Opinion
NO. 2019-CA-000975-MR NO. 2019-CA-000977-MR
06-19-2020
COMMONWEALTH OF KENTUCKY APPELLANT v. DAMON GLENN APPELLEE AND COMMONWEALTH OF KENTUCKY APPELLANT v. ANDREW WALKER APPELLEE
BRIEFS FOR APPELLANT: Andy Beshear Attorney General of Kentucky Jason B. Moore Special Assistant Attorney General Louisville, Kentucky BRIEF FOR APPELLEE DAMON GLENN: Nicholas Mudd Louisville, Kentucky BRIEF FOR APPELLEE ANDREW WALKER: David Houston Ward Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANNIE O'CONNELL, JUDGE
ACTION NO. 15-CR-002114-001 APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANNIE O'CONNELL, JUDGE
ACTION NO. 15-CR-002114-002 OPINION
REVERSING AND REMANDING
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BEFORE: ACREE, CALDWELL, AND K. THOMPSON, JUDGES. CALDWELL, JUDGE: The Commonwealth seeks review of the trial court's order granting the Appellees' motions seeking disclosure of the identity of a confidential informant pursuant to Kentucky Revised Statutes (KRS) 22A.020(4). Having reviewed the record, the briefs of the parties, and the order of the trial court, we reverse and remand this matter to the trial court for further proceedings in accordance with this Opinion.
Although the parties filed separate appeals and briefs, the trial court issued one order and the facts and analysis are identical as to the issue presented in both cases. For these reasons, we issue only one joint Opinion.
FACTS
On January 28, 2015, Louisville Metro Narcotics Division Detective Mike Nobles received information from a confidential source that narcotics were being dealt out of a particular apartment in a building on South Second Street in the Old Louisville neighborhood. The informant also provided the plate number and information about the vehicle the suspected narcotics dealer drove. After receiving this information, Det. Nobles placed the building under surveillance and ran the plate number he was given. The plate number was registered to Andrew Walker. After obtaining a photograph of Walker, Det. Nobles showed the photo to his source who confirmed that Walker was the person he or she had observed dealing narcotics out of the apartment.
While surveilling the apartment building, Det. Nobles observed Walker coming and going from the building and driving the subject vehicle. He also observed individuals arrive at the building, knock on a back door, and leave quickly after arriving, indicating to him that the information he had been given about narcotics trafficking from the building was reliable.
On February 12, 2015, Det. Nobles and other narcotics officers, still conducting surveillance, watched a different vehicle arrive at the apartment building and saw Walker exit the vehicle and enter the apartment building. After approximately two minutes, Det. Nobles saw Walker leave the building and re-enter the vehicle. The vehicle then left the parking lot and the officers followed it.
A short distance from the apartment building, officers initiated a stop of the vehicle. As he was approaching the car, Det. Nobles saw Walker attempting to conceal something between his seat and the center console of the vehicle. The driver, Damon Glenn, was also seen attempting to hide something between his seat and the center console. Both men were removed from the vehicle. A search of the vehicle uncovered a large bag of marijuana between the driver's seat and the center console and a similar bag between the passenger seat and the center console. The police found a large amount of money on Walker's person, as well as a baby bottle containing a red substance believed to be liquid codeine.
Based upon what had been observed and discovered, Det. Nobles obtained a search warrant for the apartment where Walker was the tenant and found a small bag of apparent heroin, a larger bag containing over 8 grams of heroin, a blunt containing marijuana, and digital scales.
Glenn was charged with a count of trafficking in two or more grams of heroin, tampering with physical evidence, possession of drug paraphernalia, failure to maintain motor vehicle insurance, operating a vehicle with no or expired registration, and two counts of possession of marijuana, all as a result of the items found on February 12, 2015, or thereafter. Walker was charged with a count of trafficking in two or more grams of heroin and possession of drug paraphernalia. Again, the charges were based on items found on Walker's person, in the vehicle, or in his apartment searched after the stop.
Prior to trial, attorneys for both men filed various motions, among them a motion filed by Walker seeking disclosure of the identity of the confidential informant who had initially given Det. Nobles the information about drugs being sold out of the apartment rented by Walker. A hearing on the disclosure motion was held in the Jefferson Circuit Court on January 8, 2018. No order was issued following the hearing and the judge who had presided was no longer on the bench later that year.
Walker's motion to disclose was renewed over a year later before the new judge, and Glenn also sought disclosure via motion at that time. A hearing was held on April 25, 2019, which was the day that trial was scheduled.
After hearing the arguments of counsel and no testimony, the trial court ruled that the confidential informant in this matter was not a mere tipster. The court reasoned that the informant became a witness when he or she identified one of the Appellees, which was exculpatory as to the other Appellee. Because the informant also provided a photo identification of Walker, which was a driving force behind why the police officers took the actions they did, such action rendered the informant a witness.
The trial court discounted that the informant did not observe any of the circumstances which led to the arrests or the charges filed. Rather, the trial court held that because the indictment used the "on or about" language of custom, such broadened the timeline and did not constrain the evidence to simply what occurred after the stop, but made the informant, who observed happenings prior to the stop and arrest, a "witness." The prosecution never gave any indication that they were planning to call the informant as a witness, which one Appellee argues as if it is helpful to his perspective. Finally, the trial court also found that the identity of the informant could potentially be exculpatory to either Walker or Glenn.
Following the ruling, the Commonwealth then asked for a continuance, which was granted. The Commonwealth filed this interlocutory appeal under KRS 22A.020(4), seeking review of the trial court's order that it disclose the identity of the confidential informant. We reverse.
STANDARD OF REVIEW
The standard of review to be applied in determining propriety of a trial court's ruling on a motion to reveal the identity of a confidential informant is the abuse of discretion standard. Hawkins v. Commonwealth, 536 S.W.3d 697, 701 (Ky. 2017). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citation omitted). With that standard in mind, we turn to the matter presented to us.
KRS 22A.020 Jurisdiction
Glenn argues that the Commonwealth is estopped from seeking this interlocutory appeal based upon the necessity that the matter be "vital to the Commonwealth's case" as its response both below and on appeal to the disclosure argument has been that the informant was not a witness to the charged event and thus is not a vital witness. We would simply point out that if the matter is not "vital," the strong presumption against disclosure contained in Kentucky Rules of Evidence (KRE) 508 and caselaw would surely result in a finding that the presumption would protect the identity of the informant.
Commonwealth v. Robertson, 578 S.W.3d 368, 371 (Ky. App. 2019) (citation omitted).
As laid out below, we hold that because of the important need to protect the identity of confidential informants, the Commonwealth had "vital" reason to seek this appeal under KRS 22A.020.
"The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation." Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 627, 1 L. Ed. 2d 639 (1957).
ANALYSIS
At the outset, we acknowledge that both Glenn and Walker raise issues concerning the record on appeal, as portions of the record below are absent from each record on appeal. However, when the cases are considered together, as we have determined is proper, the record is complete. In other words, the video of hearings missing from Glenn's record appear in Walker's record, and vice versa. Further, after having reviewed the hearings from both records we find that the hearings themselves are not dispositive of the appeal and that a review of the order promulgated by the trial court alone compels us to reverse as the facts recited in that order display a misapplication of the law such that amounts to an abuse of discretion and requires reversal.
KRE 508
The trial court acknowledged in its order that KRE 508 establishes that the Commonwealth has a privilege to refuse to disclose the identity of a confidential informant. Such is axiomatic. Confidential informants are utilized by law enforcement in its investigations of dangerous criminal enterprises, most especially drug trafficking operations. The need to keep confidential the identity of citizens who dare to offer assistance to the government in seeking to eradicate drug trafficking is clear and beyond question. The ability to protect the identity of one who has offered such assistance is most necessary to encourage future assistance by past informants and encourage the assistance of future informants as few would dare place themselves in the dangerous position of informant without such protections. Thus, it is not to be taken lightly to allow the identity of an informant to be made public.
Imbued in KRE 508 is an acknowledgment of the importance of confidentiality.
(a) General rule of privilege. The Commonwealth of Kentucky and its sister states and the United States have 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 a law to a law
enforcement officer or member of a legislative committee or its staff conducting an investigation.
The rule also acknowledges that disclosure is sometimes required, such as when the informant will testify or when he or she can offer other relevant evidence, such as exculpatory evidence. It is this last example which the Appellees argued and which the circuit court found to apply.
Relevant Evidence
In determining whether a confidential informant might have knowledge of "relevant evidence" which would require piercing of the privilege, a review of caselaw which has stitched the boundaries of the question is warranted. Such review was conducted by the trial court. The court cited the seminal United States Supreme Court case of Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957).
In Roviaro, the Court stated clearly that the privilege must fall where the constitutional rights of the accused are implicated. "Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Id., 353 U.S. at 60-61, 77 S. Ct. at 628 (footnote omitted).
Kentucky caselaw was also reviewed and considered by the trial court. The trial court cited Taylor v. Commonwealth, 987 S.W.2d 302 (Ky. 1998), Schooley v. Commonwealth, 627 S.W.2d 576 (Ky. 1982), and Burks v. Commonwealth, 471 S.W.2d 298 (Ky. 1971).
All of these cases delineate that a "mere tipster" need not have his or her identity disclosed as a tipster does not possess relevant evidence of the charged crimes. For example, in the present case, the crimes charged arose out of evidence collected by the officers on February 12, 2015, after the traffic stop and thereafter. The informant was not present on that date and provided only the tip that begat the surveillance that led to the stop of the vehicle and arrests on February 12, 2015. There is no evidence to suggest, and the trial court did not rule, that the tipster had any involvement in any occurrence past the stop.
In Taylor, the Supreme Court observed:
The informant in this case was not a material witness to the crimes charged and the informant provided only a tip, as in Schooley. This tip led police to further investigation and to the making of an investigative stop where the officers observed a suspected controlled substance in plain view in the lap of Taylor. The informant was not present in or near the vehicle when the charged crime was committed. Accordingly, the informant could not have provided any testimony about what occurred when the vehicle was stopped by the police.987 S.W.2d at 304.
Such is the exact circumstance which occurred in the present case. The Appellees here were charged with crimes arising out of what police discovered in the car, the apartment, and on their persons after they were stopped on February 12, 2015. The informant was not present. The role he or she played ended in January when the tip was given; the informant was not a material witness to the crimes charged.
The trial court appeared persuaded that the tipster might have some information which could be considered exculpatory. The Appellees argued that because they were charged with complicity to commit many of the charged crimes, the relevance of the identity of the confidential informant is established since he or she identified Walker alone as being the person dealing drugs out of the apartment. But, again, the charges faced by both Walker and Glenn arise out of the traffic stop, the evidence seized of the car and their persons, and evidence seized from the apartment after obtaining a search warrant after the traffic stop. It is simply not clear how the identity of a tipster could be relevant to the prosecution.
It is that opacity that comprises the final blow to the trial court's order. The trial court found that there existed a "reasonable probability" that the informant could provide relevant testimony during the trial, but does not offer how that could be so. The Kentucky Supreme Court stated in Taylor:
In Schooley, supra, this Court required that a defendant requesting disclosure make a showing that disclosure would be relevant and helpful to the defense . . . . This Court held in Schooley that "mere speculation that identity of an informant is necessary to a defense is not enough."987 S.W.2d at 304 (citation omitted).
Mere speculation that the identity "might" be helpful to the defense is simply insufficient to overcome the strong presumption that the identity of a person who could be placed in danger should be protected. Especially when that person is clearly only a tipster who was not an eyewitness to the charged crimes, but only provided information which allowed the police to be in a position to observe the criminal activity which later occurred and formed the basis of the crimes charged.
The trial court abused its discretion when it held, contrary to the same caselaw which it cited in its order, that a mere tipster might possibly provide relevant testimony about a matter he or she was not present to observe. That abuse of discretion was compounded when the trial court held that the identity of the tipster might be helpful to the defense, requiring disclosure when the caselaw actually establishes the opposite.
CONCLUSION
The order of the trial court compelling the Commonwealth to provide the identity of the informant who provided a mere tip which led to the police investigation which culminated in the arrests of Walker and Glenn is hereby reversed, and this matter is remanded to the Jefferson Circuit Court for further proceedings.
ALL CONCUR. BRIEFS FOR APPELLANT: Andy Beshear
Attorney General of Kentucky Jason B. Moore
Special Assistant Attorney General
Louisville, Kentucky BRIEF FOR APPELLEE DAMON
GLENN: Nicholas Mudd
Louisville, Kentucky BRIEF FOR APPELLEE ANDREW
WALKER: David Houston Ward
Louisville, Kentucky