On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-12-03779 and 06-12-03780.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 6, 2008
Before Judges Cuff, Lisa and Lihotz.
An Essex County grand jury indicted defendant on seven charges: third degree possession of a controlled dangerous substance (CDS) (heroin), contrary to N.J.S.A. 2C:35-10a(1); third degree possession with intent to distribute heroin, contrary to N.J.S.A. 2C:35-5a(1), -5b(3); third degree unlawful possession of a weapon (a handgun), contrary to N.J.S.A. 2C:39-5b; fourth degree possession of a defaced handgun, contrary to N.J.S.A. 2C:39-3d; second degree possession of a handgun while violating narcotics laws, contrary to N.J.S.A. 2C:39-4.1; fourth degree possession of hollow point bullets, contrary to N.J.S.A. 2C:39-3f; and fourth degree hindering apprehension or prosecution, contrary to N.J.S.A. 2C:29-3b(4). In a separate indictment, defendant was charged with one count of second degree possession of a handgun by a convicted felon, contrary to N.J.S.A. 2C:39-7b. Defendant filed a motion to suppress the handgun and narcotics seized in this matter and also moved for disclosure of the identity of the confidential informant. The court denied the motion to suppress the evidence but granted defendant's motion to reveal the identity of the confidential informant. We granted leave to appeal the latter order and reverse.
On April 26, 2006, Toussaint Hollins, a detective with the Essex County Sheriff's Bureau of Narcotics, received information from a confidential informant that a person was using an apartment in Building 113 of Georgia King Village in Newark to distribute drugs and could be found in the parking area close to that building. The seller was described as "a dreadlocked black male wearing a red headband, black hooded sweatshirt with red and green lettering," dark sunglasses, and blue jeans. Hollins testified that he had used the confidential informant on several occasions over the last three years and as recently as April 2007. He also stated that the confidential informant was a civilian, was paid for his information, and had provided information that had led to arrests. Hollins also testified the informant would be at risk if his/her identity was revealed.
Hollins and two other members of the Sheriff's narcotics squad responded to the information received from the confidential informant and established a stationary surveillance in the vicinity of Building 113. Soon thereafter, Hollins observed a black male standing in the parking lot fitting the description provided by the confidential informant. Hollins identified this man as defendant at the motion to suppress. Defendant was engaged in conversation with another black male. Hollins then observed defendant enter an apartment in Building 113, return to the parking lot, and exchange an object for currency.
After the transaction, Hollins described the incident to the other detectives and decided to arrest defendant and the buyer. Hollins and the other detectives detained defendant and entered the apartment used by defendant. In a closet behind the front door, the detectives recovered a handgun and a bundle of heroin. They recovered $275 from defendant. Based on his presence in the target area, Kaleef Donaldson was detained by another detective but released after a record check.
In the report prepared after defendant's arrest, Hollins described the conversation between defendant and an unidentified medium complexioned black male. He stated that the two engaged in a conversation and the unidentified black male gave currency to defendant. Then, "Mr. Lester along with the C.I. walked east across the parking [lot] to the front of #113." Hollins then described defendant's entry into an apartment and his return within seconds with an object. According to the report authored by Hollins, defendant removed an item from the object in his hand and handed it to the unidentified male, who examined the object, turned and left the area.
At the hearing, Hollins testified that the confidential informant was not involved in the transaction with defendant. He also stated that he had no information to believe that the confidential informant was in the area at the time of this transaction. Finally, the mention of the confidential informant as the buyer was a mistake and he did not recognize the mistake until an assistant prosecutor had him review the report in preparation for a court appearance.
At the conclusion of the hearing, the judge denied the motion to suppress but requested further briefing on the motion to disclose the identity of the confidential informant. Following further argument, the judge found that the identity of the informant had not already been disclosed. He then found that defendant had not demonstrated a strong need and that Hollins was credible. The judge stated, "I basically believe that the report was in error." Therefore, he denied the motion to disclose the identity of the informant.
Following the denial of the motion, the judge reviewed the entire police report. Initially, he had found that even if the reference to the confidential informant was not a mistake, the report only suggested that the informant was present but not involved in the transaction. Having read the entire report, the judge found that "the report . . . does in fact lead the reader to believe that the confidential informant was the buyer." Later, he found that the report was subject to two interpretations and Hollins may have written the report in the way that he did if Hollins had used the confidential informant to buy drugs from defendant. Therefore, the judge concluded that the rights of the defendant outweighed the continued confidentiality of the informant, and he ordered disclosure of the identity of the confidential informant.
There is a well-established testimonial privilege known as the informer's privilege that allows the State to withhold the identity of informants who furnish law enforcement officers with information regarding violations of the law. McCray v. Illinois, 386 U.S. 300, 308-09, 87 S.Ct. 1056, 1061, 18 L.Ed. 2d 62, 69 (1967) (citing 8 Wigmore on Evidence § 2374 (McNaughton rev. 1961)); Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed. 2d 639, 644 (1957); State v. Milligan, 71 N.J. 373, 380 (1976). This common law privilege was codified by New Jersey in N.J.R.E. 516*fn1 and N.J.S.A. 2A:84A-28. Milligan, supra, 71 N.J. at 380; State v. Oliver, 50 N.J. 39, ...