Opinion
DOCKET NO. A-3505-14T2
09-24-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. RICHARD WEST, Defendant-Respondent.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for appellant (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-07-1807. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for appellant (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
By leave granted, the State appeals from a February 20, 2015 order requiring the State to reveal the identity of a confidential informant (CI). See N.J.R.E. 516(b). For the reasons that follow, we reverse the order on appeal and remand this case to the trial court.
The appeal arose in the following context. After receiving some very specific information from a CI who they had previously found reliable, the State Police (police) set up two controlled buys in which the CI used police-issued funds to buy heroin from defendant at a specified address in Newark. The CI reported that, during each buy, defendant asked him what he needed, the CI told him he needed a "bun," which was street slang for ten small packets of heroin, and defendant sold him ten wax paper folds of heroin. After each buy, the CI turned over to the police ten wax folds containing a white powdery substance that they recognized as heroin.
The trial court's ruling was based on a sparse record. The CI disclosure issue was raised by defendant in a handwritten pro se motion, which addressed the issue in one sentence. Neither side filed a brief or any supporting evidentiary documents. On this appeal, both sides have referred to a supplemental police report and the affidavit supporting the State's search warrant application, which are included in the State's appendix. The attorneys referred to these documents at the oral argument in the trial court, and we consider them to assist us in understanding the factual background of the motion and the appeal.
Based on those two controlled buys, the police then applied for and obtained a search warrant for the premises where the purchases had occurred. During the resulting search, the police found heroin, cocaine, drug paraphernalia, a handgun and ammunition. Defendant was indicted on multiple counts, all based solely on the contraband found during the search. The CI was not present during the search, and defendant was not charged with selling drugs to the CI.
On February 20, 2015, the trial court heard argument on the motion. Defense counsel contended that there were gaps or omissions in the discovery the State had provided to the defense concerning the controlled buys. She contended that there was no documentation as to the amount of pre-recorded "buy money" given to the CI; no documentation of the narcotics taken from the CI after the purchases, as opposed to the drugs found during the search; and no information as to whether the substances the CI purchased were field tested. Defense counsel argued that the lack of such evidence raised an issue as to whether the controlled buys had actually taken place. She contended that she needed to learn the CI's identity so that she could interview him, with an eye toward possibly filing a motion challenging whether there was probable cause to issue the search warrant.
The prosecutor agreed that there was no documentation of the buy money, but contended that the State Police incident report clearly delineated the drugs found in the search, as opposed to the drugs purchased by the CI. He argued that the State was not going to use the drugs the CI purchased as evidence, and contended that there was no legal basis to disclose the CI's identity, where the CI was only involved in the preliminary stage of the investigation.
The State Police Supplemental Investigation Report supports the prosecutor's assertion. It clearly differentiates between the ten wax folds of heroin the CI bought from defendant during the controlled buys, and the different amounts of various drugs that were seized during the search. The same report noted that the drugs obtained from the CI were "logged and stored in the . . . temporary evidence locker at Metro North Station" and would be sent to the laboratory for narcotic analysis after the investigation was completed. The warrant affidavit, which mirrored the Report, indicated that the investigating officer believed, based on the wax-fold packaging and white powdery appearance of the substance, that it was heroin. --------
After reviewing the case law, the trial court briefly stated its conclusion that "in light of the procedural history, and the needs advanced by the defendant . . . the presumption [against disclosure of the CI's identity] . . . has been overcome," and disclosure "is essential to . . . assure a fair determination of the issues." The trial court made no factual findings and provided no rationale beyond that quoted here.
We review the trial court's decision for abuse of discretion. State v. Sessoms, 413 N.J. Super. 338, 342 (App. Div. 2010). Because the CI's involvement in the underlying prosecution was peripheral, and defendant's motion amounted to little more than a fishing expedition, we are constrained to conclude that the trial court mistakenly exercised its discretion in this case. See State v. Milligan, 71 N.J. 373, 387-88 (1976).
Absent certain limited exceptions, the State has a privilege against disclosing the identity of a confidential informant. N.J.R.E. 516.
The purpose of secrecy is twofold--to protect the safety of the informant and to encourage the process of informing. The public has a strong interest in sustaining the flow of information about crime to law enforcement, and informants are a key source of that intelligence. The privilege is in fact intended "to protect the public interest in a continuous flow of information to law enforcement officials." It is from this need for information that the presumption protecting the informer's identity arises.
[Sessoms, supra, 413 N.J. Super. at 343 (quoting Grodjesk v. Faghani, 101 N.J. 89, 97 (1986) (internal citations omitted)).]
Pertinent here, there is an exception to the general rule against disclosure, where "the judge finds that . . . disclosure of [the CI's] identity is essential to assure a fair determination of the issues." N.J.R.E. 516(b); N.J.S.A. 2A:84A-28(b). In deciding that issue, the court must engage in a balancing test, first described in Roviaro v. United States, 353 U.S. 53, 62, 77 S. Ct. 623, 628-29, 1 L. Ed. 2d 639, 646 (1957):
We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.That test has been adopted by our Supreme Court. See Milligan, supra, 71 N.J. at 384; Cashen v. Spann, 66 N.J. 541, 553 (1975); State v. Burnett, 42 N.J. 377, 385 (1964).
As our Court has explained, disclosure may be warranted where the CI participates in the crime, or "plays an instrumental role in its occurrence." Milligan, supra, 71 N.J. at 386; see State v. Florez, 134 N.J. 570, 580 (1994). Further, "even when an informer's involvement falls short of active participation in a criminal offense," the privilege can be overcome "where the defendant can show that the testimony of the informer is essential to preparing his defense or to assuring a fair determination of the issues." Milligan, supra, 71 N.J. at 390. However, a showing of only peripheral involvement by the CI generally will not suffice to overcome the privilege:
On the other hand, absent a strong showing of need, courts generally deny disclosure where the informer plays only a marginal role, such as providing information or "tips" to the police or participating in the
preliminary stage of a criminal investigation. Proof that the informer witnessed the criminal transaction, without more, is usually considered insufficient to justify disclosure.
[Id. at 387-88 (citations omitted).]
In Burnett, supra, 42 N.J. at 388, the Court, construing the informant's privilege in light of Roviaro, held that the Fourth Amendment does not require disclosure of an informant's identity for the sole purpose of challenging "the existence of probable cause" for a search. Later, in State v. Brown, 170 N.J. 138, 148 (2001), the Court approved the trial court's ruling that the CI's identity could not be disclosed, where the CI made controlled buys that the State used as the basis for a search warrant application. However, the CI's statements to the police about the buys were not admissible at trial as alleged declarations against the CI's penal interests. Id. at 149; see N.J.R.E. 803(c)(25). Those cases are pertinent here, where defendant's sole reason for seeking the informant's identity was to challenge probable cause for the search warrant.
Moreover, the defense application was weak in other respects. In making such a motion, it is not sufficient for defense counsel to express a speculative hope that the informant might provide the defense with some helpful information. Milligan, supra, 71 N.J. at 392-93; State v. Williams, 356 N.J. Super. 599, 605-06 (App. Div. 2003).
The most the defendant can say here is that he hopes the informer, if called by him, would corroborate his version and destroy the State's case. If that unsupported hope suffices, it is plain that an informer "could no longer serve as a cover or decoy." "If a defendant may insist upon disclosure of the informant in order to test the truth of the officer's statement that there is an informant or as to what the informant related or as to the informant's reliability, we can be sure that every defendant will demand disclosure." After all, the defendant has nothing to lose and the prize may be the dismissal of the charges if the State cannot afford to reveal its source, as is so often the case. Since there is no way to test the good faith of a defendant who presses the demand, "we must assume the routine demand would have to be routinely granted." We must be mindful of the ease with which the privilege would be destroyed and the supply of relevant information diminished if disclosure were the norm. Not much would remain of the informer's privilege and its underlying social benefit. The exception would exhaust the whole.
[State v. Salley, 264 N.J. Super. 91, 101 (App. Div. 1993) (quoting Burnett, supra, 42 N.J. at 385) (emphasis added, additional citation omitted).]
In summary, on the record presented, and in light of the applicable case law, we are compelled to conclude that the trial court mistakenly exercised its discretion in ordering disclosure of the CI's identity. Accordingly, the order on appeal is reversed and, our interlocutory review being complete, the case is remanded to the trial court.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION