June 18, 2012 – Information provided to police from several informants and police corroboration provided the requisite reasonable suspicion for an investigatory stop, according to a recent opinion by Wisconsin Supreme Court in State v. Miller, 2012 WI 61 (June 12, 2012).

In 2008, Marinette County Sherriff’s officers stopped Miller on suspicion that he was engaged in a drug-related crime, based on information the police had received from several informants. As a result of the investigatory stop and search, police discovered marijuana, cocaine, a digital scale and cash in the car he was driving, and Miller admitted to using heroin that morning.

Miller filed a motion to suppress the evidence and statement obtained from this stop, which the circuit court denied. An appeals court affirmed.

Background

In the months leading up to the investigatory stop, Marinette County Sheriff’s Deputy Rick Berlin received information from several different sources that Miller was trafficking drugs in Marinette County. In November 2007, an inmate in Marinette County jail told Deputy Berlin that Miller was selling drugs from Miller’s address on Water Street.

In June and July 2008, there were three anonymous tips called into the Marinette County Crime Stoppers Program, with varying reports on Miller’s drug-related activities.

After receiving these tips and before the final tips that led to Miller’s stop and arrest, Deputy Berlin conducted a follow-up investigation. He watched Miller’s residences but was unable to either corroborate or disprove the allegations Miller was dealing drugs. Deputy Berlin did find out, however, that in 2001 Miller was convicted of possession of drug paraphernalia.

The final tip came through a confidential informant who called Deputy Berlin on his work cell phone. The confidential informant told Deputy Berlin that someone wanted to talk with him, and then handed the phone to another individual. This last informant told Deputy Berlin he wanted to remain anonymous, but he gave Deputy Berlin his first name.

The informant provided detailed information to Deputy Berlin about Miller’s plan to drive to Milwaukee to purchase drugs, including the date Miller would leave and return, and the license plate number and registration of the black Ford Explorer he would be driving.

Deputy Berlin verified the registration and location of the Ford Explorer. On the morning Miller was to leave for Milwaukee, Deputy Berlin drove past the location and noted that the car was still parked in the driveway. He called the informant back on the informant’s cell phone to let him know he didn’t think Miller had left for Milwaukee, and the informant confirmed this and told Deputy Berlin he would call him back if he got any more information.

In a third call, later that same day, the informant told Deputy Berlin that Miller had left for Milwaukee to pick up the drugs and that Miller would be back in the Marinette area no later than 11 p.m. that same day. Deputy Berlin immediately followed up on that tip by driving past the location where the car had been earlier and saw that it was not there.

He and other officers took up positions along Highway 41 to watch for the vehicle to come back into Marinette County, and at 10:30 p.m., the officers saw the Ford Explorer and stopped the vehicle, discovered the drugs and cash, and arrested Miller and a passenger. Miller was charged with possession of cocaine and marijuana with intent to distribute.

In denying Miller’s motion to suppress the evidence in that the police lacked reasonable suspicion for the investigatory stop, both the circuit court and the court of appeals found that the final informant was not truly anonymous, as he had provided Deputy Berlin with his first name and cell phone number.

As such, that informant is more credible and reliable because he provided self-identifying information that exposed him to prosecution if he provided false information, the court explained.

In addition, while the prior tips from both the inmate and the tip line were of limited reliability while standing alone, they added to the officers’ suspicion that Miller was involved in illegal drug activity and it was reasonable for police to take these tips into account when weighing the information provided by the final informant.

The Court’s Analysis

The court reviews the issue of whether information provided to police from several informants along with police corroboration provided the requisite reasonable suspicion for an investigatory stop under a two-step analysis. First, the court examines the circuit court’s findings of fact, which will be upheld unless they are clearly erroneous. Second, the court reviews de novo whether the facts meet the constitutional standard of reasonable suspicion.

Justice N. Patrick Crooks, in writing the opinion of the court, noted that the U.S. Supreme Court in Terry v. Ohio, 392 US 1 (1968), found 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.” To justify the stop, the officer must be able to point to specific facts which, when taken together with rational inferences from those facts, reasonably warrant the intrusion.

The court reviews the totality of the circumstances leading up to the investigatory stop and focuses its analysis on the reasonableness of the officers’ actions in the situation facing them. As such, these analyses are very fact intensive.

“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. 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,” noted Justice Crooks.

In the court’s holding, Justice Crooks stated, “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.”

“The factor that weighs most heavily in our analysis is the fact that the tips by the final informant contained significant indicia of reliability, because here the informant was not truly anonymous,” Justice Crooks concluded. 

Deborah Spanic is a legal writer for the State Bar of Wisconsin.