State v. Friday

GARTZKE, P.J.

(dissenting). I disagree with the majority’s holding that the police lacked probable cause to believe that illegal drugs were in John Friday’s car. A warrantless search of an automobile is justified if attended by exigent circumstances and probable cause to believe the automobile is an instrument of a crime or contains contraband. State v. Donovan, 91 Wis. 2d 401, 407-08, 283 N.W.2d 431, 433 (Ct. App. 1979). Both elements existed and I would affirm.

Illinois v. Gates, 462 U.S. 213, 230 (1983), adopted a "totality-of-the-circumstances” approach when determining probable cause. Gates discarded the rigid "veracity,” "reliability,” and "basis of knowledge” test in favor of a common sense "totality-of-the-circumstances” method which "permits a balanced assess*717ment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip.” Id. at 234. In short, probable cause existed to search Friday’s automobile if under the totality of circumstances a fair probability existed that drugs would be found.

I agree with the majority that Friday’s behavior in the restaurant supports an inference that he was dealing in controlled substances. The majority, however, concludes that Friday’s conduct at most establishes a possibility that he had illegal drugs on his person or in his shoulder bag. The majority states that Friday was never seen near his car and that the only connection between drugs and the car was a phone call from an informant who told Officer Pieper there were drugs in Friday’s car. The record reveals more than that.

While the officers watched Friday, a man they recognized as Dino Corti entered the restaurant. Corti had previously served as a police informant. Corti recognized the officers, had a brief conversation with Friday and left.

Officer Klubertanz followed Corti to the restaurant parking lot. Corti was unhooking an automobile from a tow truck. Klubertanz checked the license number and found that the car was registered to Friday. Corti told Klubertanz that Friday wanted the car towed, that there was "dope” in the car, and that he, Corti, did not want anything to do with it. Corti then got in his truck and left. Klubertanz reported all this to Officer Dandurand.

Klubertanz remained with the car. Shortly after Corti left, Klubertanz saw Friday leave the restaurant and walk toward his car. Detective Topp was walking with Friday. When Topp told Friday he would not be *718allowed into the car, Friday returned to the restaurant. A woman who was with Friday then approached the car. She said she was the owner and had the keys, and was going to move it. Klubertanz told her that she would not be allowed to do that.

At this time, Klubertanz saw Friday walking toward the car and heard him yell something like, "Don’t tell them anything.” Friday approached the passenger side of the car with keys in hand, said he was taking the car, and told the officers that if they wanted to stop him they would have to do it physically. After a struggle during which Friday told Kluber-tanz he would fight her, Friday was handcuffed and told he was under arrest for obstructing.

While this was going on, Dino Corti placed a phone call to Lt. Pieper. Corti told Pieper that he had been called to tow Friday’s car but that he didn’t want anything to do with it because he knew that Friday had cocaine in it. Pieper relayed this information to Dandurand.

In view of the above facts, I conclude the police had probable cause. The police reasonably inferred from Friday’s conduct in the restaurant that he was selling illegal drugs. It is also reasonable to infer that while Friday knew that the police were watching him, he orchestrated several schemes to have his car removed from the area. He called to have it towed, an acquaintance claiming to be the owner tried to move it, and Friday himself had to be restrained from entering it. Friday’s actions, combined with Corti’s statements made to police on the scene, establish a reasonable probability that drugs were in Friday’s car.

Because Corti had been a police informant, the majority concludes that his statements to the police require greater proof of reliability than those of *719ordinary citizens. Since Corti did not tell Klubertanz or Pieper why he believed that Friday’s car contained drugs, the majority states that the officers could not be sure that the information was not based on casual rumor or Friday’s general reputation.

The sequence of events leads to a reasonable inference, however, that Corti obtained the information concerning the drugs when he talked to Friday and that his information was therefore reliable. Corti had been called to tow a car, he drove to the restaurant and hooked the car to his truck. After his conversation with Friday, Corti unhooked the car, told police there were drugs in it, and left.

The majority overstates the importance of Corti’s having been a police informant. It does not follow that every time a police informant talks to the police he acts in that capacity. The distinction between a citizen informer and a police informer when testing reliability for probable cause is whether the informer has an expectation of some gain or concession in exchange for the information. Loveday v. State, 74 Wis. 2d 503, 524, 247 N.W.2d 116, 128 (1976). It is the expectation or concession which renders suspect information supplied by a police informant.

The record contains no evidence or basis for the inference that Corti expected some gain or concession in exchange for Corti’s information. Corti’s critical statement was to Officer Klubertanz. Corti made the statement in response to Klubertanz’ asking whether Friday had called him. Corti was not acting as a police informant when he told Klubertanz that Friday wanted the car towed, that there was dope in it and that Corti did not want anything to do with it. Consequently, the police had no reason to doubt the *720reliability of Corti’s two statements that Friday’s car had dope in it.

In addition to probable cause, a warrantless search of an automobile requires exigent circumstances, Donovan, but a slight showing of exigency is sufficient. State v. Wisumierski, 106 Wis. 2d 722, 738, 317 N.W.2d 484, 492 (1982). While Officer Klubertanz was watching Friday’s car, three persons, including Friday, tried to take it. Friday was with a large number of people and made many phone calls. There was no reason to believe that there would not be other attempts to get the car. This establishes an exigency.