Commonwealth v. Elias, 978 N.E.2d 772

Commonwealth appeals from denial of its petition under G. L. c. 211, § 3 seeking relief from a judge's order on confidential informant CI#5.
Defendant was indicted for possession with intent to distribute heroin (two counts: distribution and subsequent offense) based on drugs found in her home during a 2010 search warrant execution.
Affidavit for the warrant described four drug purchases and five confidential informants, including CI#5; defendant sought CI#5’s identity to support an entrapment defense.
Defendant asserted CI#5 could be John Smith who allegedly urged her to sell drugs; she claimed Smith placed drugs at her home shortly before the police arrival.
The trial judge did not disclose CI#5’s identity, instead only confirming or denying whether CI#5 was Smith; Commonwealth petitioned for relief, which was denied by a single justice.
Upon review, the court affirmed, holding that CI#5’s identity may be material to entrapment defense and that the Commonwealth failed to comply with the disclosing order; mootness issue discussed but not dispositive.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Must CI#5’s identity be disclosed for entrapment defense?	Commonwealth: disclosure not required; CI#5 not linked to charged offense.	Madigan: identity relevant to entrapment; disclosure warranted.	Disclosure may be required; entrapment defense is material.
Is the entrapment defense threshold met by defendant’s evidence?	Smith’s actions are not tied to government inducement; evidence insufficient.	Affidavit shows inducement by government agent; threshold low.	Threshold met; evidence supports entrapment inquiry.
Did the trial judge properly handle the § 3 petition and disclosure order?	Judge balanced informant protection; no need to disclose identity.	Order required explicit disclosure of CI#5 identity as Smith.	Discretion exercised properly but disclosure inadequate; affirmed denial.
Does mootness defeat the appeal?	Information already disclosed mootizes appeal.	Not properly complied with order; not moot.	Not mooted; Commonwealth must comply with the order.

Commonwealth v. Madigan, 449 Mass. 702 (2007) (informant privilege limited for material defense evidence)
Commonwealth v. Lugo, 406 Mass. 565 (1990) (entrapment and informant disclosure standards)
Commonwealth v. Tracey, 416 Mass. 528 (1993) (low threshold for entrapment defense)
Commonwealth v. Tremblay, 460 Mass. 199 (2011) (off-record disclosures are not proper compliance)
Commonwealth v. Richardson, 454 Mass. 1005 (2009) (court discretion in § 3 review; not automatic)