Petitioner, Anthony Edwards (also known as Harold Brooks), was convicted in the Circuit Court for Baltimore City of possessing, with intent to distribute, more than 448 grams of cocaine, in violation of Maryland Code, Article 27, § 286(f)(1) (1996 Repl.Vol.). The conviction was based on evidence, presented through an agreed statement of facts, that, in the course of executing a search warrant for 2125 Cliftwood Avenue on the evening of May 17, 1995, police officers discovered petitioner alone in the basement in immediate proximity to nearly 1,000 grams of 89% to 93% pure cocaine base, having a street value of approximately $500,000. About half of the cocaine was in a large zip-lock bag sitting on a table, another quarter-kilo was in a sandwich bag, and the rest was in a tape box and on a triple-beam scale. On the table as well was $1,000 in 10 stacks of $100. Also found in the basement were a loaded .12-gauge shotgun and two loaded pistols. Additional weapons were discovered upstairs and in the car petitioner had driven to the house moments before the police entered to execute the warrant. Two women—one Imgene Reaves and a co-defendant, Sylvia Harris—were found in the living room.
For obvious reasons, petitioner does not challenge the sufficiency of the evidence underlying his conviction. His attack, instead, is on the search warrant that led to the discovery of that evidence. We shall affirm.
RELEVANT FACTS AND PROCEDURAL HISTORY
On May 16, 1995, Officers Frank Alston and Lawrence Gardner made application to Judge H. Gary Bass, of the District Court, for a warrant to search (1) the persons of “Nat,” described as a black male, 20-25 years of age, 6 feet tall, 170 pounds, and “Silco,” a black female, 40 years of age, and (2) the premises of 2125 Cliftwood Avenue. In their application, the officers stated that they had reason to believe that cocaine, narcotics paraphernalia, and other incriminatory objects and papers were then being concealed on those persons and in that property. In an accompanying affidavit, the officers attested first to their drug enforcement training and experience, which was extensive and undisputed. They then asserted that, during the first and second weeks of May, 1995, they had been informed by a registered confidential informant, identified only as NED #465, that the informant knew of a dwelling “where currently there is a large quantity of cocaine being stored,” that the informant “has seen cocaine and [sic] inside of 2125 Cliftwood Ave,” and that the cocaine was being sold in large quantities by “Nat” and “Silko,” the persons described in the application. The person identified as “Nat” drove a black Infíniti M-30 and a gray Mercedes and used those vehicles to transport and sell controlled dangerous substances. The informant stated that he/she knew that information to be true “because he/she has purchased CDS from this house and has observed the above listed CDS inside the dwelling.”
In further support of the application, the affidavit stated: “Prior to the signing of this warrant, on a date and time, that cannot be specific, as it might reveal the identity of the informant, your affiant brought NED # 465 to the chambers of the Honorable Judge Gary Bass who administered the oath under the penalty of perjury that what the affiants had been told by the informant, and that it was true and accurate. Judge Bass did this by having NED # 465 read the information and promise that it was accurate and swear to its truthfulness. Judge Bass did not ask NED # 465 any information beyond the four corners of the affidavit.”
Upon that application and affidavit, Judge Bass issued the search warrant, finding that there was probable cause to believe that
In January, 1996, after having filed an earlier omnibus motion devoid of supporting facts but seeking a variety of relief, including the suppression of all evidence that may have been unlawfully seized, petitioner filed a motion for an in camera hearing to disclose and question the confidential informant referred to in the warrant affidavit and a separate motion for a hearing pursuant to Franks v. Delaware,
“The affidavit [in support of the application for search warrant] falsely states that drugs were currently in residence at the time the search warrant was obtained on May 16,1995. I had no drugs in 2125 Cliftwood Avenue, and had not had any drugs in the house for several months prior. As explained in detail above, there were no drugs in the residence until May 17, 1995, the day the search warrant was actually executed.”
Petitioner also averred that he had never sold any drugs to Brooks and that Brooks’s statement to the contrary was also inaccurate.
The motions for disclosure of the informant and for a hearing pursuant to Franks v. Delaware were related. Indeed, notwithstanding his assertion that he knew the informant to be Kelly Brooks, petitioner asserted in his motion for disclosure that it was necessary for the State to produce the informant and make him available for questioning in order to determine whether a Franks hearing was warranted. At a hearing on the three motions, the State asserted, and offered to prove through the testimony of the two police officers, that Kelly Brooks was not the informant. That did not satisfy petitioner, who continued, on the one hand, to insist that Kelly Brooks was the only person with whom he was involved, and, on the other, that if Brooks was not the informant, it was equally critical that he be informed of who was the informant.
The trial court denied the three motions, largely because of the appearance of the informant before Judge Bass and the informant’s attesting under oath to the truth of the statements attributed to him in the officers’ affidavit. That appearance was viewed by the court as the equivalent of an in camera hearing, thereby obviating the need for it to conduct another one, as precluding the need for a Franks hearing, and as sufficiently establishing the reliability of the informant for purposes of assessing probable cause. The court regarded the dispute before it as a “swearing contest,” and, without any corroboration of petitioner’s affidavit, there was, in the court’s view, insufficient objective evidence that “the police engaged in a lie or engaged in reckless disregard for the truth with respect to how they responded to the informant’s information. ...”
In affirming petitioner’s conviction, the Court of Special Appeals took much the same
DISCUSSION
As a preface, we cannot help but note a certain anomaly in petitioner’s argument. In his own pre-trial affidavits, petitioner admitted having made an arrangement with Kelly Brooks to purchase, for $11,000, the 1,000 grams of cocaine discovered in the basement of 2125 Cliftwood Avenue and upon which his conviction ultimately rested. He admitted that the cocaine was due to be delivered to him at 2125 Cliftwood Avenue on the evening of May 16 and that it was only because of an unexpected delay on Brooks’s part that the cocaine was not delivered until May 17. This is not a case, in other words, of an alleged mistaken identity, of a police entrapment, or even of a fortuitous find on the part of the police; petitioner himself verified that he expected to be in possession of a substantial amount of cocaine on May 16 C the day the warrant was applied for and issued. Petitioner’s real complaint centers on pne day’s timing. His argument is that Mr. Brooks was the informant who “set him up,” by falsely asserting that the cocaine was at the Cliftwood Avenue house on May 16—the day it was supposed to be delivered—when he knew that it would not, in fact, be delivered until May 17. The legal issues arising from the circumstances under which the warrant was issued are still presented, and will be addressed, but the framework for their consideration is hardly a sympathetic one for petitioner.
Disclosure of the Informant
The modern law governing the circumstances in which the State must disclose the identity of a confidential informant derives largely from three principles enunciated in Roviaro v. United States, supra,
Those principles were established “[i]n the exercise of [the Supreme Court’s] supervisory jurisdiction” to “defin[e] the scope to be accorded to the various common law evidentiary privileges in the trial of federal criminal cases,” and not as a Constitutional adjudication. McCray v. Illinois,
The principal caveat to the privilege of non-disclosure articulated in Roviaro is that disclosure is required when the disclosure is relevant and helpful to the defense or is essential to a fair determination of the cause. That caveat has been interpreted, explained, and applied in a number of ways, but, as is the case with many judicial pronouncements, one must always keep in mind the context in which the pronouncement is uttered. Many courts, including this Court, have described the balancing process as hinging on “the materiality of the informer’s testimony to the determination of the accused’s guilt.” Warrick, supra,
Roviaro and McCray are examples. In Roviaro, the informant “had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged,” Roviaro, supra,
This Court has also recognized that distinction. In both Brooks and Warrick, we noted “that the privilege ordinarily applies where the informer is a mere ‘tipster,’ who supplies a lead to law enforcement officers but is not present at the crime, while disclosure is usually required when the informer is a participant in the actual crime.” Brooks, supra,
If that were the only relevant and applicable distinction, petitioner’s argument would be easily answered. The informant’s identity and testimony in this case would have been of little relevance to petitioner’s guilt or innocence. As noted, his conviction rested entirely on the drugs and paraphernalia found in the basement of 2125 Cliftwood Avenue, drugs that petitioner admitted he had purchased that very day. The evidence came from an agreed statement of facts. There was no defense of mistaken identity, or entrapment, or lack of knowledge on petitioner’s part that the cocaine was present in the basement. No facts bearing on petitioner’s guilt were even in dispute. ' The informant’s identity was entirely irrelevant in that context; his or her testimony would have been of no assistance to petitioner.
The distinction articulated in Brooks and Warrick has to be viewed in the context of the facts presented in those cases, however. Brooks and Warrick had four important facts in common: the conviction rested on drug sales to undercover police officers; the informant was with the officers when they first encountered the person who sold the drugs and was therefore in a position to identify that person; the defendant was not arrested immediately but some time later; and his defense was mistaken identity. In each case, he sought the identity of the informant in order to be able to contradict the officers’ identification testimony. In Brooks, we held that non-disclosure was error and reversed; in Warrick, we held that the court erred in failing to engage in the balancing process, and we remanded for that to occur.
The distinction articulated in Brooks and Warrick was appropriate to the issue presented in those cases, but it is clear from other cases, in Maryland and elsewhere, that the competing considerations are not limited to that context. The more difficult problem arises when, as here, the informant was not a direct participant in or witness to the criminal activity, but rather supplied material information in support of the probable cause used to obtain a warrant or to justify a warrantless arrest or search. The relevance of the informant’s identity in that context arises, of course, from the exclusionary rule, rendering inadmissible evidence obtained in violation of the Fourth Amendment, and, notwithstanding that the informant’s role was predominantly as a “tipster,” disclosure may, in some instances, be required. The participant/tipster distinction is not necessarily controlling.
The McCray Court made clear that the Court was unwilling “to impose any absolute rule requiring disclosure of an informer’s identity,” especially “where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake.” McCray, supra,
It is entirely consistent with Roviaro and McCray, and with Maryland case law, for a court to strike the balance in favor of non-disclosure when the informant’s role was limited to providing information to establish probable cause and the existence of probable cause is not a significant issue in the case. In that setting, the informant’s testimony would not be essential to a fair determination of the case and may not even be relevant to the accused’s defense. When the defense does rest on a showing that critical evidence was obtained in the absence of probable cause, however, and the determination of that issue depends principally on the reliability of an informant or the veracity of an affiant’s assertions of what an informant said or did, the balance may have to be struck in favor of disclosure. We made that clear in Drouin v. State,
“We think the reasonable and proper rule after a careful consideration of all of the authorities, to be that in criminal cases where the probable cause for a defendant’s arrest depends wholly, or in part, on information received from a non-participating informer, if the name of the informer is useful evidence to vindicate the innocence of the accused, lessens the risk of false testimony or is essential to a proper disposition of the case, disclosure should be compelled, or the evidence obtained by reason of the arrest and search suppressed.... If the accused asserts any substantial ground indicating that the identity of the informer is material to his defense or the fair determination of the case on the issue of probable cause the trial court should require the informant’s name to be given (or the evidence suppressed) so that the informant may be summoned and interrogated if it be necessary to do so in order to determine whether or not the officer had probable cause to make the arrest.”
(Emphasis added.)
A number of courts, when presented with a demand for disclosure of an informant supplying information used to establish probable cause, have based their rulings on the extent to which the finding of probable cause rested on the informant’s uncorroborated information. The U.S. Court of Appeals for the Second Circuit, for example, has adopted the view that an informant must be produced only when his story constitutes “ ‘the essence or core or main bulk’ of the evidence brought forth which would otherwise establish probable cause.” United States v. Tucker,
Until the State denied the allegation, petitioner’s demand for disclosure rested foursquare on his assertion that the informant was Kelly Brooks. In effect, if not in articulation, petitioner viewed the warrant as an anticipatory one, applied for and issued on the expectation that Brooks would deliver the cocaine prior to execution of the warrant. The essence of his argument was that Brooks knew that the cocaine was not at the Cliftwood Avenue property on May 16 and that the two officers either also knew that to be the case or acted in reckless disregard of whether the cocaine was then present. The sole basis for petitioner’s hypothesis was his uncorroborated statement that there were no drugs at 2125 Cliftwood Avenue prior to May 17.
There are two problems with that argument. The first lies in his linchpin assumption that Brooks was the informant which, though perhaps a permissible inference was by no means a compelled one. As noted, the State offered to produce testimony from the two officers that Brooks was not the informant, but petitioner never called upon the State to produce that evidence, insisting instead that his word that Brooks was the informant must be accepted. That response spared the court the opportunity to judge for itself the credibility of the two officers, which we think is significant. If the officers had testified as proffered and the court found their testimony to be credible, there would clearly have been no need to produce the informant; only if the court found their testimony suspicious or unworthy of belief would a solid basis for an in camera hearing have been presented.
The second flaw arises from petitioner’s assumption that the drugs referred to in the officers’ affidavit were those that petitioner had arranged to purchase from Brooks. For one thing, the affidavit is not so cast; it does not refer to drugs anticipated to arrive, but recounts drugs being sold from the premises in the recent past. In his own affidavit, petitioner swore that he had never sold drugs to Brooks and implied that Brooks had not been to the Cliftwood Avenue property, thereby either confirming that Brooks was not the informant or contesting that drugs had been sold to anyone from the Cliftwood Avenue property. In either case, no basis for a compelled in camera disclosure was stated. The informant appeared before
Accordingly, for all of those reasons, we find no legal error and no abuse of discretion in the denial of petitioner’s motion for disclosure of the informant.
Franks Hearing
As noted, petitioner’s motion for a Franks v. Delaware hearing was closely related to his request for disclosure of the informant, and, indeed, both motions were based on his claim that Kelly Brooks was the informant and that the drugs referred to in the affidavit were those actually delivered on May 17. Largely for the reasons stated in connection with the disclosure motion, we find no error in denying a Franks hearing.
The Supreme Court held in Franks that “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Franks, supra,
Petitioner made no such showing in this case. His assertion that the information contained in the affidavit was knowingly false rested entirely on his assumption that Kelly Brooks was the informant and thus the source of the information. His argument that the affiant officers necessarily knew that Brooks’s information was false is wholly conclusory, devoid of supporting facts. It is bolstered to some extent by the fact that the informant also became an affiant, but whatever boost that gives to his position is more than outweighed by the fact that Judge Bass expressly found the informant to be credible. Although the ex parte appearance of an informant before a warrant-issuing judge is not the equivalent of a Franks hearing—there being no opportunity in such an appearance for cross-examination or the presentation of contradicting evidence—it is nonetheless an important factor in weighing whether a Franks hearing is necessary. As the Court of Special Appeals pointed out in Tamburello v. State,
Probable Cause
The last question posed by petitioner need not detain us long. The affidavit, corroborated
JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.
CHASANOW, J., concurs in the result only.
Notes
. Kelly Brooks is no relation to petitioner.
. That is not to say, of course, that the required balancing process does not have Constitutional overtones, for it surely does. The limit on the common law privilege of non-disclosure arises from the right of a defendant to a fair trial, and that right is implicit in the Sixth and Fourteenth Amendments to the United States Constitution and in Article 21 of the Maryland Declaration of Rights.
. Although in Warrick the informant was allegedly a witness to the crime itself, in camera hearings are not reserved only for that circumstance. See United States v. Moralez,
. The basis for petitioner’s insistence that disclosure was necessary even if Brooks was not the informant is unclear. His response to the State’s offer was simply his assertion that "there was no other human being with whom he had involvement of any kind during any of the relevant time frames or places,” an assertion, we note, which is made suspect by the presence in the home of his co-defendant, Ms. Harris, and the other woman, Ms. Reaves. In effect, his argument was that, even if the informant was not Brooks, he needed to know who it was because it must have been Brooks. The rationality of that argument escapes us.