State v. Badie

Jul 1, 1987

No. K 8059

Versions:510 So. 2d 120

1987 La. App. LEXIS 9827

Lead Opinion

SCHOTT, Judge.

Defendant is charged with possession with intent to distribute marijuana, diazep-am, and cocaine on December 18,1986. He filed a motion to suppress the evidence which was seized pursuant to a seаrch warrant and a motion to compel the state to disclose the identity of a confidential informant (C/I). After hearing the testimony of the two policemen who obtained the warrant and seized the evidence the court denied the motion to suppress but ordered the state to disclose the identity of the C/I. On the state’s application we grant certio-rari in order to consider the latter ruling of the trial court.

In the December 15 affidavit for the search warrant Trooper Vinet stated: Hе was contacted by the C/I on December 2 and told that “Steve” was selling cocaine at 2526 Mexico Street and he was assisted by “Charles” who also sells when Steve is not available. Later that night Vinet met with the C/I and arranged for him to purchase cocaine at the address. Vinet watched the C/I entеr the premises ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and come out five minutes later with a small bag of cocaine which he said he had purchased from Steve. A continued surveillance of these premises revealed numerous persons entering and leaving after a few minutes. On December 9 under Vinet’s direction a similar purchase of cocaine from Steve at the same premises was made by the C/I. Finally, a few days prior to December 15, a *121third purchase of cocaine was made by the C/I under Yinet’s direction. At the trial оf the motion Vinet testified he supplied all the money the C/I used to by the cocaine.

In granting the motiоn to compel identification of the C/I the trial court indicated that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the C/I’s active participation in the crime entitled defendant to learn his identity.

In State v. Oliver, 430 So.2d 650 (La. 1983) the court reiterated the principlеs which control our decision. A confidential informant’s identity will be divulged only under exceptional circumstances; the burden of proof is upon the defendant to demonstrate such circumstances; аnd much discretion is vested in the trial judge on the question of whether the circumstances warrant disclosurе. Oliver also reiterated the rule of State v. Dotson, 260 La. 471, 256 So.2d 594 (1971) that identity should be disclosed only when the informer, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍cooperating with the police, particiрated in the crime.

Defendant is charged with possession of these drags on December 18 and not оn the other dates when the C/I purchased the cocaine. The date of defendant’s allegеd crime is the day when the police executed the search warrant and allegedly found him to bе in possession of the drags. There is no evidence that the C/I participated in the crime with which defendant is charged.

Nor is there a showing of other exceptional circumstances warranting disсlosure. In his brief to this court defendant speaks 1) of ascertaining whether facts in the affidavit for the warrant are accurate and 2) of a “substantial” issue as to Steve’s identity which warrant disclosure. As to аrgument 1, this does ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not justify disclosure because the same argument could be made in every case whеre a search warrant is based upon reports from a C/I. As to argument 2, at the trial the state must prоve beyond a reasonable doubt that on December 18 defendant possessed drags with intent to distribute. The state must establish his guilt as opposed to someone else’s, like Charles’. The C/I can’t be called as a witness by the state so no basis exists to conclude that defendant’s rights can be prejudiced by non-disclosure of the C/I’s identification.

In conclusion, we find that the trial court erred in concluding that thе C/I participated in the crime and, therefore, the order to compel disclosure of the C/I’s identity constituted ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍an abuse of discretion. Accordingly, this order is vacated and set aside and defеndant’s motion to compel disclosure of the identity of the confidential informant is denied.

REVERSED.

BARRY, J., dissents.

Dissenting Opinion

BARRY, Judge,

dissenting.

A confidеntial informant’s identity will be divulged only under exceptional circumstances. The burden is upon the defendаnt and the trial court is vested with much discretion in deciding whether the circumstances warrant disclosure. State v. Oliver, 430 So.2d 650 (La.1983), cert, denied 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 688 (1983).

There is no fixed rule as to what mandates disclosure. The public interest in protecting the flow of information must be balanced against the individual’s right to prepare his defense. Each determination deрends upon “the particular circumstances of each case, taking into consideratiоn the crime charged, the possible defenses, the possible significance of the informer’s testimоny, and other' relevant factors.” Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 629, 1 L.Ed.2d 639 (1957).

These facts are unusual and warrant further review. Unquestionably, the confidential informant was a prime participant in at least three buys and provided crucial information to the police. The defendant is entitled, under these facts, to full disclosure.

“Much discretion” is meaningless if we attempt to isolate the one transaction for which the defendant is charged. To do so is to ignore the reality of these facts.