State v. Knudson
| Decision Date | 02 June 1971 |
| Docket Number | No. S,S |
| Citation | 51 Wis.2d 270,187 N.W.2d 321 |
| Parties | STATE of Wisconsin, Appellant, v. Byron KNUDSON, Respondent. tate 45. |
| Court | Wisconsin Supreme Court |
On May 14, 1970, a criminal complaint was issued against respondent (hereinafter the defendant) charging him with (1) unlawful possession of fireworks in violation of sec. 167.10(1), Stats., and (2) enticing a child for immoral purposes in violation of secs. 939.32(1) and 944.12, Stats.
The complaint was issued by the chief of police of Evansville on 'information and belief,' and, as a basis for the allegations, he stated:
'* * * that he is the chief of police for the city of Evansville, Wisconsin, and has investigated the above offenses, and that he has read the statement of the above mentioned victim, given to an Evansville police officer, in which she states the defendant offered her $10.00 if she would enter his trailer and play with him on (May 13, 1970).
'That defendant, pursuant to the victim's description, was apprehended, and the above described fireworks were found in his camper following his apprehension.'
On May 22d a preliminary hearing was held before a magistrate, the Hon. Roscoe Grimm, Court Commissioner of Rock county, at which time the defendant challenged the sufficiency of the complaint in that (1) it did not allege sufficient facts to establish a crime had probably been committed, and (2) it did not establish the reliability of the informant. The magistrate found probable cause and bound defendant over to county court for trial.
After the information was filed, the defendant moved the trial court to dismiss the complaint on the same grounds asserted at the preliminary. The court held the complaint contained sufficient essential facts, but, after quoting at some length from State ex rel. Cullen v. Ceci, 1 dismissed the charge because it was 'obvious that no reliability of the informant to the complainant appears in the complaint, nor does the name of said informant.' From this order dismissing the complaint the state appeals.
Robert W. Warren, Atty. Gen., William A. Platz and Thomas J. Balistreri, Asst. Attys. Gen., Madison, Robert J. Ruth, Rock County Dist. Atty., Janesville, for appellant.
Tod O. Daniel, Campbell, Brennan, Steil & Ryan, Janesville, for respondent.
Two issues are presented here:
1. Does the complaint sufficiently establish the reliability of the 'information' on which the complainant based his 'belief'?
2. If so, was defendant-respondent improperly denied the right to call witnesses at the preliminary hearing?
The Complaint.
The trial court dismissed the complaint because it was
'* * * obvious that no reliability of the informant to the complainant appears in the complaint, nor does the name of said informant.'
It is now well settled that when the complaint is based on other than eyewitness observations of the complainant himself, the reliability of the 'information' on which he bases his 'belief' must be established. A complaint may be based on hearsay, but the reliability of the hearsay information must be established.' 2 There must be something in the complaint which shows why the informants should be believed.
This court has recognized the two-pronged test set down by the United States Supreme Court in Aguilar v. Texas, 3 and reaffirmed in Spinelli v. United States: 4
5
In State v. Williams 6 we concluded that these 'underlying circumstances' must be established from the complaint itself, including, 'affidavits or transcripts of testimony (which) are specifically incorporated by reference in the complaint and made a part of it * * *.' 7 The statement here was 'incorporated by reference.' The state made no attempt to use the actual statement to show probable cause, and the sufficiency of the complaint must be tested, therefore, without reference to the statement of Susan Lien. The complaint must be considered in its entirety, and be given a common sense reading. 8 The applicable standard in reviewing the complaint is 'the probability, and not a prima facie showing, of criminal activity * * *.' 9
It is evident from a common sense reading of this complaint that the primary and essential source of information on which the complainant relies is the written statement of the alleged victim, Susan Lien, which the complainant (Police Chief Luers) read. Therefore, it is to this information the two-pronged test of Aguilar must be applied.
First, Susan Lien was an eyewitness to the facts set down in her statement and consequently, those alleged in the complaint.
In State ex rel. Cullen v. Ceci, supra, this court stated:
10
Second, Susan Lien was the victim of the criminal activity alleged in the complaint. In Paszek, supra, this court distinguished the ordinary citizen informer from the more usual police informer, who often has his own personal benefit in mind, and who usually remains unidentified:
'A different rationale exists for establishing the reliability of named 'citizeninformers' as opposed to the traditional idea of unnamed police contacts or informers who usually themselves are criminals. Information supplied to officers by the traditional police informer is not given in the spirit of a concerned citizen, but often is given in exchange for some concession, payment, or simply out of revenge against the subject. The nature of these persons and the information which they supply conveys a certain impression of unreliability, and it is proper to demand that some evidence of their credibility and reliability be shown. One practical way of making such a showing is to point to accurate information which they have supplied in the past.
'However, an ordinary citizen who reports a crime which has been committed in his presence, or that a crime is being or will be committed, stands on much different ground than a police informer. He is a witness to criminal activity who acts with an intent to aid the police in law enforcement because of his concern for society or for his own safety. He does not expect any gain or concession in exchange for his information. An informer of this type usually would not have more than one opportunity to supply information to the police, thereby precluding proof of his reliability by pointing to previous accurate information which he has supplied.
(Emphasis supplied.) 11
The instant informant, Susan Lien, falls squarely within the class of informant contemplated in Paszek: a purported victim. Whether the victim speaks directly to the complainant, or, as in this case, gives a written statement which the complainant reads, should not be controlling.
Paszek recognized that some evaluation of the reliability of even this type of informant should be made. However, the standard applied is much less stringent:
'(T)he reliability of such a preson should be evaluated from the nature of his report, his opportunity to hear and see the matters reported, and the extent to which it can be verified by independent police investigation.
'* * * However, there must be some safeguard, and this can be satisfied by verification of some of the details of the information reported, but it need not be to the same degree as required in evaluating the 'tips' of a police informer.' 12
Essentially, the search for reliability in the case of a citizen informer is shifted to the second prong of the Aguilar test, i.e., from personal reliability to 'observational' reliability.
First, Susan Lien was an eyewitness and the victim of the alleged criminal activity. As noted in Paszek:
"* * * A citizen who purports to be a victim of * * * a crime is a reliable informant * * *." 13
Obviously, as a victim, she was in a good position to 'see and hear' what the defendant did. As we said in Paszek:
14
So here with Susan Lien.
However, in Paszek, the citizen-informant not only described the defendant, she also informed the police that he would return and the time he would do so. The police verified this by their observation. In addition, the citizen-informant in Paszek identified the defendant by indicating to police that he was the man they were waiting for.
In the instant case the complaint states only 'That defendant, pursuant to the victim's...
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...evidence. ¶ 36 However, a defendant's right to present evidence at a preliminary examination is not boundless. In State v. Knudson, 51 Wis.2d 270, 187 N.W.2d 321 (1971), we held that Knudson's attempt to call two witnesses — the victim's mother and the chief of police — was an effort "to ex......
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