512 S.E.2d 660 | Ga. Ct. App. | 1999
A Mitchell County trial court granted Antonio Glenn’s motion to compel the State to reveal the identity of its confidential informant (“CI”). The trial court did so solely on the basis that the CI “was paid compensation by the law enforcement agents for the furnishing of information” and, hence, was “an agent of law enforcement.” The trial court certified such ruling for immediate review. See, e.g., Bolt v. State, 230 Ga. App. 760 (497 SE2d 406) (1998). We granted interlocutory appeal in order to address the issue of whether compensation given to a Cl waives the State’s ability to claim the informer’s privilege and, thus, compels disclosure of the informant’s identity. We answer this question in the negative and reverse.
Investigator R. Williams of the Southwest Georgia Drug Task Force received an anonymous call, informing him that a light-blue Mercury Cougar was about to leave 141 East Cochran Street in Camilla, Georgia, with a large quantity of crack cocaine in a yellow bag. Williams did not know the identity of the caller, but he passed
Autrey proceeded to 141 East Cochran and began to patrol the area. A light-blue Mercury Cougar with out-of-county tags was spotted in North Camilla. Autrey followed the Cougar. When the Cougar parked by the curb next to a public housing project, Autrey parked his vehicle against the curb several feet in front of it. Autrey and an accompanying agent, Officer Bowie, exited their car and walked toward the Cougar. The Cougar began to back up in the parking spot. The officers waved their arms, called out to the driver, and asked to speak with him. The driver, appellant Antonio Glenn, rolled down his window. The Cougar also contained both a front seat passenger, Daniel Smith, and a back séat passenger, Ulysses Robinson.
Thereafter, events not at issue in this appeal led to the search of the Mercury Cougar. A plastic bag of marijuana and a $20 rock of crack cocaine were recovered from the rear floorboard near Robinson. Underneath the back seat, the officers recovered a fully loaded Glock .45 semiautomatic pistol. Also, “laying next to the electrical pole that was right beside the front passenger door of the vehicle, just a matter of three or four feet from the passenger door of the vehicle,” a yellow bag was recovered, which contained approximately twelve “cookies” of crack cocaine weighing in excess of four hundred grams. Antonio Glenn was arrested, as were passengers Smith and Robinson. All were charged with offenses based solely upon the narcotics and the weapon found in and around the Mercury Cougar.
At the Drug Task Force office, Glenn was given rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), signed a waiver of rights form, and gave a statement to the police. Glenn stated that the yellow bag belonged to Daniel Smith; that he had seen Smith in possession of the bag; that earlier he, Glenn, had driven the light-blue Mercury Cougar to 141 East Cochran Street, where Smith had exited the vehicle and met with someone in the back yard of the residence; that he did not know how the yellow bag ended up beside the light pole; and that he, Glenn, did not remove it from the Cougar.
The identity of the anonymous caller was learned at a later date by another agent. The caller was a Cl who previously had been used
Glenn filed a motion to compel the State to reveal the name of the Cl. A hearing was held on the motion, and Commander Autrey was asked the name of the Cl. Autrey invoked the informer’s privilege.
Notwithstanding, the trial court determined that the informer’s privilege was not meant to protect the identity of those who sell information, but was meant to protect “upright citizens”: “[T]hat distinction is why you have a policy of the State of Georgia to preserve the confidentiality of confidential informants being citizens, upright citizens in the community who don’t want to get involved as opposed to people who are willing to sell, to market the information they have for a price.” The trial court specifically found that the money paid to the Cl rendered him an employee of law enforcement and that the informer’s privilege “does not contemplate preserving the anonymity of people who work for law enforcement on some type of compensation basis.” Accordingly, the trial court granted the motion and ordered the State to reveal the identity of the CL Held:
1. The informer’s privilege is grounded in OCGA § 24-9-27 (d), which states that “[n]o official persons shall be called on to disclose any state matters of which the policy of the state and the interest of the community require concealment.” See Thornton v. State, 238 Ga.
Thus, whether an informant provides information for altruistic reasons or for lucre is irrelevant for purposes of the State’s ability to invoke the informer’s privilege. Clearly, it is not the paid status of the informer that counts, but the State’s determination that the above public policy rationale is best served by non-disclosure.
Further, without hesitation, we reject the trial court’s notion
2. However, the informer’s privilege is not absolute. “[Fundamental fairness require [s] that the public interest in protecting the flow of information to law enforcement officials be balanced against the right of the accused to a full and fair opportunity to defend himself.” (Citations omitted.) Thornton v. State, supra at 164.
The established procedure is a two-step process which requires that, “[(1)] in order to invoke a judicial determination in camera, the defendant must make an initial proffer of the materiality and necessity of the informant’s testimony. . . . Vague references to the purpose of the expected testimony are an insufficient basis to invoke an in camera hearing of an informant’s proposed testimony for the purpose of determination whether to allow the witness to be called. Obscure allegations of impropriety, complicity or falsification are insufficient, as is conjecture [;] . . . [and (2)] Only when the defendant prima facie shows a necessity for the informant’s disclosure or exposure to the fair determination of the cause, should the court proceed in camera to determine whether the informant’s testimony is, in fact, necessary. There is no fixed rule governing these cases, but the court must weigh the particular circumstances of each case, including the extent of the informant’s participation in the criminal activity, the directness of the relationship between the defendant’s asserted defense and the probable testimony of the informant, and the government’s interest in nondisclosure.” (Citations and punctuation omitted; emphasis supplied and omitted.) State v. Mason, supra at 812-813; see also Leonard v. State, 228 Ga. App. 792, 794 (2) (492 SE2d 747) (1997) (“movant must establish the relevance, materiality, and necessity of the identity of the informant as a predicate for disclosure.”).
Here, during the hearing on the motion to compel disclosure of the CI, counsel for Glenn stated that the CI should be disclosed because his alleged earlier presence at 141 East Cochran made him a “participant.” “He [the CI] at some point had to have been there [141 East Cochran] to know that this car was leaving that house with a large quantity of cocaine in it.” However, Glenn has been indicted for possession of narcotics and a weapon only with regard to the drugs and pistol found in and around the Mercury Cougar at the time it was parked in front of the public housing project. Thus, the CI’s
Judgment reversed. Case remanded for further proceedings not inconsistent with the instant opinion.
Although not currently at issue, we note that “[a]pproaching a vehicle that has already stopped through no action of the officer is not a stop or seizure, but is a communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment.” (Citation and punctuation omitted.) Buchnowski v. State, 233 Ga. App. 766, 767 (505 SE2d 263) (1998).
Autrey stated, “I respectfully decline to answer on the grounds that this caller/source has requested that his name remain anonymous based upon the fact that he fears bodily harm through revenge, ostracism in the community and also the fact that, if we reveal this source’s name, it’s going to scare any other potential caller that may call in and give information because they will be afraid that their name will be used and this will severely, severely limit our abilities to enforce the drug laws in the county.”
An informer’s status as a paid “agent of the State” may be relevant insofar as it makes applicable the defense of entrapment or an inquiry into a possible Miranda violation. See, e.g., Gilbert v. State, 212 Ga. App. 308 (441 SE2d 785) (1994); Chalker v. State, 184 Ga. App. 596 (362 SE2d 152) (1987); State v. Rogers, 173 Ga. App. 653 (327 SE2d 782) (1985); Henderson v. State, 162 Ga. App. 320 (292 SE2d 77) (1982); Leonardi v. State, 154 Ga. App. 402 (268 SE2d 380) (1980).
See also, e.g., Brown v. State, 223 Ga. App. 364 (477 SE2d 623) (1996) (Columbus Police Department used paid informer); Beck v. State, 216 Ga. App. 532 (455 SE2d 110) (1995) (Dalton Police Department used paid informer); Pierce v. State, 180 Ga. App. 847 (350 SE2d 781) (1986) (Georgia Bureau of Investigation used paid informer); see also Campbell a State, 207 Ga. App. 366, 367 (428 SE2d 111) (1993) (use of paid informer to provide probable cause does not lead to identification of such, absent balancing competing interests of parties).