COURT OF APPEALS DECISION DATED AND FILED June 30, 2009 David
R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Ricky L. Schmaling,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM. Ricky Schmaling appeals a judgment of conviction for possessing THC as a second or subsequent offense and two counts of felony bail jumping. He contends the court should have suppressed evidence obtained during the execution of a search warrant at his cabin because a confidential informant who provided information to law enforcement was not reliable. We affirm the judgment.
BACKGROUND
¶2 On November 17, 2005, police applied for a warrant to search
Schmaling’s cabin in
¶3 The affidavit further stated that warden Timothy Otto
contacted the informant by phone on November 16, and the informant told Otto
that Schmaling would be at a cabin in
¶4 Otto instructed the informant to contact deputy Bill Mertig of the Forest County Sheriff’s Department. That same day, the informant called Mertig and told him Schmaling would be staying at the cabin, that Schmaling was a convicted felon, and that the informant knew Schmaling was an avid hunter known to carry firearms.
¶5 Additionally, the affidavit stated police ascertained that Schmaling had purchased a resident gun deer hunting license, that Schmaling’s cabin address matched that provided by the informant, and that Schmaling owned a pickup truck matching the description and license plate number provided by the informant. Police also confirmed that Schmaling was a convicted felon. On November 17, a judge signed a warrant to search the cabin, and the warrant was executed November 18. Among other things, police recovered firearms and marijuana during the search.[1]
¶6 Schmaling moved to suppress evidence obtained from the search, arguing the affidavit supporting the warrant failed to establish probable cause. Specifically, he contended the affidavit failed to establish the informant was reliable. The circuit court denied the motion.
DISCUSSION
¶7 A search warrant may only be issued upon a “finding of
probable cause by a neutral and detached magistrate.” State v. Higginbotham, 162
¶8 A magistrate determining whether to issue a search warrant
is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, 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.
¶9 Whether probable cause exists to believe evidence is located
in a particular place is determined based on the totality of the
circumstances.
¶10 Assessing the reliability of an informant’s information is part
of the totality of the circumstances. Gates,
462
(1) whether the informant personally
observed the events, (2) the degree of detail shown in the informant’s
statements, (3) whether the police independently corroborated the
information, (4) the interval of time between the events and application
for a warrant, and (5) whether the informant appeared in person before the
judicial officer who issued the warrant.
¶11 Schmaling’s challenge to the search warrant focuses on the reliability of the confidential informant. He asserts the informant’s information lacked sufficient detail to be reliable because many of the details provided were of public record. He also asserts police could have taken more steps to corroborate the information.
¶12 We conclude the level of detail provided by the informant, combined with the amount of police corroboration, were sufficient to justify issuing the search warrant. The informant told law enforcement that Schmaling, a convicted felon, would be staying at the cabin, possessed firearms, and would be hunting with a firearm during the gun deer hunting season. The informant also provided specific information about the cabin and the vehicle Schmaling would be driving. The police investigation corroborated Schmaling’s status as felon, the ownership and address of the cabin, and Schmaling’s vehicle registration.
¶13 Law enforcement’s determination that Schmaling had obtained a
gun deer hunting license also lent credence to the informant’s assertion that
Schmaling would be hunting with a firearm while staying at the cabin. Further, we note that while the informant’s
identity remains confidential, the informant did have multiple contacts with
law enforcement. This indicates, at a
minimum, the informant risked revealing his or her identity to police, making a
nefarious tip less likely. See State v. Williams, 2001 WI 21, ¶38,
241
¶14 Altogether, the totality of the circumstances outlined in the
affidavit supporting the search warrant supported a reasonable inference that
Schmaling would possess a firearm at the cabin. See Gates, 462
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] While Schmaling was charged with being a felon in possession of a firearm, a jury found him not guilty of that offense.