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Craig Mastantuono Aug. 20, 2014

Police have long used confidential informants (CI's) to assist them in the so-called War on Drugs. CI's provide information that police use to arrest people and search their homes, cars, and possessions. Wisconsin law allows for informant identities to be kept confidential, even from the defendant prosecuted in a criminal case resulting from informant information. This can conflict with the constitutional right to confront one's accusers, and so the law also allows for defendants to move the court to review the CI information and to require the government to disclose the informant's identity if the CI can give information necessary to a fair determination of the defendant's guilt or innocence in the case. It has always been a hard burden for a defendant to successfully persude courts to order CI disclosure in Wisconsin, and with a new case decision handed down from the Wisconsin Supreme Court, it just got tougher.

The case, State vs. Nellesen (7/23/14), involved a police search and seizure of a pound of marijuana from a car during a traffic stop in Marshfield, WI. A confidential informant tipped police that the car, which was on its way back to Stevens Point, WI from Minneapolis, contained the marijuana. Jessica Nellesen was the driver of the car, and also in the car were her friend, her friend's boyfriend, and another man. Nellesen had agreed to drive the group  to Minneapolis to pick up a friend, and was on her way back when police pulled her over for an obstructed rear view mirror. Police really stopped the car to search for the marijuana based on the tip, and used the mirror as an excuse – this is called a pretext stop. This led to the Marshfield officer saying he smelled raw marijuana, which led to a full search of the car, which led to the arrests of Nellesen and the others, all started by the informant's tip. Nellesen and two passengers were charged with Possession of Marijuana, as parties to a crime. Nellesen claimed that one of the others must have put the marijuana in her trunk and that she did not know about it. She moved the court to order disclosure of the informant's identity, claiming that if the informant knew about the drug deal and thus tipped the police, the informant could also be aware that she, Nellesen, had nothing to do with it.

In a 5-2 ruling, the Supreme Court denied Nellesen's request to disclose the informant's identity, with Justice Mike Gableman stating "the motion must contain more than mere speculation that the informer has information necessary to the defendant's theory of defense." In other words Nellesen, without knowing who the informant was or what information was provided, had to somehow do more than speculate about why the informant's identity and testimony at trial could help her in order to successfully achieve disclosure. If that sounds hard, it's because it is; the Supreme Court ruling tips the scale in favor of the government at the expense of the constitutional right to a fair trial, in our opinion. See the full Nellesen decision here.

Since informants are used often in drug cases, this situation arises all the time in our practice. On TV and in movies, informants provide information that leads a drug agent go up the underworld ladder leading to a final clash with a drug lord or cartel. In real world Wisconsin, it typically shakes out much differently, with drug users or small time dealers, scared and arrested, pressured by police to become tipsters. They give information about other drug users or small time dealers. With the Nellesen decision, it just got a lot harder for the people charged as a result of this process  to force disclosure of the identity of the informants giving this information, and to test their credibility in court.