State v. Billings

2019 WI App 8, 926 N.W.2d 504, 385 Wis. 2d 847
CourtCourt of Appeals of Wisconsin
DecidedJanuary 15, 2019
DocketAppeal No. 2017AP2272-CR
StatusPublished

This text of 2019 WI App 8 (State v. Billings) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Billings, 2019 WI App 8, 926 N.W.2d 504, 385 Wis. 2d 847 (Wis. Ct. App. 2019).

Opinion

DUGAN, J.1

¶1 The State appeals from the trial court's order that required that the State disclose the identity of a confidential informant (CI) to Robert Billings and the dismissal of the case.

¶2 The CI in question provided information that the State relied upon in its application for a search warrant for Billings' residence. While executing the search warrant, the police seized cocaine and Billings was subsequently charged with the possession of the cocaine.

¶3 On appeal, the State contends that the trial court erred in ordering the disclosure of the CI's identity. Specifically, it contends the trial court erred in finding the CI was a transactional witness because the CI was only involved in the issuance of the search warrant and was neither present, nor involved in the execution of the search warrant during which the cocaine was found. It also contends that the trial court erred in dismissing the action.

¶4 We conclude that the trial court erred in ordering the disclosure of the CI's identity. Therefore, we reverse and remand with directions to vacate the dismissal and for further proceedings consistent with this opinion.

BACKGROUND

¶5 On June 28, 2016, a Milwaukee County Circuit Court court commissioner found probable cause to issue a search warrant for evidence of possession of cocaine and possession of cocaine with intent to deliver at apartment three at 4819 West Hampton Avenue in Milwaukee (the apartment), occupied by "Rob."

¶6 The court commissioner relied upon the June 28, 2016 affidavit of Milwaukee police officer Paul Martinez (the Martinez affidavit), who averred that he had obtained the following information from the CI:

• That "Rob" lived in the apartment.
• That within the past seventy-two hours, under Martinez's direction, the CI made a controlled buy2 of cocaine from Rob at the apartment.
• That the CI gave Rob a sum of money while in the apartment and Rob gave the CI a substance that Rob "represented" to be "[r]ock" (the street name for cocaine base).
• That the CI observed that when the exchange was completed Rob had retained an additional quantity of suspected cocaine in his possession.
• That within the past ten days the CI had been in Rob's apartment and had seen a firearm and suspected cocaine and that the CI made these observations in the apartment where Rob lives.

¶7 Martinez also averred that he believed the allegations of the CI were credible because:

• He knew that the CI had previously made more than ten successful controlled buys and those buys and the information provided by the CI had led to the execution of more than four search warrants, resulting in the recovery of at least five firearms, "numerous controlled substances," and charges against more than four persons.
• The CI had given him and other law enforcement officers information concerning drug trafficking in the Milwaukee area which he and other officers had been able to confirm by reviewing law enforcement agency files.

¶8 On June 29, 2016, Milwaukee police executed the search warrant for the apartment and recovered .49 grams of cocaine in three "corner cuts" and $ 294 in cash. The CI was neither present, nor involved in the execution of the search warrant.

¶9 On July 3, 2016, the State charged Billings with possession of cocaine in violation of WIS. STAT. § 961.41(3g)(c). The complaint alleges that in a "Mirandized interview," Billings stated that the cocaine was "his for personal use."3

¶10 On April 7, 2017, trial counsel filed a motion to compel disclosure of the identity of the CI. In the motion, trial counsel asserted that the Martinez affidavit established that the CI was a transactional witness. He further asserted that "the criminal complaint alleges that the cocaine in question was found in the residence but not on ... Billings' person." Trial counsel asserted that "[t]hus, the State is left with the task of proving that ... Billings knew of the cocaine's presence and that he intentionally exercised some degree of dominion and control over it." He then stated that "because the cocaine was not found on ... Billings' person, the totality of the circumstances surrounding the cocaine now make it more or less likely that ... Billings exercised dominion and control over the cocaine." He also asserted that Billings "need not demonstrate that the [CI's] testimony would be helpful to the defense." The State filed a response opposing the motion.

¶11 At a hearing on the motion on June 20, 2017, trial counsel presented a disjointed argument. Although he cited WIS. STAT. § 905.10(3)(b) as the basis for his motion, his argument would have been more appropriately based on WIS. STAT. § 905.10(3)(c), which is the basis for disclosing the identity of a CI when challenging the issuance of a search warrant. Trial counsel stated that in his affidavit in support of the search warrant, Martinez stated that the CI claimed to have purchased cocaine from Billings. He then argued that the CI "either participated in or witnessed a hand-to-hand transaction ... and/or was a transactional witness to ... Billings allegedly conducting a cocaine transaction" three days prior to the police finding the cocaine in Billings' apartment.

¶12 Throughout his argument to the trial court, trial counsel stated that Billings' defense was to challenge the search warrant. He stated, "Our defense is that we would potentially be challenging the search warrant and therefore a suppression of any evidence obtained in that search warrant." Trial counsel then explained that "We cannot determine whether or not there's reason to challenge that search warrant unless we hear the testimony of the [CI].... Again our theory would be that there was an illegal search[.]" He went on to state that "The issue is whether or not it's material to the case, which it is. Whether or not it would assist in the defense, which it would by allowing us to see if there is a challenge to the search warrant."

¶13 Trial counsel went on to explain that "we would not even get to the point of the arrest had the search warrant not been issued. So the search warrant is the basis of our defense, and the suppression of evidence is definitely material to the defense's case." He then argued that:

The [CI] would be able to testify that there was this cocaine also present within the residence. Because that cocaine was not found on [Billings'] person, the totality of the circumstances surrounding the cocaine makes it, I guess, either more likely or less likely that ... Billings exercised possession of it on three days later or two days later.
The material nature or the transactional nature is that the [CI] states he saw him in possession or control of it.

Trial counsel went on to state "That's material to the search warrant which is material to our defense" and "We're not talking about a jury. The defense we're speaking of is challenging the search warrant."

¶14 At the end of the hearing, the trial court asked trial counsel "what's the purpose of the defense for having this? Is it to be able to file not [sic] a frivolous motion to suppress or ... is it to be able to provide it to ...

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Cite This Page — Counsel Stack

Bluebook (online)
2019 WI App 8, 926 N.W.2d 504, 385 Wis. 2d 847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-billings-wisctapp-2019.