The opinion of the court was delivered by: Simandle, Chief Judge:
On the morning of December 3, 2010, pursuant to a search warrant, a
joint law enforcement task force searched an apartment in Elizabeth,
New Jersey and found a handgun in the rear bedroom. Because Brandon
Anthony leases the apartment, the other bedroom belongs to Anthony's
roommate, and Anthony's personal effects were found in the bedroom,
the Government believes the gun
belongs to Anthony. Anthony has previously been convicted of a felony,
and has been charged with violation of 18 U.S.C. § 922(g)(1),
prohibiting those who have been convicted of a felony from possessing
any firearm in or affecting commerce. This criminal matter is before
the Court on two of Anthony's pre-trial motions: to compel the
Government to disclose the identity of a confidential informant whose
information was used to support the search warrant; and to suppress
the search as the fruit of a warrantless dog sniff of Defendant's
apartment door, which Defendant contends is an unreasonable search
under the Fourth Amendment. [Docket Items 15 & 18.]*fn1
For the reasons detailed further in today's Opinion, the
Court will deny both motions.
On August 23, 2010, Alcohol Tobacco and Firearms Special Agent Joshua C. Green conducted an interview with a confidential informant, who claimed that Defendant Brandon Anthony was a drug dealer who stored drugs in his apartment. The informant claimed to have visited the apartment on a number of occasions as recently as July 2010, and that on the last visit the informant saw that Anthony had multiple guns.
A search of Anthony's criminal record revealed a third degree firearms conviction, among others. Further investigation also revealed that Anthony leased the third-floor apartment identified by the informant. Following the informant's tip and the subsequent investigation, and with permission of the office manager of the building to enter the common stairwell and hallway, law enforcement officials brought a drug detection dog to the third floor. The dog alerted to illegal drugs when he sniffed the bottom of the outside of Anthony's apartment door.
On December 1, 2010, the police presented an application for a search warrant to Magistrate Judge Patty Shwartz, who issued the warrant for the third floor apartment. The warrant was based on the alert from the narcotics canine at the door of the apartment, Anthony's criminal history, and information from the confidential informant.
On the morning of December 3, 2010, law enforcement officers executed the warrant. Anthony was not home. The officers found no drugs, but they did recover three firearms: two in Anthony's roommate's bedroom and one in the rear bedroom under the mattress. Under the same mattress, but located in a separate area, the officers found a motorcycle title belonging to Anthony as well as some dated receipts.
Based on the fruits of the search, Anthony was charged under 18 U.S.C. § 922(g)(1) for possessing a firearm after having been convicted of a felony. Anthony now seeks disclosure of the identity of the confidential informant and the suppression of the search, arguing that the warrantless dog sniff constituted an unlawful search forming the basis for the search warrant.
A. Disclosure of Informant's Identity
In order to protect the important role of informants in crime fighting, the Government has a qualified privilege to preserve the anonymity of informants from discovery in criminal matters. Roviaro v. United States, 353 U.S. 53, 59 (1957). The privilege is not absolute, however, and "[t]he scope of the privilege is limited by its underlying purpose." Id. at 60. "[F]undamental requirements of fairness" require that when "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 privilege must give way." Id. at 60-61.
The individual seeking disclosure has the burden of establishing the significance of the informant's testimony. United States v. Jiles, 658 F.2d 194, 196-97 (3d Cir. 1981). To determine whether fairness requires disclosure in any given case, the Court must balance "the public interest in the flow of information against the individual's right to prepare his defense." Roviaro, 323 U.S. at 62. The factors the court must consider include "the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." 353 U.S. at 62.
The usefulness of disclosing the informant's identity must be based on more than mere speculation or hope that disclosure will lead to helpful evidence. See United States v. Bazzano, 712 F.2d 826, 839 (3d Cir. 1983)("[M]ere speculation as to the usefulness of the informant's testimony to the defendant is insufficient to justify disclosure of his identity."); United States v. Brown, 3 F.3d 673, 679 (3d Cir. 1993) ("A defendant who merely hopes (without showing a likelihood) that disclosure will lead to evidence supporting suppression has not shown that disclosure ...