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Terry Stop – Reasonable Suspicion – Citizen-Informant; Duration

State v. Michael D. Walters, 2010AP3156-CR, District 2, 7/20/11

court of appeals decision (1-judge, not for publication); for Walters: Thomas E. Hayes; case activity

Tip provided by citizen informant’s 911 call reporting drug use in car traveling on highway was sufficiently reliable to support stop, given that the informant provided her name, phone number, description of her vehicle, her proximate location and direction of travel, and remained on the line with updates:

¶23      According to Williams, a citizen informant, barring any specific information to the contrary, is to be considered a reliable source and an officer may take action in reliance on the information.  Williams, 241 Wis. 2d 631, ¶36.  The fact that the citizen informant identified herself and was in no way anonymous made the information she provided highly reliable.  Moreover, before he made the traffic stop, Passet was able to confirm the location of the informant’s vehicle, the license plate and location of Walters’ vehicle, and that Walters’ vehicle had two male passengers.  All of this information provided by the citizen informant gives credence to the basis for her knowledge and further increases her reliability.

¶24      Here, Passet initiated the pursuit of Walters’ vehicle based on a tip provided by an identified citizen informant who had just witnessed Walters and his passenger passing “possible THC or a joint back and forth.”  He then was able to verify details provided by the informant about the description and location of the suspect vehicle.  Thus, we conclude that the information provided by the citizen informant was reliable, and when viewed in the totality of the circumstances, Passet had reasonable suspicion to execute the investigative stop of Walters’ vehicle.[2]

Stipulate that a self-identifying 911 caller isn’t “anonymous,” and therefore is presumptively reliable. (“The veracity of identified private citizen informants (as opposed to paid or professional criminal informants) is generally presumed in the absence of special circumstances suggesting that they should not be trusted,” United States v. Elmore, 482 F.3d 172, 180 (2d Cir. 2007).) That’s well and good, but still something of a distraction. The caller was reliable, but what about the information she imparted? The basis, in other words, for the stop – just what was it? That she saw a “possible … joint” passed “back and forth.” Sure, if we knew a bit more, namely why she thought it might be a joint. The court never gets around to saying, but its recitation of the facts includes this passage:

¶8        Passet then called the citizen informant to further inquire about what information she had.  In addition to the information she provided to dispatch, the informant reported that as Walters’ vehicle passed her, she smelled burnt marijuana.  She noted that she was familiar with the smell because of her occupation as a school teacher and her experiences growing up in the 1980s.

This occurred on the Interstate: when was the last time you smelled marijuana wafting from another vehicle at freeway speeds? Sound plausible to you? In any event, this information was imparted after the stop, hence is irrelevant to the present inquiry. And so we are left with a vague, conclusory assertion of a possible joint. Here’s one way of looking at it: the discussion on informant reliability is nothing but so much misdirection.

After effectuating the stop, the officer further developed reasonable suspicion of marijuana possession, and an ensuing 26-minute delay waiting for a drug dog didn’t unnecessarily prolong the stop:

¶27      However, we also note that the trial court identified several suspicious factors occurring after Walters’ vehicle was stopped that provided further reasonable suspicion of marijuana use:  (1) as Passet approached the vehicle, he saw Walters make a quick jerk movement with his left hand between the driver’s seat and driver’s door; (2) Passet noticed Walters’ eyes were bloodshot and his pupils were small in aperture; (3) Passet observed a leafy substance on Walters’ pants that he suspected may be marijuana; (4) the passenger refused to open the glove box to search for an insurance card; and (5) the informant reported that as Walters’ vehicle passed her, she smelled burnt marijuana.  The original reason for the traffic stop was to investigate possible illegal drug use.  The information gathered by Passet during the investigatory stop furthered the informant’s observation that Walters was smoking marijuana.  Thus, the increased suspicion of marijuana use clearly supported an extension of the investigation to allow for the arrival of the police dog.  See State v. Malone, 2004 WI 108, ¶24, 274 Wis. 2d 540, 683 N.W.2d 1 (if, during a valid traffic stop, police become aware of suspicious factors or additional information that provide a reasonable suspicion of criminal activity, an investigation may be extended beyond the scope of the initial stop).

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