May 7, 2009 – A majority of the Wisconsin Supreme Court held that police are not excused from confirming the reliability of an informant’s source in attempting to demonstrate probable cause for the issuance of a search warrant.

However, three justices warned in a concurring opinion that this should not be interpreted as a retreat from the totality of circumstances test established by Illinois v. Gates, 462 U.S. 213 (1983), and a return to a formal two-part test for probable cause.

In State v. Romero, 2009 WI 32, police followed a confidential informant to a controlled buy that had been arranged by a third person only identified as “Mr. X.” Mr. X had told the confidential informant that he could buy cocaine from a person he identified as “Jaime.” Police observed Jaime Romero headed to a garage behind his home. The police then saw Mr. X leave the confidential informant behind in his car to enter the garage and return with drugs. Neither the confidential informant nor the police witnessed Mr. X acquire the cocaine from Romero.

The police found that the utilities of the house were in the name of “Jaime Romero” and they confirmed that Romero drove a Lincoln Navigator, as described by the confidential informant. The police secured a search warrant for Romero’s home and recovered more than 147 grams of cocaine. When the trial court denied Romero’s suppression motion, Romero pled guilty to the manufacture, distribution, or delivery of more than 40 grams of cocaine as a party to a crime.

On appeal, Romero contended the affidavit supporting the search warrant could not establish probable cause because it lacked a basis for finding Mr. X credible or for finding reliable Mr. X’s statement that Romero furnished cocaine. Besides the lack of any direct observation of a sale, Romero pointed out that no one saw him enter the garage. Further, the affidavit does not identify Mr. X or describe Mr. X’s relationship to either Romero or the confidential informant, Romero argued. The affidavit does not disclose whether law enforcement or the confidential informant even knew Mr. X’s identity, he added.

Totality of circumstances test

The court acknowledged these defects, but said the affidavit satisfied the probable cause standard for a warrant set out in Gates.

Under Gates, the court said a warrant-issuing commissioner “is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit … 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.”

To demonstrate a declarant’s “veracity,” the warrant-issuing officer must have facts that enable an evaluation of either the “credibility” of the declarant or the “reliability” of the particular information provided. A declarant’s credibility is commonly established by past instances in which the declarant has given information to police. Information’s reliability may be inferred from the corroboration of details. “If a declarant is shown to be right about some things, it may be inferred that he is probably right about other facts alleged,” the court said.

A declarant’s “basis of knowledge” is established by facts demonstrating grounds for his or her allegation that evidence of a crime would be found at a certain place. While the basis of knowledge is most directly shown by an explanation of how the declarant came to have this information, it can also be shown indirectly through a wealth of detail permitting an inference that the basis of knowledge is sound, the court explained.

“The veracity and basis of knowledge of a declarant are relevant whether the declarant communicates directly to the police or indirectly through another,” the court said. Accordingly, the court rejected the state’s argument that law enforcement officers should never be required to validate the reliability of a reliable informant’s source for purposes of demonstrating probable cause in an affidavit.

But turning to the facts of this case, the court held that the affidavit sufficiently demonstrated Mr. X’s veracity. Specifically, the court said police were able to independently corroborate Mr. X’s prediction that a person would be waiting near Romero’s residence, that this person was named “Jaime,” and that “Jaime” would supply cocaine to Mr. X. Also, the court found that Mr. X made numerous statements against his penal interest that were closely related to the crime in question under circumstances providing no apparent motive to lie. As such, the court upheld the search warrant.

Probable cause remains a “fluid” determination

Justice Patience Roggensack, agreeing with the majority’s conclusion, wrote a concurring opinion to clarify the reasoning used to reach it.

Roggensack, joined by Justices Annette Kingsland Ziegler and Michael Gableman, warned that “the majority opinion could be read, mistakenly, as reestablishing a rigid two-prong test for evaluating the sufficiency of the allegations in a warrant affidavit, similar to the test employed in Aguilar v. Texas, 378 U.S. 108 (1964).”

Under Aguilar, an affiant without personal knowledge of the facts asserted in the affidavit had to demonstrate both a basis for the knowledge of an informant and the underlying circumstances that led the affiant to believe either that the informant was “credible” or his information was “reliable.”

Gates surrendered the “formalistic two-prong test of Aguilar” in favor of a “totality-of-the-circumstances” approach, Roggensack wrote. Using the Gates method, an informant’s credibility, the information’s reliability, or the basis of an informant’s knowledge are only factors in determining the overall reliability of a tip – not independent tests that must be satisfied, she explained. “[P]robable cause is a fluid concept – turning on the assessment of probabilities in particular factual contexts – not readily, or even usefully, reduced to a neat set of legal rules,” Rogensack wrote, quoting Gates.

Likewise, Roggensack said the majority opinion’s use of “veracity” should not be misinterpreted.

“The term, ‘veracity,’ can be understood in more than one way,” Roggensack wrote. “Veracity can be understood as referring to: (1) a person’s general propensity for truthfulness; or (2) the reliability of the information a person provided on a particular occasion… [T]he majority opinion could be misread as requiring both a finding of the veracity, i.e., truthfulness, of Mr. X and a finding that the information he provided on this occasion was reliable before the magistrate would have been sufficient evidence to issue a search warrant.”

A determination of Mr. X’s veracity in the sense of “truthfulness” was not necessary to the sufficiency of the affidavit that was presented to the magistrate, she said. The magistrate only needed “to interpret the reliability of the information Mr. X provided as part of a common sense interpretation of the totality of the circumstances set forth” in the affidavit, Roggensack wrote.