*1
Commonwealth J. vs. William Amral four (and cases1). companion Worcester. 1990. 1990. January May Wilkins, Nolan, Liacos, C.J., Abrams, Lynch, O’Connor, Greanby, Present: & JJ. Seizure, Affidavit, Law, Search and cause. Probable Constitutional Search seizure, Practice, Criminal, Probable cause. Cause. Dis- Probable closure of informer. Identification. warrant, support application
An affidavit submitted an for a search reported which an informant’s observation of the contraband place to be tip, searched established the basis and in informant’s given which a factual asssertion that the informant had information in past leading arrests and convictions for similar offenses magistrаte sufficient determine independently basis that the reliable, justify informant was was magistrate’s sufficient issu- ance of a search warrant. [514-515] that,
This court concluded in a case in which a criminal affi- defendant davit asserts facts that cast a doubt reasonable on the of mate- representations rial made an affiant a confidential in- formant, deterring public interest in requires misconduct judge to exercise discretion to order in camera determine preliminary whether there been a showing has substantial that the affi- ant intentionally has made false statements or recklessly. [515-523] Although the defendants a criminal case failed to make the substantiаl
preliminary that an made false affiant had statements concern- ing a intentionally required by or recklessly confidential as (1978), Franks v. 438 U.S. entitle them constitution- ally hearing, to a Franks this court remanded the case with direc- hearing, tion that hold purpose an in which will (through and, be interrogating necessary, to determine the affiant informant) constitutionally whether the are defendants entitled to a hearing. Franks [523-526] C.J., concurring, disagreement expressed his with the court’s con- Liacos, clusion that absolutely pre- defense counsel shall be from a barred proceeding. Franks in camera [526-527] against Iwaniec, against 1Two Salisbury, Stephen Gordon L. one G. one J. Williаm Amral. Court Superior found and returned
Indictments *2 5, 1987. February on Department were H. by evidence heard William Motions to suppress Welch, J. interlocutory ap- Commonwealth’s for application Nolan, J., in was the Judicial by Supreme allowed
peal Suffolk, the was appeal reported for of and county Court the him. Sullivan, for Assistant District the Attorney, Claudia R. Commonwealth. III, L. Curley, Salisbury. J. for Gordon
John Amral, J. Edward W. for William & Bailey, Robert M. Iwaniec, joined in a brief. G. McIntyre, for Stephen 5, 1987, defendants, On the William February J. Nolan, Iwaniec, Amral, G. and L. Salisbury, J. Gordon Stephen a controlled sub were for unlawful possession indicted charged and were Salisbury additionally stance. Amral indict instruments. The unlawful possеssion hypodermic conducted officers the Clin ments arose from a search on Octo ton to search warrant pursuant department suppress ber Each defendant moved to the evidence 1986. prob the the that there was no during seized search on basis the motion judge initially able cause for search warrant. The that concluding motions suppress denied the in from a ‘reliable “[¿Information came [in affidavit] where having drugs place who described seen formant’ filing addition to a motion to sup the search was made.”2 In the Commonwealth require filed a motion to Salisbury press, support the informant. In to disclose information motion, in which hе filed an affidavit identi Salisbury of this revealed, among other support of the search warrant 2The affidavit on things, October that a “reliable informant” had told the affiant it on the separating packaging cocaine and people several were the inform revealed that kitchen table at a certain residence. The affidavit pack separating saw ant residence on that date and them was informant had aging revealed the cocaine. The affidavit also “given and conviction sub past leading the arrest information jects for offenses.” similar whom to be informant. Salis fied the he believed person in his of his informa bury asserted affidavit that the best tion, belief, had knowledge previously never person any law enforcement authorities with information leading to the arrest or conviction of any person any drug-related criminal activity.3 disclosure,
At a motion to require refused to order the Commonwealth to the informant’s reveal did, however, name. He order to provide some additional information arrests concerning the or convic tions which the had such informant’s tips proved helpful, date, as name court where complaint *3 indictment was issued or the of in name the defendant the earlier cases. After consulting those involved who police werе in the present courtroom when the motion was argued, the assistant district refused to addi attorney supply any that, tional information on the ground since all the parties other, knew each disclosing that information would be tanta mount to the revealing name of the informant. The then revoked his rulings earlier which denied the defendants’ motions to and suppress allowed those motions. In doing, so the judge found that the defendants made a “substantial pre showing that the liminary information relative to the inform ant having provided reliable information in the well past may have been misstated and would a misstate be material this ment.” The Commonwealth filed an for an application then single this interlocutory appeal granted in court which a was ju The Commonwealth submits that the act stice. ed first the improperly by ordering Commonwealth to dis close information and concerning the informant then al 3Iwaniec, his support his to suppress affidavit of motion also as serted, belief, and information that never had informant leading information to Clinton past to the arrest con and subjects. viction of Salisbury alleged other was Ro one Iwaniec, hand, Lagos. berto on the other as one identified the informant Lagos. Alberto H. judge granted 4The pending of motion continuance the resolution interlocutory appeal.
Commonwealth Amral. to when the Com suppress defendants’ motions lowing information. The to disclose that monwealth refused allowed the mo judge properly assert that defendants of to the affidavit support tions because suppress face, (2) its cause on (1) probable warrant lacked search which, of fact when ex a material misstatement contained affidavit, fatal to the establishment of from cised proved cause. probable the motions judge allowed on its The
1. affidavit face. finding that the affidavit on the basis of his suppress well have contained a the search warrant of support finding was necessary of faсt which misstatement did not find the affidavit insuffi cause. The judge probable however, If, affidavit was insufficient on cient on its face.5 issue, for the warrant its face to cause provide probable We, therefore, evidence. suppressed properly on its face. We hold of the affidavit sufficiency address the to provide proba was sufficient on its face affidavit cause for the warrant issue. ble muster under art. pass “For an informant’s information Consti- Rights the Massachusetts of the Declaration tution, magistrate some facts must apprise the affidavit the inform- (1) both the basis for and circumstances of the informant (basis test), (2) credibility tip ant’s *4 test).” his Com- (veracity information reliability or the 209, Ramos, 212 (1988). v. Common- monwealth 363, (1985). The in- Mass. Upton, wealth v. 394 be place of the in the to formant’s observation contraband Common- knowledge test. See searched satisfies the basis fact, was suffi to have found that the affidavit judge, appears 5The in judge initially suppress con The denied the motions to cient on its face. that cluding sufficient so the “information the affidavit was that grounds it believe was more issuing magistrate have reasonable would being committed and that probable had been or was than not that a crime Thus, judge at drugs place be searched.” probably were finding Only its after initially sufficient on face. least found the affidavit showing that preliminary substantial the defendants had made judge allow the fact did the misstatement of affidavit contained material suppress. defendants’ motions 515 511 Mass. 407 v. Commonwealth Amral. 214; Ramos, v. Borges,
wealth therefore, We, need discuss (1985). only Mass. 795 395 reliability of his credibility informant’s information. magistrate warrant affidavit should inform the of some
A from which the affiant underlying circumstances informant, that the whose need not be dis- conclude closed, or his was “credible” information “reliable.” See Texas, case, U.S. In Aguilar affidavit informed the that the magistrate warrant informant “given leading had information to the past arrest and for similar In subjects conviction offеnses.” Common- we held Rojas, (1988), wealth Mass. naked assertion that the informant had past pro- “[a] led vided information which to a arrest is insufficient prior case, itself establish an informant’s In this veracity.” warrant affidavit informed the that the magistrate “given had information to the arrest past leading conviction of for similar subjects (emphasis added). offenses” This factual assertion sufficient basis for the magis- to determine trate that the informant was independently reli- Brzezinski, See able. Commonwealth v. Mass. 406- that, (1989) (stating reference to convictions were struck, affidavit would fail to cause); establish probable Com- Ramos, (1988) (elaborate monwealth Mass. not to show cause). The specificity required probable affidavit was sufficient on its face.
2. The the search warrant truthfulness of affidavit. Commonwealth contends that the judge (1) acted improperly when he ordered the Commonwealth to disclose information informant, concerning the he (2) when allowed the de- fendants’ motions to suppress after the Commonwealth re- fused disclose that information. We vacate the order to disclose and the orders and remand the case for suppression not proceedings inconsistent with this opinion.
We are faced with the of how to balance the question pub- lic interest in protecting against informаnts encouraging interest In con- public deterring misconduct. police
516
Commonwealth Amral.
that,
balance,
a crimi
ducting
although
we are mindful
in certain limited circumstances have a
may
nal defendant
constitutional
a
of statements
right
Delaware,
affidavit, see Franks v.
438
made in a warrant
154,
(1978),
155-156
he or she has no constitutional
U.S.
is
a
right
Suppression
remedy designed
suppression.
courts,
to deter future
miscon
police
as matter
policy,
154,
(1978).
165-166
duct. Franks v.
438 U.S.
Calandra,
338,
(1974).
414
United States v.
U.S.
English
common
privilege,
The informer
its roots
States,
19,
law, see
re
F.2d
22 (2d
1977),
In United
565
Cir.
436
Party,
cert. denied sub nom. Bell v. Socialist Workers
Hearings
Ruling
The
of In Camera
(1978);
U.S.
Use
on the Informer
8 U. Mich. J.L. Ref.
Privilege,
long
in this Commonwеalth. See Worth
(1974),
standing
Scribner,
(1872).
This privilege
ington
substantial,
assisting
serves
worthwhile purpose
for
of criminal
The basis
obtaining
activity.
evidence
well
may
is the
informer
suffer
privilege
proposition
identity
if his or her
is disclosed. For
some sort of reprisal
informants
have suffered
repri
cases where
examples
Toombs,
sal,
n.1 (5th
see
F.2d
United States
States,
v. United
406 F.2d
1974);
Cir.
Swanner
York,
1969);
Cir.
Schuster v.
New
N.Y.2d
(5th
City of
that: “A
The
States
Court has stated
Supreme
,
. .
be
on . . . fundamental
. must
genuine
principle
privilege,
govern-
recognized
identity
supplying
persons
crimes.
ment with
commission of
information
ought
encourage-
Communications of this kind
receive
is dis-
discouraged
ment.
are
if the informer’s
They
good сitizen-
Whether an informer is motivated
closed.
reward, he
of pecuniary
ship, promise
leniency
prospect
of ano-
will
condition his
on an assurance
usually
cooperation
—
harm,
from
himself and his family
nymity
protect
of def-
and to avoid the risk
adverse social reactions
preclude
him.
or malicious
actions
amation
prosecution
iden-
has
in nondisclosure
government also
an interest
*6
In
v.
supra
at
the Court dis-
cussed the informer’s
in the context
privilege
of a prelimi-
nary hearing
cause,6
to determine probable
and concluded
that the due
clause of
process
the Fourteenth Amendment
the United States Constitution did not require the State to
States,
earlier,
years
6Ten
in Roviaro v.
United
(1957),
expose defendant, evidence to show that when there was ample of a See his information credible. informant was reliable and U.S. Franks v. *7 for disclosure at distinguished
The Court between the need stating the trial and at proper, a pretrial supprеssion to hold that an informer’s it “has declined consistently trial, in a criminal need be disclosed federal always to determine probable in a let alone preliminary or McCray an arrest search” (emphasis supplied). cause for Illinois, this issue have addressing v. at 312. Courts supra a demand for disclosure maintained this distinction between the issue is cause for hearing (where probable at a pretrial search), demand for disclosure at trial arrest or and a an or inno- guilt issue is the defendant’s ultimate (where the v. Mass. cence). See Lugo, Commonwealth Johnson, v. In (1990), and cases cited. Commonwealth and, (1974), recently, more Common- Mass. “it is revealing we noted that Lugo, supra, wealth is rather counte- readily courts’ that nondisclosure approach hearings, but not so at trial itself.” nanced at pre-trial Johnson, at 545. supra
However, and fast rule a hard establishing rather than no all affidavit cases matter disclosure in warrant prohibiting circumstances, the leave disclosure generally what the courts the motion. See judge hearing discretion of the to sound Illinois, rest (it entirely at 308 should McCray to whether officer is believa- who hears motion decide Abdelnour, witness); App. ble Commonwealth The in McCray cited. Court (1981), Ct. and cases Roviaro, guidance, note offers little see supra, supra, however, in whаt circumstances determining whether and an informant government identify judge may require claim that affi- considering a defendant’s course made false recklessly intentionally davit contains statements. v. Amral.
The decision in Franks U.S. Court’s Franks, In (1978), is no more issue.7 helpful in criminal Court determined whether a defendant pro- the Fourth Fourteenth ceeding right, ever has under Constitution, Amendments the United States subsequent warrant, to the ex issuance challenge of a search parte factual made truthfulness of statements in an affidavit sup- Franks, In Id. at 155-156. porting Supreme warrant. Court of Delaware had held that a defendant in no circum- stances may challenge the a sworn statement used a search States procure warrant. Su- reversed, preme Court that “where the defendant holding makes a substantial false preliminary showing that a state- ment and intentionally, or with reckless knowingly disregard truth, for the was included affiant in the warrant affi- davit, and if the statement allegedly necessary false *8 finding cause, the Fourth Amendment probable requires that a be held hearing at the defendant’s In the request.8 event that at hearing or allegation the reck- perjury less disregard is established the defendant a by preponder- evidence, and, ance of the the with affidavit’s false material side, set to one the remaining affidavit’s content is insufficient to cause, establish search probable warrant must be voided and fruits of the search excluded same to the ex- 7Although situation, cognizant of a defendant’s dilemma in such a Supreme Court in Franks chose not to address it: “[Bjecause we are faced today only question integrity representations of the of the affiant’s activities, decide, as to way his own we predeter need not and we in no mine, question reviewing difficult require whether a court ever must identity revelation of prelimi of an informant once a substantial nary falsity has been made.” Franks at 170. This acknowledge statement to fails an affiant’s representation of hav ing spoken having with an infоrmant or received information from that past informant which led to arrests convictions involves the affi Douzanis, ant’s own activities. See Commonwealth 384 Mass. (1981). n.9 8It should be Franks designed noted that a is to examine whether the intentionally recklessly included false statements in affiant designed affidavit. impeach is not the informant’s veracity. Mass. v. Amral.
Commonwealth
face of the affi-
was
on the
lacking
tent as if
cause
probable
Thus,
into the verac-
judicial inquiry
davit.” Id. at 155-156.
in
search warrant
facts contained
a
ity
underlying
affidavit did
fact contain
is limited whether the
affidavit
whether the
misstatements
the affiant and
misstatements
for the
disregard
or with reckless
intentionally
werе made
Corriveau,
truth. Commonwealth
are
affirma-
if both these
answered
(1985). Only
inquiries
Id.
appropriate remedy.
will the court consider an
tively
affidavit,
defend
is named
When
to determine
and interview the informant
investigate
ant may
Where, however, the
for the prob
basis
veracity.
the affiant’s
alleged
“reliability”
particular
able cause rests
to a con
informant and in statements attributed
confidential
informant,
defendant has no similar opportunity
fidential
as
the affi
to interview the informant
investigate
disclosed).
(unless
the informant’s
ant’s
situation,
lacks access to the very
In such a
the defendant
showing.
Franks
for a threshold
information that
requires
Brian,
(D.R.I.
F.
States v.
Supр.
See United
Southard,
700 F.2d
1981),
sub nom.
States v.
aff'd
States,
(1st Cir.),
cert.
nom. Ferris v. United
denied sub
Moreover,
ruling
judge,
Clearly, recog- court. We have open revealed to tinely the con- to reconcile nized the use of an in camera government’s interest in protecting flict between the the af- proving informant and the defendant’s interest of an informant “reliability” as the existence or fiant lied informant. Common- or as to statements attributed Douzanis, 434, Several (1981). wealth v. 384 Mass. other and Federal State courts have also the use recognized See, of in hearings in this context. e.g., United States Kiser, 1268, 716 F.2d 1273 (9th 1983); Cir. United States Brian, 507 F. (D.R.I. 1981); United States Supp. (E.D.N.Y. F. Lopez, Supp. 1971); State v. Casal, 103 Wash. 2d See generally W.R. LaFave, Search and Seizure 3.3(g) (2d 1987). ed. An in § camera hearing enables the to make an informed deci- sion regarding the defendant’s to the challenge affidavit while government’s upholding interest unwarranted dis- closure of its informant’s identity.
In
Douzanis,
Commonwealth v.
App. Ct. 535-537 & n.5 (1981). We first stated that the conflict might be resolved by holding a preliminary to a (prior Franks at hearing) which the affiant testi fies but does not disclose the informant’s Common identity. Douzanis, wealth v. at supra 441-442. This hearing may pro vide the judge with an adequate means to test the affiant’s See veracity. Illinois, McCray 386 U.S. 313 (1967) (where arresting officers were subject cross-examination court, testified in open judge, obviously satisfied that of ficers truth, were telling the exercised properly discretion to respect informer’s privilege).
We further stated that a defendant has no constitutional right to an in camera hearing absent a “substantial prelimi- nary showing.” Douzanis, Commonwealth v. at 443. supra Cf. Abdelnour, Commonwealth v. (re- quests disclosure warrant affidavit cases should be de- nied without hearing unless defendant makes an “adequate threshold demonstration” either that police have fabricated informant’s existence or past history reliability, that po- lice have relied upon used information knew was they *10 Nevertheless, ruled, a trial unreliable). we
patently hearing a by holding or her discretion not abuse his would sat- when he or she is “not disclosure camera ordering an informer the information was received from isfied that Douzanis, credible.” believed to be reliable or reasonably 442-443, (c) Mass. R. Evid. 509 Proposed at quoting (3).9 deterring we that the interest in
Today, public hold dis- to exercise his or her the trial requires misconduct the defendant hearing an in camera where cretion to order doubt on facts cast a reasonable by affidavit asserts which made the affiant by of material veracity representations a informant.10 Mere suspicion confidential informant, “reliability” no or that the informant’s there was misstated, that his information was been credentials have affiant, trigger is not enough as recited by other than tending facts hearing, an in but assertion of camera Otherwise, fal- very is sufficient. suspicion confirm such a be forever hidden that the defendant seeks sity expose to establish who the inability as a result of the defendant’s was. informant be to enable hearing of the in camera would purpose affiant, and, necessary, judge through interrogating substantial to determine whether there has fálse state- the affiant made showing
preliminary conclusions, discre approving the 9Other courts have reached similar falsity by tionary hearing of an after some use Kiser, See, (9th States v. Cir. United e.g., 716 F.2d defendant. Hurse, (8th 1971), States 1983); Cir. United 453 F.2d 130-131 Brian, supra at 766. denied, (1973); United States cert. U.S. 908 in camera is entitled to an 10Other have held that defendant courts showing” falsity re preliminary even absent the “substantial Franks, Casal, (1985) See State 103 Wash. 2d quired veracity (where doubt” as to material defendant “casts a reasonable affiant, representations judge should exercise discretion made Brian, States issue); in camera conduct showing of supra (where inconsis makes “some minimal defendant government’s supports which assertion tency on material” the face truth, may, disregard probably for the court of deliberate or reckless should, hearing). conduct in camera *11 Kiser, intentionally ments Cf. United States v. recklessly. words, In other of the in supra. purpose is to determine whether the defendant has a right to a made, Franks If the hearing. showing is not there shall be no made, Franks If hearing. showing a Franks hearing is held at which point order If disclosure. orders disclosure at the Franks hearing and the Com- declines, monwealth the motion to should be suppress allowed.
We these apply to the case before us. principles The judge found that the defendants made a “substantial preliminary information relative to the informant hav- ing reliable information in the well have past may been misstated and this would be a material misstatement” (emphasis did supplied). Clearly, not find that the defendants had made the showing Franks to required by en- title them to a constitutionally Franks-typе hearing. See Franks v. Moreover, supra at 155-156. the de- fendants’ showing would not such a support determination. Although the defendants have made a stronger showing in this case than cases, have defendants in prior cf. Common- Ramos, wealth v. 215 & n.5 (1988) (where defendant failed to make “substantial preliminary showing” by merely offering his own account of events in question); Commonwealth v. Nine Dollars, Hundred & Ninety-two Mass. 775 (1981) (no hearing where required defendant made no showing that affiant had reason to any doubt truth of statements given him), we hold that the defendants have failed to make the substantial re- preliminary showing quired by Franks to entitle them to a Franks constitutionally It hearing. follows that the defеndants also failed to make the showing under necessary Franks to warrant suppression We, thus, the evidence. vacate the orders to suppress.
We, nevertheless, remand the case with the direction that the judge hold an in camera hearing, the purpose of which will be to determine (through and, interrogating affiant necessary, informant) whether the defendants are consti- tutionally entitled to a Franks hearing. defendants have Mass. Amral.
Commonwealth v. affidavit, asserted, suspi- facts which tend to confirm their on the veracity cions which a reasonable doubt cast in the warrant made affiant affidavit. the statements Casal, The de- See 103 Wash. 2d State thеir challenges fendants affidavits in produced support the search warrant affidavit. of the statement in affidavits, named the In these two the defendants person be set their believed to the informant and forth they whom *12 the in reasons for the truthfulness of statement challenging the of reliability the affidavit that partic- warrant the filed an affidavit Salisbury identifying ular informant. affidavit, the he was the informant. In who believed person information, to of his knowl- asserted that the best Salisbury belief, had never edge, person previously provided and this to the leading law authorities with information enforcement of- any drug-related arrest conviction of any or person alone, no of this affidavit in camera strength fense. On the also filed affidavit as- would be Iwaniec an hearing required. belief, and that the informant never on information serting, Clinton de- had information to the police previously the arrest and conviction leading to partment past affidavit, the he other In his Iwaniec named subjects. person informant, he this was the and asserted that believed believed for a favorable exchange information in person had traded him. In ad- relative to plea bargain charges pending dition, de- in his affidavit that this had person Iwaniec stated $100 owed him one of the codefendants allegedly manded that, belief, this same individual was on information his and son seen the Clinton station with wife entering police thereafter, ob- the Clinton Shortly on that same date. police asser- search warrant in These factual tained the question. The public tions tend to confirm defendants’ suspicions. that deterring requires interest in misconduct police The purpose in this case. judge hearing hold an camera in- (through to is to determine hearing judge enable affiant, he other any person terrogating a have made whether the defendants necessary) deems threshold, We showing. emphasize preliminary substantial to camera hearing the defendants’ entitlement these arises constitutional any context of cases not from right deterring but from the interest in miscon- public duct. The in camera is not a substitute for Franks inquiry Indeed, hearing. is to evidentiary hearing purpose determine the defendants entitled whether are Franks finds, in hearing. hearing, If the the in camera made, such a has been the defendants are entitled to hearing a Franks which order disclosure. may time, At any prosecutor may opt stipulate suppres- sion of the evidence or dismiss charges against a de- fendant than rather allow the informant to be revealed judge. to the
In structuring the in camera is to follow hearing, procedural guidelines. these conduct an in judge may discrеtion, camera without or may, counsel he in his counsel, not but defense permit prosecutor, attend the hearing. who will not be at the present Counsel submit a limited number which the questions *13 Casal, 821; ask. See judge may State People v. Darden, 34 N.Y.2d (1974); 180 United States Rawl inson, (9th denied, 487 F.2d 8 1973), n.5 Cir. cert. 415 U.S. 984 A transcript hearing in camera shall Moreover, be made and sealed for possible appellate review. shall be taken to the precautions protect the in identity formant, including the in holding camera at a hearing place other than the courthouse deemed necessary guarantee the informant’s anonymity.
The substance of the hearing in camerа we leave to the however, the discretion of trial We judge. that if emphasize, judge following determines the in camera hearing that has defendant failed to make the for “showing” required hearing, a Franks shall inform defendant only has not been made. The required shall neither reveal the informant’s nor reveal whether was any person named the defendants informant. 407 511 Mass. reasons, vacate order to disclose11
For we foregoing We remand the case the Supe- and the orders suppress. hold cam- rior with direction that the an in Court for the manner outlined era the purpose above.
So ordered. (concurring). C.J. I write separately my exрress Liacos, court’s conclusion that defense counsel disagreement pre-Franks shall be barred from camera absolutely proceeding. court’s blanket of defense prohibition
Underlying insulting is the assump- counsel from in camera tion criminal cannot be trusted. attorneys simply defense are many I remind the court that defense attorneys paid pub- lic who Committee for Public Counsel servants work defense the same oath to attorneys Services and that all take laws of the Commonwealth as do their uphold prosecut- willingness I to as- ing disturbing brethren. find the court’s will to refrain from dis- sume that defense counsel be unable the in any during to their clients revelations made closing hearing. cam I counsel to be at the in present would allow defense Anderson, 509 F.2d era See United States proceeding. denied, Cir.), (1975); (9th cert. U.S. States, 1977), re F.2d Cir. cert. (2d In Party, nom. Workers 436 U.S. denied sub Bell Socialist Grisham, F.2d (1978); United States v. J., and dissent (8th 1984) concurring in (Heaney, part Cir. *14 cases, judge or we fault for 11In circumstances of these cannot particu dering at that Commonwealth to disclose further information it was until point proceedings. lar The record reveals that not after privilege. judge Commonwealth asserted its ordered disclosure assertion, his trial was unaware that appears Prior it that the to this revealing be tantamount order disсlose further information would Nevertheless, above, we va identity. the reasons outlined informant’s cate the order disclose. v. Amral. Commonwealth Miller, 513 Pa. ing part); Russell, (Tenn. Crim. 580 S.W.2d (1986); State it he necessary, considers 1978). If the motion App. discretion, could, counsel under enforce defense “place in his of the evidence unwarranted disclosure able orders Anderson, at 730. has heard.” that he the in camera hear- counsel’s presence Because defense interests are ade- ensure that the defendant’s would ing help be able to in- the motion should represented, quately agree Because I otherwise vite him to the proceeding. case, in this I concur. the result