March 5, 2008
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
SHUKRI LESTER, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, 41-42 (1967). The codification reflected both existing case law, as well as the United States Supreme Court holding in Roviaro. State v. Burnett, 42 N.J. 377, 380 (1964).
N.J.R.E. 516 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.
See also N.J.S.A. 2A:84A-28.
"'The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.'" Milligan, supra, 71 N.J. at 381 (quoting Roviaro, supra, 353 U.S. at 59, 77 S.Ct. at 627, 1 L.Ed. 2d at 644. The informer's privilege encourages a flow of vital information which can only be had upon a confidential basis. Oliver, supra, 50 N.J. at 42.
In Oliver, the Court recognized that
[t]he police must have the aid of men of lesser quality who respond to selfish inducements, including money. These men are needed for what they know, but also for what they can learn because of their associations. This is especially true with respect to crimes of a consensual nature as to which there is little likelihood that a victim will complain. The informer, paid or not, is subject to risks of retaliation which a regular member of a police force need not fear and hence . . . he comes within the protection of the privilege. [Ibid. (internal citations omitted).]
See McCray, supra, 386 U.S. at 308, 87 S.Ct. at 1061, 18 L.Ed. 2d at 69 (noting informants usually require anonymity to protect themselves and their families from harm, to preclude adverse social reactions, and to avoid the risk of defamation or malicious prosecution). The indispensable role that informers play in police work make the informer's privilege essential to effective enforcement of the criminal code. Milligan, supra, 71 N.J. at 381; see State v. Florez, 134 N.J. 570, 582 (1994) ("informants are an important, indeed indispensable, part of the arsenal that law-enforcement forces bring to bear against drug crimes").
This privilege is not absolute and it is limited by its underlying purpose. Roviaro, supra, 353 U.S. at 60, 77 S.Ct. at 627, 1 L.Ed. 2d at 644; Milligan, supra, 71 N.J. at 383. N.J.R.E. 516 notes that evidence regarding the identity of an informer 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." Accord, Florez, supra, 134 N.J. at 578.
In Milligan, supra, the Court identified circumstances under which the informer's privilege would no longer be applicable. 71 N.J. at 383-84. These include (1) when the identity of the informer has been disclosed to those who would have cause to resent the communication; (2) where disclosure is relevant or helpful to the defense of an accused or is essential to a fair determination of a cause; (3) where the informer is an essential witness on a basic issue; (4) where the informer is an active participant in the crime; (5) where a defense of entrapment seems reasonably plausible; (6) or where disclosure is mandated by fundamental principles of fairness to the accused. Ibid. Accord Roviaro, supra, 353 U.S. at 60-61, 77 S.Ct. at 627-28, 1 L.Ed. 2d at 644-45. Here, the issue is whether the informant was present at the time of, or a participant in, the alleged drug transaction.
There is no fixed rule as to when disclosure of an informant's identity is appropriate. Instead, the court is to undertake a balancing test weighing the public interest in protecting the flow of information against the individual's right to prepare his defense. Roviaro, supra, 353 U.S. at 62, 77 S.Ct. at 628-29, 1 L.Ed. 2d at 646; Milligan, supra, 71 N.J. at 384. A court must weigh and balance the particular circumstances of each individual case, taking into consideration such factors as the crime charged, the possible defenses, and the possible significance of the informer's testimony. Roviaro, supra, 353 U.S. at 62, 77 S.Ct. at 629, 1 L.Ed. 2d at 646; Florez, supra, 134 N.J. at 579; Milligan, supra, 71 N.J. at 384 The court must also critically examine the harm to the safety of the informant if disclosure is ordered, but such danger cannot surmount the imperative of a fair trial. Florez, supra, 134 N.J. at 582. This balancing analysis, however, is invoked only when one or more of the Roviaro/Milligan factors exist.
The party seeking disclosure must also demonstrate a strong showing of need. Florez, supra, 134 N.J. at 578; see Milligan, supra, 71 N.J. at 387 (finding that absent a strong showing, disclosure is generally denied where the informer plays only a marginal role, such as providing information or "tips" or participating in the preliminary stage of a criminal investigation); Oliver, supra, 50 N.J. at 47 (holding party seeking disclosure must make a "substantial showing of a need" for the disclosure); State v. Foreshaw, 245 N.J. Super. 166, 181 (App. Div.) ("Under most circumstances . . . an informer's identity will be kept secret and will not be revealed for insignificant or transient reasons."), certif. denied, 126 N.J. 327 (1991). A strong showing is required because
[i]f a defendant may insist upon disclosure of an informer's identity on the mere chance that the informer may contradict statements made by the State's witnesses or that his testimony may be needed to 'refresh the defendant's memory,' we can be sure that all defendants will routinely request disclosure. They have nothing to lose by doing so. Furthermore, they may gain dismissal of the prosecution where the State declines to reveal its source of information, as is often the case.
[Milligan, supra, 71 N.J. at 392-93 (internal citations omitted).]
Applying these principles to the facts of this case, we hold that the record does not support the relief ordered. The core or threshold issue for the resolution of defendant's motion was the credibility of Hollins' testimony that the reference to the confidential informant was a mistake. The judge found that Hollins was credible on this and every other critical issue pertaining to both motions. With reference to his written report, the judge found that the detective had made a mistake. The judge never altered this fundamental finding. The fact that the report as written is susceptible to two interpretations, one that the confidential informant was present and the other that he was the buyer, is interesting but of no legal consequence. Having found that the reference to the presence of the confidential informant at the scene was a mistake and that the identity of the confidential informant had not been revealed, no further inquiry was required for none of the circumstances that override the privilege are present. Under these circumstances, the evidentiary privilege against disclosure prevails. We, therefore, reverse the August 29, 2007 order requiring disclosure of the identity of the confidential informant.
Reversed and remanded for further proceedings.