, ¶¶17-19 (thrust of which is that “face-to-face anonymous tip” inherently more reliable than anonymous tip reported at some remove).  The idea is that a known informant is inherently reliable because, among other things, he risks prosecution for obstructing if he knowingly gives false information. In this instance, it might be thought a stretch to characterize as “anonymous” a report delivered “face-to-face” by someone identifying herself as an employee at the very place the police meet her,  slip op., ¶3. And indeed the court here stresses that the informant “put her identity at risk.” The larger, if unstated, point is that informant reliability is on a sliding scale, not a binary (reliable/unreliable) one. In other words, “the totality of the circumstances approach” doesn’t support “neat categories of known or anonymous” informants, United States v. Elmore, 482 F.3d 172, 181 (2nd Cir. 2007). Thus, “when the informant is only partially known (i.e., her identity and reliability are not verified, but neither is she completely anonymous), a lesser degree of corroboration may be sufficient to establish reasonable suspicion,” id. The clerk-tipster in this instance may not have given out her name, but her identity could have been learned with ease, so very little corroboration of her report was required – corroboration that the court saw in abundance. Consider, however, Durden v. State, 2013 Ga. App. LEXIS 154 (3/8/13) (“face-to-face communication” distinguishable from anonymous phone tip,, such that former deemed “a concerned citizen whose reliability could be presumed”).

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