2012
WI 61
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Supreme Court of Wisconsin |
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Case No.: |
2010AP557-CR |
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Complete Title: |
State of Wisconsin, Plaintiff-Respondent, v. Joseph C. Miller, Defendant-Appellant-Petitioner. |
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REVIEW OF A DECISION OF THE COURT OF APPEALS (No Cite) |
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Opinion Filed: |
June 12, 2012 |
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Submitted on Briefs: |
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Oral Argument: |
April 24, 2012 |
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Source of Appeal: |
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Court: |
Circuit |
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County: |
Marinette |
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Judge: |
Tim A. Duket |
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Justices: |
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Concurred: |
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Dissented: |
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Not Participating: |
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Attorneys: |
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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.
2012
WI 61
notice
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 N. PATRICK CROOKS, J. 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 supported by 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.
¶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 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.
¶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 vehicle.
¶17 Miller was driving the vehicle, and the officers arrested him and a passenger, James Orzel (Orzel). The officers discovered cocaine, marijuana, a digital scale and cash in a search of Miller, Orzel and the vehicle. Miller was ill and had vomited on himself at some point before the police stopped him. Deputy Berlin testified that he was concerned that Miller might have overdosed, and for that reason he had asked Miller whether he had used any drugs. Miller responded that he had used heroin that morning.
II
¶18 The State charged Miller with possession of cocaine with intent to distribute contrary to Wis. Stat. § 961.41(1m)(cm)2.,[11] and possession of marijuana with intent to distribute contrary to Wis. Stat. § 961.41(1m)(h)1.[12] as party to a crime contrary to Wis. Stat. § 939.05.[13] Miller moved to suppress the evidence and his statement on the basis that, according to Miller, police lacked reasonable suspicion for the investigatory stop.[14]
¶19 The
Marinette County Circuit Court denied Miller's motion to suppress. Significantly, the circuit court found that
the final informant was not truly an anonymous source because he had provided
Berlin with his first name and cellphone number. The circuit court found this informant more
credible and reliable because he provided self-identifying information that
exposed him to prosecution for obstructing an investigation if he provided
false information.[15] The circuit court emphasized the details in
the final informant's tips that turned out to be true: the black Ford Explorer,
license plate number 712 NNE, was registered to Kowalski at N2401 Kowalski Road
and, on August 20, 2008, was heading towards the City of Marinette on the most
direct route from Milwaukee, on schedule to arrive in the City of Marinette
around 11:00 p.m. The circuit court also
found that the source of the informant's information was not evident from the
testimony. On that basis, the circuit
court rejected Miller's argument that the tips were based on hearsay.
¶20 The
circuit court noted that the prior tips, while of limited reliability standing
alone, added to the officers' suspicion that Miller was involved in illegal
drug activity. The tips from Manicor and
Crime Stoppers were not, by themselves, inherently reliable, and police were
not able to corroborate the information in the tips, but the circuit court
stated that it was reasonable for police to take these tips into account when
weighing the information provided by the final informant. Further, the circuit court noted that Deputy
Berlin had discovered, prior to getting the final tips, that Miller had a prior
conviction for possession of drug paraphernalia. Under the totality of these circumstances,
the circuit court concluded that officers acted reasonably with the requisite
reasonable suspicion to conduct an investigatory stop of Miller when he was
driving Kowalski's black Ford Explorer on August 20, 2008.
¶21 Miller
pleaded no contest to possession of between five and 15 grams of cocaine with
intent to distribute as party to a crime contrary to Wis. Stat.
§ 961.41(1m)(cm)2. and § 939.05.
The circuit court sentenced Miller to four years of initial confinement
and three years on extended supervision.
Miller appealed the circuit court's denial of his motion to suppress.[16]
¶22 The
court of appeals affirmed the circuit court's denial of Miller's motion to
suppress and judgment of conviction. State
v. Miller, No. 2010AP557-CR, unpublished order (Wis. Ct. App. June 29,
2011). In a summary disposition, the court of appeals concluded that,
while the tips by Manicor and Crime Stoppers were of limited reliability, the
information provided by the final informant was more credible and reliable, and
police had reasonable suspicion for the investigatory stop considering the
totality of the circumstances. Id.
at 5.
¶23 The
court of appeals stated that the information from Manicor was of limited
reliability "due to the inmate's questionable motivations, the time which
had passed, and the fact that the information could not be contemporaneously corroborated." Id.
Further, the court of appeals concluded that the Crime Stoppers tips
were also of limited reliability "because the source was anonymous, the
tipster provided little detail, and the police were unable to verify
it." Id. The court of appeals noted that, while not
corroborated, this information also had not been proven to be false. Id.
¶24 The
court of appeals concluded that the information from the final informant was
more credible and reliable because the informant called from "a traceable
cell phone and provided considerably more verifiable details." Id.
The court of appeals noted that police were able to corroborate many of
these details. Id. The court of appeals concluded that despite
the limited reliability of the prior tips standing alone, "the police were
certainly entitled to consider the fact that they had received multiple reports
of Miller's involvement in drug dealing when assessing the final, most detailed
tip about ongoing activity." Id. Therefore, the court of appeals concluded
that police had reasonable suspicion to conduct an investigatory stop under the
totality of the circumstances.
¶25 Miller
petitioned this court for review, and we granted his petition.
III
¶26 This
case presents a single issue on review: 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. This issue presents a question
of constitutional fact, which this court reviews under a two-step
analysis. State v. Williams, 2001
WI 21, ¶18, 241 Wis. 2d 631, 623 N.W.2d 106.
First, this court examines the circuit court's findings of fact. We will uphold the circuit court's findings
of fact unless they are clearly erroneous.
Id. Second, this court
reviews de novo whether the facts meet the constitutional standard of
reasonable suspicion. Id.
IV
¶27 We
begin by examining the applicable legal standards to determine whether police
had the reasonable suspicion required to conduct an investigatory stop of the
vehicle that Miller was driving. We then
turn to examine the officers' actions in this case under these standards.
A
¶28 The
Fourth Amendment to the United States Constitution and Article I, Section 11 of
the Wisconsin Constitution provide citizens with the guarantee to be free from "unreasonable
searches and seizures." State v.
Richardson, 156 Wis. 2d 128, 137, 456 N.W.2d 830 (1990)
(internal quotations omitted). We generally
interpret Article I, Section 11 consistent with the United States Supreme
Court's interpretation of the parallel Fourth Amendment, and therefore rely on
United States Supreme Court precedent in applying and interpreting Article I,
Section 11 as well as the Fourth Amendment. State v. Felix, 2012 WI 36, ¶38, 339
Wis. 2d 670, 811 N.W.2d 775.
¶29 In
Terry v. Ohio, 392 U.S. 1, 8, 30 (1968), the United States Supreme Court
explained that it is reasonable and consistent with Fourth Amendment
protections for an officer to conduct a temporary, "investigatory
'stop'" of an individual if the officer has reasonable suspicion "that
criminal activity may be afoot." "[I]n
justifying the particular intrusion[——the investigatory stop——]the police
officer must be able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that
intrusion." Id. at 21. The test is an objective one: "[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?" Id. at 21-22
(quoting Carroll v. United States, 267 U.S. 132, 162 (1925)).
¶30 The
Terry investigatory-stop test has been adopted by this court, State
v. Waldner, 206 Wis. 2d 51, 55, 556 N.W.2d 681 (1996), and codified by
the Wisconsin legislature in Wis. Stat. § 968.24,[17]
Williams, 241 Wis. 2d 631, ¶21.
We consider the totality of the circumstances leading up to the
investigatory stop and focus our analysis on "the reasonableness of the
officers' actions in the situation facing them." Williams, 241 Wis. 2d 631,
¶¶22-23.
¶31 When
police have relied, at least in part, on information from an informant, we
balance two factors to determine whether officers acted reasonably in reliance
on that information. Id.,
¶22. The first is the quality of the
information, which depends upon the reliability of the source.[18] Id.
The second is the quantity or content of the information. Id.
There is an inversely proportional relationship between the quality and
the quantity of information required to reach the threshold of reasonable
suspicion. Id.
¶32 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 to conduct an investigatory stop.[19] 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.[20] The relevant question is whether the tip
contained "sufficient indicia of reliability," along with other
information known to police, to support reasonable suspicion for an investigatory
stop. Alabama v. White, 496 U.S.
325, 332 (1990).
¶33 The
law recognizes that the reliability of informants varies greatly. Rutzinski, 241 Wis. 2d 729,
¶17. There is variation even within the
realm of informants who wish to remain anonymous depending upon whether the
informant risked disclosing his or her identity to police. Information from an entirely anonymous
informant, without more, is not considered very reliable because the "tip
alone seldom demonstrates the informant's basis of knowledge or
veracity." Florida v. J.L.,
529 U.S. 266, 270 (2000). In contrast,
an informant who provides some self-identifying information is likely more
reliable than an 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." Williams, 241 Wis. 2d 631, ¶35.
This
is so because an informant who discloses his or her identity to police could
potentially "'be held responsible if [his or] her allegations turned out
to [have been] fabricated.'" Id.,
¶38 (alterations in original) (quoting J.L., 529 U.S. at 270); see
also Wis. Stat. § 946.41.
¶34 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.[21]
¶35 As
we turn to examine how these principles have been applied to the facts
presented in past cases, we keep in mind that each case that examines whether
police had reasonable suspicion based on the totality of the circumstances is
naturally highly fact specific and must "be decided on its own
facts." Terry, 392 U.S. at
30.
B
¶36 Cases
examining reasonable suspicion for an investigatory stop are fact intensive,
and even in the category of cases involving information from a purportedly
anonymous informant, each case strikes a different balance between the quality
and quantity of information required. We
plot out a few established points along this spectrum to guide our analysis of
whether the quality and quantity of information in this case adds up to
reasonable suspicion.
¶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. In White,
496 U.S. 325, the details and future predictions lent sufficient credibility to
the anonymous tip. Police received an
anonymous call that White would be leaving her apartment carrying a brown
attaché case with an ounce of cocaine and driving to a particular motel at a
certain time in a brown Plymouth station wagon that had a broken right
taillight. Id. at 327. Officers conducted surveillance and observed
White leave her apartment and get into her car, carrying nothing. Id.
Officers followed as White drove along the most direct route to the motel.
Id. Police stopped the car before she got to the
destination, searched her car and discovered marijuana in a brown attaché
case. Id. The United States Supreme Court concluded
that "the anonymous tip had been sufficiently corroborated to furnish
reasonable suspicion that [White] was engaged in criminal activity." Id. at 331. The Court emphasized that "'the
anonymous [tip] contained a range of details relating not just to easily
obtained facts and conditions existing at the time of the tip, but to future
actions of third parties ordinarily not easily predicted.'" Id. at 332 (alteration in original) (quoting
Illinois v. Gates, 462 U.S. 213, 245 (1983)). The Court noted that White was a close
case, suggesting that the quantity of details provided by the informant may be
at the lower end of the permissible range.
Id.
¶38 In
Richardson, 156 Wis. 2d 128, this court concluded that there
was reasonable suspicion for an investigatory stop based on an entirely
anonymous tip because the tip contained significant details and future
predictions that were corroborated by police.
In Richardson, an anonymous caller provided police with substantial
and significant details and future predictions, specifically: Richardson
"and another specifically identified man were en route from Viroqua to La
Crosse with about one-quarter ounce of cocaine which they intended to sell in
La Crosse"; the men left Viroqua
and were expected to arrive in La Crosse at particular times; Richardson was
the passenger in the car; the men were travelling on Highways 14 and 35, would
travel through Westby and Coon Valley, and planned to stop at a residence in La
Crosse; the men were driving a 1978 Camaro; Richardson was a large man,
weighing around 300 pounds and standing about six feet tall, had scarring on
his face and was missing parts of his fingers; and Richardson had previous
drug-related offenses. Id. at
133-34. The anonymous informant also
provided the license plate number of the vehicle and stated that he had been
with Richardson and the other man and had seen the cocaine. Id.
¶39 The
officer had no knowledge of Richardson or any planned drug sales before
speaking with the anonymous caller. Id.
at 134. Based solely on the information
in this tip, the officer set up surveillance on Highway 14 near the
intersection with Highway 35 along with another officer. Id. at 134-35. When the Camaro passed the surveillance
point, the officers followed the car and observed that it stopped at an
apartment building in La Crosse. Id.
at 135. Police stopped the vehicle after
the men returned. Id. This court held that police had "reasonable
articulable suspicion for an investigatory stop" based on the officers'
corroboration of a significant number of the innocent details and future
predictions provided in the tip, even more so than the details present in White.
Id.
at 138, 142-43.
¶40 In
State v. Sherry, 2004 WI App 207, 277 Wis. 2d 194, 690
N.W.2d 435, the court of appeals concluded that police had reasonable
suspicion to conduct an investigatory stop based on an anonymous Crime Stoppers
tip. The anonymous tip indicated that,
presently or in the near future, Sherry would be travelling from the Readstown
area to the Soldiers Grove area with a large amount of marijuana. Id., ¶11. The caller provided the make, color and
license plate number of the car and stated that it belonged to Sherry. Id.
The caller indicated that another person, Ryan Saint, "might be in
the car and, if he was, he would be driving." Id.
Police set up surveillance along the likely route and, about an hour
after receiving the tip, the vehicle described passed along the route to
Soldiers Grove. Id., ¶12. An officer followed and verified that the
make and license plate of the vehicle matched the one described in the
tip. The officer observed that the
driver was likely male. Id.
¶41 The
court of appeals concluded that the anonymous tip was sufficiently reliable to
support reasonable suspicion because it included significant details and detailed
future predictions. Id., ¶¶13-14. The court noted that the differences between
the facts in Sherry and White were "a wash"—while there
was more corroboration in White, there was an additional future
prediction in Sherry, i.e., that another person might be in the car and,
if so, he would be driving. Id.,
¶14.
¶42 The
United States Supreme Court, in J.L., 529 U.S. 266, delineated some
limits on using an anonymous tip that is accompanied by minimal police
corroboration as the sole basis for reasonable suspicion for an investigatory
stop, where the tip lacked detail and future predictions. In J.L., police received an anonymous
tip that a young black male, wearing a plaid shirt and standing at a particular
bus stop, was carrying a firearm. Id.
at 268. Police went to that bus stop and
observed three black males standing at the bus stop, one of whom was wearing a
plaid shirt. Id. Without obtaining any additional information
the officers conducted an investigatory stop and frisk, and discovered that
J.L., the young black male at the bus stop who was wearing a plaid shirt, was
carrying a gun. Id. The United States Supreme Court concluded
that this bare-bones anonymous tip, with no predictive information or other
means to test the anonymous informant's knowledge or credibility, lacked the
indicia of reliability required to provide police with reasonable
suspicion. Id. at 271. In terms of the balance between the quality
and quantity of information, the low-quality anonymous tip in J.L., with
minimal police corroboration, lacked the quantity of detailed information and
future predictions required to reach the level of reasonable suspicion.
¶43 Where
an investigatory stop is based on a higher-quality tip from an informant who
has provided some self-identifying information, police often rely on
information in that tip where police can corroborate some of the details
provided, even if the tip lacks the quantity of details and future predictions
required for a truly anonymous tip. For
example, in Williams, 241 Wis. 2d 631, ¶34, this court examined J.L.
and distinguished that case in part on the basis that the informant in Williams
was not truly anonymous. In Williams,
the tip came from a 911 caller who wanted to remain anonymous. Id., ¶4. The informant reported that someone was
dealing drugs from a vehicle behind the caller's apartment and that the vehicle
was there as that person was on the phone.
Id. When asked to provide
a description of the vehicle, the caller put down the phone, presumably to take
another look outside, before describing the vehicle as a blue and burgundy
Bronco. Id. The caller provided the address of the
apartment and indicated that the vehicle was in the driveway next to the
apartment. Id.
¶44 This
information was dispatched to officers who arrived at the address provided by
the informant shortly thereafter. Id.,
¶¶5-6. The officers saw a vehicle
matching the description provided by the informant parked in a driveway
alongside an empty lot behind the building.
Id., ¶6. They also
observed that the vehicle had no license plates and that the male in the driver's
seat, Williams, reached down and behind the passenger's seat when the officers
pulled into view. Id., ¶¶7-8. Officers drew their weapons, conducted an
investigatory stop and found substances that were likely marijuana and cocaine
base in the area where Williams had been reaching. Id., ¶¶8-10.
¶45 This
court held that, under the totality of the circumstances, police had reasonable
suspicion for the stop. This court
distinguished J.L. in a number of respects. First, in Williams, the informant
explained how she knew the information: she was observing it. Id., ¶33. Second, it was significant that the informant
was not entirely anonymous in Williams——in fact the circuit court found
that she was a citizen informant because she provided the address to the
apartment that she described as her home.
Id., ¶¶34-36. Third, the
police were able to corroborate innocent, but significant, details of the tip
including the location and description of the vehicle. Id., ¶39. Fourth, police noticed two additional
suspicious facts when they responded to the tip: (1) the vehicle had no license
plates, and (2) Williams reached down and behind the passenger's seat when the
officers pulled into view, suggesting that he may have been trying to reach for
a weapon or conceal evidence. Id.,
¶¶43, 45.
¶46 In
Rutzinski, 241 Wis. 2d 729, this court also concluded that
police had reasonable suspicion for an investigatory stop based on a tip that
contained limited details from an informant who risked disclosing her
identity. The informant in Rutzinski,
an unidentified motorist, called police to report that a black pickup truck
driving behind him or her was weaving in its lane, varying its speed
dramatically and following too closely behind his or her vehicle. Id., ¶4. After receiving this report, an officer on
patrol, Officer Sardina, pulled behind the black pickup truck and the
informant, who was still on the phone with police and directly in front of the
black pickup truck, said that the officer was following the right vehicle. Id., ¶6. The officer did not observe any erratic
driving but stopped the black pickup truck on suspicion of drunken driving
based on the tip. Id., ¶7.
¶47 This
court concluded that police had reasonable suspicion for the investigatory
stop, primarily based on the reliability of the information provided by the
informant. Id., ¶¶31-34. The informant and the tip were more reliable
because the informant had exposed his or her identity to police and could have
been held accountable for providing false information:
Officer Sardina thus could infer that by revealing that he or she was in a particular vehicle, the informant understood that the police could discover his or her identity by tracing the vehicle's license plates or directing the vehicle to the side of the road. That is, like the officer in Adams, Officer Sardina could reasonably have concluded that the informant knew that he or she potentially could be arrested if the tip proved to be fabricated.
Id., ¶32 (emphasis added) (footnote omitted). We also indicated that the information from the informant was reliable because "he or she was making personal observations of Rutzinski's contemporaneous actions." Id., ¶33. Finally, we indicated that the officer's actions in conducting an investigatory stop were particularly reasonable given the imminent risk to public safety presented by an alleged drunk driver presently on the road. Id., ¶34.
C
¶48 We
now apply the standard for reasonable suspicion to the facts in this case,
guided by the framework set out above.
As an initial matter we conclude, as both parties agree, that the
officers' actions in conducting an investigatory stop of the black Ford
Explorer that Miller was driving is a seizure for the purposes of the Fourth
Amendment and Article I, Section 11. Rutzinski, 241 Wis. 2d 729,
¶14. The parties' dispute is focused on
whether police had the requisite reasonable suspicion for the investigatory
stop.
¶49 Miller
argues that police lacked reasonable suspicion in this case because there were
insufficient specific and articulable facts to support a reasonable belief that
Miller was engaged in a crime when the vehicle he was driving was stopped. Miller asserts that the tips from Manicor and
Crime Stoppers cannot provide a basis for reasonable suspicion because those
tips are unreliable and uncorroborated.
Miller further argues that information from the final informant does not
provide police with reasonable suspicion for several reasons. First, according to Miller, anonymous or
confidential informants start off with low reliability. Second, Miller argues that the tipster was
wrong in a number of important respects, most significantly by first telling
Deputy Berlin that Miller would leave with Kowalski on August 19 to pick up
drugs in Milwaukee. Third, Miller
asserts that the police conducted only minimal investigation and corroborated
only innocent details from the tips, which included information that would be
obvious to anyone familiar with Miller.
Fourth, Miller argues that the informant reported only hearsay
information, which further undermines his reliability.[22] Miller argues that several unreliable and
uncorroborated tips cannot add up to reasonable suspicion.
¶50 The
State responds that the police had reasonable suspicion based on the totality
of the circumstances. The State asserts
that the officers acted reasonably pursuant to the standard articulated by this
court in Williams and Richardson, based on all of the information
they had from multiple tips and through police corroboration. According to the State, the information
provided to and obtained by police in this case is very similar to information
that the United States Supreme Court concluded was sufficient in White
and that the court of appeals found sufficient in Sherry. In some respects, according to the State, the
information is even stronger here than in White because, in this case,
the tipster was not entirely anonymous, which makes his information more
reliable, and the police had previously received information linking Miller to
illegal drug activity. The State asserts
that the court of appeals properly affirmed Miller's judgment of conviction.
¶51 We
conclude that under the totality of the circumstances, police had reasonable
suspicion to conduct an investigatory stop of the black Ford Explorer that
Miller was driving. Police acted on
reasonable suspicion based on multiple tips that Miller was driving the vehicle
and was involved in an ongoing drug-related crime. The key information that supports reasonable
suspicion was that provided by the final informant and corroborated by police,
including the make, model, license plate and registration of the vehicle, and
an accurate prediction of where it could be found and when. It was also entirely reasonable for Deputy
Berlin to rely on his knowledge that prior tips by Manicor and Crime Stoppers
had also alleged that Miller was selling drugs.
¶52 The
factor that weighs most heavily in our analysis is the fact that the tips by
the final informant contained significant indicia of reliability, as was the
case in Williams and Rutzinski, because here the informant was
not truly anonymous. We note that
whether an informant is anonymous for the purpose of analyzing the informant's
reliability and credibility is not controlled by whether he or she wanted to
remain anonymous. Instead, a
purportedly anonymous informant is not anonymous in this analysis if he or she
provides self-identifying information such that we may infer that the informant
knew that he or she could be held accountable for providing false
information. Rutzinski, 241
Wis. 2d 729, ¶32.
¶53 In
this case, the informant told Deputy Berlin that he wanted to remain anonymous
but nevertheless risked disclosing his identity to police. Most significantly, the informant provided his
first name and cellphone number to Deputy Berlin. In fact, Deputy Berlin was able to call the
informant back on his cellphone and reach him directly when Deputy Berlin had
follow-up questions for the informant the morning of August 20, 2008. Further, the fact that this informant
contacted Deputy Berlin initially through one of the deputy's confidential
informants provides another avenue through which the final informant's identity
could have been discovered. Based on the
testimony and arguments at the suppression hearing, the circuit court explicitly
determined that this informant was more reliable because he risked disclosing
his identity to police. We agree with
the circuit court's determination because it is supported by the record and our
precedent. The facts here are similar to
those in Williams and Rutzinski, where the informants did not
disclose their identities outright but provided enough information from which
we could reasonably infer that the informants realized that they could be
tracked down for providing false information.
¶54 As
in Rutzinski, 241 Wis. 2d 729, ¶32, the police reasonably
relied on the final informant's information as truthful because one can
reasonably infer that this informant knew that by risking the disclosure of his
identity he could be held accountable for providing false information.[23]
Whether or not the informant realized the implications of his disclosure in the
first call, it is reasonable to infer that after he was called back by Deputy
Berlin the following day with follow-up questions, he must have realized that
he was traceable and could be subject to criminal penalties for any false
allegations. As we stated in Williams,
"[r]isking one's identification intimates that, more likely than not, the
informant is a genuinely concerned citizen as opposed to a fallacious
prankster." 241
Wis. 2d 631, ¶35. Therefore,
it was reasonable for police to rely more heavily on information from such a
reliable source.
¶55 Further,
the final informant in this case provided some details and future predictions
that police were able to corroborate similar to the details that the informants
provided in White, Richardson and Sherry.[24]
Deputy Berlin verified that a black Ford
Explorer, license plate number 712 NNE, was registered to Kowalski at N2401
Kowalski Road. Additionally, the
informant accurately predicted that Miller[25]
would be driving Kowalski's black Ford Explorer, license plate number 712 NNE,
along the most likely route back to the City of Marinette from Milwaukee,
Highway 41, en route to arrive in the Marinette area at about 11:00 p.m. on
August 20, 2008. While the informant in this case did not
provide as many unique details and future predictions as the informants in White,
Richardson and Sherry, the informant in this case started off
with more credibility by providing self-identifying information. The quantity of information in this case is
counterbalanced by the reliability of the informant.
¶56 It
is also notable that Deputy Berlin spoke directly with the informant multiple
times and would have been able to take first-hand account of the informant's
tone and delivery in evaluating the honesty and reliability of the tips. Williams, 241 Wis. 2d 631,
¶37 (noting that the recorded 911 call allowed for later judicial review
"of the tipster's veracity, not only based upon content, but also based
upon its tone and delivery").
Additionally, the credibility of the informant's information is not
fatally undermined because he was not able to make an absolute prediction of
the future, i.e., because he initially told Deputy Berlin that Miller would
leave the night of August 19, 2008. As
the court of appeals noted, it is entirely reasonable to infer that the
informant's initial tip was accurate, but plans changed and Miller decided to
go on August 20 instead.
¶57 While
the prior tips from Manicor and Crime Stoppers were of limited reliability
standing alone, it was reasonable for Deputy Berlin to consider these prior
allegations when evaluating the reliability of the final tips. We agree with the court of appeals that the
tip from Manicor was of limited reliability for several reasons. First, Manicor's motivation was questionable,
which makes him less reliable. Manicor
was in jail for parole revocation and he may have hoped that giving a tip to
law enforcement would improve his situation.
Second, Manicor's tip was nine months old when Deputy Berlin got the
final tips, so Manicor's tip is of limited usefulness for the purposes of
justifying this stop. The three Crime
Stoppers tips were also of limited reliability because they were entirely
anonymous, and Deputy Berlin was unable to corroborate the information. Deputy Berlin did discover, after receiving
these tips and before the tips from the final informant, that Miller had a
prior conviction for possession of drug paraphernalia. Despite the limited reliability of these
earlier tips, they weigh in favor of reasonable suspicion because, as the court
of appeals noted, these tips, while not corroborated, were also not proved
false and were generally consistent with the allegations in the final tips.
¶58 We
note that the existence of prior, though uncorroborated, tips that are consistent
with the information from a reliable informant is a factor present in this case
that apparently was not present in any of the above cases upon which we have
relied to conclude that police had reasonable suspicion here. This factor adds to the totality of the
circumstances and strengthens our conclusion that the officers acted with
reasonable suspicion in this case.
V
¶59 We conclude that under the totality of the circumstances police acted reasonably when they conducted an investigatory stop of the vehicle Miller was driving based on reasonable suspicion "that criminal activity may be afoot."[26] 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 supported by 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.[27] Additionally, the final informant provided details and accurate future predictions that police were able to corroborate.[28] 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?"[29] We conclude that the answer to that question is yes.
¶60 Therefore, we affirm the court of appeals.
By the Court.—The decision of the court of
appeals is affirmed.
[1] State v. Miller, No. 2010AP557-CR, unpublished order (Wis. Ct. App. June 29, 2011).
[2] While briefing was underway, counsel sent a letter advising this court that Miller had passed away. Neither party moved to dismiss this case as moot following Miller's death, and both parties briefed and argued the issues before us. We decide the novel issues presented in this case consistent with this court's role to develop and clarify the law. Wis. Stat. § (Rule) 809.62(1r) (2009-10).
[3] All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.
[4] Miller, No. 2010AP557-CR.
[5] Terry v. Ohio, 392 U.S. 1, 30 (1968).
[6] State v. Williams, 2001 WI 21, ¶¶28-36, 241 Wis. 2d 631, 623 N.W.2d 106; State v. Rutzinski, 2001 WI 22, ¶21, 241 Wis. 2d 729, 623 N.W.2d 516.
[7] Alabama v. White, 496 U.S. 325, 332 (1990).
[8] Terry, 392 U.S. at 21-22 (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)).
[9] Deputy Berlin explained that Crime Stoppers is a "program . . . where people can call in anonymously, report criminal activity, [are] assigned a code number and if that information leads to an arrest or criminal complaint and summons issued against the suspect or suspects, that tipster is offered a cash reward."
[10] Based on the testimony in the record, we conclude, as did the circuit court, that it was this final informant's cellphone number, not the confidential informant's number, that Deputy Berlin had saved in his phone. The record is somewhat unclear in regard to whose cellphone it was that Deputy Berlin called during the morning of August 20, 2008. We uphold the circuit court's finding of fact that this cellphone belonged to the informant who gave the final tips in this case because that finding is not clearly erroneous. Williams, 241 Wis. 2d 631, ¶18. The circuit court's finding is consistent with the most reasonable conclusion from the record, which includes the fact that the deputy was able to reach the final informant directly when he called him back.
[11] Wisconsin Stat. § 961.41(1m)(cm)2. provides in relevant part:
(1m) Possession with intent to manufacture, distribute or deliver. Except as authorized by this chapter, it is unlawful for any person to possess, with intent to manufacture, distribute or deliver, a controlled substance or a controlled substance analog. Intent under this subsection may be demonstrated by, without limitation because of enumeration, evidence of the quantity and monetary value of the substances possessed, the possession of manufacturing implements or paraphernalia, and the activities or statements of the person in possession of the controlled substance or a controlled substance analog prior to and after the alleged violation. Any person who violates this subsection is subject to the following penalties:
. . .
(cm) Cocaine and cocaine base. If a person violates this subsection with respect to cocaine or cocaine base, or a controlled substance analog of cocaine or cocaine base, and the amount possessed, with intent to manufacture, distribute or deliver, is:
. . .
2. More than 5 grams but not more than 15 grams, the person is guilty of a Class E felony.
[12] Wisconsin Stat. § 961.41(1m)(h)1. provides in relevant part:
(1m) Possession with intent to manufacture, distribute or deliver. Except as authorized by this chapter, it is unlawful for any person to possess, with intent to manufacture, distribute or deliver, a controlled substance or a controlled substance analog. Intent under this subsection may be demonstrated by, without limitation because of enumeration, evidence of the quantity and monetary value of the substances possessed, the possession of manufacturing implements or paraphernalia, and the activities or statements of the person in possession of the controlled substance or a controlled substance analog prior to and after the alleged violation. Any person who violates this subsection is subject to the following penalties:
. . .
(h) Tetrahydrocannabinols. If a person violates this subsection with respect to tetrahydrocannabinols, included under s. 961.14(4)(t), or a controlled substance analog of tetrahydrocannabinols, and the amount possessed, with intent to manufacture, distribute, or deliver, is:
1. Two hundred grams or less, or 4 or fewer plants containing tetrahydrocannabinols, the person is guilty of a Class I felony.
[13] Wisconsin Stat. § 939.05
provides:
(1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.
(2) A person is concerned in the commission of the crime if the person:
(a) Directly commits the crime; or
(b) Intentionally aids and abets the commission of it; or
(c) Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. Such a party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and which under the circumstances is a natural and probable consequence of the intended crime. This paragraph does not apply to a person who voluntarily changes his or her mind and no longer desires that the crime be committed and notifies the other parties concerned of his or her withdrawal within a reasonable time before the commission of the crime so as to allow the others also to withdraw.
[14] Before the circuit court, Miller challenged the legality of the investigatory stop, the frisk and his arrest. Before this court, Miller challenges only the investigatory stop. Therefore, we address only that part of the circuit court's decision relevant to the propriety of the investigatory stop.
[15] See Wis. Stat. § 946.41 (providing criminal penalties for anyone who knowingly provides false information to an officer who is acting in an official capacity).
[16] Wisconsin Stat. § 971.31(10) allows the appeal and review of the circuit court's denial of a motion to suppress notwithstanding the defendant's subsequent plea of no contest.
[17] Wisconsin Stat. § 968.24
provides:
Temporary questioning without arrest. After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person's conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.
[18] There are several types of informants, including a citizen informant——"someone who happens upon a crime or suspicious activity and reports it to police"——who is generally considered among the most reliable informants, State v. Kolk, 2006 WI App 261, ¶12, 298 Wis. 2d 99, 726 N.W.2d 337; a confidential informant——someone, "often with a criminal past him- or herself, who assists the police in identifying and catching criminals"——who may be more reliable if he or she has provided truthful information to police in the past, id.; and an anonymous informant——someone "whose identity is unknown even to the police"——who is considered reliable if police are able to corroborate details in the informant's tip, id.
[19] See, e.g., Williams, 241 Wis. 2d 631 (upholding an investigatory stop based on a tip from a reliable informant and some police corroboration of innocent details in the tip); Rutzinski, 241 Wis. 2d 729 (upholding an investigatory stop based on a tip from a reliable informant who was traceable by police even though there was little police corroboration of the informant's allegations prior to the stop); Adams v. Williams, 407 U.S. 143 (1972) (upholding an investigatory stop based on information provided by a more reliable informant known to the investigating officer even though there was little corroboration of or specific information provided in the tip).
[20] State v. Richardson, 156 Wis. 2d 128, 456 N.W.2d 830 (1990) (upholding an investigatory stop based on an anonymous tip of limited independent reliability because the tip included significant details and future predictions verified by police); Alabama v. White, 496 U.S. 325 (1990) (same); State v. Sherry, 2004 WI App 207, 277 Wis. 2d 194, 690 N.W.2d 435 (same); Florida v. J.L., 529 U.S. 266 (2000) (concluding that police lacked reasonable suspicion for an investigatory stop based on an anonymous tip that lacked detail and police corroboration).
[21] See Rutzinski, 241 Wis. 2d 729, ¶32 (The officer "thus could infer that by revealing that he or she was in a particular vehicle, the informant understood that the police could discover his or her identity by tracing the vehicle's license plates or directing the vehicle to the side of the road[,] . . . [and the officer] could reasonably have concluded that the informant knew that he or she potentially could be arrested if the tip proved to be fabricated."); 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.5(h), at 598 (4th ed. 2004).
[22] Deputy Berlin testified that, as his report reflected, the informant told him in the first call that someone had told the informant that Miller and Kowalski were going to Milwaukee to buy drugs on August 19, 2008. Miller argued on this basis that the information was unreliable hearsay. The circuit court found that the record did not support Miller's argument that the final informant provided only hearsay information because that argument was based solely on the informant's statement that he was told the information he provided in the first call to Deputy Berlin. We agree and uphold the circuit court's finding because it is not clearly erroneous. Williams, 241 Wis. 2d 631, ¶18. The fact that the record is somewhat unclear about the source of the informant's information is not enough to support Miller's argument premised on the fact that the tips were, in fact, hearsay, particularly given the circuit court's finding to the contrary.
[23] Wisconsin Stat. § 946.41 provides criminal penalties for anyone who knowingly provides false information to an officer who is acting in an official capacity.
[24] Miller argues that this case is more akin to the quality and quantity of information known to police in Kolk, 298 Wis. 2d 99, in which the court of appeals looked at tips from a citizen informant. We do not find Kolk——a case that centered on the question of whether a frisk was justified——particularly helpful to resolve whether police had reasonable suspicion for the investigatory stop in this case, which is the sole issue before this court. We analyze whether police had reasonable suspicion to conduct a protective search for weapons during an investigatory stop under a different standard——"whether a reasonably prudent [officer] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger." State v. Johnson, 2007 WI 32, ¶21, 299 Wis. 2d 675, 729 N.W.2d 182 (alteration in original) (quoting Terry, 392 U.S. at 27).
[25] We note that the officers did not identify Miller as the driver of Kowalski's black Ford Explorer until after the officers stopped the vehicle, and we therefore do not rely on the fact that Miller was driving in our reasonable suspicion analysis. Instead, police had reasonable suspicion based on the other details provided by the final informant——the vehicle's make, model, license plate and registration, and the route and time——the fact that the informant was more reliable, because he provided self-identifying information, and the prior information to police.
[26] Terry, 392 U.S. at 30.
[27] Williams, 241 Wis. 2d 631, ¶¶28-36; Rutzinski, 241 Wis. 2d 729, ¶21.
[28] White, 496 U.S. at 332.
[29] Terry, 392 U.S. at 21-22 (quoting Carroll, 267 U.S. at 162).