                                                                         2014 WI 84

                  SUPREME COURT                OF     WISCONSIN
CASE NO.:               2012AP150-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent-Petitioner,
                             v.
                        Jessica A. Nellessen,
                                  Defendant-Appellant.



                              REVIEW OF A DECISION OF    THE COURT OF APPEALS
                                     347 Wis. 2d 537,    830 N.W.2d 266
                                       (Ct. App. 2013    – Published)
                                          PDC No: 2013   WI App 46

OPINION FILED:          July 23, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 9, 2014

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Wood
   JUDGE:               Todd P. Wolf

JUSTICES:
   CONCURRED:
   DISSENTED:           BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
                        filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For      the     plaintiff-respondent-petitioner,         the     cause    was
argued by Thomas J. Balistreri, assistant attorney general, with
whom on the briefs was J.B. Van Hollen, attorney general.


       For the defendant-appellant, there was a brief by Michael
D.   Zell       and    Zell    Law   Office,   LLC,   Stevens   Point,    and    oral
argument by Michael D. Zell.
                                                                             2014 WI 84
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.   2012AP150-CR
(L.C. No.    2011CF268)

STATE OF WISCONSIN                                 :            IN SUPREME COURT

State of Wisconsin

             Plaintiff-Respondent-Petitioner,
                                                                          FILED
      v.                                                             JUL 23, 2014

Jessica A. Nellessen                                                    Diane M. Fremgen
                                                                     Clerk of Supreme Court

             Defendant-Appellant.




      REVIEW of a decision of the Court of Appeals.                       Reversed and

cause remanded.



      ¶1     MICHAEL J. GABLEMAN, J.           This case is a review of a

published decision of the court of appeals1 reversing an order of
the   Wood    County      Circuit   Court,   the       Honorable      Todd    P.    Wolf,

presiding.       The defendant, Jessica A. Nellessen ("Nellessen"),

sought to have the identity of a confidential informer disclosed

pursuant to Wis. Stat. § 905.10(3)(b) (2011-12).2                          The circuit

court denied Nellessen's motion, and she appealed.                       The court of

      1
       State v. Nellessen, 2013 WI App 46, 347 Wis. 2d 537, 830
N.W.2d 266.
      2
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
                                                                    No.    2012AP150-CR



appeals    reversed,      holding    that     the     circuit     court    improperly

denied Nellessen's motion without first conducting an in camera

review of the confidential informer's expected testimony.

    ¶2      The issue presented to us on appeal is whether the

circuit    court     erred    by    denying      Nellessen's        motion     without

conducting an in camera review.               While this court has previously

articulated the standard by which a circuit court must review

the evidence presented during an in camera review under Wis.

Stat. § 905.10(3)(b), we have not had occasion to elaborate on

what a defendant must show in order to trigger an in camera

review.     We conclude that the required showing is a reasonable

possibility,     grounded      in   the   facts     and    circumstances       of   the

case,     that   a   confidential         informer        may    have     information

necessary to the defendant's theory of defense.                           Because we

conclude Nellessen failed to meet this burden, we reverse the

court of appeals and remand the case to the circuit court for

further proceedings.

                     I.      FACTS AND PROCEDURAL BACKGROUND
    ¶3      On     June      28,    2011,      Rico     Scott      ("Scott")        made

arrangements to pick up his cousin Richard Green ("Green") in

Minneapolis and drive him to Stevens Point.                     Scott contacted his

girlfriend, Miranda Brooks ("Brooks"), regarding the trip and

Brooks then asked Nellessen to drive Scott, Brooks, and another

individual named William George ("George"), to Minneapolis in

order to pick up Green and return to Stevens Point.                          Nellessen

agreed to do so.


                                          2
                                                             No.     2012AP150-CR



    ¶4    Nellessen      and   her     companions——Scott,          Brooks,     and

George——met with Green when they arrived in Minneapolis.                     Scott

saw Green get into Nellessen's car and produce two small bags of

marijuana.   Scott removed a small amount of this marijuana from

one of the bags and placed it in a prescription bottle.                      Green

hid the remaining marijuana in a computer tower in the trunk of

Nellessen's car.

    ¶5    It is unclear whether Nellessen or Brooks were in the

car when Green produced the marijuana, or whether they saw the

marijuana at all, but Nellessen later admitted that she had

smelled the odor of raw marijuana in the car.

    ¶6    While en route back to Stevens Point, Officer Jason

Punke of the Marshfield Police Department pulled Nellessen's car

over on the grounds that Nellessen's view was obstructed by

several items hanging from the rear view mirror.               Officer Punke

testified at the preliminary hearing that he smelled the odor of

raw marijuana in the car.            Officer Punke called for backup.

Officer   Punke    and    Detective        James   Cramm,   also     from     the
Marshfield   Police      Department,       conducted   a    full     search     of

Nellessen's car, during which they discovered the marijuana that

Green had previously hidden in the car's trunk.              The search also

yielded a digital scale covered with marijuana residue.




                                       3
                                                                        No.     2012AP150-CR



     ¶7     Nellessen,          Green,     and       George      were       charged        with

possession of marijuana as parties to a crime pursuant to Wis.

Stat. §§ 939.05, 961.41(1m)(h)2.3

     ¶8     After        Nellessen's      preliminary         hearing,        her    counsel

filed a motion to suppress the evidence found during the search

of her car.           The circuit court held a hearing on Nellessen's

motion on November 7, 2011.               During the hearing, Detective Cramm

testified        that    he     instructed         Officer    Punke      to    pull        over

Nellessen's car based on a tip from a confidential informer.

According        to     Detective       Cramm's       testimony,        a     confidential

informer    contacted          the   Stevens       Point     Police     Department         with

information that Nellessen's car had gone to Minneapolis and was

returning to Stevens Point by way of Marshfield with a pound of

marijuana    in       the     car.      Detective      Cramm     testified          that    the

information regarding the confidential informer had been relayed

to him by Detective John Lawrynk of the Stevens Point Police

Department at approximately 7 p.m. on the same day Nellessen and

her companions travelled to Minneapolis.
     ¶9     After        the    preliminary         hearing,     Nellessen          filed     a

timely motion with the circuit court to compel disclosure of the

identity of the confidential informer.                          Nellessen argued, in

pertinent part, that "[i]f the informant knew the direction of

travel     and    the       existence     of       controlled    substances          in     the

vehicle, it is reasonable to assume that the informant may also

     3
        The record suggests that Scott and Brooks were not
charged in connection with this incident, but is silent as to
why.

                                               4
                                                                    No.    2012AP150-CR



know whether the defendant was aware that the marijuana was in

the vehicle."           A hearing on this motion was held December 12,

2011.        At   the    hearing,   Nellessen        argued   that,       due   to     the

detailed information provided by the informer to the Stevens

Point      Police    Department     regarding        Nellessen's    route       back    to

Stevens Point, it was reasonable to assume the informer also had

information regarding how the marijuana was placed in the car

and whether Nellessen was even aware that the marijuana was in

the    car.         Nellessen   asserted       she    did   not    know    about       the

marijuana in her car and that the informer could potentially

have information supporting her defense to the charges against

her.

       ¶10    The circuit court denied Nellessen's motion to compel

disclosure of the informer.             The circuit court determined that

the defense had not made a sufficient showing to warrant an in

camera review.4          The circuit court also expressed concern that,

if it granted Nellessen's motion based on the showing she made,

the circuit court would need to conduct an in camera review
virtually every time a defendant filed a motion under Wis. Stat.

§ 905.10(3)(b).          Consequently, the circuit court concluded that

Nellessen had failed to meet her burden and denied her motion to

disclose the identity of the informer.
       4
       Wisconsin Stat. § 905.10(3)(b) provides that, if an in
camera review is conducted, "[t]he showing will ordinarily be in
the form of affidavits but the judge may direct that testimony
be taken if the judge finds that the matter cannot be resolved
satisfactorily upon affidavit." It is unclear from Nellessen's
motion whether she was requesting an in camera review by
affidavit or by testimony.

                                           5
                                                                            No.    2012AP150-CR



       ¶11   Nellessen appealed the circuit court's ruling, and the

court of appeals reversed the decision of the circuit court.

The court of appeals, in a published decision, reasoned that

"[t]he issue in dispute is whether Nellessen was aware that the

marijuana was in her trunk.                    The question before the circuit

court was therefore whether the informant might have information

that    bears      upon   that     aspect          of     the    State's      case       against

Nellessen."         State    v.    Nellessen,            2013    WI   App    46,       ¶14,   347

Wis. 2d 537, 830 N.W.2d 266.                   In the court of appeals' view,

"whenever the facts suggest a possibility that an informer has

material     evidence       necessary         to     a    fair     trial,"        Wis.    Stat.

§ 905.10(3)(b) "mandates" that the circuit court conduct an in

camera review.       Id., ¶11.

       ¶12   The    State    petitioned            this    court      for   review       of   the

court of appeals' decision, which we granted.

                                  II.    STANDARD OF REVIEW

       ¶13   The issue before the court requires us to interpret

Wis. Stat. § 905.10, the confidential informer statute.                                       The
interpretation of a statute is a question of law that we review

de novo.     State v. Dowdy, 2012 WI 12, ¶25, 338 Wis. 2d 565, 808

N.W.2d 691.

       ¶14   In      addition           to     the         question         of         statutory

interpretation, we must review the circuit court's decision to

deny an in camera review.               We review the circuit court's factual

findings     concerning       an        in    camera       review      under       a     clearly

erroneous standard.          State v. Green, 2002 WI 68, ¶20, 253 Wis.
2d   356,    646    N.W.2d   298.            However,      "[w]hether        the       defendant
                                               6
                                                               No.    2012AP150-CR



submitted a preliminary evidentiary showing sufficient for an in

camera review implicates a defendant's constitutional right to a

fair trial and raises a question of law that we review de novo."

Id.

                                     III. DISCUSSION

      ¶15    The issue presented in this case centers on competing

interpretations of the confidential informer statute, Wis. Stat.

§ 905.10.       The   confidential      informer   statute     recognizes     the

State's     general      privilege    regarding    the    protection     of   the

identities of confidential informers.              Wis. Stat. § 905.10(1).5

Wisconsin Stat. § 905.10 codified this privilege for informers,

which was first recognized in the seminal United States Supreme

Court decision Roviaro v. United States, 353 U.S. 53 (1957).

"The purpose of the privilege is the furtherance and protection

of the public interest in effective law enforcement."                   Roviaro,

353 U.S. at 59.          The privilege is not absolute, however; the

State's interest in encouraging citizens to communicate their

knowledge     of   the     commission    of   crimes     to   law    enforcement
officials by preserving their anonymity must be balanced against

the defendant's right to prepare his or her defense.                 Id. at 59,

62.
      5
          Wisconsin Stat. 905.10(1) provides:

      The federal government or a state or subdivision
      thereof has a privilege to refuse to disclose the
      identity of a person who has furnished information
      relating to or assisting in an investigation of a
      possible violation of law to a law enforcement officer
      or member of a legislative committee or its staff
      conducting an investigation.

                                         7
                                                                         No.     2012AP150-CR



       ¶16    The    confidential          informer       statute        provides          three

exceptions to the privilege.                Wisconsin Stat. § 905.10(3)(b) is

the exception at issue in this case.                     Under this exception, the

confidential informer statute requires a two-step process for

disclosing the identity of a confidential informer.                              First, the

defendant must make an initial showing that the "informer may be

able to give testimony necessary to a fair determination of the

issue of guilt or innocence . . . ."                     Wis. Stat. § 905.10(3)(b).

Next,    if   the     defendant       satisfies       this       step    and     the       State

continues     to     invoke     the    privilege,         the    circuit        court       must

conduct an in camera review to determine if the informer can in

fact provide such testimony.               Id.

       ¶17    The    State     argues       that     a     defendant           seeking       the

disclosure of a confidential informer must identify the specific

testimony the informer may be able to give and demonstrate that

such    testimony      would     create      a   reasonable         doubt       as   to     the

defendant's        guilt.       In    contrast,       Nellessen         asserts        a    much

lighter showing is required under Wis. Stat. § 905.10(3)(b), and
that she is entitled to an in camera review if there is a

possibility the informer may have information necessary to a

fair determination of the defendant's guilt or innocence.

       ¶18    In Part A, we examine the showing necessary under Wis.

Stat. § 905.10(3)(b) to trigger an in camera review.                             In Part B,

we     consider     whether      the       circuit       court     erred        in   denying

Nellessen's motion to compel disclosure of the identity of the

confidential        informer.         We   conclude       that     the    circuit          court
appropriately determined that Nellessen had not met her initial
                                             8
                                                                       No.        2012AP150-CR



burden under § 905.10(3)(b) and thus was not entitled to an in

camera review.

              A. The Defendant's Initial Showing Under Wis. Stat.

                                § 905.10(3)(b) Is A Modest One

       ¶19    This court has yet to squarely address the issue of

what       showing   is    necessary          under     the   confidential          informer

statute to trigger an in camera review.                         Previously, when we

have been called upon to interpret Wis. Stat. § 905.10(3)(b),

our focus has been on the requirements of the in camera review,

rather than the showing a defendant must make in order to reach

the    hearing.6          See    State    v.       Outlaw,    108    Wis. 2d 112,         321

N.W.2d 145      (1982);         State    v.    Vanmanivong,         2003     WI     41,   261

Wis. 2d 202, 661 N.W.2d 76.                   However, we have been clear that

the initial showing by a defendant "is light indeed," and "does

not place a significant burden upon" the defendant.                           Outlaw, 108

Wis. 2d at      125-26.         In   Outlaw,       we   noted   that   the        showing   a

defendant must make to trigger an in camera review "need only be


       6
       In State v. Outlaw, we held that the State's burden during
the in camera review is to show only what the confidential
informer's testimony will be. State v. Outlaw, 108 Wis. 2d 112,
127, 321 N.W.2d 145 (1982).     After the in camera review, the
circuit court must determine if there is a reasonable
probability that the informant can provide testimony "necessary
to the defense." Id. at 141 (Callow, J. concurring); Wis. Stat.
§ 905.10(3)(b). The testimony is necessary to the defense if it
could create a reasonable doubt in the minds of the jury.     Id.
at 140 (Callow, J. concurring).       Although Justice Callow's
opinion in Outlaw is a concurrence, it represents the majority
opinion of the court on the appropriate test to be applied at
the in camera review. State v. Dowe, 120 Wis. 2d 192, 195, 352
N.W.2d 660 (1984).

                                               9
                                                                No.    2012AP150-CR



one of a possibility that the informer could supply testimony

necessary to a fair determination" of the defendant's guilt or

innocence.    Id. at 126.

     ¶20    Aside from this cursory statement in Outlaw, however,

this court has not elaborated on the defendant's initial burden

under § 905.10(3)(b).7        Thus, to address the question before the

court, we turn to the text of the confidential informer statute.

     ¶21    The    relevant   language      of   Wis.   Stat.    § 905.10(3)(b)

provides:

     Testimony on merits. If it appears from the 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 or of a material issue on the
     merits in a civil case to which the federal government
     or a state or subdivision thereof is a party, and the
     federal government or a state or subdivision thereof
     invokes the privilege, the judge shall give the
     federal government or a state or subdivision thereof
     an opportunity to show in camera facts relevant to
     determining whether the informer can, in fact, supply
     that testimony.
As we discussed in Outlaw, this evidentiary rule "recognizes the
reality     that    informers    are     an      important    aspect     of    law

enforcement and that the anonymity of informers is necessary for

their      effective    use."          Outlaw,       108     Wis. 2d at       121.

Nevertheless, the State may not use the privilege of informer

     7
       Certain language in State v. Vanmanivong, 2003 WI 41, 261
Wis. 2d 202, 661 N.W.2d 76, might appear to suggest a different
standard for a defendant's initial showing under Wis. Stat.
§ 905.10(3)(b).   However,  it   is   clear   from  Outlaw,  108
Wis. 2d 112, and the language of the statute that the showing
for an in camera review requires only a reasonable possibility
that an informer may have evidence necessary to the defense.

                                       10
                                                                    No.    2012AP150-CR



confidentiality "when the public interest in protecting the flow

of   information         is    outweighed    by   the    individual's       right   to

prepare     his   defense."        Id.      (citations        omitted).     In   other

words, if allowing the informer's identity to remain secret will

prevent the defendant from presenting a defense, the privilege

must give way.

      ¶22    The initial showing required under the confidential

informer statute is whether it "appears from the 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 . . . ."                   Wis. Stat. § 905.10(3)(b)

(emphasis added).              Outlaw   explained that this showing is "a

possibility       that    the    informer    could      supply"    such    testimony.

Outlaw, 108 Wis. 2d at 126.

      ¶23    If we look at the plain language of the confidential

informer     statute          stated    above,8   it     is     clear     Wis.   Stat.

§ 905.10(3)(b) requires that a motion to compel disclosure of a

confidential informer's identity must be grounded in the facts
and circumstances of the case.               The phrase "[i]f it appears from


      8
       The interpretation of a statute begins with the language
of the statute.    If the meaning of the statute is plain, the
analysis ends.   State ex rel. Kalal v. Circuit Court for Dane
County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.     In
order to determine the plain meaning of a statute, we give the
statutory   language   its   "common,   ordinary,  and  accepted
meaning . . . ."   Id.    Furthermore, statutes are not read in
isolation.   Rather, the court must read statutory language "in
the context in which it is used . . . ."      Id., ¶46.  This is
done to give purpose to the entire statutory scheme and avoid
"absurd or unreasonable results." Id.

                                            11
                                                                             No.     2012AP150-CR



the evidence in the case or from other showing" implies that the

motion must contain more than mere speculation that the informer

has information necessary to the defendant's theory of defense.

Wis.       Stat.      § 905.10(3)(b).             If    a    motion       grounded        in    mere

speculation were sufficient to warrant an in camera review, a

defendant would be able to obtain a hearing in every instance.

In other words, the exception would swallow the rule.                                 Endorsing

the view taken by Nellessen and the court of appeals creates a

significant risk of collapsing the two-step process established

by the confidential informer statute.                             Moreover, requiring the

motion to be grounded in the facts and circumstances of the case

combats        against       the   possibility          for       abuse     from     defendants

seeking        disclosure      "solely       as    a    retaliatory         move    or     in    the

interests        of    his    peers     in    order         to    thwart     the     informer's

effectiveness in the future."                 Outlaw, 108 Wis. 2d at 141.

       ¶24      It is true that the nature of a confidential informer

makes it impossible to know the specific information that the

informer will have, but the statute does not require such a
showing.         The phrase "may be able to give testimony" confirms

that the defendant's initial burden under the statute involves

only       a    possibility        the       confidential            informer        may        have

information            necessary      to          the       defense.9              Wis.        Stat.

§ 905.10(3)(b).              However,      because          the    aspect    of     speculation

inherent in the language of § 905.10(3)(b) must be grounded in

       9
       The word "may" is "[u]sed to indicate a certain measure of
likelihood or possibility." The American Heritage Dictionary of
the English Language 1086 (5th ed. 2011).

                                                  12
                                                                          No.       2012AP150-CR



the facts and circumstances of the case, it follows that this

possibility must be reasonable.

       ¶25    Based      on    the    foregoing       analysis,      we       reaffirm       our

statement      in    Outlaw     that      the    initial    burden      on      a     defendant

seeking to disclose the identity of a confidential informer is

"light       indeed."           Outlaw,         108   Wis. 2d at            126.          Under

§ 905.10(3)(b), a defendant such as Nellessen need only show

that   there     is      a    reasonable        possibility     that      a     confidential

informer may have information necessary to his or her theory of

defense.      See Outlaw, 108 Wis. 2d at 126-27.

         B. The Circuit Court Did Not Err In Denying An In Camera

                                                 Review

       ¶26    We next address the circuit court's decision denying

Nellessen's motion to disclose the identity of the confidential

informer.       Nellessen argued in her motion that her knowledge of

the    "large       quantity"        of   marijuana        placed      in       her    car   in

Minneapolis         is   the    "critical         issue    at   trial."               Nellessen

reasoned that if she was unaware the marijuana was in her car,
she could not be found guilty of the charges against her; thus,

if the informer had such information, it would be necessary to

Nellessen's defense.             However, Nellessen's motion provides only

a single sentence discussing the nature of the testimony the

informer may be able to provide:

       The   informant  may   be able   to  provide  further
       information which will shed light on the defendant's
       knowledge or lack of knowledge, as the informant must
       have had information about the transmission of the
       controlled substances from their original location to
       the defendant's vehicle.

                                                13
                                                                          No.     2012AP150-CR



     ¶27     To support this conclusion, Nellessen relied on the

information provided to the police by the confidential informer.

In   particular,       she       argues     that    because      the       informer       knew

Nellessen's     car     would      be     traveling      through       Marshfield,         the

approximate         time     Nellessen        would       be        traveling        through

Marshfield, and that there was marijuana in the car, it would be

"reasonable to assume that the informant may also know whether

[Nellessen] was aware that the marijuana [was] in the vehicle."

During the motion hearing, Nellessen's counsel reiterated this

argument and also claimed that it was reasonable to assume the

informer     knew    the     circumstances         in    which      the    marijuana       was

transferred     to     Nellessen's        car.      As    a    result,       it    was    also

reasonable to assume that the informer may be able to provide

"more information about whether [Nellessen] was aware of the

marijuana in the car."

     ¶28     In its denial of the motion, the                    circuit court stated

that, according to its reading of Outlaw, Nellessen's argument

that the informer might have information that would be helpful
to   the     defense       was    insufficient;          instead,         the     informer's

testimony needed to "pertain[] particularly to the facts of the

guilt   or    innocence"         of   the    defendant.             The    circuit        court

expressed skepticism that the informer would have information

necessary to Nellessen's theory of defense.                         Based on the facts

and circumstances of the case, the circuit court concluded that

it was not reasonable to assume that the informer would have any

knowledge     regarding          Nellessen's       state       of     mind        about     the
marijuana in her car.             Thus, the State's interest in protecting
                                             14
                                                                 No.    2012AP150-CR



the    confidentiality       of    the        informer   outweighed    Nellessen's

interest in disclosure.10

       ¶29   The circuit court clearly laid out its understanding

of the relevant case law and applied that precedent to the facts

of the case.           As discussed below, we agree with the circuit

court and conclude that Nellessen failed to meet her burden

under Wis. Stat. § 905.10(3)(b).

       ¶30   To    receive        an     in     camera    review,      Wis.   Stat.

§ 905.10(3)(b) provides that a defendant must show an informer

"may be able to give testimony necessary to a fair determination

of the issue of guilt or innocence in a criminal case . . . ."

In    Outlaw,     we   discussed       what     information   might    qualify   as

"necessary" under the statute and stated that a defendant must

show that the testimony is "necessary to the defense"11 in order
       10
       In discussing the testimony that the informer would be
able to provide, the circuit court framed the legal standard in
terms of "relevance" to Nellessen's theory of defense.     Legal
relevance is not the standard for assessing a motion under the
confidential informer statute.   See Outlaw, 108 Wis. 2d at 141
(Callow, J., concurring) (rejecting the lead opinion's relevancy
standard and holding that "an essential condition precedent to
disclosure is that the informer's testimony be necessary to the
defense").   This distinction, however, does not have an effect
on our analysis.
       11
       To clarify, at the initial stage of a request for
disclosure of an informer's identity, the defendant must show
that an informer may be able to provide testimony necessary to
the defense. Wis. Stat. § 905.10(3)(b). If the defendant meets
this burden, an in camera review must be provided, which can be
conducted by affidavits or testimony.      Id.    Following the
hearing, the judge must determine if there is a "reasonable
probability" that the informer will have testimony necessary to
the defense.    Id.   If so, the defendant's identity must be
disclosed, or the charges related to the testimony must be
dismissed. Id.
                                          15
                                                                        No.     2012AP150-CR



to receive an in camera review.                     Outlaw, 108 Wis. 2d at 141

(Callow, J. concurring).              We explained in Outlaw that "whether

evidence from an informant is necessary [to the defense], may be

determined       by    whether     the     same    information         or     evidence    is

available from another source or other sources."                              Outlaw, 108

Wis. 2d at 142 (Steinmetz, J. concurring).                       In this case, four

other individuals were present along with Nellessen when her

vehicle    was     stopped.         Nellessen      alleged       in    her     motion    for

disclosure, "[i]f the informant knew the direction of travel and

the existence of controlled substances in the vehicle, it is

reasonable to assume that the informant may also know whether

[Nellessen] was aware that the marijuana in [sic] her vehicle."

However,     all      the   passengers      in    Nellessen's         vehicle    knew     the

direction of travel, and according to statements recited in the

State's complaint, at least three of these passengers knew that

the marijuana was in her car.

     ¶31     Nellessen also alleged in her motion that the informer

"must     have     had      knowledge      about     the     transmission          of    the
controlled       substances        from    their    original          location     to     the

defendant's        vehicle."        The     State's       complaint         explains     that

Scott, one of the passengers in Nellessen's car, told Detective

Cramm that he was present when Green placed the marijuana in

Nellessen's      car.        The   complaint       does    not   specifically           state

whether Scott indicated that Nellessen was also present, but it

is   clear    that       Scott     could    provide       information         about     "the

transmission of the controlled substances from their original
location to the defendant's vehicle."                     Accordingly, even if the
                                            16
                                                                        No.     2012AP150-CR



informer did have information about Nellessen's knowledge of the

marijuana, Nellessen has failed to make any showing that the

information was not available from other sources.                             See Outlaw,

108 Wis. 2d at 125-26 (explaining that the burden of the initial

showing   to    receive      an    in    camera    review    is    on    the     defendant

making the request).

    ¶32     Moreover, Wis. Stat. § 905.10(3)(b) provides that an

in camera review should be granted "[i]f it appears from the

evidence in the case . . . that an informer may be able to give

testimony necessary to a fair determination of the issue of

guilt or innocence . . . ."                (Emphasis added).             This suggests

that a circuit court should consider all of the evidence to

determine whether to grant an in camera review, not just the

contents of the defendant's motion.                       Here, the circuit court

held a hearing on the defendant's motion after a preliminary

hearing   had    already      established         that:    (1)    Nellessen       admitted

that she could smell raw, or unsmoked, marijuana in her vehicle;

(2) Officer Punke testified that Nellessen's car smelled of raw
marijuana      when   it    was    stopped;       (3)   Nellessen       told     Detective

Cramm that everyone in the car had been smoking marijuana; (4)

Nellessen's      cell      phone    indicated       she    had    been        involved    in

marijuana trafficking; (5) Nellessen's trunk contained a digital

scale with marijuana residue on it, in addition to two large

bags of marijuana.           In addition, the State's complaint against

Nellessen      explained     that       after    her    vehicle    was    stopped,       she

consented to a search of her cellular telephone.                         A text message
from "Andy T" told Nellessen that he was "craving some weed,"
                                            17
                                                                          No.    2012AP150-CR



and Nellessen responded, "Oh, I see.                    Well, I can't help u [sic]

now but I'll call u wen [sic] I get back okay."

      ¶33    Given the strength of the evidence against Nellessen,

the circuit court could reasonably conclude that the informer's

testimony would not be necessary to the defense because it could

not   "'have   created      in   the       minds   of    the    jurors      a    reasonable

doubt' regarding a defendant's guilt."                     Outlaw, 108 Wis. 2d at

140 (Callow, J. concurring) (quoting United States v. Eddings,

478 F.2d 67, 72 (6th Cir. 1973)).                  The circuit court's decision

squares with Justice Callow's concurrence in Outlaw.12                             Although

the circuit court did not recite the exact language of Outlaw,

it    correctly      applied     the       decision's       analytical           framework.

Nellessen's    entire       motion     is     speculative,          and    she    fails    to

sufficiently      ground         her       assertions          in    the        facts     and

circumstances of the case.                 Wis. Stat. § 905.10(3)(b).                   Again,

we    acknowledge      that      to    a     certain      extent,         motions       under

§ 905.10(3)(b) will necessarily be speculative.                             Nevertheless,

we agree with the circuit court that, in this case, Nellessen's
motion failed to satisfy the minimal showing required under Wis.

Stat. § 905.10(3)(b) to warrant an in camera review.

      ¶34    Nellessen's motion fails to articulate why or how the

informer would have any knowledge of what Nellessen knew or did

not   know   about    the     marijuana       in   her    car.        Instead,      as    the

      12
       As noted earlier, though technically a concurring
opinion,   Justice   Callow's   concurrence   in   Outlaw,   108
Wis. 2d 112, represents the majority opinion of the court on the
appropriate test to be applied during the in camera review.
Dowe, 120 Wis. 2d at 195.

                                             18
                                                                   No.    2012AP150-CR



circuit       court    correctly      observed,      Nellessen's      rationale   for

revealing the identity of the informer would essentially mandate

an in camera review for all motions under § 905.10(3)(b).                         The

thrust of Nellessen's motion is that because the informer knew

some        things     about      Nellessen's       car    and   her     companions'

activities, the informer might know other things that would be

helpful to the defense.             This argument fails to meet the minimal

showing necessary to warrant an in camera review.                        The showing

required for an in camera review cannot rest solely on mere

speculation as to what additional information the informer might

know,        without       sufficient       reference      to    the     facts    and

circumstances         of    the   case.13     Such   an    approach    would   invite

defendants to go on "mere fishing expedition[s]," United States

v. Valles, 41 F.3d 355, 358 (7th Cir. 1994), on the basis of

speculation      and       suspicion,   which      would   effectively    allow   the

exception to the confidential informer privilege to nullify the

privilege altogether.

       ¶35     Thus,    we   conclude       that   Nellessen's   motion    does   not
establish a reasonable possibility that the informer may be able

to give testimony necessary to her defense.                        See Outlaw, 108

Wis. 2d at 141 (Callow, J. concurring).                    We are satisfied that

       13
       The dissent argues that we conflate the initial showing
required for an in camera review with the "reasonable
probability" standard a court must apply after the in camera
review has occurred.     See, e.g., dissent, ¶¶ 38, 53.       The
dissent misses our point.    A motion to disclose that alleges
what an informer "might" know could be sufficient for an in
camera review in some cases, but only if the motion was
reasonably grounded in the facts and circumstances of the case.

                                             19
                                                                    No.    2012AP150-CR



the   circuit     court   appropriately        analyzed      the    requirements    in

§ 905.10(3)(b) and reached a reasonable conclusion.

                                    IV.    CONCLUSION

      ¶36    In   summary,     we   hold       that    a    defendant     seeking   to

disclose the identity of a confidential informer pursuant to

Wis. Stat. § 905.10(3)(b) must show that there is a reasonable

possibility that the informer may be able to provide testimony

necessary to the defendant's theory of defense.                           We conclude

that the circuit court appropriately determined that Nellessen

had not met her initial burden under § 905.10(3)(b) and thus was

not entitled to an in camera review.                   We therefore reverse the

decision of the court of appeals and remand the case to the

circuit court for further proceedings.

      By    the   Court.—The    decision        of    the   court    of   appeals   is

reversed, and the cause is remanded to the circuit court for

further proceedings consistent with this opinion.




                                          20
                                                                   No.    2012AP150-CR.awb


    ¶37    ANN WALSH BRADLEY, J.               (dissenting).              I agree with

the majority that the required showing for an in camera review

is whether an informer may be able to give testimony necessary

to a fair determination of the issue of guilt or innocence.

    ¶38    I write separately, however, because I disagree with

the majority's application of the test.                     The majority errs in

two significant ways: (1) it appears to up the ante of the

necessary showing for those seeking an in camera review and (2)

it conflates the showing necessary to get an in camera review

with what a court must determine after the review has occurred.

    ¶39    These errors provide unclear and inaccurate guidance

for circuit courts to follow.         Further, they permit the majority

to deny Nellessen an in camera review when the showing she made

was sufficient to require one.

    ¶40    Contrary    to    the    majority,         I    focus     on    the    inquiry

relevant to determining if an in camera review need be held:

whether there is a reasonable possibility that the informer's

testimony may be necessary for a fair determination of the issue
of guilt or innocence.             Because I         conclude that Nellessen's

motion    was   sufficient    to     obtain          an    in   camera         review,   I

respectfully dissent.

                                          I

    ¶41       At the outset the majority properly sets forth the

text of the statute.        Citing to State ex rel. Kalal v. Circuit

Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681

N.W.2d 110,     it   emphasizes     the       need    to    "give        the    statutory



                                          1
                                                                          No.    2012AP150-CR.awb


language its 'common, ordinary and accepted meaning.'"                                  Majority

op., ¶23 n.8.

      ¶42      Wisconsin        Stat.     §       905.10(3)(b)           in     relevant         part

provides:

      If it appears from the 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
      . . . and   the . . . state  or   subdivision   thereof
      invokes the privilege, the judge shall give the
      . . . state or subdivision thereof an opportunity to
      show in camera facts relevant to determining whether
      the informer can, in fact, supply that testimony.
Wis. Stat. § 905.10(3)(b) (emphasis supplied).

      ¶43      Relying on the seminal case, State v. Outlaw, 108 Wis.

2d   112,    321    N.W.2d         145   (1982),          the    majority       makes   multiple

comments expressing that the defendant's burden to obtain an in

camera    review      is      low.       Majority         op.,    ¶19    ("The     Defendant's

Initial Showing          under Wis. Stat. § 905.10(3)(b)                          Is    A    Modest

One,"    "we    have       been      clear    that         the    initial       showing      by    a

defendant 'is light indeed,' and 'does not place a significant

burden upon' the defendant").                     The majority observes that "the

showing a defendant must make to trigger an in camera review

'need    only    be     one    of    a   possibility            that    the     informer     could

supply      testimony      necessary         to       a   fair    determination'            of    the

defendant's        guilt      or     innocence."            Id.    (quoting       Outlaw,         108

Wis. 2d at       126)      (emphasis         supplied).            The    majority          further

acknowledges that "the nature of a confidential informer makes

it impossible to know the specific information that the informer
will have," and that "speculation [is] inherent in the language

of § 905.10(3)(b)."            Id., ¶24.
                                                  2
                                                                          No.   2012AP150-CR.awb


       ¶44     Based      on    the       plain       word    of    the    statute,       "may,"

together with the directive from Outlaw that the showing need be

only a "possibility," the majority correctly frames the test for

obtaining an in camera review: "whether it 'appears from the

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.'"                                     Id., ¶22

(quoting Wis. Stat. § 905.10(3)(b)) (emphasis in original).

       ¶45     The majority acknowledges that obtaining an in camera

review    is      merely       the   first    step       in    determining       whether      the

identity of an informer must be revealed.                            After the in camera

review, the court must determine whether there is a reasonable

probability that the informer will have testimony necessary for

the defense.        Id., ¶30 n.11.

                                                  II

       ¶46     After properly setting forth the test, the majority

goes astray in its application of the test to Nellessen.                                        It

reasons that although motions under Wis. Stat. § 905.10(3)(b)
will     necessarily           be    speculative,            Nellessen's        motion       fails

because      it     is     speculative:           "Nellessen's        entire       motion      is

speculative, and she fails to sufficiently ground her assertion

in the facts and circumstances of the case."                          Id., ¶33.

       ¶47     By        acknowledging            that        the     showing           requires

speculation,        but        determining            that    Nellessen's         motion      was

insufficient because it was too speculative the majority sets a

confusing standard for courts to follow.



                                                  3
                                                                     No.   2012AP150-CR.awb


       ¶48    Nellessen's       motion     was     grounded         in   the     facts    and

circumstances of the case to the extent possible.                               It referred

to    the    information      she    had      available        to   her——the       detailed

information the informer had provided——and asserted that due to

the    details      already     provided,         the   informer         must    have    more

knowledge about how the marijuana got into her trunk.

       ¶49    Nevertheless, the majority accuses Nellessen of not

sufficiently        referencing      the      facts     and    circumstances        of    the

case.       Id., ¶34.     It fails to acknowledge that at this stage of

the proceeding, a defendant will not have any information about

the informer other than the State's representation of what the

informer      has   stated.         By   requiring       a    defendant's        motion    to

contain more detail in order to obtain an in camera hearing, the

majority appears to unduly increase the burden on a defendant

beyond the lenient test it previously embraced.

       ¶50    The majority's application is also problematic as it

appears to conflate the two different steps of the procedure set

forth in Wis. Stat. § 905.10(3) for revealing the identity of an
informer.       This court has interpreted the statute as creating a

two-step procedure.           Majority op., ¶30 n.11.               In the first step,

the court must determine whether to conduct an in camera review.

That    decision     is   the    one     at    issue     in    this      case,    which   is

described in the majority's analysis.                         After conducting an in

camera review, the second step requires the court to determine

whether to reveal the identity of the informer.                                 This second

part of the procedure looks at "whether there is a reasonable



                                              4
                                                                    No.    2012AP150-CR.awb


probability that the informer can give the testimony necessary

to a fair determination."             Outlaw, 108 Wis. 2d at 127.

      ¶51       The    majority's    conflation        of    the    first       and   second

steps     of    the    procedure     is   apparent      in    its   declaration        that

"[g]iven the strength of the evidence against Nellessen, the

circuit        court   could    reasonably      conclude       that       the   informer's

testimony would not be necessary to the defense because it could

not   "'have      created      in   the   minds   of    the    jurors       a   reasonable

doubt' regarding a defendant's guilt."                      Majority op., ¶33.1          The

only way the court could have determined that the strength of

the State's case could not be overcome by the testimony of the

informer would be for it to somehow know the contents of that

testimony.        That knowledge, however, comes from conducting an in

camera review.

      ¶52       As the court of appeals has explained, it is difficult

for a circuit court to determine the value of disputed evidence

without first conducting an in camera inspection:



      1
       The majority's application is also problematic because it
interprets the phrase "evidence in the case" in Wis. Stat.
§ 905.10(3)(a) as permitting a circuit court to consider
evidence presented at the preliminary hearing.      There is no
analysis and no attempt to explain how the majority arrives at
this conclusion.    It does not attempt to apply State ex rel.
Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, 271
Wis. 2d 633, 681 N.W.2d 110, but instead makes an unsupported
assertion.

     Neither of the parties pointed to the evidence from the
preliminary hearing or suggested that a consideration of that
evidence was appropriate.   It is folly to interpret a statute
without any briefing, oral argument, or analysis supporting the
interpretation.

                                            5
                                                                    No.    2012AP150-CR.awb

      It may well be that the evidence contained in the
      psychiatric   records  will   yield   no  information
      different from that available elsewhere. However, the
      probability is equally as great that the records
      contain independently probative information. It is
      also quite probable that the quality and probative
      value of the information in the reports may be better
      than anything that can be gleaned from other sources.
      Finally, the information might well serve as a
      confirmation of [the victim's] reality problems in
      sexual matters. It is the duty of the trial court to
      determine whether the records have any independent
      probative value after an in camera inspection of the
      records.
State v. Shiffra, 175 Wis. 2d 600, 611, 499 N.W.2d 719 (Ct. App.
1993)      (emphasis         in     original).         By     weighing     the     proposed

testimony against the strength of the State's case, before the

contents        of    that        testimony     are    even     known,     the     majority

inappropriately jumps to the second step of the procedure for

revealing the identity of an informer.2

      ¶53       Further      underscoring       that   it     is   conflating       the    two

steps      of   the    procedure,         the   majority      reasons     that    providing

Nellessen with an in camera review "would effectively allow the

exception to the confidential informer privilege to nullify the

privilege altogether."               Majority op., ¶34.            However, that would

be   the    case      only    if    the    majority    were     analyzing        whether   to
reveal the identity of the informer.

      ¶54       At this initial step, the court is to determine merely

whether to conduct an in camera review.                        That is whether there


      2
       I further note that it may be questionable that the court
should be weighing the evidence at all.          See Best Price
Plumbing, Inc. v. Erie Ins. Exch., 2012 WI 44, ¶53, 340 Wis. 2d
307, 814 N.W.2d 419 ("[q]uestions about the weight and
credibility of evidence are reserved for the trier of fact.").

                                                6
                                                                         No.    2012AP150-CR.awb


is   a    possibility           that     the    informer        could     supply          testimony

necessary           to    a    fair    determination        of     guilt        or    innocence.

Determining whether to hold an in camera review should not be

equated        with       revealing     the     identity     of     an    informer.              That

decision       is        not   made    until    after     the     review.            It   inquires

whether there is a reasonable probability that an informer can

give testimony necessary to a fair determination.                                The necessary

showings are different.

                                                III

         ¶55        Contrary to the majority, I conclude that Nellessen

met her burden to obtain an in camera review.                                 As the majority

observes, the burden to obtain an in camera review is light.

Majority        op.,       ¶19.        "The    showing     need     only        be    one    of     a

possibility that the informer could supply testimony necessary

to a fair determination."                     Outlaw, 108 Wis. 2d at 126.                    Outlaw

explained that the phrase "necessary to a fair determination"

means "necessary to support the theory of the defense."                                     Id. at

141 (emphasis in original).
         ¶56    In this case Nellessen is charged with possession with

intent         to        deliver       THC     in       violation        of      Wis.        Stats.

§§ 961.41(1m)(h)2, 939.50(3)(h), 939.05.                            Her defense is that

she did not know the marijuana was in the trunk of her car.

Part     of    that       defense      necessarily       includes        that    she       was    not

present when the marijuana was placed in her car.

         ¶57    Nellessen's           motion    stated     that    due    to     the       detailed

information the informer gave to the police about her car and
the marijuana in it, the informant "must have had information

                                                    7
                                                                         No.     2012AP150-CR.awb


about the transmission of the controlled substances from their

original      location      to    the       defendant's       vehicle."               This   is    a

logical conclusion.

      ¶58     According to Detective Cramm's testimony, the informer

had   identified      Nellessen's            car,      indicated     that        it    would      be

traveling from Minnesota through Marshfield to Stevens Point on

the date in question, and stated that there would be a pound of

marijuana in the car.              The detail of the information that the

informer provided indicates a familiarity with the facts and

suggests that the informer likely had more information about how

the marijuana got into Nellessen's car.

      ¶59     The information Nellessen seeks from the informer is

not   necessarily      cumulative.                 Although      there     are       no   witness

statements      in    the    record          indicating       whether          Nellessen       was

present     while    the    marijuana         was       loaded    into     her       trunk,    the

majority speculates that the information sought is cumulative

because another witness, Rico Scott, could provide information

about   the    transmission            of   the       marijuana     to    Nellessen's         car.
Majority op., ¶31.           However, merely because it is asserted that

Scott could provide the information does not mean that he will.

Scott's     own      involvement            with      loading     the      marijuana          into

Nellessen's car may affect his willingness to testify.

      ¶60      Nellessen         was    required        to   show    only        a    reasonable

possibility that the informer might have information necessary

to her theory of the defense.                      Cf. Shiffra, 175 Wis. 2d at 612

(defendant's showing victim's "difficulties                              might       affect both
her ability to accurately perceive events and her ability to

                                                  8
                                                              No.    2012AP150-CR.awb


relate the truth" sufficient to obtain an in camera review of

her medical records (emphasis supplied)).                    Her motion and the

record made that showing.            It appears reasonably possible that

the informer here had information on how the marijuana got into

Nellessen's vehicle.        That information is necessary to support

Nellessen's defense that she had no knowledge the marijuana was

in her car.        Thus, I would affirm the court of appeals and

remand for an in camera review.

                                          IV

    ¶61    In sum, the majority errs when it appears to raise the

burden on Nellessen and conflates the first and second step of

the procedure to reveal the identity of an informer.                           These

errors   provide    unclear      and      inaccurate     guidance     for    circuit

courts and litigants.

    ¶62    Contrary to the majority, I focus on the first step of

the Wis. Stat. § 905.10(3)(b) procedure, whether there is a

reasonable   possibility        that      the   informer's    testimony      may    be

necessary for a fair determination of the issue of                          guilt or
innocence.    Because       I    conclude       that   Nellessen's     motion      was

sufficient   to    obtain       an   in     camera     review,   I    respectfully

dissent.

    ¶63    I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON joins this dissent.




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     No.   2012AP150-CR.awb




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    No.   2012AP150-CR.awb




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