For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
Defendant was convicted of possession of lottery slips in violation of N.J.S. 2A:121-3. The Appellate Division affirmed, 79 N.J. Super. 242 (1963), and defendant appealed, asserting a constitutional question with respect to a search made without a search warrant. R.R. 1:2-1(a).
The arresting officers were told by a known confidential informant that in 10 or 15 minutes a blue Mercury of a given age driven by a colored male would enter a specified parking lot and that the driver would leave with lottery slips on him. The ensuing events squared with this information, and as the car was backed out of the lot some five minutes after it entered, the driver, the defendant here, was arrested. Lottery slips were found upon his person. The trial court found probable cause for the arrest and the incidental search, citing Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2 d 327 (1959).
The sole issue tendered on appeal was whether the State was obliged to reveal the confidential informant upon the inquiry into the validity of the search. The Appellate Division said it inclined to the view that disclosure would not be required but did not decide the question because it was not raised. The court held that to raise the issue a defendant must demand disclosure and move to strike the related testimony if disclosure is not made. 79 N.J. Super., at p. 248.
This the defendant did not do, and hence the State was never given the choice between disclosure and the loss of the officer's testimony. The Appellate Division's view that the issue must thus be tendered is well supported. 8 Wigmore, Evidence (McNaughton rev. 1961) § 2374, p. 771; Annotation, 76 A.L.R. 2 d 262, 302 (1961).
Although the judgment of the Appellate Division must be affirmed for the reason it gave, we will deal with the issue it left open, i.e., the right to disclosure, since the issue is so much involved in the current scene.
N.J.S. 2A:84A-28 provides:
"A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues."
This statute codified existing case law and reflects the holding in Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2 d 639 (1957).
In Roviaro the defendant sought disclosure of the identity of the informant in connection with the issue of guilt rather than, as here, in connection with a motion to suppress the product of a search. Roviaro held that an informant must be revealed upon pain of dismissal if it appears he is a material witness upon a basic issue of the trial. See State v. Dolce, 41 N.J. 422, 435-436, 197 A. 2 d 185 (1964).
In the case before us, however, it is not suggested that the informant could exculpate defendant. Indeed, guilt is not questioned. Rather defendant seeks to suppress evidence which establishes guilt and seeks to do so upon the thesis that if disclosure as to the alleged informant were required,
it might develop that the arresting officers did not have the probable cause for arrest which they asserted in their testimony, in which eventuality the search would be illegal and the resulting evidence inadmissible under Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961).
But although in Roviaro disclosure was sought with reference to the ultimate issue of guilt, rather than the use of the product of a search, the Court, after saying that "Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the ...