Rainey v. State

• Decision Date: 03 November 1976
• Docket Number: No. 75--305--CR,75--305--CR
• Citation: 74 Wis.2d 189,246 N.W.2d 529
• Parties: Lee RAINEY, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 529

246 N.W.2d 529

74 Wis.2d 189

Lee RAINEY, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 75--305--CR.

Supreme Court of Wisconsin.

Submitted Oct. 7, 1976.

Decided Nov. 3, 1976.

Howard B. Eisenberg, State Public Defender, Robert J. Paul, Asst. State Public Defender, for plaintiff-in-error.

Bronson C. La Follette, Atty. Gen., Betty R. Brown, Asst. Atty. Gen., for defendant-in-error.

CONNOR T. HANSEN, Justice.

On January 23, 1973, based upon the sworn testimony of an unnamed informant and a Milwaukee police officer, a search warrant was issued for the search of the first floor premises of 1414 W. Vliet street, Milwaukee, for heroin. The business establishment located at that address was known as Tot's Shoeshining. It was comprised of some pool tables, a juke box and a shoeshine stand located on the first floor of the building.

On the same date, Milwaukee police officers executed the search warrant. The search resulted in the seizure of varying amounts of packaged and unpackaged heroin, cocaine, marijuana, other drugs, and numerous items of drug paraphernalia. There was testimony that the drugs seized had a street value of between $18,000 and $20,000. The defendant and Willie Armstrong were arrested on the premises at the time of the search. They were both charged with the same offenses, tried as co-defendants, and convicted of the same offenses.

Prior to the trial, the motion of the defendant to suppress the evidence seized was heard and denied.

Facts which we deem relevant to this review will be set forth as the issues presented are considered. The three issues are:

1. Was the issuance of the search warrant based upon probable cause?

2. Did the actual search extend beyond the scope of the area authorized to be searched?

3. Did the trial court commit such cumulative errors so as to deny the defendant his due process right to a fair trial?

PROBABLE CAUSE.

On the morning of January 23, 1973, a Milwaukee county assistant district attorney appeared before a Milwaukee county judge for the purpose of securing the issuance to two search warrants; one was for the premises located at 1414 West Vliet street in Milwaukee, Wisconsin. In support of the application for this search warrant, the sworn testimony of two witnesses was presented. Before the testimony of the first witness was taken, the assistant district attorney stated that for reasons to be disclosed, the witness did not wish to reveal his name on the record unless the court deemed it necessary. The assistant district attorney further stated that the witness would be willing to reveal his name in camera as long as it would be withheld from the record. The name of the witness does not appear in the record and he testified that he did not wish to identify himself on the record because '. . . the guy would try to get me wiped out, you know, if he found out, because he knows me real well. He would get me bumped off, you know, killed.' He further testified that he was not a paid police informant and was not paid in this instance.

The witness testified that he had been at the premises at 1414 W. Vliet street about a dozen times in the past. Although the sign outside of the location read 'Hollywood Hosiery,' the witness knew the establishment by the name of 'Tot's Shoeshining,' comprised of a shoeshine parlor with pool tables and a juke box, all located on the first floor.

The witness stated that he had been on the premises within the last 48 hours and that he had personally observed one Wendall, the man who ran the establishment, transact a sale of heroin. More specifically, the witness stated that he had gone to Tot's with another man. The other man walked up to Wendall and stated, 'I want to cop some dope.' The witness testified that in street terminology, that statement meant that the other man wanted to purchase 'Hard stuff', i.e. heroin, cocaine or morphine. Wendall asked what kind, and the other man answered 'Boy,' which is street terminology for heroin.

The witness testified that the man gave Wendall $25, whereupon Wendall, the man and the witness all walked back to a small room in the rear of the establishment. The witness personally observed Wendall remove a brown manila envelope from behind a board in the back room. The envelope contained about 10 tin foil packets. The witness testified that Wendall removed three of those 'dime bags' from the envelope and gave them to the man. The witness observed the man tear open one packet, dip in a corner of a match book cover and 'snort' the brown powdered substance.

The witness testified that he had seen Wendall go back and get drugs before but that he had never seen exactly where Wendall had his 'stash.' The witness testified that he had had heroin before, but that he had never bought any.

The second witness, Officer Dennis Forjan, testified as to the physical layout of the establishment located at 1414 W. Vliet street, and verified the address.

The judge, based upon the testimony presented, found that there was probable cause to issue a search warrant to search the entire first floor premises at 1414 W. Vliet street for heroin, and a search warrant was thereupon issued.

Under these facts, the defendant contends that there was not probable cause shown for the issuance of a search warrant. It is the position of defendant that the sworn testimony of the unnamed informant who testified at the search warrant hearing will not support the issuance of a search warrant because his prior reliability, credibility and truthfulness were not established by specific testimony at the hearing.

Defendant confuses the situation presented by the facts of this case with a situation where a search warrant is based upon an affidavit of the police which itself is based upon the hearsay statements of an unnamed police informant.

In the recent case of Scott v. State (1976), 73 Wis.2d 504, 243 N.W.2d 215, in discussing the situation where a complaint for a search warrant was based upon the information of an unnamed informant, this court stated at page 509, 243 N.W.2d at page 218:

'. . . The information contained in the instant complaint was based on information from an informer. While a search warrant may be validly issued upon hearsay information, hearsay obtained in the manner herein described is subject to verification pursuant to the tests delineated by the high court in Aguilar v. Texas, supra, explicated in United States v. Ventresca (1965), 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684; Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and United States v. Harris (1971), 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723, and applied by this court in cases subsequent thereto.'

This court has recognized that in such instances, Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, requires that the officer requesting the search warrant must provide for the magistrate's consideration: (1) The underlying circumstances from which he concludes that the informant is reliable; and (2) information showing that the underlying circumstances or manner in which the informant obtained his information is reliable. Sanders v. State (1975), 69 Wis.2d 242, 258, 230 N.W.2d 845; State v. Mansfield (1972), 55 Wis.2d 274, 279, 198 N.W.2d 364; State v. Paszek (1971), 50 Wis.2d 619, 627, 184 N.W.2d 836.

Both prongs of the Aguilar test stated above go to the informant's reliability; the first to his informational reliability or credibility, and the second to his observational reliability. State v. Knudson (1971), 51 Wis.2d 270, 274, 187 N.W.2d 321. When the affidavit for a search warrant is based upon the hearsay statements of an unnamed police informant, it is essential that the magistrate have before him such facts as will enable him to establish independently the twofold reliability of that informant. Even when the informant is a named citizen informant, as opposed to the traditional unnamed police informant, reliability at least as to the second prong must be established. Allison v. State (1974) 62 Wis.2d 14, 214 N.W.2d 437.

The underlying purpose of the Aguilar criteria is to enable a neutral and detached magistrate to make an independent determination of an informant's reliability when that informant does not appear personally before the magistrate. To do so he must have information over and above the bald statement by the applying officers that the informant is reliable. Mansfield, supra, 55 Wis.2d 280, 198 N.W.2d 364. The Aguilar criteria supply that information.

The facts of this case do not present an Aguilar situation. Unlike the situations in Aguilar, Scott, Sanders, Paszek, and the majority of the cases cited by the defendant, in the instant case the unnamed informant personally appeared before the magistrate. This is not a case where the police interceded between the informant and the magistrate. The informant gave sound and adequate reasons for not wanting his name to appear on record and yet at the same time indicated that he would, if the court desired, reveal his name. Under these circumstances, and when the witness appears personally and testifies, the disclosure of his name is not relevant to the issue of probable cause.

The informant was sworn and testified as to events which he personally observed. His familiarity with the establishment located at 1414 W. Vliet street and his familiarity with both Wendall and Wendall's dealings on prior occasions was apparent. His knowledge of street terminology pertaining to drugs and his own familiarity with drug usage were evident. It was clear that his observation and experience enabled him to recognize a drug sale when he saw one. He was not a paid police informer.

The magistrate was in a position in the instant case to personally observe the informant and to evaluate for himself, first hand, the informant's reliability and credibility, as was his judicial function.

Under such circumstances, this court...