¶ 1. Jessica Nellessen appeals a nonfinal order denying her motion to disclose the
BACKGROUND
¶ 2. On June 28, 2011, Jason Punke, a police officer for the City of Marshfield, stopped a vehicle driven by Nellessen. Nellessen had four passengers at the time. Officer Punke testified at the preliminary hearing and at a later suppression hearing that he stopped the vehicle because of an obstructed view violation. Officer Punke testified that while checking the passengers for identification, he smelled a raw odor of marijuana, or THC. He then searched the passenger compartment of the car and found a prescription bottle containing a small amount of marijuana, approximately 0.4 grams or 0.014 ounces. Another Marshfield police officer, James Cramm, testified that in a subsequent search, a larger amount of marijuana, approximately 14 ounces, was found hidden inside a computer located in the trunk.
¶ 3. Nellessen was charged with one count of possession with intent to deliver THC. Nellessen filed a motion to suppress any evidence obtained as a result of the search of her vehicle on the basis that her vehicle
¶ 4. At the hearing on Nellessen's motion, Officer Cramm testified that prior to the stop of Nellessen's vehicle, he had received "a tip from another detective that this car would be coming through Marshfield and that it contained approximately a pound of marijuana," information that the detective "had received [] from a confidential informant." Officer Cramm further testified that Officer Punke was aware of the confidential tip and that the tip was part of the reason that Officer Punke had stopped Nellessen's vehicle. Officer Cramm testified: "My instructions to Punke were to find a violation to stop the vehicle."
¶ 5. Following the hearing on her motion to suppress, Nellessen filed a motion to compel disclosure of the identity of the confidential informant pursuant to Wis. Stat. § 905.10(3)(b). Nellessen "adamantly denied any knowledge of the large quantity of controlled substances in her vehicle" and thus "whether [she] was aware of the large quantity of marijuana in her vehicle" would "be the critical issue at trial." Nellessen further alleged that she needed to know the identity of the informant because "[i]f the informant knew the direction of travel [of Nellessen's vehicle] and the existence of controlled substances in the vehicle," it was a "reasonable [inference] that the informant [might] also know whether [Nellessen] was aware that the marijuana [was] in the vehicle."
¶ 6. The circuit court denied Nellessen's motion to compel disclosure of the confidential informant's identity following a hearing on the motion at which no further testimony was taken. Instead, the parties offered argument upon the evidence previously given at
DISCUSSION
¶ 7. Nellessen contends that the circuit court erred in refusing to conduct an in camera review to determine whether there is reason to believe that the confidential informant may be able to provide testimony "necessary to a fair determination of [Nellessen's] guilt or innocence," pursuant to Wis. Stat. § 905.10(3)(b). Whether an in camera review is required under a particular set of facts involves the application of those facts to a legal standard. Application of facts to a legal standard is a question of law which we review de novo. State v. Trochinski,
¶ 8. The interpretation of a statute, here Wis. Stat. § 905.10, is a question of law that we review de novo. State v. Cole,
¶ 9. Wisconsin Stat. § 905.10 establishes the circumstances under which the identity of a confidential informant may be disclosed. Under § 905.10(1), the
¶ 10. Wisconsin Stat. § 905.10(3)(b)
¶ 11. The purpose of the two-step procedure is to "avoid a 'judicial guessing game.'" Outlaw,
¶ 12. The supreme court in Outlaw set a low threshold for obtaining an in camera review: "The showing need only be one of a possibility that the informer could supply testimony necessary to a fair determination." Outlaw,
¶ 13. As we indicated above, Nellessen argues that the circuit court erred by failing to conduct an in camera review of evidence given by the confidential informant to determine whether the informer could provide testimony that would be necessary to a fair determination of Nellessen's guilt or innocence. She argues that so long as there is a "mere 'possibility' that the informant will have information relevant and necessary to the defendant's guilt or innocence," the court must hold an in camera review. Because the court in this case ruled that the information before it was not sufficient to trigger an in camera review, we are concerned here only with the first step in the analytical framework set forth in Wis. Stat. § 905.10(3)(b).
¶ 15. The State argues that even if the informer says that Nellessen was not present when the marijuana was placed into the trunk, or that she did not take part in any conversation regarding the conspiracy, that this is not sufficient because Nellessen could have learned of the presence of marijuana in her trunk in some manner of which the informer was unaware. The State further argues that whether Nellessen was present when the marijuana was placed into the trunk or participated in particular conversations about the conspiracy, while relevant, is not sufficient to trigger the in camera review because relevancy is not the issue. Rather, the State claims, the issue is whether the information would be sufficient to establish reasonable doubt.
¶ 16. However, the standard that the State is relying upon is the standard for whether the informant's identity should be revealed after the court determines to conduct an in camera review. See Wis. Stat. § 905.10(3)(b); Outlaw,
¶ 17. Nellessen also asserts that the right to disclosure of a confidential informant implicates her due process rights under the Fourteenth Amendment. However, because we have resolved the issue on the basis of statutory interpretation and application of the facts to a legal standard, we need not reach the issue of whether Nellessen's due process rights were violated. See Turner v. Taylor,
CONCLUSION
¶ 18. For the reasons stated above, we reverse the order of the circuit court denying Nellessen's motion to
By the Court. — Order reversed and cause remanded for further proceedings.
Notes
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
Wisconsin Stat. § 905.10(3)(b) provides in relevant part:
If it appears from the evidence in the case or from other showing by a party that an informer may he able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case ... and the ... [S]tate ... invokes the privilege, the judge shall give the ... [Sjtate ... an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony.
It appears that the State confuses the distinction between the first and second steps of the analysis, and bases its entire presentation on cases (and concurrences) that bear only on the second step in the analysis. The only guidance available on the meaning and application of the first step in Wis. Stat. § 905.10(3)(b) is the following language from Outlaw:
Rule 905.10(3)(b), Testimony on merits, pertinent to this case, is concerned with the possibility that an informer has material evidence necessary to a fair trial. It, too, like 905.10(3)(c), provides*544 for an in camera proceeding to avoid a "judicial guessing game." United States v. Day,384 F.2d 464 , 470 (3rd Cir. 1967); see, also, United States v. Skeens,449 F.2d 1066 (D.C. Cir. 1971, Bazelon dissenting), as to when an in camera showing might be necessary to ascertain whether or not the informer participated or merely overheard a conversation about a crime.
The procedure for an in camera hearing is triggered by:
"... evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case." (Emphasis supplied.) Sec. 905.10(3)(b).
This portion of the rule does not place a significant burden upon the party seeking disclosure. There need only be a "showing ... that an informer may be able to give testimony necessary" to a fair trial. In the instant case, the factual issues are alibi and identity....
The informer was, it is to be assumed, the eyes and ears of the narcotic agents. Thus, once it was known that there was an informer present during the transaction, it was appropriate for counsel to assert that the informer's testimony might be necessary for a fair determination of the guilt or innocence of the accused and to ask for disclosure of informer's identity. This is a minimal burden on a defendant. As we understand the position of the attorney general, he recognizes that the burden of showing that "an informer may be able to give testimony necessary . . ." (emphasis supplied) to a fair trial is light indeed.
The showing need only be one of a possibility that the informer could supply testimony necessary to a fair determination. That showing has been made here.
Under the rule, once that showing is made, it behooves the state to either disclose the identity of the informer or avail itself of the opportunity to offer proof of what in actuality the informer can testify about.
State v. Outlaw,