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State v. Troy Edward Lang, 2009AP2087-CR, District 1, 8/10/10

court of appeals decision (3-judge, not recommended for publication); for Lang: Mary D. Scholle, SPD, Milwaukee Appellate; BiC; Resp.; Reply

Search Warrant – Probable Cause

Affidavit by a detective, containing statements made by a recently arrested “informant” who said that “Troy” at the target residence had traded him cocaine for stolen property, supplied probable cause for the warrant application. The informant’s reliability was established by:

  • statement’s against-interest nature;
  • personal observation of the incriminating information;
  • level of detail provided;
  • independent police corroboration of “many” details.

United States v. Mykytiuk, 402 F.3d 773 (7th Cir. 2005) and United States v. Koerth, 312 F.3d 862 (7th Cir. 2002), distinguished, largely because “in neither of those cases did the police corroborate or provide foundation for any of the information provided to them by the confidential informants,” ¶29. Moreover, in both the cited cases, despite conceded absence of probable cause, the court upheld the warrant under the good-faith doctrine–an issue the court here declines to reach in light of its conclusion that probable cause did exist, ¶29 n. 5.

The affidavit, as suggested above, was based on the assertions of someone in a real bind, an informant who’d just been nailed in a burglary and had admitted involvement in a string of other burglaries, ¶5. Even without knowing anything more about him, such as whether he was subject to repeater enhancement or was on supervision and thus subject to revocation, it’s clear he faced a good deal of time. So he helpfully told the police he had exchanged the stuff stolen in the burglaries for cocaine at “Troy’s” house. The warrant application description of him as “a confidential citizen informant,” ¶5, is problematic: a “citizen informant” is someone who comes forward and volunteers information without any motive to lie; this informant, facing serious time, was in a highly pressurized situation. The court doesn’t explicitly treat him as a “citizen informant,” but nonetheless does tend to minimize his predicament, ¶21 (seeming to say, without qualification, that against-interest statements closely related to the crime under investigation may be taken at face value). This isn’t quite right. State v. Romero, 2009 WI 32, relied on by the court for this proposition, is readily distinguishable; there, the informant was a “participant in a police sting,” and thus was someone who “unwittingly” provided information to the police, Romero, id., n. 3. As the Romero court went on to say (¶36), where the declarant has no apparent motive to speak dishonestly, you can take his against-interest statements at face value. But that isn’t exactly what is going on in this case, so the point is, the court’s analysis at ¶21 leaves something to be desired. That said, the court goes on to stress police corroboration of the details provided by the informant, something that puts the result on firmer footing.

Litigation occurred in the context of an ineffective-counsel claim, for failing to file a suppression motion. Because the court concludes that probable cause exists, the claim necessarily fails, ¶¶17, 30.

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