State v. Jessica A. Nellessen
849 N.W.2d 654
Wis.2014Background
- On June 28, 2011, Jessica Nellessen drove from Stevens Point to Minneapolis to pick up a passenger; that passenger (Green) placed about a pound of marijuana in the trunk of her car. Nellessen later admitted smelling raw marijuana in the vehicle.
- Marshfield officers stopped Nellessen for an obstructed view; officers smelled raw marijuana, searched the car, and found the marijuana and a scale with residue. Nellessen was charged as a party to the crime.
- A detective testified at a preliminary hearing that the stop arose from a tip by a confidential informer who told Stevens Point PD about the car, route through Marshfield, timing, and that a pound of marijuana would be present.
- Nellessen moved under Wis. Stat. § 905.10(3)(b) to compel disclosure of the informer's identity, arguing the informer might know how and when the marijuana was placed and whether she knew of it. The circuit court denied the motion without an in camera review.
- The court of appeals reversed, holding an in camera review was required whenever facts suggest the informer might have material evidence. The Wisconsin Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What initial showing is required under Wis. Stat. § 905.10(3)(b) to trigger an in camera review of a confidential informer's expected testimony? | Nellessen: a light showing — an informer need only possibly have information relevant to the defense; an in camera review should be ordered when there's a possibility the informer may have necessary testimony. | State: defendant must identify specific expected testimony and show it could create reasonable doubt; more particularized showing required before an in camera review. | The Court: initial burden is modest but requires a reasonable possibility, grounded in facts and circumstances, that the informer may have testimony necessary to the defendant’s theory of defense. Mere speculative fishing expeditions are insufficient. |
| Did the circuit court err by denying Nellessen's motion without conducting an in camera review? | Nellessen: the detailed tip (car, route, timing, quantity) made it reasonably possible the informer knew how the drugs were transferred and whether Nellessen was present/aware; that sufficed for an in camera review. | State: evidence was strong and other witnesses (passengers, e.g., Scott) could supply the same information; Nellessen’s motion was speculative and did not show a reasonable possibility the informer had unique, necessary testimony. | The Court: No error. Nellessen failed to show a reasonable possibility, grounded in the case facts, that the informer had testimony necessary to her defense. The circuit court properly denied the request for an in camera review. |
Key Cases Cited
- Roviaro v. United States, 353 U.S. 53 (recognizes informer privilege and balancing test between law enforcement interest and defendant’s right to prepare a defense)
- State v. Outlaw, 108 Wis. 2d 112 (Wis. 1982) (initial burden for in camera review is "light indeed": need only a possibility the informer could supply testimony necessary to the defense)
- State v. Vanmanivong, 261 Wis. 2d 202 (Wis. 2003) (discussed in relation to § 905.10, but does not change Outlaw’s "possibility" standard)
- State v. Dowe, 120 Wis. 2d 192 (Wis. 1984) (clarifies that Justice Callow’s concurrence in Outlaw reflects the controlling test applied at in camera review)