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Search Warrants – Probable Cause – Statements of Unnamed, Unwitting Participant in Transaction

State v. Jaime Romero, 2009 WI 32, reversing unpublished opinion
For Romero: Thomas E. Hayes

Issue/Holding: Search warrant affidavit, based in part on incriminatory statements of “unwitting” informant (“Mr. X”), established probable cause:

¶29      In the instant case a confidential informant told a law enforcement officer what someone else had told him.  In such a case, the veracity of each person in the chain is relevant.  The defendant, in challenging the warrant-issuing commissioner’s probable cause determination, does not contest the veracity of the confidential informant or the basis of his knowledge.  Rather, the defendant challenges the veracity of Mr. X. [33]

¶33      We also acknowledge that information concerning Mr. X is sparse indeed.  Officer Correa’s affidavit does not furnish Mr. X’s name and does not describe Mr. X’s relationship with either the confidential informant or the defendant.

¶34      Nevertheless we conclude that Officer Correa’s affidavit passes muster as support for the warrant issued to search the defendant’s residence.  Reliance on information provided to a confidential informant by a participant in a crime has been approved by several courts even in the absence of constant visual contact with the participant conducting the transaction.[34]  Facts set forth in the affidavit demonstrate Mr. X’s veracity to a degree sufficient to show, considering the totality of the circumstances presented to the warrant-issuing commissioner, that the commissioner had a substantial basis for concluding that there was a fair probability that a search would uncover evidence of wrongdoing at the defendant’s residence.

¶35      First, the affidavit tends to establish the reliability of the information that Mr. X imparted (and thus Mr. X’s veracity) by showing that law enforcement officers were able to corroborate some of Mr. X’s assertions prior to seeking the warrant. …

¶36      Second, the affidavit tends to establish Mr. X’s credibility (and thus his veracity) by describing numerous statements that Mr. X made against his penal interest. …

The court rejects the State’s proposed bright-line rule based on State v. McAttee, 2001 WI App 262, ¶12, “namely that for purposes of an affidavit for a search warrant law enforcement officers “are not required to validate [the] reliability of a reliable informant’s source” in attempting to demonstrate probable cause for the issuance of a search warrant. … As the court of appeals explained, the McAttee court of appeals held only that the law enforcement officers under the circumstances of that case were entitled to rely on information from a known and reliable informant without independently determining the reliability of the informant’s source or the source’s information,” ¶24, 26.T

he 3-vote concurrence spills some ink warning that “the majority opinion could be read, mistakenly,” as resurrecting the long-rejected Aguillar-Spinelli test instead of the Illinois v. Gates “totality of the circumstances” test, ¶46. The concern seems a bit overblown: the majority invokes “totality of the circumstances” no fewer than 9 times, and favorably cites Gates a like number.


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