Thursday, May 7, 2009

Decision in 'State v. Romero' 2009 WI 32

The Wisconsin Supreme Court today issued its decision in this case (2007AP1139-CR) reversing the Court of Appeals.
Opinion by Chief Justice Abrahamson, with Justices Bradley, Crooks, and Prosser
¶34 Reliance on information provided to a confidential informant by a participant in a crime has been approved by several courts even in the absence of constant visual contact with the participant conducting the transaction.[footnote omitted] Facts set forth in the affidavit demonstrate Mr. X's veracity to a degree sufficient to show, considering the totality of the circumstances presented to the warrant-issuing commissioner, that the commissioner had a substantial basis for concluding that there was a fair probability that a search would uncover evidence of wrongdoing at the defendant's residence.

Concurrence by Justice Roggensack, with Justices Ziegler and Gableman
¶46 I write separately for two reasons: (1) I conclude that the majority opinion could be read, mistakenly, as re-establishing 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). The United States Supreme Court set aside Aguilar in Illinois v. Gates, 462 U.S. 213 (1983), when Gates established the totality of the circumstances approach for assessing the sufficiency of the information provided to obtain a search warrant.[45] (2) I conclude that the majority opinion could be read, mistakenly, as requiring a determination of the veracity, i.e., truthfulness, of a person who is not a known confidential informant, here Mr. X,[footnote omitted] rather than assessing the reliability of Mr. X's statements through a common sense interpretation of the record before the magistrate.

See Argument in 'State v. Romero'

Court scrutinizes multiple hearsay statements used to obtain search warrant, by Alex De Grand, WisBar, May 7, 2009