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Unknown casino employee counts as a “citizen informant”

State v. Michael J. Mansfield, 2016AP2423-CR, 10/3/17, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Mansfield argued police didn’t have reasonable suspicion to detain him based on a tip from an anonymous Turtle Lake Casino employee. The court of appeals holds the tipster should be treated as a citizen informant and, under the standard for citizen informants, the tip provided reasonable suspicion.

Someone at the casino called police and told them that Mansfield smoked marijuana before driving away from the casino on his Harley and that Mansfield had more marijuana in his possession. The tipster described Mansfield and his clothing as well as Mansfield’s passenger and her clothing and advised police Mansfield was traveling on Highway 63. Neither the identity of the tipster nor how the tipster knew what he or she claimed to know was disclosed, but police had received reliable information from casino employees in the past and knew the casino had a surveillance system covering the entire premises. (¶3). The police staked out Highway 63 and soon saw and stopped a motorcycle with two riders matching the descriptions in the tip. (¶4).

Mansfield argues the tip wasn’t sufficiently detailed and predictive to meet the heightened reliability standard for anonymous tips, State v. Miller, 2012 WI 61, 31-32, 341 Wis. 2d 307, 815 N.W.2d 349, but the court of appeals decides the tipster should be treated as a citizen informant and therefore presumed to be reliable, State v. Kolk, 2006 WI App 261, 31, 298 Wis. 2d 99, 726 N.W.2d 337. It agrees with the state that:

(¶12)    …[B]ecause the casino [sic] directly called [a specific officer] to report the information, allowing police to more easily trace the source of the tip, and because the casino had provided reliable information to law enforcement in the past. …. Individuals who risk identification—and thus consequences for providing false information—as well as those who have previously given reliable tips to law enforcement may be presumed to be personally reliable. See State v. Rutzinski, 2001 WI 22, ¶220, 241 Wis. 2d 729, 623 N.W.2d 516.

Judging the tip under the more relaxed citizen-informant standard makes it easier to find the tip provided reasonable suspicion for the stop, as it “evidenced significant observational reliability” in light of the casino’s surveillance system and contained a sufficient amount of observational detail that police could verify (type of motorcycle, clothing, direction of travel). (¶¶14-16).

What’s the basis for believing the tipster was a casino employee who would be in a position to observe by viewing the surveillance video and ultimately be identified, as opposed to some unknown person at or near but not employed by the casino? Apparently the fact that the tipster knew to call a specific officer with the information. (¶¶3, 12). And how do we know that person, as opposed to some other employee, may have provided reliable information in the past? We don’t know, as is clear from the court’s multiple references to the “casino” being the tipster. Seems like an awfully thin basis for concluding the tipster is entitled to a presumption of reliability.

The court also rejects Mansfield’s challenge to the protective frisk of him during the stop. The officer intended to do a frisk because he didn’t know Mansfield and, in his 17 years as a cop, he’d learned drug suspects commonly have knives. But before starting the frisk he asked Mansfield if he had any “sharp objects,” and Mansfield replied he had a knife in one pocket so the officer reached into that pocket and extracted the knife. That was the extent of the pat down, and Mansfield’s statement provided the reasonable suspicion for it. (¶¶5-6, 19).

Finally, Mansfield consented to a blood draw after being read the Informing the Accused form, but argues his consent was involuntary due to the threat of civil penalties for refusal. This argument is foreclosed by State v. Wintlend, 2002 WI App 314, ¶¶8, 17-18, 258 Wis. 2d 875, 655 N.W.2d 745, and Village of Little Chute v. Walitalo, 2002 WI App 211, ¶¶6, 10- 11, 256 Wis. 2d 1032, 650 N.W.2d 891, and those cases are not affected by Birchfield v. North Dakota, 136 S. Ct. 2160, 2185-86 (2016), which held that consent to a blood draw is involuntary if a refusal is a criminal offense, and expressly said its holding cast no doubt on implied-consent laws that impose civil penalties or evidentiary consequences. (¶¶20-21).

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