January 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
AARON SURLES, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-09-1294.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2008
Before Judges Wefing, Parker and Yannotti.
On leave granted, the State appeals from an order entered on March 18, 2008 requiring it to disclose the identity of a confidential informant. We reverse and remand.
The facts relevant to this appeal are as follows. On February 4, 2007, Task Force Officer (TFO) Sean Dolphin met with a confidential informant (CI), who said that a black male named "Phill" was selling marijuana from his apartment at 111 East Main Street in Maple Shade. The CI provided a description of Phill and stated that he/she had purchased marijuana from Phill on several occasions. The CI also gave detailed information about the apartment.
On February 15, 2007, the CI was to introduce TFO Rackauckas to Phill. During a phone conversation overheard by the officer, the man on the other end of the line identified himself as "Aaron." Aaron is Phill's brother. The CI told Aaron that he/she had a friend who needed "something." After the phone call, the CI took the officer to the apartment at 111 East Main Street, where they met and had a conversation with Aaron about the purchase of a quarter ounce of marijuana for $60. After the transaction was completed, the TFO and CI left. Thereafter, defendant was photographed by undercover officers as he left 111 East Main Street. The photos were shown to the TFO, who positively identified defendant as the individual who sold him the marijuana.
During discovery, defendant sought the identity of the CI and the State refused. Defendant then moved before the court to have the CI identified and the trial court granted the motion, stating:
At oral argument this afternoon, I inquired of defense counsel what was the need to have the confidential informant come forward, and the position taken by the defendant is that whoever was in that apartment selling marijuana to the undercover officer was not Aaron Surles. Despite whatever name was used by the confidential informant on the telephone, whatever name was used when the confidential informant went into the apartment, it was not Aaron Surles. . . .
But the problem in this case is, how does a defendant defend a charge when the police officer presumably who was the undercover officer is going to come in and say, yes, that's the man I brought [sic] the drugs from, and there may well be another witness who will be able to say, no, that's not the guy. It looks a little bit like him but it's not him.
And in this case, of course, is the fact that Mr. Aaron Surles has a brother Phillip Surles who apparently was the person referred to initially by the confidential informant when he originally went down to the Maple Shade Police Department. That is one -- you know, it's always -- you know, the problem always is proving a negative, and how do you prove that it's not you? Presumably in this case, the State has -- of course, it's the State's privilege and they're not waiving it -- presumably they have no intention of calling the confidential informant in their case in chief to get on the stand and say, yes, that is the man.
But if, in fact, he is able to say that this is not the person in the apartment from whom we bought drugs and identification is an issue in this case, I think that this is one of those few cases where it is necessary for the defendant -- it is necessary for the State to reveal the identity of the confidential informant, so that he or she can be interviewed by the defendant's attorney or investigator to further nail down this identity issue.
The State was granted leave to appeal and argues that the trial court erred in granting defendant's motion to disclose the identity of the confidential informant.
The legislative policy of New Jersey favors protecting the identity of confidential informants in criminal cases, in recognition of their indispensable role in effective enforcement of the law. State v. Dolce, 41 N.J. 422 (1964); State v. Postorino, 253 N.J. Super. 98 (App. Div. 1991). The statutory "informant's privilege," which belongs to the State and not to the informant, provides that
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.
Accordingly, the court must balance the State's interest in protecting the flow of confidential information with a criminal defendant's right to fairness. State v. Burnett, 42 N.J. 377 (1964); State v. Salley, 264 N.J. Super. 91 (App. Div. 1993). There is a presumption against disclosure. Burnett, supra, 42 N.J. at 385; Salley, supra, 264 N.J. Super. at 101-02. Our review of an order compelling disclosure of a CI's identity requires a determination of "whether the trial court abused its discretion after weighing the competing considerations of the balancing test." State v. Milligan, 71 N.J. 373, 384-85 (1976) (citing Roviaro v. United States, 353 U.S. 53, 56, 77 S.Ct. 623, 625, 1 L.Ed. 2d 639, 642 (1957)).
In Roviaro, the United States Supreme Court held:
We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors. [353 U.S. at 62, 77 S.Ct. at 628, 1 L.Ed. 2d at 646].
Our Supreme Court incorporated the Roviaro ruling in Burnett, supra, 42 N.J. at 384-85.
New Jersey strongly supports the privilege, but recognizes that in certain situations the privilege must yield to the rights of the defendant. See, e.g., State v. Florez, 134 N.J. 570, 580-81 (1994), and Dolce, supra, 41 N.J. at 435-36 (disclosing the CI's identity where a defense of entrapment seems reasonably plausible); Cashen v. Spann, 66 N.J. 541, 553-54, cert. denied, 423 U.S. 829, 96 S.Ct. 48, 46 L.Ed. 2d 46 (1975) (disclosing the CI's identity when fundamental principles of fairness to the accused require it); State v. Oliver, 50 N.J. 39, 42, 45 (1967); Maudsley v. State, 323 N.J. Super. 579, 594 (App. Div. 1999), and State v. Roundtree, 118 N.J. Super. 22, 31-32 (App. Div. 1971) (disclosing the CI's identity where the CI is an active participant in the crime for which the defendant is prosecuted).
A defendant has the burden of showing a need for the CI's identity. Florez, supra, 134 N.J. at 578-79; Milligan, supra, 71 N.J. at 387; State v. Varona, 242 N.J. Super. 474, 479-80 (App. Div.), certif. denied, 122 N.J. 386 (1990). A defendant must demonstrate more than a mere unsupported hope or a vague speculation, or every defendant would routinely demand disclosure, effectively destroying the privilege, Burnett, supra, 42 N.J. at 385, and making it impossible for informants to serve as covers or decoys. Oliver, supra, 50 N.J. at 46. "Frivolous demands for information or unsubstantiated allegations of need" will not be enough because "[s]omething more than speculation should be required of a defendant before the court overrules an informer's privilege of nondisclosure." Milligan, supra, 71 N.J. at 393.
After all, the defendant has nothing to lose and the prize may be the dismissal of the charges if the State cannot afford to reveal its source, as is so often the case. Since there is no way to test the good faith of a defendant who presses the demand, "we must assume the routine demand would have to be routinely granted." We must be mindful of the ease with which the privilege would be destroyed and the supply of relevant information diminished if disclosure were the norm. Not much would remain of the informer's privilege and its underlying social benefit. The exception would exhaust the whole. Instead, we accept the premise that the informer "is a vital part of society's defensive arsenal" and, whatever his motive, requires protection against retaliation. [Salley, supra, 264 N.J. Super. at 101 (quoting Burnett, supra, 42 N.J. at 385)].
"The use of informers is particularly important in the enforcement of the narcotic laws." Milligan, supra, 71 N.J. at 383 n.3. "[I]nformants are an important, indeed indispensable, part of the arsenal that law-enforcement forces bring to bear against drug crimes." Florez, supra, 134 N.J. at 582. "[I]t is well to remember that the illegal traffic in narcotic drugs poses a most serious social problem . . . Enforcement is, therefore, most difficult without the use of 'stool pigeons' or informants . . . Once an informant is known the drug traffickers are quick to retaliate. Dead men tell no tales." Roviaro, supra, 353 U.S. at 66-67, 77 S.Ct. at 631, 1 L.Ed. 2d at 648. A presumption in favor of nondisclosure, therefore, is justifiably even stronger in narcotics cases. Ibid.
This case is strikingly similar to Milligan. There, a state trooper accompanied a CI to a location in Pennsauken, where the CI introduced the trooper to the defendant. All three engaged in a conversation regarding illegal narcotics, with the defendant stating that he had some "good stuff" for sale at $8 a bag. 71 N.J. at 378. The trooper negotiated the sale of $88 in heroin. The CI was not involved in negotiating the sale. Ibid. All three then traveled to the defendant's home, where the sale was completed. Id. at 378-79. The defendant was arrested some six months after the sale. Id. at 379.
Prior to trial, defendant's motion for disclosure of the CI's identity was denied. After he was found guilty, defendant appealed the denial of that motion. We agreed with him and reversed, finding that the CI was an active participant in the charged transaction and was a material witness on the issue of defendant's guilt. Id. at 379-80. The Supreme Court then reinstated the trial court's decision, stating:
[W]here, as here, the role of the informer is confined to introducing the undercover agent to defendant, the majority of decisions have refused to compel disclosure of the informer's identity . . . [W]e recognize that, as in Roviaro, the informer is the only person (other than defendant) who could controvert, explain or amplify the testimony of the State's principal witness. Nonetheless, the role played by this informer is far less significant than that performed by the informers in Roviaro, Roundtree and the other cases cited above. In the instant case, it was the narcotics agent, not the informer, who actually purchased drugs from the defendant. Moreover, there is no evidence that the informer induced defendant to make the sale or in any other way entrapped defendant. [Id. at 388-90.]
Simply stated, the CI's role was too peripheral to warrant disclosure of his identity. Under these circumstances, the only way for a defendant to gain disclosure is to show a strong need for the identity - something more than a "frivolous demand" based on an "unsubstantiated allegation." Id. at 390-93. The defendant in Milligan failed to make the required showing.
Subsequent cases have also denied disclosure of an informant where his or her role in commission of the charged crime was limited or where disclosure would be of little help to the defendant. In Varona, we reiterated the Court's decision in Milligan:
[T]he informant's role in the transaction was limited. The informant primarily introduced undercover officer Pedro Villegas to the defendants. The informant did not negotiate, conduct or set up any of the sales, nor did he possess any drugs or money at the time of the sales. His most significant involvement came when he accompanied co-defendant Michael Rodgers to meet defendant. This does not rise to the level of participation described in [Roundtree] or [Roviaro]. Rather, as was the case in . . . [Milligan], the informant here was merely a witness to the criminal events which transpired. This is not grounds for disclosure of his identity and does not waive the privilege codified in N.J.S.A. 2A:84A-28." [242 N.J. Super. at 480 (citations omitted).]
In Postorino, supra, 253 N.J. Super. at 107, we commented that it did not take a "rocket scientist" to figure out that the "peripheral assistance" that disclosure of the CI's identity would provide to the defendants was heavily outweighed by the likelihood that the defendants would "frighten and terrorize [the CI] and his family into believing that their lives will be in jeopardy if [the CI] continues to cooperate with the State." (Quoting State v. Florez, 248 N.J. Super. 54, 63 (Law Div. 1991)).
Here, the CI was merely a tipster and facilitator of the meeting between defendant and TFO Rackauckas. Although the CI witnessed the marijuana transaction, he was not a participant in the sale or purchase. The officer's testimony, if found credible by the jury, is sufficient for identification and conviction of defendant. The State maintains that it is prepared to proceed to trial without the benefit of the CI's testimony.
Moreover, it is irrelevant if the individual who ultimately sold the marijuana was the same individual the CI had originally described in his tip to the police. The officer positively identified Aaron as the individual who sold him the marijuana. The CI had tipped police that drugs were being sold from the 111 East Main Street apartment. Since Aaron, not Phill, was identified as the individual who actually sold the drugs to the officer, he is subject to criminal liability. It is also irrelevant whether the phone number the CI gave the officer was actually registered to defendant.
Defendant submits, as a final alternative argument, that "[t]o the extent that the State has specific concerns for the safety of the informant in this case, it may request a protective order limiting disclosure of his identity to defense counsel and investigators." We are not persuaded by this argument. Once the CI's identity is disclosed, he or she will not feel confident of his or her own safety and will rightly fear reprisal. This will discourage further cooperation with law enforcement on the part of this CI, as well as other potential CIs. As we have noted, this is the very reason for the statutory protection of CIs.
Reversed and remanded.
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