Appellate court forces private review of informant’s testimony

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A trial court should have looked for exculpatory evidence by privately reviewing the testimony of a confidential informant who tipped off police about a car carrying almost a pound of marijuana in Marshfield, according to the Wisconsin’s 4th District Court of Appeals.

In State v. Jessica A. Nellessen, 2012 AP 150, the appellate court found the defendant, who was facing a possession with intent to distribute charge, had a due process right to review the information and testimony of the CI.

On June 28, 2011, two Marshfield police officers pulled over the car driven by Nellessen. The traffic stop was based on an obstructed view violation for objects dangling from the rearview mirror.

While speaking with Nellessen and her three passengers, Officer Jason Punke allegedly smelled “raw marijuana” from the rear passenger area. A search of the front and rear passenger areas turned up a small amount of suspected marijuana.

During a search of the trunk, Punke and Officer James Cramm found a digital scale with what appeared to be marijuana residue. They also found almost a pound of marijuana wrapped in cloth and plastic inside a computer tower.

Nellessen was charged with possession with intent to distribute, though she strongly denied any knowledge or ownership of the drugs in her car.

Her attorney filed a motion to suppress due to lack of probable cause. During that motion hearing, Cramm for the first time indicated he got a call on the day of the traffic stop from a Stevens Point police officer, who, citing a CI, said that particular car was from Minnesota and would be travelling by a specific route through Marshfield with the marijuana.

Punke acknowledged he had been told to “find a violation to stop the vehicle,” according to court testimony.

The state refused to provide the name of the CI under Wis. Stat. 905.10(2), and trial court Judge Todd J. Wolf denied the motion to suppress.

Nellessen’s attorney also filed a motion under Wis. Stat. 905.10(3) asking the court to compel the state to provide the name of the CI and provide more information about the tip. The court denied that motion.

On appeal, Nellessen’s attorney argued the circuit court had failed to fairly and properly apply the necessary two-step test in Wis. Stat. 905.10(3)(b) as interpreted in State v. Outlaw, 108 Wis. 2d. 112 (1982), to determine if the court should hold a private review of the CI information.

The test first requires the court review the CI information if there is reason to believe the informant may be able to give testimony “necessary to a fair determination of the establishment of guilt or innocence.”

The second part of the tests asks, after completion of the preliminary review, if there is reasonable probability the information provided by the CI would show that a defendant participated in the alleged criminal conduct.

Nellessen’s attorney argued that if the CI knew the direction of travel and the type of car, then the informant might also be able to say if Nellessen knew the marijuana was in the car. The attorney further stated the trial court was too rigorous in applying the first test in State v. Outlaw to the case.

The state argued Nellessen’s attorney was reading Outlaw incorrectly, following the majority opinion when the consensus four-vote concurring opinion should control in Nellessen.

“An essential condition precedent to disclosure is that the informer’s testimony be necessary to the defense,” the state argued, quoting State v. Dowe, which was interpreting Outlaw. This testimony “must support an asserted defense to the degree that the evidence could create reasonable doubt.”

However the appellate court agreed with Nellessen’s attorney, stating the court in Outlaw set a low threshold for obtaining private review.

Knowledge is an essential part of the crime of possession with intent to distribute, the court continued, and it is reasonable to think the informer could confirm if Nellessen was present when the marijuana was put in the car or if she had reason to be aware of drugs in the trunk.

The state’s argument rested in part on the proposition that, even if the informer indicated Nellessen was not around when the drugs were placed in the vehicle or even confirmed to the CI she had no reason to be aware of the shipment, she could have learned of the drugs in some way during or before the trip.

The court found Nellessen’s attorney had made enough of a showing to merit the private review before the trial court. The appellate court also ordered the state produce the necessary documentation for circuit court scrutiny or risk dismissal of the case.

The matter was reversed and remanded for further proceedings consistent with the court’s opinion.