(appellant) state of minnesota, respondent, vs. tyler ......tyler james dexter, respondent. _____...
TRANSCRIPT
A18-0761
STATE OF MINNESOTA
IN SUPREME COURT
________________________________________________________________________
State of Minnesota,
Petitioner,
vs.
Tyler James Dexter,
Respondent.
________________________________________________________________________
PETITIONER’S BRIEF AND ADDENDUM
________________________________________________________________________
MARK D. KELLY KEITH ELLISON
Attorney at Law State Attorney General
1539 Grand Avenue 445 Minnesota Street
St. Paul, MN 55105 Suite 1400
(651) 310-1402 St. Paul, MN 55101-2131
ATTORNEY FOR RESPONDENT ANTHONY C. PALUMBO
Anoka County Attorney
BY: ROBERT I. YOUNT
Assistant Anoka County Attorney
License No. 0397752
Anoka County Government Center
2100 Third Avenue, Suite 720
Anoka, MN 55303
(763) 324-5550
ATTORNEYS FOR PETITIONER
October 3, 2019
OF
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................................................................................ ii
PROCEDURAL HISTORY ............................................................................................. 1
LEGAL ISSUE ................................................................................................................... 2
STATEMENT OF THE CASE AND FACTS ................................................................ 4
ARGUMENT ..................................................................................................................... 9
I. This Court should reverse the court of appeals and reaffirm the
gatekeeping role that trial courts have in protecting and disclosing
privileged information about confidential informants.
A. Standard of Review ............................................................................................ 9
B. The informant’s privilege protects all information that would tend to
reveal an informer’s identity ............................................................................... 9
C. Defendants seeking information about a confidential informant must
make a prima facie offer of proof to justify disclosure of further inquiry ........ 10
D. The court of appeals erred as a matter of law by circumventing the
established privilege analysis and obligating the State to affirmatively
disclose information about confidential informants ......................................... 13
i. The State’s discovery obligations under Minn. R. Crim. P. 9.01 do
not apply to confidential and privileged information ................................ 14
ii. The privilege is designed to shield all informant information from
discovery until the trial court determines that full or partial disclosure
is necessary ................................................................................................ 15
iii. The court of appeals created a novel, impermissible bright-line rule
that usurps the trial court’s discretion ...................................................... 18
E. The district court did not abuse its discretion in denying Respondent’s
speculative request for disclosure .................................................................. 22
CONCLUSION ............................................................................................................... 25
ii
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Supreme Court
Franks v. Delaware, 438 U.S. 154 (1978) .................................................................. 11, 12
McCray v. State of Illinois, 386 U.S. 303 (1967) ........................................................ 15, 16
Roviaro v. United States, 353 U.S. 53 (1957) ............................................................... 9, 10
Court of Appeals
United States v. Hollis, 245 F.3d 671 (8th Cir. 2001). ...................................................... 11
MINNESOTA CASES
Supreme Court Cases
Hughes v. Dakota County, 278 N.W.2d 44 (Minn. 1978) ................................................... 9
State v. Bowles, 530 N.W.2d 521 (Minn. 1995) ................................................................ 22
State v. Buswell, 460 N.W.2d 614 (Minn. 1990) ................................................................. 9
State v. DeSchoatz, 157 N.W.2d 517 (Minn. 1968) .......................................................... 21
State v. Ford, 322 N.W.2d 611 (Minn. 1982) ................................................................... 10
State v. Hokanson, 821 N.W.2d 340 (Minn. 2012) ........................................................... 12
State v. Houle, 257 N.W.2d 320 (Minn. 1977).................................................................. 22
State v. Hummel, 483 N.W.2d 68 (Minn. 1992) ................................................................ 12
State v. Litzau, 650 N.W.2d 177 (Minn. 2002) ................................................................... 9
State v. Luciow, 240 N.W.2d 833 (Minn. 1976)......................................................... passim
State v. Moore, 438 N.W.2d 101 (Minn. 1989) ..................................................... 10, 11, 12
State v. Rambahal, 751 N.W.2d 84 (Minn. 2008) ......................................................... 9, 18
State v. Souto, 578 N.W.2d 744 (Minn. 1998) .................................................................. 19
State v. Underdahl, 767 N.W.2d 677 (Minn. 2009) .......................................................... 14
Syrovatka v. State, 278 N.W.2d 558 (Minn. 1979) ............................................... 13, 15, 24
State v. Paradee, 403 N.W. 2d 640 (Minn. 1987) ............................................................. 12
State v. Purdy, 153 N.W.2d 255 (Minn. 1967)...................................................... 15, 22, 23
Court of Appeal Cases
State v. Dexter, 929 N.W.2d 455 (Minn. App. 2019) ........................................... 11, 19, 20
State v. Brunes, 373 N.W.2d 381 (Minn. App. 1985) ..................................... 11, 13, 16, 23
State v. Haney, A18-0711, 2019 WL 2079432
(Minn. App. May 13, 2019) ................................................................................... 12, 17
iii
State v. Rothstein, 422 N.W.2d 300 (Minn. App. 1988) ....................................... 12, 16, 21
State v. Wessels, 424 N.W.2d 572 Minn. App. 1988) ................................................. 16, 23
Rules
Minn. R. Civ. App. P. 117 ................................................................................................. 13
Minn. R. Crim. P. 9.01 ............................................................................................ 8, 13, 14
Minn. R. Crim. P. 9.03 ...................................................................................................... 14
1
PROCEDURAL HISTORY
March 1, 2017: Officers executed search warrant on Dexter’s Anoka County
residence and found illegal drugs, drug paraphernalia, and
firearms.
March 3, 2017: State charged Dexter with one count of fifth-degree sale of
controlled substances with possession of a firearm in violation
of Minn. Stat. §§ 152.025, subd. 1(1); 609.11, subd. 5; and one
count of fifth-degree possession of controlled substances in
violation of Minn. Stat. § 152.025, subd. 2(1).
April 20, 2017: Dexter filed motion to compel disclosure of confidential
informant and motion to suppress evidence.
May 17, 2017: Anoka County District Court Judge Sharon L. Hall held
hearing on motion to compel disclosure.
June 30, 2017: Judge Hall denied Dexter’s motion to compel.
August 18, 2017: Dexter filed amended motion to suppress evidence.
October 13, 2017: Anoka County District Court Judge Daniel A. O’Fallon held
contested omnibus hearing on Dexter’s motion to suppress.
October 31, 2017: Judge O’Fallon denied Dexter’s motion to suppress.
December 12, 2017: Anoka County District Court Judge Tammi A. Fredrickson
held stipulated-facts trial pursuant to Minn. R. Crim. P. 26.01,
subd. 3, on one count of fifth-degree controlled substance
crime—sale with possession of a firearm. The State agreed to
dismiss the remaining count.
December 19, 2017: Judge Fredrickson adjudicated Dexter guilty of fifth-degree
sale of controlled substances with possession of a firearm.
February 13, 2018: Judge Fredrickson sentenced Dexter to 36 months in prison,
stayed until exhaustion of appellate remedies.
May 11, 2018: Dexter filed notice of appeal, appealing Judge Hall’s denial of
motion for discovery and Judge O’Fallon’s denial of motion to
suppress.
2
October 5, 2018: Dexter filed Appellant’s Brief.
November 19, 2018: State filed Respondent’s Brief.
February 20, 2019: Oral argument before Court of Appeals Judges Johnson,
presiding; Ross; and Jesson.
May 20, 2019: Court of Appeals affirmed in part and reversed in part,
remanding back to district court.
June 19, 2019: State filed Petition for Review.
July 8, 2019: Dexter filed Response Brief in opposition to petition for
review.
August 20, 2019: This Court granted the State’s Petition for Review.
September 4, 2019: Minnesota County Attorneys Association (MCAA) requested
leave to participate as Amicus Curiae
September 11, 2019: State moved for extension of time to file brief.
September 11, 2019: This Court granted the State’s request for extension of time and
granted the MCAA’s request to file and serve an amicus brief.
3
LEGAL ISSUE
I. Respondent Tyler James Dexter was convicted of one count of fifth-degree
controlled substance sale in possession of a firearm. Officers obtained and executed
a search warrant for Dexter’s house based on a corroborated tip from a confidential
informant. Dexter moved for disclosure of the informant’s name, relationship with
law enforcement, and facts surrounding how the informant observed the criminal
conduct. The trial court denied the motion under the informant’s privilege, finding
that Dexter failed to meet his burden for disclosure. The court of appeals reversed
in part, concluding the State had an affirmative obligation under Minn. R. Crim. P.
9.01 to disclose any non-identifying observational and relationship information
because, the court further concluded, the privilege did not extend to such
information.
When a defendant requests disclosure of information about a confidential informant
for purposes of attacking the validity of a search warrant, does the informant’s
privilege govern disclosure of that information subject to the district court’s
discretion?
Yes. The trial court exercised proper discretion in denying the request, and the court
of appeals erred as a matter of law. (Docs. 29; 39.) 1
Apposite Authority:
State v. Luciow, 240 N.W.2d 833 (Minn. 1976)
State v. Moore, 438 N.W.2d 101 (Minn. 1989)
State v. Rothstein, 422 N.W.2d 300 (Minn. App. 1988)
1 Citations refer to the respective index numbers from the Appeals Record Document
Index, Exhibits Index, and Transcript Index.
4
STATEMENT OF CASE AND FACTS
In February 2017, a confidential reliable informant (CRI) approached Minneapolis
Police Officer Jesse Standal with a tip: Respondent Tyler James Dexter was selling large
amounts of marijuana from his house in the City of Coon Rapids, Anoka County,
Minnesota. (Doc. 68 at 29.) Officer Standal had previously used information from the CRI
to recover controlled substances and firearms. (Id.) According to the CRI, Dexter would
store and sell several pounds of marijuana at a time in his garage. (Id.) Dexter also stored
“handguns and rifles” near the drugs. (Id.) The CRI described Dexter’s physical appearance
to Officer Standal and showed him Dexter’s Facebook page. (Id.) It was believed that other
adults lived at the house with Dexter, but the CRI had only ever seen Dexter distribute the
drugs or possess the firearms. (Id.)
Officer Standal cross-referenced the CRI’s tip against Minnesota DVS records and
court records. (Id.) He confirmed Dexter lived at the house and matched the CRI’s physical
description. (Id.) He further found that Dexter had a criminal history with a previous drug-
related conviction. (Id.) Based on the tip and subsequent investigation, Officer Standal
executed an affidavit in support of a search warrant for Dexter’s Coon Rapids residence.
(Id.) Officer Standal described the recent events that led to him executing the affidavit:
Within the past 72 hours your affiant was contacted by the CRI. The CRI told
your affiant that they (the CRI) been at [Dexter’s] home address and had
observed several pounds of what the CRI believed to be marijuana and also
observed what the CRI believed to be an assault rifle present at the address.
(Id.)
5
On March 1, 2017, Officer Standal and officers from the FBI Safe Streets Violent
Gang Task Force executed the search warrant. (Doc. 68 at 18.) They stopped Dexter in his
car near the residence. (Id.) They searched him and his vehicle and found marijuana,
marijuana wax, a glass pipe, three cellphones, and $1,672.00 in the center consol. (Id. at
16; 18.)
Officers then searched the house. (Id. at 18–21.) They found large quantities of
marijuana, pills, and drug paraphernalia in proximity to multiple firearms. (Id.) Officers
seized hundreds of baggies and jars containing a total of 3762.7 grams of marijuana, 146.2
grams of marijuana wax, and more than 60 pills of different controlled substances. (Id. at
20–21.) Near the drugs they found a Smith & Wesson 9mm Handgun, a Mossberg 715T
.22 caliber rifle, boxed ammunition, and loaded and unloaded gun magazines. (Id.) Officers
arrested Dexter, and in a post-Miranda statement, he admitted to buying and selling
marijuana by the pounds. (Id. at 21.) The State charged Dexter with one count of fifth-
degree sale of controlled substances with possession of a firearm in violation of Minn. Stat.
§§ 152.025, subd. 1(1); 609.11, subd. 5; and one count of fifth-degree possession of
controlled substances in violation of Minn. Stat. § 152.025, subd. 2(1). (Doc. 1.)
Dexter filed two interrelated motions before his omnibus hearing: a motion to
compel disclosure of the CRI’s identity, information about how the CRI observed the
incriminating evidence, and any consideration provided to the CRI; and a motion to
suppress evidence. (Docs. 19; 20.) Dexter brought the motions under a unified theory: that
the CRI was acting as a government agent when he or she saw the incriminating evidence,
6
that therefore the CRI’s search was unconstitutional under the Fourth Amendment. (Doc.
22.) The trial court, Anoka County District Court Judge Sharon L. Hall presiding,
bifurcated the motions and heard Dexter’s discovery motion first. (See Doc. 24.)
Dexter’s sole evidence in support of disclosing the CRI’s information was a copy
of Officer Standal’s affidavit and application for search warrant. (See Doc. 68 at 29.) The
State opposed disclosure on grounds the information was privileged. (Doc. 59 at 14–17.)
Judge Hall denied the motion, finding that Dexter failed to meet his burden of showing a
need to disclose the information or for the court to hold an in camera review. (Add.1 at 7.)
The court found that Dexter failed to offer any evidence or testimony showing the CRI
acted as a government agent. (Id. at 5.) The court furthermore concluded Dexter’s motion
was based “on mere speculation regarding a relationship between the CRI and law
enforcement,” which failed to sufficiently establish a need for the privilege to give way.
(Id. at 7.)
Dexter proceeded with his motion to suppress at a contested omnibus hearing before
Anoka County District Court Judge Daniel A. O’Fallon. (See generally Doc. 62.) Dexter
again argued the CRI was a government agent and the CRI’s observations were made
during an impermissible search. (Id. at 5–12.) The court denied his motion, holding that
the issues concerning the CRI’s identity and conduct had already been resolved, and the
argument that a warrantless search had occurred was merely “a rewrite” of the government-
actor argument. (Add.2 at .)
7
The parties agreed to a stipulated facts trial under Minn. R. Crim. P. 26.01, subd. 3,
and submitted the case to Anoka County District Court Judge Tammi A. Fredrickson on
December 12, 2017. (See Doc. 44 at 1.) The district court issued its order on December 19,
2017, finding Dexter guilty of fifth-degree controlled substance sales while possessing a
firearm in violation of Minnesota Statute §§ 152.025, subd. 1(1); 609.511, subd. 5. (Id. at
8.) The court declined to adjudicate the other charge per the parties’ agreement. (Id.)
The district court sentenced Dexter on February 13, 2018. (Doc. 51 at 1.) The court
committed Dexter to the Commissioner of Corrections for a period of 36 months but stayed
execution of his sentence until his appellate remedies were exhausted. (Id. at 2.)
Dexter appealed the pretrial orders on his motions to disclose and suppress the
evidence. (Doc. 53.) The parties filed their respective briefs on October 5 and November
19, 2018, and the Court of Appeals heard oral argument on February 20, 2019. Judge
Matthew E. Johnson presided on a panel with Judges Lucinda E. Jesson and Kevin G. Ross.
The court of appeals filed its opinion on May 20, 2019. See State v. Dexter, 929 N.W.2d
455, 458 (Minn. App. 2019), review granted (Aug. 20, 2019). In a split-published decision,
the court affirmed in part and reversed in part with an order for remand. Judge Johnson
concurred in part and dissented in part with the majority opinion.
The majority joined by Judge Johnson affirmed the trial court’s decision to withhold
the CRI’s identity because Dexter failed to meet his burden for disclosure. Id. at 460; 463.
The majority reversed and remanded, however, with regard to the other categories of
information Dexter sought regarding the CRI. The court held that “Dexter was entitled to
8
non-identifying information about the informant’s relationship with law enforcement and
the means by which the informant came to observe the contraband in the home.” Id. at 457–
58. The majority concluded the requested information fell outside the informant’s privilege
and was therefore subject to the traditional rules of discovery under Minn. R. Crim. P. 9.01.
Id. at 460–62. The matter was remanded “for the district court to fashion the appropriate,
limited order for disclosure.” Id. at 461. Judge Johnson wrote a separate opinion that
concurred in the holding that relationship evidence between the CRI and law enforcement
was not protected by the informant’s privilege, but dissented because he concluded the
CRI’s observational information was properly withheld as peripheral, privileged
information. Id. at 464–66.
The State filed a petition for review, which this Court granted on August 20, 2019.
9
ARGUMENT
II. This Court should reverse the court of appeals and reaffirm the gatekeeping
role that trial courts have in protecting and disclosing privileged information
about confidential informants.
A. Standard of Review
The trial court’s decision to disclose or withhold a confidential informant’s identity
is reviewed for an abuse of discretion. State v. Rambahal, 751 N.W.2d 84, 90 (Minn. 2008).
Appellate courts review the determination of whether private individuals acted as
government agents for purposes of the Fourth Amendment for clear error. State v. Buswell,
460 N.W.2d 614, 618 (Minn. 1990).
B. The informant’s privilege protects all information that would tend to
reveal an informer’s identity.
Courts have long recognized the government’s legitimate interest in protecting those
who come forward with confidential information. State v. Litzau, 650 N.W.2d 177, 184
(Minn. 2002) (citing Roviaro v. United States, 353 U.S. 53, 59–60 (1957)). Confidential
informants are crucial in detecting criminal enterprises, particularly in the drug world.
Hughes v. Dakota County, 278 N.W.2d 44, 45 (Minn. 1978). The informant’s privilege,
grounded in common law, protects those interests by allowing the State to withhold from
disclosing confidential informants. Rambahal, 751 N.W.2d at 90. The privilege is flexible
by design and extends to all information that would “tend to reveal the identity of an
informer.” Roviaro, 353 U.S. at 60.
The privilege is essential but not absolute. Its scope is defined in each case by the
“fundamental requirements of fairness.” Id. at 60. Thus, courts will order that some or all
10
of the information be disclosed in the “rare case” where “a criminal defendant’s interest in
learning the identity of a police informant outweighs the state’s privilege not to disclose
the identity.” State v. Moore, 438 N.W.2d 101, 106 (Minn. 1989). Disclosure is proper
when the “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.”
Roviaro, 353 U.S. at 60–61. The defendant bears the ultimate burden of showing that his
need for disclosure outweighs the public’s interest in protecting the information. State v.
Ford, 322 N.W.2d 611, 614 (Minn. 1982).
C. Defendants seeking information about a confidential informant must
make a prima facie offer of proof to justify disclosure or further inquiry.
Dexter moved to disclose the CRI’s information in order to attack Officer Standal’s
affidavit in support of a search warrant. In seeking that information, Dexter bore (1) a
threshold burden to show a need for disclosure or further inquiry, and (2) the ultimate
burden to justify disclosure.
This Court established the governing standard in State v. Luciow, 240 N.W.2d 833
(Minn. 1976). There, officers submitted an affidavit in support of a search warrant based
in part on information received from a previously reliable informant. Id. at 836. Officers
obtained and executed the warrant, finding narcotics in the defendant’s home. Id. The
defendant moved to disclose the informant’s identity based on supporting testimony from
his girlfriend. Id. She testified that she was the informant cited in the affidavit, and since
she had “not proven herself reliable in the past,” the affiant’s assertion that the informant
was previously reliable was false and misleading. Id. The affiant-officer took the stand and
11
rebutted he girlfriend’s testimony, clarifying that she was not, in fact, the informant. Id.
The trial court credited his testimony and prevented further inquiry into the informant’s
involvement or identity. Id.
On appeal was a question of process: whether criminal defendants may seek
privileged information in order to challenge the veracity of a search warrant affidavit.2 Id.
at 837. This Court affirmed that the trial court had handled it properly and qualified the
standard: the defendant is only “entitled to some form of disclosure of an informant’s
identity if he can establish that such disclosure is necessary to complete his evidentiary
attack on the supporting affidavit.” Id. at 839. In so holding, the Luciow court rejected
alternative all-or-nothing approaches, noting it would be wrong to prohibit any defendant
from challenging an affidavit, but equally wrong to permit all defendants to challenge every
affidavit without a threshold showing of falsehood. Id. at 838.
Luciow established that defendants bear an initial burden to show a need for inquiry,
as well as the ultimate burden of showing a need for disclosure. Our appellate courts have
consistently reaffirmed this two-burden rubric. See Moore, 438 N.W.2d at 106 (noting the
“distinction between the defendant’s ultimate burden of establishing the need for disclosure
and the defendant’s lesser burden of establishing a basis for inquiry by the court in an in
2 Luciow was decided before Franks v. Delaware, which formally recognized that
defendants have the right to challenge the veracity of factual statements made in an
affidavit supporting a search warrant. 438 U.S. 154, 171 (1978). While distinct, these two
lines of cases often overlap and share the same analysis. See, e.g., Dexter, 929 N.W.2d at
465 (Johnson, J., concurring and dissenting); State v. Brunes, 373 N.W.2d 381 (Minn. App.
1985); accord United States v. Hollis, 245 F.3d 671, 673 (8th Cir. 2001).
12
camera hearing.”); State v. Rothstein, 422 N.W.2d 300, 302 (Minn. App. 1988); State v.
Haney, A18-0711, 2019 WL 2079432, at *4 (Minn. App. May 13, 2019), review granted
(Aug. 20, 2019).
Requiring a threshold offer of proof also accords with the general principle across
criminal law that defendants must show a need for inquiry into privileged or confidential
information. The rules of discovery do not allow defendants to engage in fishing
expeditions. Moore, 438 N.W.2d at 106. Defendants asserting a Franks challenge, for
instance, must first offer specific allegations of a false statement or reckless disregard
before the court will hold an evidentiary hearing. Franks v. Delaware, 438 U.S. 154, 171
(1978). “Affidavits or sworn or otherwise reliable statements of witnesses should be
furnished, or their absence satisfactorily explained.” Id. Defendants seeking records
protected by the Minnesota Government Data Practices Act must also first “establish a
plausible showing that the information sought would be both material and favorable”
before the court will entertain in camera review. State v. Hokanson, 821 N.W.2d 340, 349
(Minn. 2012) (citation and internal quotation marks omitted). The same holds true for
confidential medical records, State v. Hummel, 483 N.W.2d 68, 71–72 (Minn. 1992), and
confidential county welfare records, see id.; State v. Paradee, 403 N.W.2d 640 (Minn.
1987).
Criminal defendants do not have the right to access privileged records in order to
determine whether they need to access privileged records; rather, they must first make a
sufficient offer of proof before the court will order disclosure or entertain further review.
13
“[C]ourts should not require in camera disclosure solely on the basis of speculation by the
defendant that the informant’s testimony might be helpful.” Syrovatka v. State, 278 N.W.2d
558, 562 (Minn. 1979) (citation omitted). Then, upon a sufficient showing of need for
further inquiry, trial courts have discretion to permit disclosure as needed. The trial judge
may disclose some or all of the information, or hold an evidentiary hearing or in camera
review. See, e.g., State v. Brunes, 373 N.W.2d 381, 383 (Minn. App. 1985) (denying
motion after contested omnibus hearing and in camera review). This two-burden rubric,
applied consistently for nearly four decades, allows courts to balance the defendant’s right
to a fair and meaningful defense against the public’s interest in confidentiality.
D. The court of appeals erred as a matter of law by circumventing the
established privilege analysis and obligating the State to affirmatively
disclose information about confidential informants.
Dexter’s motion to compel disclosure sought the CRI’s identity, compensation, and
relevant information regarding the CRI’s entry into the residence. (Docs. 19; 20.) The trial
court denied his request under the informant’s privilege as sheer speculation. (Add.1 at 7.)
The court of appeals affirmed the decision with regard to the literal identity of the CRI.
That issue is not before this Court.3 The error before this Court is the second holding,
reversing and remanding the matter for disclosure of “information relevant to the
constitutionality for the informant’s conduct” under Minn. R. Crim. P. 9.01.
3 See Minn. R. Civ. App. P. 117. Dexter did not cross-petition on this issue.
14
i. The State’s discovery obligations under Minn. R. Crim. P. 9.01 do
not apply to confidential and privileged information.
Rule 9.01 provides that prosecutors must “allow access at any reasonable time to all
matters within the prosecutor’s possession or control that relate to the case.” Id. at subd. 1.
The State must generally disclose statements, reports, witnesses, and relevant documents
without court order. Id. Privileged and confidential information, however, falls outside the
State’s affirmative discovery obligations. Defendants must move for a court order to
disclose protected information under Rule 9.01, subd. 2, or solicit the information through
a hearing subject to the trial court’s discretion. See supra Part I.C.; Minn. R. Crim. P. 9.03,
subd. 6; State v. Underdahl, 767 N.W.2d 677, 684 (Minn. 2009).
Asserting the privilege triggers certain procedural protections. Those protections
shield the information from being disclosed as rote discovery under Rule 9.01. In other
words, prosecutors do not have an affirmative obligation to disclose privileged or
confidential information. This Court in Luciow recognized that difference, noting that Rule
9.01 “impliedly provides for the disclosure of the informant’s identity upon court order in
those limited situations where it is clear that such information is essential to the
establishment of probable cause.” 240 N.W.2d at 839 (emphasis added). An order
disclosing privileged information triggers discovery under Rule 9.01, not the other way
around. Once the State asserts the privilege, the informer’s identity and all peripheral
information is only discoverable under Rule 9.01 insofar as the court deems necessary.
15
ii. The privilege is designed to shield all informant information from
discovery until the trial court determines that full or partial
disclosure is necessary.
The split-majority’s decision relies on the premise that identifying or non-
identifying information about an informant should be treated differently during discovery.
This Court should reverse and, consistent with existing practice and precedent, formally
recognize that once the State asserts the informant’s privilege, the information as a whole
is protected from disclosure until the defendant has met his burden of proof.
Dexter sought pretrial disclosure of a tipster informant for purposes of attacking an
officer’s search warrant. The procedural posture of this case is important because the State
was not withholding a material witness from trial, for instance, or preventing Dexter from
formulating an entrapment or identity defense. Compare Syrovatka, 278 N.W.2d at 561
(remanding for in camera review because informant was material witness to criminal
transaction), with State v. Purdy, 153 N.W.2d 255, 262 (Minn. 1967.) (holding “the
informant’s name need not be disclosed when the information was used as a basis for
probable cause to search or arrest”). The State’s privilege against disclosure is generally
weakest at trial. The State must choose to call its witness-informants with material evidence
or, if the risk outweighs the charge, dismiss the case. On the other hand, as the U.S.
Supreme Court explained in McCray v. State of Illinois, the defendant’s legitimate need
for disclosure is weakest in discovery when trying to substantiate a motion to suppress or
dismiss:
We must remember also that we are not dealing with the trial of the criminal
charge itself. There the need for a truthful verdict outweighs society’s need
16
for the informer privilege. Here, however, the accused seeks to avoid the
truth. The very purpose of a motion to suppress is to escape the inculpatory
thrust of evidence in hand[.]
386 U.S. 300, 307 (1967) (citation omitted). Thus, defendants like Dexter who seek
privileged information through discovery for the sole purpose of suppressing fruits of a
search—one already reviewed for sufficient probable cause—must overcome the
informant’s privilege at its zenith.
To that end, courts have consistently handled all information about informants in
toto through discovery. In Rothstein, the defendant asked for the identity and “other
information regarding . . . involvement in the investigation” to develop an entrapment
defense. 422 N.W.2d at 301. The court of appeals affirmed it was proper to withhold the
requested information because the defendant failed to make a sufficient offer of proof. Id.
at 303. In Brunes, the court of appeals affirmed it was appropriate to keep the informant’s
identity and in camera testimony confidential following a motion challenging the validity
of a search warrant. 373 N.W.2d at 383–385. In both cases the appellate courts affirmed
the privilege protected the information in toto until the trial courts determined what, if
anything, was appropriate to disclose.
The appropriate time to disclose informant information, both identifying and non-
identifying, is after the defendant has met his threshold burden and the court reviews the
material in camera, e.g., id.; Wessels, 424 N.W.2d 572, 573 (Minn. App. 1988), or permits
inquiry at a contested omnibus or motion hearing, e.g., McCray, 386 U.S. at 303; Luciow,
240 N.W.2d at 836. The adversarial process allows trial courts to balance the information
17
and respect competing interests. It permits progressive or limited disclosure of information
as needed. Defendants may cross-examine witnesses within the court’s evidentiary rulings,
or the State may choose to partially break its privilege by rebutting the defendant’s
evidence. Either way, disclosure is subject to the trial court’s discretion.
The companion case of State v. Haney currently before this Court illustrates the
proper way in which defendants may acquire non-identifying or peripheral information
about informants. 2019 WL 2079432. There, on similar facts and identical argument, the
trial court denied the defendant’s motion for privileged information but allowed a contested
omnibus hearing to develop the record. Id. at *1. At the hearing, the court permitted inquiry
into the officers’ non-identifying interactions with the informant. Id. at *2. The court of
appeals affirmed this was the proper way to disclose non-identifying or peripheral
information—in the courtroom and outside the normal channels of discovery:
Haney has not identified nonprivileged information that he was not allowed
to ask about at the hearing. Thus, if Haney failed to discover nonprivileged
information that could have shown a violation of his Fourth Amendment
rights, it was because Haney failed to ask about it and not because the court
ruled it to be outside the scope of the hearing.
Id. at *4 (emphasis added). Haney recognized that prosecutors do not bear the burden of
disclosing non-identifying information; rather, the defendant is responsible for soliciting
any such information within the two-burden rubric, i.e., within the court’s discretion at a
contested hearing. Haney should be affirmed as the proper way to resolve these issues.
By concluding as a matter of law that some of the CRI’s information should have
been disclosed under Rule 9.01, the court of appeals here applied the wrong legal analysis
18
and hopscotched the procedural threshold requiring a prima facie need for inquiry into that
information. Disclosure or inquiry into information about an informant, non-identifying or
otherwise, should be subject to the procedural protections of Luciow and its progeny.
iii. The court of appeals created a novel, impermissible bright-line
rule that usurps the trial court’s discretion.
The court of appeals also erred by concluding sua sponte that some of the requested
relationship and observational information could be “non-identifying” and therefore non-
privileged. This Court should reverse that troubling precedent for a number of reasons.
First, it violates a fundamental maxim underpinning the common law privilege:
“There is no fixed rule with respect to disclosure.” Rambahal, 751 N.W.2d at 90. Each
claim for privilege must be resolved on a case-by-case basis depending “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.”
Id. Information material to one case may not be material to another. Quite simply, the value
of information shifts between each case. The opinion below ignores that needed flexibility
by arbitrarily determining that certain categories of information are discoverable per se.
Second, the court of appeals took an inherent question of fact—whether certain
information is identifying—and ruled on it as a matter of law. The court supplanted the
fact-finder’s discretion with a legal conclusion. To be sure, the court of appeals sought to
limit the scope of its decision:
We do not suggest that the district court should have ordered the state to
disclose any information that would have revealed the informant’s identity.
19
Nor do we intend to imply that the state has a general duty under rule 9.01 to
disclose relationship information in every case.
Dexter, 929 N.W.2d at 461. But whatever its intent, there is no record here to justify its
remand for any putative non-identifying information. Dexter failed to create any record
showing a need for the information. He did not establish whether the information would be
identifying or non-identifying. We do not know, for instance, if the CRI’s observations
would be identifying. In fact, we do not know whether any such non-identifying
information exists. Dexter did not introduce any documents, affidavits, or testimony in
support of his motion for disclosure. These basic, antecedent issues must be developed
during an evidentiary hearing or in camera review before any court, appellate or otherwise,
could determine whether the information should be disclosed.
Third, holding that certain categories of information may fall outside the privilege
creates a slippery slope with no end in sight. Will other categories of so-called “non-
identifying” information be carved off and disseminated in the future? Can identifying
information become non-identifying or vice-versa? What if an informant’s observations,
deemed non-identifying in this case, are in fact identifying in another? Indeed, it is difficult
to imagine how such information could not be identifying. Affiant-officers must balance
how much particularity they use in support of a search warrant against their duty to protect
their confidential informants. For instance, Officer Standal here limited the CRI’s
timeframe for observing the incriminating evidence to “within the last 72 hours.” (Doc. 68
at 29.) To paint with a broader brush risks reciting stale information; State v. Souto, 578
N.W.2d 744, 750 (Minn. 1998); to paint with a finer brush risks identifying the CRI.
20
The court apparently contemplated this foreseeable slope problem and stated it was
not “suggest[ing] that the district court should have ordered the state to disclose any
information that would have revealed the informant’s identity,” and did not “intend to
imply that the state has a general duty under rule 9.01 to disclose relationship information
in every case.” Dexter, 929 N.W.2d at 461. But all this does is leave prosecutors with an
unworkable standard. These qualifiers create an inherent contradiction in the case. The
holding states that prosecutors must affirmatively disclose non-identifying information
about an informant, but the qualifiers state that prosecutors may not have to affirmatively
disclose certain non-identifying information about an informant. Who makes that decision?
The worst-case scenario thrusts a potential Brady violation on prosecutors for trying to
follow contradictory mandates. The best-case scenario brings the question back before the
trial court for in camera review to determine what is or is not identifying; that, of course,
would merely allow every defendant to challenge every affidavit without a threshold
showing of falsehood—the same all-or-nothing approach squarely rejected in Luciow, 240
N.W.2d at 838.
Fourth and most worrisome, requiring per se disclosure of “non-identifying”
information is dangerously nearsighted. It may appear at first blush to be an expeditious
way to give criminal defendants the tools they need to develop an evidence-suppression
theory. Dexter, 929 N.W.2d at 461. But it overlooks two simple truths: every datapoint
about an informant can be identifying to some degree; and a collection of “non-identifying”
datapoints taken together becomes identifying. For example, it may be true that testimony
21
about how much or how often an informant is paid is itself non-identifying. Or perhaps
select information about the informant’s history of working with an officer might be non-
identifying on its face. But each disclosure of a “non-identifying” data point begins to paint
a clearer picture of who the informant is.
If all you know about a person, for example, is that they stop for coffee before work,
it is difficult to guess who that person might be. Perhaps you learn the person drives to
work. That, too, is still anonymized. But if you also learn the person drives a blue truck,
and has brown hair, and has worked at a company for two years, etc., it becomes more and
more likely that you can identify the person in question. Each datapoint is itself non-
identifying, but aggregated together they narrow down the universe of possible individuals.
In the context of table games like Catch Phrase or Charades, it can be fun and challenging;
or in the context of a parable like the Blind Men and the Elephant, it can be enlightening;
but in the context of confidential informants, it is threatening and dangerous.
Which is why courts eschew bright-line rules for withholding or disclosing
privileged information. Mandating that the state must disclose certain information about
informants in every case is to risk the safety of informants. The privilege exists to shield
informants “from retribution and to preserve their usefulness for future operations.”
Rothstein, 422 N.W.2d at 303. And the need to protect confidential informants is far from
hypothetical. See, e.g., State v. DeSchoatz, 157 N.W.2d 517, 522 (Minn. 1968) (denying
disclosure of informant’s information to prevent “great physical harm or other undesirable
consequences [that] might be visited upon him or his family”); State v. Bowles, 530 N.W.2d
22
521, 531 (Minn. 1995) (noting credible evidence that gang members murdered government
informant).
This Court should therefore reverse the decision and reaffirm the procedures that
protect privileged information from unnecessary disclosure: (1) The privilege protects all
peripheral information about an informant from affirmative disclosure under Rule 9.01; (2)
the privilege requires a threshold showing by the defendant in order to proceed with
disclosure or inquiry; (3) trial courts have the discretion to review the materials in chambers
or in open court through guided inquiry; and (4) trial courts have the discretion to permit
disclosure of all, some, or none of the information as needed in each particular case.
E. The district court did not abuse its discretion in denying Respondent’s
speculative request for disclosure.
This Court should reverse the court of appeals and reinstate Defendant’s sentence.
Remand is unnecessary because the trial court exercised appropriate discretion when it held
that Dexter failed to meet his burden of proof for disclosure or further inquiry into the
CRI’s information.
The CRI here was a “mere tipster informant.” Minnesota courts have long held that
tipster informants should not be disclosed when their tip was merely used as the basis for
a search or arrest. Purdy, 153 N.W.2d 254; State v. Houle, 257 N.W.2d 320 (Minn. 1977).
The reason is simple: tipster informants are immaterial to the crime itself. In situations like
the present case, informants do little more than catalyze a criminal investigation with their
initial report. Their involvement ends there. Any subsequent corroboration, investigation,
application for a search warrant, or search of a residence carries on without the informant.
23
Dexter’s possession of marijuana and firearms on March 1, 2017, for instance, had nothing
to do with the CRI’s February 2017 observations. The CRI certainly directed officers to
where they might find evidence of a crime, but the import of his or her observations ended
once the magistrate determined there was probable cause to search Dexter’s house.
“[W]hen a trustworthy informant is a mere transmitter of information and not a competent
witness to the crime itself, and the name of the informant is not essential to the defense,
the informant’s name need not be disclosed[.]”Purdy, 153 N.W.2d at 262.
Dexter failed to produce any evidence showing a need for disclosure or further
inquiry. He could have developed a factual basis by testifying why he believed the
informant or affiant-officer was lying. State v. Wessels, 424 N.W.2d at 573. He could have
offered third-party testimony showing how the affidavit may have misrepresented the
informant’s involvement with the case. Luciow, 240 N.W.2d at 836. Dexter could have
called or cross-examined the officers if he had any evidence suggesting they were lying or
misrepresenting material facts. Brunes, 373 N.W.2d at 383–84. Indeed, Dexter evinced an
intent to do so by listing “any witness identified in police reports” as potential witnesses
for his motion. (Docs. 19; 20.)
But Dexter proceeded on argument alone. He theorized without any evidence that
the CRI might have been a government agent, who might have illegally entered his house,
which might have implicated Fourth Amendment concerns, which may have affected
Officer Standal’s affidavit, which might have affected probable cause for a search warrant.
Dexter’s position has always been that he needs the information he seeks before he can
24
know whether there is are Fourth Amendment concerns. That is the definition of a fishing
expedition. Dexter’s motion was solely supported by a “basis of speculation . . . that the
informant’s testimony might be helpful.” Syrovatka, 278 N.W.2d at 562. An inchoate
search-and-seizure theory is not a sufficient offer of proof to support a motion to disclose
privileged information. To hold otherwise would effectively erase the procedural
protections of Luciow and its progeny. The trial court exercised appropriate discretion in
denying further inquiry into the CRI’s information based on Dexter’s anemic offer of proof.
CONCLUSION
For the foregoing reasons, the Petitioner-State of Minnesota respectfully requests
that this Court reverse the opinion of the Court of Appeals and affinn the District Court's
order denying disclosure of the confidential reliable informant's information.
Respectfully submitted,
Dated: I
, 2019
25
KEITH ELLISON Minnesota Attorney General 445 Minnesota Street, Suite 1400 St. Paul, MN 55101-2131
ANTHONY C. PALUMBO Anoka County Attorney
Assistant Anoka County Attorney License No. 0397752 Anoka County Government Center 2100 Third Avenue, STE 720 Anoka, MN 55303-5025 (763) 324-5550
FORM 132. CERTIFICATION OF LENGTH OF DOCUMENT
STATE OF MINNESOTA
IN SUPREME COURT
State of Minnesota,
Petitioner, CERTIFICATION OF LENGTH
OF DOCUMENT
vs.
APPELLATE COURT CASE
Tyler James Dexter, NUMBER: A18-0761
Respondent.
I hereby certify that this document conforms to the requirements of the applicable
rules, is produced with a proportional font, and the length of this document is 6,136 words.
This document was prepared using Microsoft Word for Office 365 MSO.
ANTHONY C. PALUMBO
Anoka County Attorney
Dated: October 3, 2019 /s/ Robert I. Yount
Robert I. Yount (#0397752)
Assistant Anoka County Attorney
Anoka County Government Center
2100 Third Avenue, STE 720
Anoka, Minnesota 55303
(763) 324-5550
Attorneys for Petitioner, State of Minnesota