State v. Miller

• Decision Date: 12 June 2012
• Docket Number: No. 2010AP557–CR.,2010AP557–CR.
• Citation: 341 Wis.2d 307,2012 WI 61,815 N.W.2d 349
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Joseph C. MILLER, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

341 Wis.2d 307

815 N.W.2d 349

2012 WI 61

STATE of Wisconsin, Plaintiff–Respondent,

v.Joseph C. MILLER, Defendant–Appellant–Petitioner.

No. 2010AP557–CR.

Supreme Court of Wisconsin.

Argued April 24, 2012.

Decided June 12, 2012.

For the defendant-appellant-petitioner, there were briefs and oral argument by Martha K. Askins, assistant state public defender.

For the plaintiff-respondent the cause was argued by David H. Perlman, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

N. PATRICK CROOKS, J.

[341 Wis.2d 311]¶ 1 This is a review of a summary disposition of the court of appeals ¹ affirming the decision of the Marinette County Circuit Court, the Honorable Tim A. Duket presiding. The circuit court denied a motion by Joseph C. Miller (Miller) ² to suppress evidence and his statement that police obtained after an investigatory stop. The sole issue on review is whether information provided to police from several informants along with police corroboration provided the requisite reasonable suspicion for an investigatory stop of Miller in the car he was driving.

¶ 2 Officers in the Marinette County Sheriff's Department stopped a black Ford Explorer that Miller was driving on suspicion that Miller was engaged in a drug-related crime. Leading up to the stop, the police had received information from several informants indicating that Miller was involved in selling drugs.

¶ 3 Initially, police were unable to corroborate information from two sources of limited reliability, an inmate awaiting revocation of his supervision and anonymous tips from Crime Stoppers. Police later received information from an informant who wished to remain anonymous but provided his cellphone number and first name to Deputy Rick Berlin (Deputy Berlin), a Marinette County Sheriff's Deputy on the Northeast Tri–County Drug Task Force. The informant also risked disclosing his identity to police by contacting Deputy Berlin through one of Deputy Berlin's confidential informants. The information provided by this final informant, including police corroboration of some details and future predictions in the tips, along with information from the prior tips, led police to conduct an investigatory stop of the black Ford Explorer that Miller was driving on August 20, 2008. As a result of the investigatory stop and search, police discovered marijuana, cocaine, a digital scale and cash. Miller also admitted using heroin that morning.

¶ 4 The circuit court denied Miller's motion to suppress the evidence and statement obtained from this stop, and Miller pleaded no contest to possession of between five and 15 grams of cocaine with intent to distribute as a party to a crime contrary to Wis. Stat. § 961.41(1m)(cm)2. and § 939.05 (2007–08). ³ Miller appealed, and the court of appeals affirmed.⁴

¶ 5 We conclude that under the totality of the circumstances police acted reasonably when they conducted an investigatory stop of the vehicle that Miller was driving based on reasonable suspicion “that criminal activity may be afoot.” ⁵ We are confident that police had the requisite reasonable suspicion primarily based on the reliability of the final informant and the information provided by him. Such information was supportedby the prior tips to police. We note that while the initial tips were of limited reliability, the final informant and his tips had significant indicia of reliability because the informant provided self-identifying information that made him more reliable than a truly anonymous informant.⁶ Additionally, the final informant provided details and accurate future predictions that police were able to corroborate.⁷ We hold that the officers acted reasonably under the circumstances in stopping Miller based on the objective test set forth in Terry v. Ohio, which asks: “[W]ould the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” ⁸ We conclude that the answer to that question is yes.

¶ 6 Therefore, we affirm the court of appeals.

I

¶ 7 In the months leading up to the investigatory stop at issue here, Deputy Berlin received information from several sources that Miller was trafficking drugs in Marinette County.

¶ 8 The first source was Nathan Manicor (Manicor), who was being held in the Marinette County jail awaiting the revocation of his parole when he asked to speak with Deputy Berlin on November 19, 2007. Manicor told Deputy Berlin that Miller was selling drugs—including “ready rock cocaine,” which is crack cocaine and marijuana, and acid-laced Spree candies that Miller was storing in a pizza box—from Miller's residence at an address on Water Street. Further, Manicor indicated that someone from Milwaukee was delivering the drugs to Miller in Marinette and that Miller was paying $950 per ounce of cocaine. Manicor reported that Miller owned a blue and silver Chevy S–10 pickup truck at that time. Manicor indicated that he had personal knowledge of these facts because he had been selling drugs with Miller before he was detained for the revocation of his parole.

¶ 9 The second source of information came from three tips to the Marinette County Crime Stoppers Program.⁹ On June 16, 2008, a tipster reported that Miller was living in lot number 12 of a trailer park located behind a Domino's Pizza and was selling cocaine that he picked up from Chicago. The report also indicated that Miller drove a teal four-door vehicle. On July 8, 2008, another tip indicated that Miller lived at 334 Terrace Avenue in the City of Marinette, drove a green extended cab pickup truck and was selling pain killers, cocaine, heroin, and marijuana. On July 24, 2008, a third tip reported that Miller planned to sell an ounce of cocaine and 300 methadone tablets. Deputy Berlin testified at the suppression hearing that he believed all of these tips came from the same person because, in the later tips, the caller expressed irritation that police had not done anything in response to the earlier tips.

[341 Wis.2d 315]¶ 10 After Deputy Berlin got these tips and before the final tips that led to Miller's stop and arrest, Deputy Berlin conducted some follow-up investigation. Deputy Berlin watched Miller's residences but was unable to either corroborate or disprove the allegations that Miller was dealing drugs. Deputy Berlin did discover that, in 2001, Miller was convicted of possession of drug paraphernalia contrary to Wis. Stat. § 961.573(1) (1999–2000).

¶ 11 The third source of information was an informant who provided information to Deputy Berlin on the condition that he remain anonymous. The first of several contacts with this informant occurred on August 19, 2008, around 9:00 p.m. A confidential informant that Deputy Berlin had worked with previously contacted Deputy Berlin on his work cellphone. The confidential informant told Deputy Berlin that someone wanted to talk with him and then handed the phone to the informant who gave the final tips that police relied on in this case. The informant told Deputy Berlin that he wanted to remain anonymous, but gave Deputy Berlin his first name. Deputy Berlin could not remember the name when he testified.

¶ 12 In the first call to Deputy Berlin the informant stated that either Miller or Ryan Kowalski (Kowalski) or both were planning to drive Kowalski's black Ford Explorer, license plate number 712 NNE, to Milwaukee to buy drugs. The informant offered that Miller lived on the corner of Fourth Street and Terrace Avenue in the City of Marinette and that Kowalski lived on Kowalski Road. The informant stated that the men would leave with between $5,000 and $10,000 to buy 200–300 packs of heroin, 200 packs of cocaine and Oxycontin tablets. Further, the informant indicated that they would be back in the Marinette area before [341 Wis.2d 316]2:00 or 3:00 p.m. the next day, August 20. Deputy Berlin testified that the informant did not say, and Deputy Berlin did not know, how the informant obtained this information.

¶ 13 Deputy Berlin verified that a black Ford Explorer, license plate number 712 NNE, was registered to Kowalski at N2401 Kowalski Road. At around 8:00 a.m. the following morning, on August 20, 2008, Deputy Berlin drove past Kowalski's residence and saw that Kowalski's black Ford Explorer was parked in the driveway.

¶ 14 That same morning on August 20, Deputy Berlin called the informant back on the informant's cellphone,¹⁰ as he had the cellphone number saved in his cellphone. Deputy Berlin told the informant that he did not think Miller and Kowalski went to Milwaukee because Kowalski's vehicle was still parked in his driveway. The informant agreed with the deputy's inference because the informant had also seen the black Ford Explorer parked in Kowalski's driveway that morning. The informant told Deputy Berlin that he would call him back if he got any more information.

[341 Wis.2d 317]¶ 15 In a third call, the informant called Deputy Berlin at 4:34 p.m. that same day, August 20, to report that Miller had left for Milwaukee at around 2:00 p.m., by himself, to pick up drugs. The informant stated that Miller was driving Kowalski's black Ford Explorer and would be back in the Marinette area no later than 11:00 p.m. that same day.

¶ 16 Deputy Berlin immediately followed up on that tip by driving past Miller's and Kowalski's residences. Kowalski's black Ford Explorer was not there. Deputy Berlin and other officers took a position along Highway 41 to watch for Kowalski's vehicle to come back into Marinette County before 11:00 p.m. At 10:30 p.m., about a thirty minute drive outside of the City of Marinette, the officers saw a black Ford Explorer with registration tags matching those of Kowalski driving on Highway 41 toward Marinette County. The officers, including Deputy Berlin, followed Kowalski's black Ford Explorer, and after it crossed into Marinette County, a marked squad car stopped the...