State v. Linde

• Decision Date: 02 August 2016
• Docket Number: No. 2014AP2445–CR.,2014AP2445–CR.
• Citation: 371 Wis.2d 758,886 N.W.2d 592 (Table)
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Paul L. LINDE, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

371 Wis.2d 758

886 N.W.2d 592 (Table)

STATE of Wisconsin, Plaintiff–Respondent,

v.Paul L. LINDE, Defendant–Appellant.

No. 2014AP2445–CR.

Court of Appeals of Wisconsin.

Aug. 2, 2016.

¶ 1 SEIDL, J.

Paul Linde appeals a judgment of conviction for manufacture of THC and felony bail jumping. Linde argues the circuit court erroneously denied his motion to suppress evidence, wherein he argued a search warrant was not supported by probable cause. We agree with Linde that the facts were clearly insufficient to support a finding of probable cause. Further, we reject the State's argument that the good-faith exception to the exclusionary rule should apply in this case. Accordingly, we reverse the judgment and remand for the circuit court to grant Linde's suppression motion.

BACKGROUND

¶ 2 Forest County sheriff's deputy Jeffery Marvin prepared an August 30, 2011 search warrant application, seeking evidence of the manufacture of a controlled substance and possession of drug paraphernalia. The application explained Marvin was a member of the North Central Drug Enforcement Group Task Force and, as relevant, stated the following information:

I make this affidavit in support of an application for a Search Warrant for the Paul L. Linde ... residence that is located [at] 3479 Lake Lucerne Drive, in the Township of Lincoln in Forest County. This is ... a brown in color, single story residence of wood construction with a white door and deck off the back, a full basement and a brown detached garage.

... On July 9th, 2010 at approx. 10:04 AM, Oconto County Deputy Ryan Zahn was dispatch[ed] to a report by DNR Warden Joe Paul. Warden Paul observed ... [m]arijuana plants in the bed of a pick up truck parked at the gas pumps of a station located at Highway STH 32 and STH 64. The truck ... was registered to Paul L. Linde of Green Bay. The plants were in burnt orange pots and approx. 2 1/2 to 3 feet in height. [Linde] was questioned about the plants. [Linde] advised Deputy Zahn they were a friend[']s and he was tending to the plants and had watered and fertilized and pruned the plants. [Linde] advised Deputy Zahn they had been located at his cabin in Forest County Wisconsin. Deputy Zahn had contacted ... Forest County [deputies] and advised [them] of his findings. Through our in[-]house records it was determined the cabin was located at 3479 Lake Lucerne Drive.... [Linde] was arrested for possession [of] the plants and had paraphernalia in his possession. [Linde] also had a journal about plant cloning, soil supplements and notes pertaining to the care of marijuana plants.

....

On August 26th, 2011 I Captain/Deputy Jeffery A. Marvin received a complaint from dispatch, a[n] anonymous report had been called in from a cell phone that Paul L. Linde had a large marijuana grow at his cabin which is located at 3479 Lake Lucerne Drive. The reporting party stated they had been at the cabin approx. 1 week prior and seen the marijuana plants. Due to current technology the reporting party's phone number was able to be obtained.

....

I was able to determine that Paul L. Linde frequents this residence/cabin through our in-house records and information from friends and acquaintances.

¶ 3 Based on the application, a court commissioner issued a search warrant for Linde's cabin. Law enforcement executed the warrant and recovered marijuana and drug paraphernalia. Linde moved to suppress the fruits of the search, arguing probable cause was lacking because the information regarding his prior arrest was too remote in time and the anonymous tip was unreliable. Although it recognized that the informant was anonymous, the circuit court denied the motion. Linde entered into a plea agreement, and he now appeals.

DISCUSSION

¶ 4 Linde renews his argument that the search warrant was not supported by probable cause. A magistrate presented with a warrant application must determine whether, “given all the circumstances set forth in the [warrant application], including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Ward, 2000 WI 3, ¶ 23, 231 Wis.2d 723, 604 N.W.2d 517 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). Our supreme court has stated the following standard of review for search warrants:

A search warrant may issue only on a finding of probable cause by a neutral and detached magistrate. We accord great deference to the warrant-issuing judge's determination of probable cause and that determination will stand unless the defendant establishes that the facts are clearly insufficient to support a finding of probable cause.

In reviewing whether there was probable cause for the issuance of a search warrant, we are confined to the record that was before the warrant-issuing judge.... The duty of the reviewing court is to ensure that the magistrate had a substantial basis for concluding that the probable cause existed.

State v. Higginbotham, 162 Wis.2d 978, 989, 421 N.W.2d 24 (1991).¹ “[A] probable cause determination must be based upon what a reasonable magistrate can infer from the information presented by the police.... The subjective experiences of the magistrate are not part of the probable cause determination.” Ward, 231 Wis.2d 723, ¶ 26, 604 N.W.2d 517. “Therefore, we must consider whether objectively viewed, the record before the warrant-issuing judge provided ‘sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that they will be found in the place to be searched.’ “ Id., ¶ 27 (citations omitted).

¶ 5 “Considered within the totality of the circumstances, the value and reliability of an informant's tip ‘may usefully illuminate the commonsense, practical question whether there is probable cause to believe that contraband or evidence is located in a particular place.’ “ State v. Robinson, 2010 WI 80, ¶ 27, 327 Wis.2d 302, 786 N.W.2d 463 (quoting Gates, 462 U.S. at 230 ). However, all informants' tips are not equal with respect to the probable cause inquiry; two factors are relevant:

The first is the quality of the information, which depends upon the reliability of the source. The second is the quantity or content of the information. There is an inversely proportional relationship between the quality and the quantity of information required to reach the threshold of [probable cause]. In other words, if an informant is more reliable, there does not need to be as much detail in the tip or police corroboration in order for police to rely on that information.... On the other hand, if an informant has limited reliability—for example, an entirely anonymous informant—the tip must contain more significant details or future predictions along with police corroboration.

State v. Miller, 2012 WI 61, ¶ 31, 341 Wis.2d 307, 815 N.W.2d 349.²

¶ 6 Regarding the first factor, the informant's reliability turns on his or her classification as either a citizen/confidential³ informant or an anonymous informant. State v. Kolk, 2006 WI App 261, ¶ 12, 298 Wis.2d 99, 726 N.W.2d 337 ; see also Miller, 341 Wis.2d 307, ¶ 31 n. 18, 815 N.W.2d 349. Citizen and confidential informants are known persons. See Kolk, 298 Wis.2d 99, ¶ 12, 726 N.W.2d 337. “[A] confidential informant may be trustworthy where he or she has previously provided truthful information, while a citizen informant's reliability is subject to a much less stringent standard.” Id. (citations omitted). We view citizen informants “as reliable, and allow the police to act accordingly, even though other indicia of reliability have not yet been established.” State v. Williams, 2001 WI 21, ¶ 36, 241 Wis.2d 631, 623 N.W.2d 106. On the other hand, both confidential and citizen informants “may be distinguished from an anonymous informer, one whose identity is unknown even to the police and whose veracity must therefore be assessed by other means, particularly police corroboration.” Kolk, 298 Wis.2d 99, ¶ 12, 726 N.W.2d 337 (citing Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) ).

¶ 7 Additionally, there is variation “within the realm of informants who wish to remain anonymous depending upon whether the informant risked disclosing his or her identity to police.” Miller, 341 Wis.2d 307, ¶ 33, 815 N.W.2d 349. An informant “who reveals some self-identifying information is likely more reliable than an [entirely] anonymous informant because ‘[r]isking one's identification intimates that, more likely than not, the informant is a genuinely concerned citizen as opposed to a fallacious prankster.’ “ Id. (citing Williams, 241 Wis.2d 631, ¶ 35, 623 N.W.2d 106 ).

The key to this analysis is the informant's knowledge or presumed knowledge that a consequence of disclosing his or her identity is accountability for providing a false tip. Stated differently, police may infer that an informant who risks disclosing his or her identity is more likely to be providing truthful information because the informant knows that police can hold him or her accountable for providing false information.

Id., ¶ 34. Consequently, an entirely anonymous informant is subject to the most stringent test of reliability. See id., ¶ 37 (“Where an investigatory stop is based on an entirely anonymous tip, it is critical that the informant provide significant, specific details and future predictions that police are able to corroborate.”).

¶ 8 Turning to the present case, we agree with Linde that the tip was entirely anonymous and unreliable. As we explain below, because the information was unreliable and lacked sufficient corroborated detail, it provided no support for a probable cause finding. The State relies on several cases to argue a tip need not contain significant details or predictions that are corroborated by police for it to support probable cause. However, the cited cases are inapposite here because t...