Journal of Criminal Law and Criminology

Volume 58 | Issue 1 Article 5

1967

Informer PrivilegeMelvin Gutterman

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Recommended CitationMelvin Gutterman, Informer Privilege, 58 J. Crim. L. Criminology & Police Sci. 32 (1967)

TiE JOURNAL OF CRIMINAL LAW, CRIMINOLOGY AND POLICE SCIENCE Vol. 58, No. ICopyright @ 1967 by Northwestern University School of Law Printed in U.S.A.

THE INFORMER PRIVILEGE

MELVIN GUTTERMAN

The author is a 1962 graduate of Brooklyn Law School, where he served as Editor-in-Chief of theLaw Review. In February of 1965, Mr. Gutterman was awarded a Police Legal Advisor Fellowship atNorthwestern University School of Law and, after a year's residence at the law school, served as anintern police legal advisor to the Oakland, California police department until November 1, 1966 whenhe became associated with the Institute for Community Development ci Michigan State Univer-sity.

The article, which was submitted by Mr. Gutterman in partial fulfillment of the requirements forthe LL.M. degree at Northwestern, sets forth the utility of informers to police work, particularly in thevice control area. He also collects and analyzes the decisional law of the federal and state courts whichhave wrestled with the vexing problem of when, and under what circumstances, a defendant is en-titled to know the identity of an informant who has played some role in the case against him. Publi-cation of Mr. Gutterman's article in this issue is especially timely since the Supreme Court of theUnited States may undertake a re-examination of this entire body of law in McCray v. Illinois,384 U.S. 949 (1966), now pending in that Court.

Law enforcement agencies, in their efforts tocombat crime, oftentimes must rely heavily uponstatements of secret informers. The communica-tions from informers have proven vital to the de-tection of criminal activities.' The information re-ceived may expose a crime, or be used as a basis foran arrest or search. Such information at times mayprompt an investigation, and eventually sufficientinformation may be gathered to prosecute acriminal action.

To encourage this type of communication tolaw enforcement agencies, it is often deemednecessary to suppress the identity of the informer.The informer does not wish to expose himself be-cause of fear of physical harm to himself and hisfamily. This very real danger is well illustrated bythe murder of Arnold Schuster. The New YorkPolice publicly disclosed that it was Schuster'sidentification that led to the arrest of bank robberWillie Sutton. A few days later, Schuster wasmysteriously slain.2 In addition, the informantmay also be subjected to diverse social reactions aswell as civil action.3

The government also has an interest in nondis-closure. It is not enough to declare that it is theobligation of citizens to communicate theirknowledge of the commission of crimes to law en-

I VoLLmER, TE POLICE IN MODERN SOCIETY (1936).2 N.Y. Times, Feb. 21, 1952, p. 1, col. 2, id. March 9,

1952, p. 1, col. 8." Vogel v. Gruaz, 110 U.S. 311 (1884); Elrod v. Moss,

278 Fed. 123 (4th Cir. 1921); Worthington v. Scribner,109 Mass. 487 (1872).

forcement officers; many individuals will still re-main reluctant to give this information unless theyare assured of anonymity. By preserving theiridentity, the continued value of the individual in-former to the police is protected. It also encouragesother persons to cooperate in the administrationof justice.

The judiciary, in its effort to preserve the publicinterest in facilitating the use of informers, hasdeveloped the so-called evidentiary rule-the in-former's privilege. But the informer's privilege is,in reality, no more than the government's privi-lege to withhold from disclosure the identity ofpersons who furnish information of violations ofcrime.

4

The privilege of withholding disclosure of aninformer's identity is not absolute. As to the ques-tion when the privilege of nondisclosure appliesand when exception should be made, and disclosurerequired, no fixed rule is justifiable.5 The problemis one that calls for balancing the public interest inprotecting the flow of information against thefundamental principle that an individual accusedof a crime is entitled to a full and fair opportunityto defend himself. Where, in a particular case, thebalance is to be drawn has become an ever increas-ing and vexatious problem to the courts.

This article will first describe the police practicein the use of their informants. It will then analyzethe informer privilege at both the federal and state

Roviaro v. United States, 353 U.S. 53 (1957).1 Ibid.

THE INFORMER PRIVILEGE

level, with a view toward determining where thebalance is to be drawn.

POLICE PROCEDURE IN THE USE OF

INFORMANTS

The cooperation of individuals who can furnishaccurate information to the police is necessary iflaw enforcement agencies are to discharge theirobligations. Generally, an informant is the personwho voluntarily gives this information to thepolice.'

Informants include persons from varied occupa-tions, ages, and neighborhoods. Many persons, be-cause of their occupations, are in a good positionto supply the police with valuable information:

For instance, hotel bellboys, doormen andswitchboard operators are aware of the activi-ties of guests. Doctors, dentists and nursesmay have knowledge of a suspect's injuries.Dance hall and pool hall operators usuallyhave information about their patrons. Taxi-cab drivers, bus drivers and railroad employeeshave an opportunity to observe their passen-gers. Garagemen and parking lot attendantscan supply information about the condition ofa car. Janitors and building managers knowwhat goes on in their buildings. Public utilityemployees have an opportunity to observethings in the buildings they enter. Barberslisten a great deal and become informed fromthe many conversations with their customers.7

The considerations that may motivate a personto cooperate with the police are legion. Some of themore prevalent motives are fear, avoidance ofpunishment, jealousy, revenge, competition, ego-tism or vanity, gain, repentence, remuneration,and civic-mindedness. The informant's motive isof value to the police, of course, in evaluating thereliability of the information received. 8

The Chicago Police Department classifies in-formants into nine general types, depending uponthe informer's motive for revealing information. 9

1. The Anonynwus Informant. He may be atelephone caller or letter writer. The GamblingUnit of the Vice Control Division average sixanonymous telephone calls a week, and approxi-mately twice as many anonymous letters. Informa-

6 Investigator's Notebook, Chicago Police Depart-ment, August 21, 1961.

7 Training Bulletin, Chicago Police Department,September 4, 1961.

8 Ibid.9 Ibid.

tion from the anonymous informant is alwaystreated as potentially valuable.' 0

2. The Self-Aggrandizing Informant. This per-son, who usually has contacts among the under-world, delights in giving information to gain favorfrom the police. The informant's ego is enhancedby magnifying his importance in the disclosedoperation.

3. The Legitimte Informant. He is the law-abiding operator of a legitimate business who hasan opportunity to observe the criminally prone inhis everyday transactions.

The Licensing Unit of the Vice Control Divisionobtains accurate information about criminalactivity from owners of lounges and taverns.These establishments' entertainment and liquorlicenses are subject to suspension and revocation,and thus the legitimate owner tries to prevent hisplace of business from becoming a hangout for thecriminal element."

4. The Woman Informant. She may be a girlfriend of a criminal or the wife of a gambling hus-band. Her motive for informing is generally emo-tional.

5. The Frightened Informant. This type of in-formant usually fears that he will be placed in adangerous situation through some criminal act ofhis associates. He fears his own well-being and pro-vides information as a means of protection.

6. The Rival Informant. He is one who earns aliving by questionable means and wishes, byinforming, to eliminate his competitor.

7. The Mercenary Informant. He informs formoney or for some other material gain. Also, hemay seek revenge as well as profit for his revelation.

The monetary consideration paid by theGambling and Narcotics Units range from ten totwenty-five dollars, depending upon the value ofthe information.

The Narcotics Unit retains receipts for allmonies given to the informer. The informer's card(indexed according to assigned number) containsthe amount of money given, the raid number, andthe prior cases in which the informant has renderedassistance. The name of the informer, and his as-signed number are kept on separate cards, in asecure place, and is available to limited personnelonly.

10 Interviews With Unit Lieutenants of Gambling,Narcotics, Prostitution and Licensing Units of theChicago Vice Control Division, in Chicago, September& October, 1965.

n Interviews. - -

MELVIN GUTTERMAN

The Gambling Unit is quite cautious about itspayments to informants, because through experi-ence, they have learned that their informers have attimes worked both sides-receiving money fromthe police for information about a gambling opera-tion, and from the policy operator for informationabout a potential raid. No money is paid by theunit until the information has proved reliable.12

8. The False Informant. His falsity is due to"dreamed up" information. Sometimes his purposemay be the desire to appear on the side of thepolice in order that suspicion will not be focusedon him.

9. The Double-Crosser Informant. He usuallywants to talk to the police to get more informationthan he is going to give in return.

The general type may include female or juvenileinformants. The Chicago Police Department,recognizing a potential hazard in the officer'sdealings with these informants, issues a specialwarning:

If the investigator comes in contact with ajuvenile informant, he should consult thejuvenile officer and the parents of the juvenileto avoid any possibility for a complaint to bemade that the juvenile was abused or takenadvantage of. Female informants may be in-valuable sources of information, but certaindangers are present. An emotional motive isusually the cause for a female to turn inform-ant. Females often know men and are quickto recognize their weaknesses. In a case wherea protracted association with a female inform-ant is necessary, a definite danger exists forthe investigator. If not extremely careful, theinvestigator may allow himself to be divertedinto side excursions with the female in-formant.13

The ability of the investigator to obtain andhold on to a reliable informant depends on manyconsiderations. One of the most important is thereputation of the investigator, and the police de-partment, for integrity and fair dealing.14 Thedepartment stresses that the investigator shouldnever make a promise that he cannot fulfill, or hasno intention of delivering. Generally, the onlyrepresentation that is made to the informant hav-

12 Interviews.12 Investigator's Notebook, Chicago Police Depart-

ment, August 21, 1961.14 IARNEY & CzOss, THE ImoxmER rN LAW EN-FoRcEMENT 52, (1960).

ing a pending criminal case is that his cooperationwill be brought to the prosecutor's attention.15

A most compelling deterrent against informingis the sinister connotation of the word itself. Theinformant resents being referred to as squealer,stoolie, rat, stool pigeon, squawker, or in similarterms. Investigatory agencies now take a more in-telligent, objective, and professional attitudetoward the informant. "They no longer refer to'stool pigeons' in official reports. 'Informer' is thestrongest derogatory word.... [They] substitutewords like 'source' or 'complainant' or 'specialemployee' or some more euphemistic term."' 6

Each investigatory unit employs a differentoperating procedure in the use of informants. Theunit commander's preference is determined by theunit's experience in dealing with informants andthe legal restrictions applicable to his department.

The Narcotics Unit uses three basic methods:1. The informant may be used in a "controlled

buy." The officer conducts a complete "stripsearch" of the informant's person and clothing.Once it is established that the informant does notpossess narcotics, he is handed marked money, andis immediately transported by the agents to thelocation of the buy. If possible, the agents secure aconcealed position to observe the transaction.Upon completion of the transaction, the peddleris arrested, and the marked money and othercontraband taken from his possession. The nar-cotics are recovered from the informant, establish-ing the fact that the informant obtained the nar-cotics from the person arrested for making the sale.

2. The informant may provide the entree to anarcotics operation. The narcotics peddler oftenwill not deal with outsiders. The informant, usuallyan addict himself, makes the initial introduction ofthe undercover agent to the peddler, passing himoff as a fellow addict or a potential one. Acceptanceof the undercover agent is primarily predicated uponthe informant's relationship with the peddler.Once accepted, the agent attempts to gain thepeddler's confidence, and endeavors to work him-self into the heirarchy of the organization. Hissuccess depends on many factors; the size of theoperation, the organization's procedure, theofficer's experience and capability, and the moneyavailable to sustain the operation. The money andtime necessary for an extensive investigation oftenprohibits the Narcotics Unit from engaging in thisis Interviews; Investigator's Notebook, Chicago Po-

lice Department, August 21, 1961.16 HANEY & CRoss, op. cit. supra note 14, at 55.

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THE INFORMER PRIVILEGE

type of operation. Because of the cost factor, thisprocedure is used primarily by the federal au-thorities.

3. The informant is most commonly used in ob-taining a search warrant. The informant advisesthe investigator that he has visited the home, roomor apartment, of a person trafficking in narcotics,where he observed contraband on the premises; hespecifies the contraband and its location on thepremises. The investigator surveys the describedplace, with a special interest in the entrance andexit of known narcotics users. By further investi-gation the officer seeks the identity of the occu-pants of the premises, their criminal record, andpossible unexecuted arrest warrants.

Once satisfied that the surveillance and investi-gation has yielded all attainable information, theofficer determines the type of complaint to be usedin obtaining the search warrant. Most often theinformant is surreptitiously brought before amagistrate, the informant and officer swearing tothe truth of the facts in the complaint. The com-plaint, drawn by the officer, states the informant'sobservations, his visits to the premises, and theofficer's own personal observations as a result ofthe investigation. The informant is almost alwaysgiven a fictitious name to protect his identity.

On some occasions the officer is the sole swearingparty to the complaint, affirming all the facts un-covered by the investigation, including the in-formant's initial statement. The complaint for"hearsay warrants" will describe prior eventswhich lead to the conclusion that the informer isreliable.

The Narcotics Unit takes every precaution toavoid entrapment, and the appearance of entrap-ment, by the informant. The department has issueda pertinent warning:

When using an informant, it is possible thatthe informant through ignorance, some ulte-rior motive, or greediness might scheme orheedlessly entrap into crime a person, whohas no intention of committing a crime, andwho was motivated to this crime by the in-formant, who becomes the instrumentality ofthe law. The danger can be avoided by aninvestigator who uses a degree of warinessand intelligence in the handling of the in-formant.1-1 Investigator's Notebook, Chicago Police Depart-

ment, August 21, 1961. See HARNEY & CRoss, op. ci.supra note 14, at 53.

There is another special risk noted.in the han-dling of informants in narcotics cases. That is inconnection with the informer who is addicted:

Some of these people will importune theinvestigating officer for a ration of narcotics"to keep going" until they help us make acase. Any officer who accedes to this requestjeopardizes his reputation and his job, andbecomes a dope peddler, subject to imprison-ment in the penitentiary. ... In passing, itshould be said that if the system of any nar-cotic law enforcement agency is such as topermit accessibility to drugs to supply anaddict, that system should be corrected, as.the organization may be on the verge ofdisaster.

8

Not peculiar to narcotics, but certainly appli-cable, is the danger that minor illegal conduct bythe informant may be overlooked by the investi-gator because of the informant's value and re-liability. "The fact that a person is an informantfor an investigator, must not be a license for himto engage in illegal misconduct. The greatestdangers of any compromise with crime are thepossibility they will result in disgrace to the lawenforcement agency, a distorted .perspective,create a privileged class of petty criminals, andlead to faulty judgment."' 9

The Prostitution Unit uses informants in a morerestrictive manner. After receiving information,which may be from any of the sources previouslyenumerated, that premises are being used for thepurpose of prostitution, a surveillance is estab-lished. Once satisfied that the information is accu-rate, the investigator will question male patronsexiting from the premises. The investigator basi-cally seeks the "contact name" necessary to securean appointment with the girl. Once the informantreveals the "contact name" an appointment is ob-tained, and the girl is arrested if the subsequentfacts make out a violation of the prostitution laws.

If the surveillance indicates that the operationis controlled by an outside source-who sendspatrons to the girl, a slightly different procedureis employed. The officer will stop :patrons fromentering the premises and engage their assistance.The officer borrows the informant's identification,and by the use of this identification gains entranceto the premises. Once in the premises, and under

'8 HARNEY & CRoss, op. cit. Supra note 14, at 54.19 Investigator's Notebook, Chicago Police Depart-

ment, August 21, 1961.

1967]

MELVIN GUTTERMAN

the assumed personality, the officer independentlyestablishes the elements constituting the offenseof prostitution. Very often the patron or arrestedgirl will reveal the identity of the outside party.

Other information is usually obtained as a resultof the initial arrest. The patron may supply theofficer with a list of additional prostitutes. Asearch of the premises often produces a "trickbook," which contains the names of the girl'spatrons. The "trick book" is a valuable tool for theinvestigator. By contacting the individuals listedhe is able to persuade these individuals to revealthe identity, location and "contact name" ofprostitutes he has patronized or knows.

The Gambling Unit basically uses the informantin obtaining search warrants. The informant ad-vises the investigator that a wire room is operatingon certain premises. At the investigator's direction,the informant telephones the given number andplaces a bet, while the investigator listens to theconversation on an extension phone. 2° The telephonenumber is checked for location, and a surveillanceis established. After the surveillance is completed asearch warrant is obtained. The complaint for thesearch warrant, which is affirmed only by theofficer, states that the officer received informationfrom a "reliable informant," citing the information,the placed bet, and the results of the surveillance.The warrant is executed promptly to avoid a pos-sible leak or shut-down of the wire room.

As previously stated, information received frominformers provides not only the basis for an arrest,but also the impetus for police investigation. Theoutlined police techniques are only a few of themore widely used methods that a law enforcementagency may employ in the use of informers. Theeffective law enforcement agency clearly recog-nizes that the informant is extremely useful, if notabsolutely essential, to their department.

THE EXTENT OF THE PRIVILEGE IN THE

FEDERAL COURTS

There is no fixed rule in balancing of the publicinterest in the use of informers against the indi-

vidual's right to defend himself. In an earlyEnglish case, Lord Esher suggested:

20There is a possibility that this procedure may belost by virtue of a recent Illinois Supreme Court deci-sion, People v. Kurth, 34 Ill. 2d 387, 216 N.E.2d 154(1966), which construed the Illinois eavesdropping stat-ute as meaning that any party who has not consentedto a recording or transmission of his conversation maybar its admission as evidence against him.

[I]f upon the trial of a prisoner the judgeshould be of the opinion that the disclosure ofthe name of the informant is necessary orright in order to show the prisoner's innocence,then one public policy is in conflict with an-other public policy, and that which says thatan innocent man is not to be condemned whenhis innocence can be proved is the policy thatmust prevail.2'

In the federal jurisdiction it was slowly recog-nized that fundamental requirements of fairnessmay require disclosure. Where the informer wasnot simply a "tipster" who aroused the policeofficer to a crime that was committed, or about tobe committed, but, on the contrary, played anactive part in the actual commission of the crime,the courts began to hold that the informer becamea material witness and vital to the defense of thecase.

This informer participant theory is well illus-trated by United States v. Conforti.n In Conforti,it was alleged that on several occasions the de-fendant had passed counterfeit money to a govern-ment informer, and that the transactions had beenwitnessed by police officers. On appeal, the de-fendant contended that the trial court erred inpermitting testimony to be offered of his conversa-tions with the government informers withoutrequiring disclosure of their identity. The courtruled that the defendant would have been entitledto know the identity of the informer who wasalleged to have received the counterfeit money ifproper inquiry had been made:n

[He] was more than a mere informer. He wasnot simply an individual who, knowing thatthe defendant had committed or was about tocommit a crime, communicated that knowl-edge to the authorities so that the police,acting independently, might then procureevidence of the crime. On the contrary, ... [he]

played a part with the defendant in the verytransaction upon which the Government reliesto prove its case.u21 Marks v. Beyfus, 25 Q.B.D. 494, 498 (1890).- 200 F.2d 365 (7th Cir. 1952), cert. denied, 345 U.S.

925 (1952).n The court, although holding the defendant was

entitled to be given the identity of the informer whoreceived the currency, ruled that nondisclosure of suchidentity did not require a reversal in view of the factthat there was no showing that the defendant ever madea demand for the informer's name. See note 42 infra. andaccompanying text.

24 200 F.2d at 367.

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THE INFORMER PRIVILEGE

In 1955, the Court of Appeals for the FifthCircuit made it clear that there was a distinctionbetween the case where the person called the in-former is that and nothing more, in which case thedefendant would not have been entitled to havehis identity disclosed, and a case... where theinformer is the person to whom the defendant issaid to have sold and dispensed the opium de-scribed in the indictment. In such a case informa-tion as to the person's identity was material to thedefense, and the denial of the requested informa-tion was error.22

In 1957, the Supreme Court, in Roviaro v. UnitedStates,26 justice Clark dissenting, ruled that thedistrict court had committed reversible error bypermitting the Government to withhold disclosureof the identity of the informer, where the informer,an undercover government employee, had taken amaterial part in bringing about the defendant'spossession. It is interesting to note that thedefendant in Roviaro was convicted on two counts,sale of narcotics to the undisclosed informer, andpossession of narcotics. The Government, beforethe Supreme Court, did not defend the first count,which charged a sale. The Court indicated, in afootnote, that the district court erred in denyingthe petitioner's motion for the identity and addressof the informer prior to trial.27

The information elicited from an informer maybe relevant and helpful to the defense even thoughthe informer is not a participant in the offense. Theimportance of informer testimony in nonpartici-pant type crimes is clearly illustrated by an oldEnglish case Regina v. Richardson,21 where the de-fendant was indicted for administering poison withintent to murder. The police, through informationfurnished to them by informers, found a bottleof poison in a place used only by the defendant.The informers were not called as witnesses and thecourt held that their disclosure was material to theends of justice. The court pointed out that suchwitnesses could have stated how it was that theyhad come to know where the bottle of poison was tobe found and perhaps could have given some clueas to the person who had put it there.

The Supreme Court's language in Roviaro wouldseem to indicate that disclosure may not be limitedto those cases where the informer is a participant.

25 Portomene v. United states, 221 F.2d 582, 583 (5thCir. 1955).

26 353 U.S. 53 (1957).27 Id. at 65 n. 15.28 176 Eng. Reprint 318 (1863).

The Court ruled that there was no fixed rule withrespect to disclosure:

Whether a proper balance renders nondis-closure erroneous must depend on the particu-lar circumstances of each case, taking intoconsideration the crime charged, the possibledefenses, the possible significance of the in-former's testimony, and other relevant fac-tors.29

This language would indicate that the fact theinformer is a participant in the crime chargedwould be only one relevant factor and disclosurewould be required even where the informer did notactually participate if the "contents of his com-munication, is relevant and helpful to the defenseof an accused, or is essential to a fair determinationof a cause." 30 For this latter proposition the Courtin Roviaro not only cited Scher v. United States"and Wilson v. United States- but also the earlyEnglish case of Regina v. Richardson. At this time,it is interesting to note that both Scher and Wilsonare requests for disclosure of the informant to testprobable cause; in Scher for the arrest, in Wilsonfor the search.-"

In cases subsequent to Roviaro, the federalCourts of Appeal have emphasized varying por-tions of that opinion in formulating rules for theirparticular circuits. A limited number of courts haveapplied participant informer criteria to probablecause type informer cases, thus greatly diminishingthe dictum impact of Roviaro.34 Other circuits ap-pear to have limited Roviaro to prosecutions whereentrapment is the defense,35 and even in those

353 U.S. at 62.30 Id. at 60, 61.31305 U.S. 251 (1938).

59 F.2d 390 (3d Cir. 1932). In Wilson, the courtenunciated the rule that "if what is asked is useful evi-dence to vindicate the innocence of the accused or lessenthe risk of false testimony or is essential to the properdisposition of the case, disclosure will be compelled." 59F.2d at 392.

"' See infra notes 68 through 99 and accompanyingtext for necessity of disclosure in probable cause situa-tions.T

4Jones v. United States, 326 F.2d 124 (9th Cir.1963), cert. denied, 377 U.S. 956 (1964); United Statesv. Whiting, 311 F.2d 191 (4th Cir. 1962), cert. denied,372 U.S. 935 (1963); Williams v. United States, 273F.2d 781 (9th Cir. 1960), cert. denied, 362 U.S. 951(1960); Pegram v. United States, 267 F.2d 781 (6th Cir.1959).35 United States v. Simonetti, 326 F.2d 614 (2d Cir.

1964); United States v. Collier, 313 F.2d 157 (7th Cir.1963), cert. denied, 374 U.S. 844 (1963); Mosco v. UnitedStates, 301 F.2d 180 (9th Cir. 1962), cert. denied, 371U.S. 842 (1962); United States v. Clarke, 220 F.Supp.905 (E.D. Penn. 1963).

MELVIN GUTTERMAN

prosecutions it has been held that disclosure ofthe informer is not absolute.n The majority of thecourts have, however, limited Roviaro to informerswho have participated in the offense.37

Recently, the Supreme Court was asked todecide whether it was necessary to limit disclosureto a participant informer. In Rugendorf v. UnitedStates,38 the defendant was convicted of knowinglyreceiving, concealing, and storing stolen furswhich had been transported in interstate com-merce. The stolen furs were found in the basementof the defendant's home pursuant to a search war-rant based partly on information from confidentialinformants. Justice Clark, expressing the views offive members of the Court, held that the defend-ant's claim to disclosure by the Government of theidentity of the government's informers was notmaintainable because it was not properly raised inthe trial court nor passed upon there.3 9 justiceDouglas, speaking for the minority, concludedthat the defendant's trial court statement allegingthat he needed the identity of the informant forhis defense, was sufficient to raise the issue ofwhether the information was so essential to thedefense as to outweigh the public interest involvedin protecting the informant's identity.40

If the Court in Rugendorf had reached the meritsof the defendant's contention, it might have beenforced to recognize that the informant's identitywas essential to a proper defense. The defendantasserted that he was unaware of the presence of thefurs in his basement. He produced evidence that

36 Firo v. United States, 340 F.2d 597 (5th Cir.), cert.denied, 381 U.S. 929 (1965); United States v. Fredia, 319F.2d 853 (2d Cir. 1963); Mosco v. United States, supranote 35.

37 United States v. D'Angiolillo, 340 F.2d 453 (2d Cir.1965), cert. denied, 380 U.S. 955 (1965); United Statesv. Konigsberg, 336 F.2d 844 (3d Cir. 1964), cert. denied,379 U.S. 933 (1964); United States, ex. rd. Drew v.Meyers, 327 F.2d 174 (3d Cir. 1964), cart. de died, 379U.S. 847 (1964); Williams v. United States, supra note34; Miller v. United States, 273 F.2d 279 (5th Cir.1959), cert. denied, 362 U.S. 928 (1960); Pegram v.United States, supra note 34; Gilmore v. United States,256 F.2d 565 (5th Cir. 1958).

38 376 U.S. 528 (1964).19Th defendant also sought the identity of the in-

formants in order to establish the lack of probable causeupon which the search warrant had been issued. TheCourt concluded that adequate probable cause existedfrom other circumstantial evidence and held that theinformer's identity was privileged. See note 93 infraand accompanying text for further discussion of the"probable cause" problem in Rugendorf.

10 The majority further held that they could notdecide the question of necessity of disclosure because thedefendant failed to develop the criteria necessitatingsuch disclosure.

for a period between February 17 until March 4,he was out of town. During this period four per-sons possessed keys to his home, including abrother who was an acknowledged fence for stolengoods. The search occurred on March 22 and boththe defendant and his wife testified that they hadnot entered the basement since their return onMarch 4.

In order to establish that he had no knowledgethat the furs were concealed in his home, it wouldseem essential that the defendant obtain informa-tion concerning the identity of the individual whoplaced the furs in the basement, his reason fordoing so, and his relationship, if any, to the de-fendant. There was a strong possibility that theinformant who supplied the information to theofficers could have also furnished this informationfor the defendant to establish his defense. It mustbe stressed that it is not clear whether the in-former was a participant in the crime; however, itis clear that the informer's testimony might haveshed light on the guilt or innocence of the defend-ant even if the informant had not been a par-ticipant.

4'

Circumventing Disclosure

Since there is a strong desire by the courts topreserve the identity of the informer, disclosurewill not be required, even where the informer is aparticipant in the crime, unless the record clearlyindicates that a demand was made for the informa-tion. This is again clearly illustrated in the Con-forti decision,4 where the court, although holdingthat the defendant was entitled to be given theidentity of the informer, ruled that nondisclosuredid not require a reversal of the conviction in viewof the fact that there was no showing that anydemand for disclosure was made. And, as statedpreviously, the majority of the Court in Rugendorfruled that the defendant's claim for disclosure ofthe informer was not maintainable because it wasimproperly raised on trial.4

A leading qualification of the informer privilegeis that "once the identity of the informer has beendisclosed to those who could have cause to resent

41 See Priestly v. Superior Court, 50 Cal. 2d 812, 330P.2d 39 (1958); People v. McSharm, 50 Cal. 2d 802, 330P.2d 33 (1958).

12 United States v. Conforti, supra note 22. Accord,United States v. Colletti, 245 F.2d 781 (2d Cir. 1957),cert. denied, 355 U.S. 874 (1957); Cannon v. UnitedStates, 158 F.2d 952 (5th Cir. 1946), cert. denied, 330U.S. 839 (1946).

11 See supra note 38 and accompanying text.

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THE INFORMER PRIVILEGE

the communication, the privilege is no longerapplicable." 44 This ruling apparently means thatin an appropriate case, in which the defendant haslearned the identity of the informer from someother source, he is entitled to have the informantdisclosed in open court. Of course, the accused cannever be absolutely sure that he knows the inform-ant, unless the informant is definitely identifiedin court. And conceivably, even when the de-fendant knows the identity of the informer, publicdisclosure may still be against the public interest.

However, this qualification is greatly diminishedby the rulings that error in failing to require dis-closure is ordinarily not prejudicial where theidentity of the informer is known to the accused.4

Thus in Sorrei tino v. United States,46 the court,although agreeing that disclosure was necessary,ruled that the error in failing to require disclosurewas harmless, since the identity of the informer wasdisclosed by the testimony of another governmentwitness.

In this connection, it should be noted that inRozdaro, Justice Clark dissented on the veryground that the informer was well known to thedefendant, and consequently, he could not havebeen prejudiced by the nondisclosure.47 Themajority in Roviaro gave tacit approval to therule that if the defendant knew the identity of theinformant, nondisclosure would not be prejudicial.The majority commented that no factual findingswere made by the trial court that the accusedknew the informer's identity, and therefore, theywould not assume that the informer's identity wasknown.48

There is authority, however, that nondisclosureis not made harmless because the defendant knewthe name of the informer. In Portoene v. UnitedStates,4' the defendant and another woman testified

11 Roviaro v. United States, 353 U.S. at 60.45 United States v. Conforti, supra note 22;Sorrentino v. United States, 163 F.2d 627 (9th Cir.1947). An accused's knowledge of the identity of theinformer may be a factor relied upon in support of sus-taining the privilege of nondisclosure. Smith v. UnitedStates, 273 F.2d 462 (10th Cir. 1959), cert. denied, 363U.S. 846 (1959).

46 163 F.2d 627 (9th Cir. 1947).47 353 U.S. 53 (1957) (Clark, J., dissenting.)4 1 Id. at 60 n. 8. In fact, one of the police officers

testified that the informer at police headquarters deniedknowing or ever having seen the accused.

An interesting question is, upon whom does the bur-den rest to show lack of knowledge of the informer'sidentity? See De Losa v. Superior Court, 166 Cal. App.2d 1, 332 P.2d 390 (1958).

49 221 F.2d 582 (5th Cir. 1955).

that they were of the opinion that they knew theinformer, and that there was bad blood betweenthe defendant and the informer because of thedefendant's relationship to her. The defendant'srelationship to the woman was advanced as themotive for the informer desiring to involve the de-fendant with the false charges that he dealt innarcotics. The Portomene court discussed theNinth Circuit Sorrentino opinion,58 and theSeventh Circuit Conforti decision," but rejectedtheir theory for the Fifth Circuit, explicitly hold-ing that it was prejudicial error not to disclose theinformer's identity to the accused:

We do not think this will at all do. [Refer-ring to Sorrentino and Conforti] Who can saywhether, deprived of the information to whichhe was entitled, the defendant in his lameand halting efforts to extricate himself from thesituation in which the refusal to name theinformer had placed him, did not greatlyprejudice his defense by offering testimonywhich the jury may have throught was ad-duced to set up a straw man simply to knockhim down?"2

Inapplicability of Informer Privilege

Once disclosure is required, the Governmentmust either reveal the identity of the informer tothe defendant or drop its prosecution." Afternaming the informant, the Government's furtherduty is not clear.

The Ninth Circuit, in Eberhart v. United States,5'reasoned that once identified, "the failure of theGovernment to produce an informer or otherperson as witness does not violate the defendant'srights."' This appears to be the prevailing rule inthe federal circuits that have been confronted withthis problem.5 However, in United States v.

"0 Sorrentino v. United States, supra note 45."1 United States v. Conforti, 200 F.2d 365 (7th Cir.

1952), cert. denied, 345 U.S. 925 (1952).52221 F.2d at 584. Cf. Firo v. United States, 340 F.2d

597 (5th Cir.), cert. denied, 381 U.S. 929 (1965)."Roviaro v. United States, 353 U.S. 53 (1957). But

cf. Priestly v. Superior Court, 50 Cal. 2d 812, 330 P.2d39 (1958). See also United States v. Keown, 19 F.Supp.639 (W.D. Ky. 1937).

"262 F.2d 421 (9th Cir. 1958).5" Id. at 422.56 Williams v. United States, 273 F.2d 781 (9th Cir.

1959), cert. denied, 362 U.S. 951 (1960); Smith v. UnitedStates, 273 F.2d 462 (10th Cir. 1959), cert. denied, 363U.S. 846 (1960); Eberhart v. United States, 262 F.2d421 (9th Cir. 1948); Dear Check Quong v. UnitedStates, 160 F.2d 251 (D.C. Cir. 1947).

19671

MELVIN GUTTERMAN

Clarke,57 the District Court for the EasternDistrict of Pennsylvania, in a prosecution forconspiracy and sale of narcotics without writtenorders, held that the defendant's trial was unfairbecause of the absence of an identified informerwho was the sole participant in all but one of fivealleged sales, and who was the only person, asidefrom the defendant, who could have shed light onthe defense of entrapment. The informer's absencewithout satisfactory explanation, the court held,necessitated a new trial. The court stated that"common fairness made it the Government's dutyto produce [the informer] at the trial, or, failingthat, to show that reasonable efforts to produce himwere fruitless."581 And in United States v. Rosario,59

the Second Circuit inferentially supported theproposition that there may be cases where theGovernment would be under a duty to produce theinformer, if it is able to do so.

Although it would appear that generally theGovernment may not be required to produce theinformer or to call him as a witness, informationsufficient to enable the defense to locate the in-former must be given if the Government has it.This proposition is supported by the SecondCircuit's opinion in United States v. D'Angiolillo,60the court reasoning that the defense is entitled notonly to the informer's name, but to other informa-tion concerning his whereabouts, and to reasonablecooperation in securing his appearance. The court,however, affirmed the defendant's conviction,stressing that not only was the informer's identityrevealed, but that he was readily available tosubpoena, since he was confined in a federalpenitentiary. Moreover, the judge offered to sub-poena the informer and afford defense counsel anopportunity to confer with him privately and tocall him as a defense witness and to question himas a hostile witness if he proved to be one.

The Seventh Circuit, in United States v. Collier,"'reversed a conviction for a violation of the narcoticslaws, where the defense was entrapment, holdingthat the trial court should have persisted in deter-mining whether the Government knew where theinformer was or would be, and whether they couldfind out where he was. And the Eighth Circuit, in

57 220 F.Supp. 905 (E.D. Penn. 1963).Is Id. at 908.5 327 F.2d 561 (2d Cir. 1964).60340 F.2d 453 (2d Cir. 1965), cert. denied, 380 U.S.

955 (1965).61313 F.2d 157 (7th Cir. 1963), cert. denied, 374 U.S.

844 (1963).

White v. United States,62 inferentially supports theproposition that if the name of the informant is tobe disclosed, all reasonable efforts to locate himmust be made by the prosecution.

A question not yet decided is whether theGovernment is under a duty to make a good faitheffort to inform itself of the names and addressesof its informers. Or can it effectively avoid dis-closure by merely making no attempt to learn thefacts? In United States v. Oropoza,6 the SeventhCircuit, on its own motion, raised this precisequestion but then stated that it need not face thatissue in the case before it.4 The same circuit againalluded to this problem in United States v. Pruitt,6 5

in discussing the defendant's contention that theidentity of the informant must include sufficientinformation for service of a subpoena and that"the Government must have a duty to retaincontrol over its special employees, or to provethat it has made good faith efforts to obtainspecific information about their names, addressesand whereabouts." 6 6 The court held that theGovernment had satisfied its duty where itfurnished the accused with the last known addressof the informant, who was also known to theaccused, and had made an unsuccessful search forthe informer, giving the defense full disclosure ofall known information.

It would seem that once disclosure is requiredsome good faith on the part of the prosecutionmust prevail. The Government should not refrainfrom disclosing the informer's identity until heceases to be available as a witness, nor should theGovernment procure the removal of the informerfrom the jurisdiction.1

7

The Informer and Probable Cause

In the landmark case of Weeks v. United States,6 8the Supreme Court, in exercising its supervisorypowers over the federal courts, held that in afederal prosecution, the fourth amendment barred

6 330 F.2d 811 (8th Cir. 1964), cert. denied, 379 U.S.855 (1964).

275 F.2d 558 (7th Cir. 1960).The court indicated that "the answer must be

resolved within the standards set out in the Roviarocase." Id. at 561. The court was apparently referring tothe "balancing test" in Roviaro.65 331. F.2d 232 (7th Cir. 1964), cert. denied, 379 U.S.

884 (1964).16 Id. at 235.17 See People v. Kiihoa, 53 Cal. 2d 748, 349 P.2d 673

(1960); People v. Wilson, 24 Ill. 2d 425, 182 N.E. 2d203 (1962).

68 232 U.S. 383 (1914).

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THE INFORMER PRJVILEGE

the use of evidence secured through an illegalsearch and seizure. It was not until 1961, in Mappv. Ohio, 9 that the Supreme Court held exclusionto be an essential ingredient of the core of fourthamendment rights, thus rendering evidence ob-tained through an unreasonable search and seizureinadmissible in state courts.

A federal law enforcement officer can make alawful search for the seizure of evidence when (1)he is possessed of a valid search warrant authoriz-ing the search and seizure, or (2) the search iswithout a search warrant, but incidental to a law-ful arrest. A lawful arrest occurs when the arrestis made either with an arrest warrant or, as morecommonly done, without such a warrant for anyoffense against the United States committed in hispresence, or for any felony upon reasonablegrounds to believe that the person to be arrestedhas committed or is committing such felony. 7°

In those criminal proceedings where the evidenceis obtained during a search without a warrant, inorder to have the evidence excluded the defendantis constantly striving to convince the court thatthe police officer had no probable cause to make thearrest. The prosecution is equally trying to showthe existence of probable cause without having toreveal the name of its secret informants. Hereagain, then, is a situation where the informer privi-lege may come into direct conflict with the de-fendant's rights.

The case of United States v. Bli/1,71 clearly pointsout the conflict in the federal courts and in theprobable cause situations. In Blict, a federalprohibition agent testified that a "reliable in-formant" had advised him that the defendant at acertain time would be making delivery of intoxicat-ing liquor at a certain designated place on theevening in question. The agent, without a warrant,at the designated time and place, stopped andsearched the defendant's car and found it tocontain liquor in violation of the National Prohibi-tion Act. At the trial the agent refused to disclosethe name of the informer. The court held thatunder these circumstances the evidence obtainedcould not be considered without the disclosure ofthe informant. The informer's identity was

- 367 U.S. 643 (1961).70 18 U.S.C. §3053 (1952). Many states now provide

that an officer may arrest without a warrant upon ashowing of reasonable or probable cause to believe thata crime was committed or is presently being committedin the officer's presence.

7 45 F.2d 627 (D.C. Wyo. 1930).

essential to establish reasonable grounds so thatthe court could "determine whether, under all thecircumstances, such information was reliable andthe agent was justified in having such belief."12

It must be noted, however, that the informant'sstatement was the only basis upon which theofficer could establish probable cause.

In Scher v. United States,73 federal officers re-ceived confidential information, which theythought reliable, that a certain automobile wouldbe transporting liquor. The officer went to thespecified place and there observed a car beingloaded with heavy packages. Upon a search with-out warrant, the officers found the car to containbootleg liquor. In affirming the conviction after atrial in which the name of the informant was notrevealed, the Supreme Court distinguished theBlicz case, holding that the legality of the searchhere was based upon what the officers saw andheard, not the information which caused thedefendant to be observed. It must be emphasizedthat the arresting officers were not forced to sus-tain the validity of their search and seizure solelyupon probable cause resulting from informationwhich had been furnished them, but could sustainits validity on what they themselves saw and heardbefore the search, seizure and arrest was made.74

An interesting case on this point is Segurola v.United States.7 5 In Segurola, the officer testified

72 Id. at 629. An interesting problem would have been

posed if the officer in Blich was sued civilly. Since asearch is illegal unless based upon probable cause, andprobable cause could not be established without reveal-ing the identity of the informer, the Government wouldhave been torn between the policy of protecting itsagent from civil liability and preserving the secrecy ofits informers.

73 305 U.S. 251 (1938).74 Reasonable cause may surely be established solely

upon the officer's own investigation after acting upon atip from an informer. However, in Sier, the informeraroused the suspicion of the police officer, and an officeracting upon suspicion needs far less observation to showhe acted upon probable cause. The officer need onlyshow for the purpose of satisfying probable cause thathe acted as a reasonable person would under all thecircionstaixes present. Certainly, the loading of heavypackages, of itself, was not enough to satisfy probablecause. The legality of the search was in fact based uponwhat the officers saw and heard, and the informationwhich aroused their suspicion. The confidential infor-mation received in Scher would seem to be vital in thedetermination of whether the arrest was legal.

7- 16 F.2d 563 (1st Cir. 1926), aff'd, 275 U.S. 106(1927). In a vigorous dissent, Judge Bingham held thatonce the officer was called and testified to the contentsof the confidential information, the Government waivedits privilege and the defendant became entitled to a fulldisclosure, including the name of the informant. "[The

1967]

MELVIN GUTTERMAN

that he received confidential information that thedefendant would be illegally transporting liquor ina Buick. When he spotted the Buick, the driverstarted to speed and weave and fnally crashedinto a post. The First Circuit court ruled that theattempt on the part of the defendant to run awayfrom the officer was sufficient to establish probablecause and that the informer's name would not haveto be revealed.

76

Wilson v. United States" is one of those rarecases where an officer was held in contempt for hisrefusal to reveal the identity of the person uponwhose information he acted in searching defendant'spremises. In upholding the trial judge's contemptcitation, the Third Circuit held that it was neces-sary for the trial judge to know whether theentry was legal or not, since such fact would deter-mine whether the evidence could be suppressed.In words reminiscent of those later used by theSupreme Court, the circuit court held that "ifwhat is asked is useful evidence to vindicate theinnocence of the accused or lessen the risk of falsetestimony or is essential to the proper dispositionof the case, disclosure will be compelled." 78 Thisevidence "was essential to the proper disposition ofthe case" and therefore the officer should havedisclosed the informant.

In a later Second Circuit case, United States v.Li Fat Tong,7 the court took a step back indeciding that the disclosure of an informer'sidentity was unnecessary. The defendant wasarrested without a warrant on information suppliedto the arresting agent from another agent, thelatter receiving his information from an unidenti-fied informer. The court, in a dubious distinction,indicated that the proof for establishing probablecause, though based on hearsay, was not from an"informer," since it was filtered through anotheragent. The court's further theory in upholding thelower court was "that a government official can-not be compelled to disclose the identity of an

government could not require the officer to disclose somuch of the matter as was helpful to it, and then shutthe door as to any further inquiry by the defendantrelating to the communication." 16 F.2d at 566.

The Supreme Court never reached the disclosureproblem, disposing of the case upon the failure of thedefendant to make a pre-trial motion to exclude theevidence. The Court held that it was too late to try toexclude the evidence on trial.7

6 Cf. United States v. Keown, 19 F.Supp. 639 (W.D.Ky. 1937), where under similar facts the court helddisclosure necessary.

7 59 F.2d 390 (3d Cir. 1932).78 Id. at 392.79 152 F.2d 650 (2d Cir. 1945).

informer unless it appears upon the trial that thedisclosure of the informer's name is necessary ordesirable to show the prisoner's innocence." 0 Thedecision indicated that the defendant was ob-viously guilty since he was carrying narcoticswhen arrested, and therefore the names of thesecret informers would not prove the defendant'sinnocence.

In United States v. Nichols,8' the defendant pro-tested against the admission of statements by aninformer to establish probable cause without at thesame time disclosing the informer's name. Thedistrict court, taking its lead from the Li Fat Tongcase, overruled the objection, holding that "thedefendant did not allege that it was his belief thatthe officer was testifying falsely as to havingreceived the information, or that a disclosure of theinformer's identity was essential to his defense onthe merits of the case, as necessary or desirable toshow his innocence of the charge against him."82

The Supreme Court in Roviaro, although notdealing with a probable cause issue, indicated thatunder certain circumstances disclosure of theinformer in this area is required. "Where the dis-closure of an informer's identity, or the contents ofhis communication, is relevant and helpful to thedefense of an accused, or is essential to a fairdetermination of a cause, the privilege must giveway. " The Court, in dicta, commented:

Most of the federal cases involving thislimitation on the scope of the informer'sprivilege have arisen where the legality ofsearch without a warrant is in issue andthe communications of an informer are claimedto establish probable cause. In these cases theGovernment has been required to disclose theidentity of the informant unless there wassufficient evidence apart from his confidentialcommunication.8Y

After Roviaro, most of the federal circuits

80 Id. at 652. (Emphasis added.) Contrast this withthe statement of another Second Circuit opinion. "It istrue that, when they act upon information, it is properto compel them to disclose its source-subject to somelimitations-since otherwise there is no way to testwhether they have had 'reasonable cause' for the ar-rest." United States v. Heitner, 149 F.2d 105, 107 (2dCir. 1945), cert. denied, 326 U.S. 727 (1945).

1178 F.Supp. 483 (W.D. Ark. 1948), aft'd, 176 F.2d431 (8th Cir. 1949).

Id. at 487.81353 U.S. at 60. (Emphasis added.) For this prop-

osition the Court cites Scher and Wilson (discussedabove, supra notes 73, 77), both probable cause cases.

84Id. at 61.

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THE INFORMER PRIVILEGE

applied this dictum,81 holding it to be reversibleerror if the name of the alleged informant, uponwhose tip probable cause for the defendant'sarrest was based, was not divulged.8' The decisionsbegan to center upon whether there was enoughevidence, independent of the informer's tip, toconstitute probable cause.

However, there still is limited authority for theprinciple enunciated in Li Fat Tong, that onlyupon the trial of the merits of the case if it appearsnecessary to show the prisoner's innocence, willdisclosure be compelled.8 7 The decisions followingthis principle apply the participant informer typereasoning of Roviaro to cases involving only aquestion of probable cause. Typical of this type ofdecision, is Pegram v. United States,88 where theSixth Circuit upheld the trial court's refusal (onthe motion to suppress hearing) to reveal the nameof the informer (on the issue of probable cause forthe arrest) since there was no showing that theinformer was in any way connected with thecommission of the offense.

There has also evolved another theory adheredto by some courts in the probable cause area underwhich nondisclosure of the informant is sought tobe justified. In 1959, the Supreme Court held inDraper v. United States,"' that where an informanthad been reliable in the past, and the informationsupplied to the officer is to a great extent corrobo-rated prior to the defendant's arrest, there isprobable cause for the arrest of the defendant,despite the fact that the officer's observations,independent of the information supplied by theinformer, would not constitute probable cause.

The facts in Draper were that a named informer,

85 United States v. Elgisser, 334 F.2d 103 (2d Cir.1964), cert. denied, 379 U.S. 879 (1964); United Statesv. Robinson, 325 F.2d 391 (2d Cir. 1963); Costello v.United States, 298 F.2d 99 (9th Cir. 1962), cert. denied,376 U.S. 930 (1964); Cochran v. United States, 291 F.2d633 (8th Cir. 1961). See Marderosian v. United States,337 F.2d 759 (1st Cir. 1964), cert. denied, 380 U.S. 971(1965), where probable cause for the issuance of a searchwarrant was based upon a reliable informant and theindependent observations of the police officer (affiant).

86 United States v. Robinson, supra note 85; Costellov. United States, supra note 85; Cochran v. UnitedStates, supra note 85. See also United States v. Goss,237 F.Supp. 26 (S.D. N.Y. 1965).

87 Pegram v. United States, 267 F.2d 781 (6th Cir.1959). See Jones v. United States, 326 F.2d 124 (9thCir. 1963); United States v. Whiting, 311 F.2d 191 (4thCir. 1962), cert. denied, 372 U.S. 935 (1963); Bruner v.United States, 293 F.2d 621 (5th Cir. 1961), cert. denied,368 U.S. 947 (1961).

88 267 F.2d 781 (6th Cir. 1959).m 358 U.S. 307 (1959).

who had given accurate tips in the past, told thepolice that the defendant would be arriving inDenver by train from Chicago, wearing certainclothing, and carrying narcotics. The SupremeCourt held that when the narcotics agents saw thedefendant alight in Denver from an incomingChicago train, attired as the informer had pre-dicted, they had probable cause without more toarrest the defendant for concealing and trans-porting narcotics. (It must, be rememberedhowever, that in Draper, the informer's identitywas disclosed at the hearing on the motion to sup-press.) "o Combining Scher and Draper, some federalcourts have held that where a reliable informantsupplies the information, which is to some extentcorroborated by the officer's observations prior tothe arrest, disclosure is not required.9 The empha-sis is placed not upon the independent observa-tions of the officers, but upon the past reliabilityof the informant as bearing upon the issue ofprobable cause. However, there is authority for theproposition that where the reliability of the inform-ant is essential to establish probable cause, theGovernment must name the informant or suffersuppression of the evidence.'2

The Rugendorf situation is unique in that thedefense sought the identity of the informants inorder to establish lack of probable cause uponwhich the search warrant had been issued. Adeficiency in probable cause to issue the searchwarrant would have caused the suppression of theevidence obtained during the search. The SupremeCourt held there was substantial basis for theCommissioner issuing the search warrant to con-clude that stolen furs were probably in the de-fendant's basement. The Court also reaffirmed itsdecision in Jones v. United States,'4 that "hearsayalone does not render an affidavit insufficient, theCommissioner need not have required the in-

90 Id. at 309."1 United States ex. rel. Coffey v. Fay, 344 F.2d 625

(2d Cir. 1965); United States v. Elgisser, 334 F.2d 103(2d Cir. 1964), cert. denied, 379 U.S. 879 (1964); Bufordv. United States, 308 F.2d 804 (5th Cir. 1962). See alsoLane v. United States, 321 F.2d 573 (5th Cir. 1963),cert. denied, 377 U.S. 936 (1964); United States v.Peisner, 198 F.Supp. 67 (D. Md. 1961), rev'd on othergroundls, 311 F.2d 94 (4th Cir. 1962). Cf. Cochran v.United States, 291 F.2d 633 (8th Cir. 1961).

Cases cited note 85 supra. See also United States v.Santiago, 327 F.2d 573 (2d Cir. 1964); United States v.Rosario, 327 F.2d 561 (2d Cir. 1964); Jones v. UnitedStates, 266 F.2d 924 (D.C. Cir. 1959) (Bazelon, J.,concurring opinion).

13 Rugendorf v. United States, 376 U.S. 528 (1964).94 362 U.S. 257 (1960).

MELVIN GUTTERMAN

formants... to be produced... so long as therewas a substantial basis for crediting the hear-say."95 The Court concluded that the underlyingcircumstances leading to the conclusions of theinformants appear to have been adequately dis-closed in the communications themselves; that theinformation was received from three independentsources, and each communication supported theother. Consequently, the Court held that therewas substantial basis for crediting the hearsay andthe informer's identities need not be disclosed.

Rugendorf was cited with approval in Aguilar v.Texas,96 a state prosecution for illegal possession ofheroin. The Supreme Court, in striking down astate search warrant, held, as follows:

[A]lthough an affidavit may be based onhearsay information and need not reflect thedirect personal observations of the affiant,[citing Jones v. United States] the magistratemust be informed of some of the underlyingcircumstances from which the informantconcluded that the narcotics were where heclaimed they were, and some of the underly-ing circumstances from which the officer con-cluded that the informant, whose identity neednot be disclosed, [citing Rugendorf v. UnitedStates] was credible or that his informationwas reliable.

97

It would appear, therefore, that the SupremeCourt's preference for search warrants in thesearch and seizure area was now carried over tothe informer privilege in the probable causesphere. This preference is clearly noted in Aguilar,where the Supreme Court stated:

[W]hen a search is based upon a magistrate's,rather than a police officer's, determinationof probable cause, the reviewing courts willaccept evidence of a less "judicially competentor persuasive character than would have justi-fied an officer acting on his own without awarrant," and will sustain the judicial deter-mination so long as "there was substantialbasis for [the magistrate] to conclude thatnarcotics were probably present." 99

The reliance by the Supreme Court in both

'5 376 U.S. at 533.96 378 U.S. 108 (1964).17 Id. at 114 (Emphasis added).98 Id. at 111. See also People v. Keener, 55 Cal 2d 714,

361 P.2d 587 (1961). Cf. People v. Burnett, 42 N.J. 377,201 A.2d 39 (1964).

Rugendorf and Aguilar, on Jones, compels a care-ful consideration of the defense attack on thesearch warrant in Jones. In Jones, the petitionerargued that the search warrant was defective be-cause of the affiant officer's informants were notproduced; that his affidavit did not even statetheir names; and that affiant did not undertakeand swear to the results of his own independentinvestigation of the claims made by his informants.The Court was required to decide whether theCommissioner acted properly in signing the war-rant, conceding the truth of the statementsalleged in the affidavit. The defense did not attackthe police officer by contending that he had mis-represented the facts to the Commissioner, or thatthe information given to the police officer was notthat related in the affidavit, or that there was, infact, no informant. The Court stated that hadobjections been raised that the police officer mis-represented his basis for seeking a warrant, fulldisclosure may have been required. Thus the Courtleft open the possibility that a defendant might,in the proper case, directly attack an allegedperjurious affidavit where an alleged informer isused to establish probable cause for its issuance. 99

TESTING RELIABILITY

Many recent decisions have stressed the reli-ability of the informant as a factor in upholdingthe informer privilege. These decisions contendthat probable cause for an arrest may be based, inpart, upon information from a reliable informant,whose identity need not be disclosed.'

19 The Court commented as follows:If the objections raised were that Didone [theaffiant] had misrepresented to the Commissionerhis basis for seeking a warrant, these matters mightbe relevant. Such a charge is not made. All we arehere asked to decide is whether the Commissioneracted properly, not whether Didone did. 362 U.S.at 271.What result would the Supreme Court in Rugendorf

have reached if the petitioner had attacked the affiantcharging his bad faith in securing the warrant? Forexample, suppose the petitioner had attacked the affi-ant, claiming there was, in actuality, no informer; orthat the information given to the police officer wasmaterially different than that sworn to by the policeofficer in his affidavit. See United States v. Pearce, 275F.2d 318 (7th Cir. 1960), where the court went behindthe affidavit to test the affiant's good faith in securingthe search warrant.

109 Federal cases: Cases cited note 91 supra. Statecases: People v. McCray, 33 Ill. 2d 66, 210 N.E. 2d 161(1965), cert. granted, 384 U.S. 949 (1966); People v. Durr,28 Ill. 2d 308, 192 N.E. 2d 379 (1963), cert. denied, 376U.S. 973 (1964); Drouin v. State, 222 Md. 271, 160 A.2d85 (1960); State v. Edwards, 317 S.W. 2d 441 (Mo.

[Vol. 58

THE INFORB/ER PRIVILEGE

This contention presents an interesting problemconcerning the permissible area of defense inquiryinto reliability. If the suggested approach is that,under certain circumstances, the reliability of theinformer is an effective substitute for disclosure,then a fair hearing necessitates that the defense bepermitted to effectively test reliability. This,however, presents an apparent dilemma when it isrecognized that questions which are vital inestablishing the informer's reliability may alsotend to disclose his identity.

Those courts that have held that an officer'spast experience with an informant may establishhis reliability, have failed to set any guidelines forproper defense examination to test those ex-periences. Some courts have permitted the de-fendant to inquire about such facts as the lengthof time the officer has known the informant, thenumber of tips the officer has received from him,and the number of arrests and convictions securedon the basis of these tips.10I The state prosecutor,in a recent Illinois opinion, argued against dis-closure, contending that the defendant might havetested the informant's reliability by inquiries suchas when and how often information was securedfrom the informer, and who had been arrested as aresult of this information.1n

However, if the Illinois prosecutor's suggestionis followed, there is a great danger that the in-formant will be disclosed. Any detailed examina-tion into the names of those persons arrested as aresult of information supplied by an informant,may indicate to the defendant the informer'sidentity. This danger is readily apparent in thearea of vice crimes (prostitution, gambling andnarcotics) where a defendant, with even limitedconnections to vice activities, may be able toextricate the informant's identity after learningthat he has provided information leading to thearrest of certain known persons. In fact, the morereliable the informant, the more information hehas probably given, and the more arrests andconvictions probably secured on the basis of thesetips, and paradoxically, the greater the likelihood

1958); State v. Burnett, 42 N.J. 377, 201 A.2d 39 (1964;)People v. Malinsky, 15 N.Y. 2d 86, 204 N.E. 2d 188(1965); People v. Coffey, 12 N.Y. 2d 443, 191 N.E. 2d263 (1963), cert. denied, 376 U.S. 916 (1964); Simmonsv. State, 198 Tenn. 587, 281 S.W. 2d 487 (1955).

101 See People v. McCray, 33 Ill. 2d 66, 210 N.E. 2d161 (1965), cert. granted, 384 U.S. 949 (1966); People v.Moore, 154 Cal.App 2d 43, 315 P.2d 357 (1957).

12 People v. Durr, 28 IUI. 2d 308, 192 N.E. 2d 379(1963), cert. denied, 376 U.S. 973 (1964).

that by naming those persons arrested, his identitywill be revealed.

Moreover, if it is proper to argue that the namesof those persons previously arrested on the basis ofthe informant's tip are to be revealed in order toestablish his reliability, (and this will undoubtedlyinclude those persons arrested either with or with-out an arrest warrant), then by logical extension,when the informer's information has been used asthe basis for previous searches, either with or with-out a search warrant, this information, includingthe location of the premises searched, should like-wise be disclosed. Once all this information isknown, the likelihood that the informant can beidentified is greatly increased.

The Supreme Court has recognized that themere conwlusion, in an affidavit, that informationreceived was reliable and from a credible person isinsufficient to sustain a search warrant. In Aguilarv. Texas,1 3 the Court held that as part of theevidence constituting probable cause, an affidavitfor a search warrant must disclose some of theunderlying circumstances which reveal the sourceof the informant's knowledge and some of theunderlying circumstances from which the officerconcluded that the informant, who need not be dis-closed, was credible or his information reliable. Al-though Aguilar deals with a state search warrant,and as the Court indicates, a search warrant maybe issued on less persuasive or competent evidencethan that required to give probable cause for anofficer to act without a warrant,'°4 the holdingenunciated provides, at the minimum, applicablestandards for an officer also acting without benefitof a warrant.

Significantly, the Court speaks in the conjunc-tive, requiring a recital of some of the circum-stances underlying (1) the source of the informant'sknowledge and (2) the reason the officer concludedthe informant was credible or his informationreliable. It is highly doubtful that the Court willcondition probable cause upon a recital of suchfacts and then foreclose the defendant frominquiring into the truth or falsity of such evidence.

Any defense inquiry into the underlying factsconcerning the source of the informant's knowledgemust invariably consider the how, when and wherequestions. "How" encompasses the mode andmethod the informant used to obtain his informa-tion. This may be by direct observation, from the

M 378 U.S. 108 (1964).104 Id. at 111.

19671

MELVIN GUTTERMAN[

accused, through a third party, or by recording,wiretap or other means. "When" and "where"will involve an examination into the date, placeand time the informant received his information. 105

Unquestionably, the more detailed the questioning,the greater the likelihood that the informant'sidentity will be revealed by the answers.

The second requirement under Aguilar necessi-tates a showing of some of the underlying circum-stances from which the officer concluded that theinformer was credible or his information reliable.The credibility of the informant and the reli-ability of his information may encompass substan-tially the same standards. The officer's pastexperience with the informant may satisfy thisrequirement, but there is a danger, as indicated,that by disclosing these experiences the identity ofthe informant may be revealed. It would appear,however, that the officer may, by independentlycorroborating a substantial part of the informationreceived prior to an arrest, or if a warrant isinvolved, by reciting these corroborating ob-servations therein, satisfy this requirement.108

The traditional means of establishing or testingcredibility presents an equally formidable problem.Certainly the reputation of an informant fortruthfulness and veracity are relevant,107 but thereare presently no methods for testing the reputationof an undisclosed person. Perhaps an examinationinto the informant's criminal record, his addictionto narcotics, if any, or his motive for informing,would suffice.' 08 As a credibility factor, thesequestions are relevant, although subject to diverseinterpretation, since it may be expected that aninformant has involvement with criminal activities.In fact, the more involved the informant is withcriminal activities, the more acurate his informa-tion is likely to be. Thus, an informant cooperat-ing with a narcotics unit has probably had exten-sive dealings with narcotics, and the fact that hehas narcotics convictions, or is presently addictedto narcotics, may tend to enhance, rather thandetract from, his reliability.

IBEPACT OF FEDERAL INFORMER PRIVILEGE ON

STATE LAW

The impact of the informer privilege and its dis-closure aspects on state law is not clear. The

105 See State v. Edwards, 317 S.W. 2d 441 (Mo. 1958).106 Jones v. United States, 362 U.S. 257 (1960). See

Giordenello v. United States, 357 U.S. 480 (1958);Nathanson v. United States, 290 U.S. 41 (1933).

107 See Hill v. State, 151 Miss. 518, 118 So. 539 (1928).108 See McCoy v. State, 216 Md. 332, 140 A.2d 689

(1958), cert. denied, 358 U.S. 853 (1958).

Supreme Court's decisions most often appear torest upon evidentiary grounds and its supervisorypower over the federal courts.109 Perhaps thereason why this has been so is because the leadingcase, Roviaro, was decided before the celebratedMapp case, which held the fourth amendmentexclusionary rule applicable to the states via the"due process" clause of the fourteenth amend-ment."0

In an attack on a state conviction, following atrial in which disclosure was denied, the SupremeCourt might well apply its own concepts throughthe "due process" clause of the fourteenth amend-ment. Since the fourteenth amendment guaranteesto an individual a "fair trial" in state prosecu-tions, a denial by the state court of the informer'sidentity, in participant informer cases anyway,may be considered so unfair as to violate thisfundamental right.Iu

In Drew v. Myers,"' the United States Court ofAppeals for the Third Circuit had to decidewhether federal constitutional safeguards hadbeen violated in a state narcotics prosecution.Prior to trial, the defense counsel requested theidentity of an eye witnesses to the alleged crimenot endorsed on the indictment; the prosecutionresponded by denying that there were any otherwitnesses except those listed. However, at thetrial, the state's witness, an undercover policeofficer, testified that an identified informant madethe initial contact with the accused immediatelyprior to the alleged illegal sale of narcotics to him.The officer further testified that the alleged in-formant was only about ten feet away when theillegal transaction occurred.

After conviction in the Pennsylvania state court,the defendant filed a writ of habeas corpus in thefederal court claiming a deprivation of due processfourteenth amendment guarantees. The Court ofAppeals affirmed denial of the writ because thedefendant had failed to exhaust his state remediesprior to initiating the federal suit, but, the courtstated in dictum that the informant was an essen-

109 It appears that the state courts view the federalstandards as constitutional requirements. The stateshave been applying the Roviaro "balancing test" inreviewing their decisions in the informer area. For acollection of state informer privilege cases, see 76 A.L.R.2d 262 (1961). See United States ex. rd. Coffey v. Fay,344 F.2d 625 (2d Cir. 1965); Cf. State v. Burnett, 42N.J. 377, 201 A.2d 39 (1964).

110 Mapp v. Ohio, 367 U.S. 643 (1961)."I See Palko v. Connecticut, 302 U.S. 319 (1937). The

Court will hear, in the 1966 term, a case in which theissue of informant disclosure in state prosecutions maybe resolved. See McCray v. Illinois, 384 U.S. 949 (1966).

1- 327 F.2d 174 (3d Cir. 1964).

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THE INFORMER PRIVILEGE

tial witness as to the identity of the individualallegedly conducting the illegal transaction, andwas the only person, other than the police officer,who could have identified the accused as being atthe scene of the alleged sale. In so stating, thecourt further held that the cumulative effect of(a) the Commonwealth's nondisciosure of the in-former's presence at the scene, (b) denial ofcontinuance to allow the defense time in which tolocate and produce the informer, and (c) denial ofcontinuance to secure the testimony of an allegedalibi witness, raised a reasonable doubt as towhether constitutional safeguards of fundamentaljustice had been violated by the State in itsprosecution of this defendant.

A future defendant in a state "probable cause"case may challenge his conviction in the SupremeCourt, arguing that the Court must apply federalconstitutional standards to the states in order togive full impact to the exclusionary rule enunciatedin Mapp. In Priestly v. Superior Court,113 Califor-nia recognized dearly the ultimate effect of deny-ing disclosure:

If an officer were allowed to establish unim-peachably the lawfulness of a search merelyby testifying that he received justifyinginformation from a reliable person whoseidentity cannot be revealed, he would be-come the sole judge of what is probable causeto make the search. Such a holding woulddestroy the exclusionary rule."4

In Ker v. California,"5 the Supreme Court heldthat the fourth amendment's proscriptions are en-forced against the states through the fourteenthamendment and that "the standard of reasonable-ness is the same under the Fourth and FourteenthAmendments.. ."" In applying that "standard ofreasonableness," consistent with federal constitu-tional guarantees, the informer privilege shouldgive way to test "probable cause" in state prosecu-tions where federal standards would require it.

In United States ex.rel. Coffey v. Fay,"7 thedefendant was convicted of burglary in a NewYork state court. The principal items of evidenceagainst him at the trial were diamonds from theburglarized establishment. The trial took placeprior to Mapp, but because defense counsel had

W 50 Cal 2d 812, 330 P.2d 39 (1958). For a full dis-cussion of the facts and holding in Priestly see infranotes 137 through 143 and accompanying test.M Id. at 818, 330 P.2d at 43.1 374 U.S. 23 (1963).1 Id. at 33.

117 344 F.2d 625 (2d Cir. 1965).

preserved the search and seizure issue by properobjection, the New York Court of Appeals directeda hearing on the admissibility of the jewels inaccordance with Mapp criteria. At the hearing, thetrial judge ruled that the evidence was admissiblesince it had been seized in the course of a searchincident to a lawful arrest upon probable cause.The Court of Appeals affirmed this ruling, andcertiorari was denied by the Supreme Court. n8

Having exhausted all available state remedies,Coffey petitioned the federal district court for awrit of habeas corpus, seeking his release from thestate prison. The district court ruled that, on thestate record, because probable cause to arrestpetitioner was based in part upon the tips froman informer whose name the state refused todivulge, the petitioner had been deprived of hisfourteenth amendment right to a fair hearing onthe issue of probable cause and granted the writ."9

On appeal to the United States Court of Appealsfor the Second Circuit, the district court's decisionwas reversed and the writ denied.

In denying the writ, the appellate court lookedto the facts of the case and the possible significanceof the informer's testimony. The court held thatunder the particular circumstances of the case, the"petitioner's prospects of demonstrating, with thehelp of the informer, that he was arrested withoutprobable cause, are overbalanced by the State'sdual interest in encouraging the free flow of con-fidential information and in using probativedemonstrative evidence at the trial of a suspectedcriminal.""

0

The court reached this decision on the basis thatfederal informer standards, namely Roviaro, arerelevant to state prosecutions. "Petitioner, theState, and all the courts that have passed on thecase, have treated the leading decision on theinformer's privilege in federal prosecution, Roviarov. United States, as if it were fully applicable tostate prosecutions as well."'m Even though itapplied federal standards, in reaching its decision,however, the Coffey court questioned whetherRoviaro was fully applicable to state prosecutions:

We would suppose that Roviaro would not bewholly applicable to state prosecutions unlessit expressed a constitutional mandate; if it

U8 12 N.Y. 2d 443, 191 N.E. 2d 263 (1963), cert.denied, 376 U.S. 916 (1964). For a discussion of Coffey atthe state level, see infra notes 206 through 209 andaccompanying text.

11 234 F.Supp. 543 (S.D. N.Y. 1964).12 344 F.2d at 634.I Id. at 631.

MELVIN GUTTERMAN

merely laid down a rule of evidence, thedecisions would be fully pertinent to federalprosecutions alone. Furthermore, this dis-tinction would apparently be operative eventhough the issues being tried in the stateprosecutions were federal issues such as thelegality of a search under the FourteenthAmendment. These are the lessons we gatherfrom Mapp v. Ohio, which also concernedillegally seized evidence. There the SupremeCourt expressly justified its extension ofthe exclusionary rule to state prosecutions onthe ground that the rule was of constitutionalorigin rather than merely part of the federallaw of evidence.

Moreover, it seems to us that Roviaro mayhave laid down a rule of evidence rather than aconstitutional mandate. The doctrines itenunciates are derived directly from thecommon law.... The opinion never expresselycites the Fifth Amendment, although itsmention of "fundamental requirements offairness" may indicate that in reaching theRoviaro result, constitutional considerationswere involved to some extent 2 .

THE STATES AND THE INFORS ER PRIVILEGE

Many of the states have encountered the sameproblems as the federal courts in trying to balancethe government's desire to protect its source ofinformation from informants against the funda-mental rights of a defendant to a full and fairtrial.

Alabama

In Parson v. State,129 the Alabama SupremeCourt in dicta commented, "that a governmentofficial cannot be compelled to disclose the nameof an informer. But there is an exception recog-nized by the cases based on constitutional groundswhich is that if it appears that the informer's nameis necessary or desirable to show the prisoner'sinnocence, the official can be required by the courtto make disclosure."124 And, in Dixon v. State,15 aprosecution for transporting prohibited liquor, theCourt of Appeals pointed out that "the disclosureof the identity of an informer [as distinguishedfrom a participating decoy] is not ordinarily in the

2 Id. at 631 n. 4.13251 Ala. 467, 38 So. 2d 209 (1948).14 Id. at 473, 38 So. 2d at 213.125 39 Ala. App. 575, 105 So. 2d 354 (1958).

public interest save where needful to show theinnocence of the accused.' 12 6

Roach v. State, is interesting in that the state'scase for the selling of prohibited liquor was madeout by the testimony of a federal agent. TheCourt of Appeals reversed the lower court ongrounds other than the informer privilege, but inthe course of its opinion the court commented asfollows:

We do not believe an employee of the FederalGovernment carries about him a mantle suchas the Roman citizenship that shielded theApostle Paul from the municipal law. Hence,we do not conceive that the superintendencyin Rea v. U.S., operates to such an extent asto make the principle [of requiring the dis-closure of the name of a participating decoy]in Roviaro v. U.S., become the law of Ala-bama when a Federal witness testifies in astate court regarding a state crime.as

California

The California Supreme Court, in rapid suc-cession on the same day, decided three cases thatcovered many of the current questions dealing withthe necessity of revealing the informer's identity.In People v. McShann,129 the California SupremeCourt reaffirmed an earlier appellate ruling whichheld that an informer who is a participant in theoffense charged must be identified upon demandat the trial."0 In McShann, the informer allegedlymade several telephone calls to the defendantarranging for a sale of narcotics. These telephonecalls were recorded by police officials with theconsent of the informer. On one of the occasions,after a telephone call, the informer allegedly madea purchase of narcotics, this purchase being thebasis of the sale charge against the defendant.Several days later, via another recorded telephone

126 105 So. 2d at 357.12 39 Ala.App. 271, 97 So. 2d 837 (1957).128 97 So. 2d at 839. Is the court's comment directed

to the fact that when a federal officer testifies in a statecourt, regarding a state crime, the state's rules ofevidence apply? Is the Alabama court, in effect, sayingthat when a federal officer testifies in an Alabama court,the Alabama informer privilege applies? Conversely, isa state officer, testifying in a federal court, concerninga federal crime, bound by the federal informer privilege?For a discussion of the applicability of the federalinformer privilege to the states see supra notes 109through 122, and accompanying text.

12 50 Cal. 2d 802, 330 P.2d 33 (1958).130 People v. Lawrence, 149 Cal.App. 2d 435, 308 P.2d

821 (1957).

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conversation, the informer arranged for a secondpurchase. After this conversation, the officers fol-lowed the defendant as he left his home and sub-sequently stopped his car at a traffic light. As thedefendant alighted from his car he allegedlydropped a tinfoil packet containing heroin. Asubsequent search of the defendant allegedly re-vealed four other packets of heroin. At the trial,the recorded conversations between the informerand the defendant were played to the jury and,when on cross-examination the defendant soughtthe name of the informant, the prosecution's ob-jection under the informer privilege was sustained.

As to count 1, the alleged sale, the CaliforniaSupreme Court held that the ruling of People v.Lawrence,"' decided at about the same time asRoviaro,m was controlling, and the prosecutionwas held to have lost its right to withhold theidentity of the informer who is a participant in thecrime alleged. The court indicated that in Cali-fornia the disclosure of a participant informer wasnow mandatory.

However, there was a second count chargingMcShann with possession of heroin. In dictum,the court held that disclosure of the informant isnot limited to one who participates in the crimealleged:

The information elicited from an informermay be 'relevant and helpful to the defense ofthe accused or essential to a fair determinationof a cause' even though the informer was nota participant....

When it appears from the evidence, how-ever, that the informer is also a material witnesson the issue of guilt, his identity is relevantand may be helpful to the defendant. Nondis-closure would deprive him of a fair trial.13

The court commented that the prosecutioncould have relied solely upon the officer's testi-mony as to the defendant's possession of heroinand as to his admissions.' However, it chose alsoto introduce evidence of the telephone calls to

33Ibid. Lawreiwe was followed by other appellatecourts. See People v. Alvarez, 154 Cal.App. 2d 694, 316P.2d 1006 (1957); People v. Castiel, 153 Cal.App. 2d653, 315 P.2d 79 (1957).

'3 Roviaro v. United States, 353 U.S. 53 (1957). TheMcShann court commented on the strong parallel be-tween Roviaro and the instant case.

m 50 Cal. 2d at 808, 330 P.2d at 36.ra4 The police officer's testimony alleged that the

defendant made admissions concerning the possessionof heroin.

substantiate the officer's testimony and discreditthe defendant's. The court said:

The informer's telephone call was persuasiveevidence on possession, for it indicated thatthe defendant was en route to make a sale ofheroin when he was arrested and thereforeknowingly had possession at that time. As theoriginator of the telephone call the informerwas a material witness on the issue of posses-sion. The prosecution made him such a witnessby introducing evidence of his telephone callto make a purchase of heroin and by playinga recording of the telephone conversation be-fore the jury.135

The court held the defendant was therefore en-titled to the name of the informer who made thecall.1

36

The informer problem in Priestly v. SuperiorCourt,IE arose at the preliminary hearing, at whichstage the prosecution in California is required topresent sufficient legal evidence to bind the de-fendant over for trial."' In Priestly, the informerswere neither participants in, nor material wit-nesses to, the offense of possession of narcotics.But the arrest and search was made without awarrant by officers acting solely on the basis ofcommunications from informers. At the prelimi-nary hearing, the defendant unsuccessfully soughtthe names of the informants; moved to strike thetestimony of the officers relating to the informers;and objected to the introduction of the evidence,claiming it was illegally obtained and thereforeinadmissible because the officers had lackedreasonable cause to make the arrest. The magis-trate allowed the prosecutor to invoke the privilegeof nondisclosure and ruled that the evidence wassufficient to hold the defendant for trial.

In granting a writ of prohibition depriving thetrial court of jurisdiction, the California SupremeCourt held that, in such a case, the defendant hasa right to disclosure of the informant's testimony

L5 50 Cal. 2d at 809, 330 P. 2d at 37.1n See CAL. CODE Civ. Proc. §1881 (4) which provides

as follows: "A public officer cannot be examined as tocommunications made to him in official confidence whenthe public interest would suffer by disclosure." Thecourt interpreted the informer privilege in light of thissection and held that it was for the judiciary to deter-mine when the public interest would suffer by disclosure.

137 50 Cal. 2d 812, 330 P.2d 39 (1958).8 In California only legal evidence may be consid-

ered by the magistrate in determining whether to holdthe accused for trial. See Rogers v. Superior Court, 46Cal. 2d 3, 291 P.2d 929 (1955).

MELVIA GUTTERMAN

or to have the court strike the testimony as to theinformer's tip.39 The court reasoned that to adhereto the informer privilege in this situation wouldmake the arresting officer the sole judge of theissue of reasonable cause and would destroy theexclusionary rule. 40 The court stated:

If testimony of communications from a confi-dential informer is necessary to establish thelegality of a search, the defendant must begiven a fair opportunity to rebut that testi-mony. H-Ie must therefore be permitted to as-certain the identity of the informer, sincelegality of the officer's action depends uponthe credibility of the information, not uponfacts that he directly witnessed and uponwhich he could be cross-examined. 41

Implicit in the Priestly decision is that if thesearch and seizure can be justified without relianceupon the informer there is no need to disclose hisidentity.ln The intended effect of the Priestlyholding is to compel independent police investi-gations before an arrest may be made on the wordof even the most reliable informers.'"

The court commented: "If the prosecution refusesto disclose the identity of the informer, the court shouldnot order disclosure, but on proper motion of thedefendant should strike the testimony as to communi-cations from the informer." 50 Cal.2d at 819, 330 P.2dat 43. Striking the testimony of the informer's tipwould rule out the only basis for a showing of reasonablecause for the arrest and search and would eliminate allevidence on which to hold the defendant. In effect thecourt applied the general federal rule when the informerprivilege is inapplicable; i.e. the prosecution musteither reveal the informer's identity or suffer dismissalof the charge.

140 See supra note 114 and accompanying text.14 50 Cal.2d at 818, 330 P.2d at 43.' Prior to Priestly, in order to establish the reliability

of the informer, it was accepted California practice topermit the officer to testify to such facts as the fol-lowing: The length of time the police knew the informer;the number of tips received from him; the number ofarrests and convictions secured on the basis of hiscommunications. See e.g., People v. Moore, 154 Cal.App2d 43, 315 P.2d 357 (1957).

143 "[A requirement of disclosure] does not unreason-ably discourage the free flow of information to lawenforcement officers or otherwise impede law enforce-ment. Actually its effect is to compel independentinvestigations to verify information given by an in-former or to uncover other facts that establish reason-able cause to make an arrest or search. Such a practicewould ordinarily make it unnecessary to rely on thecommunications from the informer to establish reason-able cause." 50 Cal. 2d at 818, 330 P. 2d at 43.

See Scher v. United States, 305 U.S. 251 (1938),where the United States Supreme Court also encouragedthe police to make their own independent investigationsof informer's tips. In Sch er, the Court held that therewas sufficient evidence to establish probable cause,

The last of the trio of cases, Mitchell v. SuperiorCourt,144 was a limited holding by the CaliforniaSupreme Court requiring disclosure of a partici-pant informer at the preliminary hearing. Thecourt in this case did not grant prohibition sincethere was some competent evidence to bind thedefendant over for trial, but emphasized that theinformant would have to be disclosed at the trial,and, if the magistrate had ruled correctly, it wouldobviate any unnecessary delay at the trial toenable the defendant to locate the informer andprepare Isdfne

Subsequent to these cases, in People v. Keener,'a bookmaking prosecution, a search was madepursuant to a search warrant obtained upon anaffidavit of a police officer, which affidavit wasbased partly upon information from an undis-closed reliable informant. The California SupremeCourt, in sustaining the hearing court's refusal todisclose the informant, explicitly held "that wherea search is made pursuant to a warrant valid onits face, the prosecution is not required to revealthe identity of the informer in order to establishthe legality of the search and the admissibility ofthe evidence obtained as a result of it.' '

In distinguishing Priestly, the court stated thatthere is "nothing novel in the view that law en-forcement officials may be in a more favorableposition where a warrant is obtained than whereaction is taken without a warrant."' 47 In explain-ing the distinction in the rationale between asearch with, as compared to a search without, awarrant, the court said:

If a search is made pursuant to a warrantvalid on its face and the only objection is thatit was based on information given to a policeofficer by an unnamed informant, there is sub-stantial protection against unlawful searchand the necessity of applying the exclusionaryrule in order to remove the incentive to engagein unlawful searches is not present. The war-

independent of the information supplied by the in-former, and sustained the government's claim of theprivilege. The Court, however, implied that disclosurewould be required where the issue of probable causerests squarely on the informer's credibility, the Priestlysituation. In Roviaro, the Supreme Court, in dicta,stated the rule thusly: "[Tihe Government has beenrequired to disclose the identity of the informant unlessthere was sufficient evidence apart from his confidentialcommunication." 353 U.S. at 61.

4 50 Cal. 2d 827, 330 P.2d 48 (1958).146 55 Cal. 2d 714, 361 P.2d 587 (1961).4 Id. at 723, 361 P.2d at 592.147 Ibid.

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rant, of course, is issued by a magistrate, notby a police officer, and will be issued onlywhen the magistrate is satisfied by the sup-porting affidavit that there is probable cause.He may, if he sees fit, require disclosure of theidentitiy of the informer before issuing thewarrant or require that the informant bebrought to him. The requirement that an affi-davit be presented to the magistrate and hiscontrol over the issuance of the warrant di-minish the danger of illegal action, and it doesnot appear that there has been frequent abuseof the search warrant procedure. One of thepurposes of the adoption of the exclusionaryrule was to further the use of warrants, and itobviously is not desirable to place unnecessaryburdens upon their use. The additional pro-tection which would result from applicationof the Priestly rule in situations such as theone involved here would not offset the dis-advantages of excluding probative evidenceof crime and obstructing the flow of informa-tion to police.14

The situation in California at this time is that adefendant may now compel disclosure of an in-former participant at the preliminary examina-tion,119 hearing or the "voir dire" examination intothe reasonableness of the arrest and search, 53 aswell as the trial itself.' 5' Where the prosecutionrelies upon the informer to establish reasonablecause for the arrest or search without a warrant,evidence of his information will be stricken outunless his name is revealed on demand152 Andwhen there are several counts charged against thesame defendant, some involving an informer whois a participant, and some not, and evidence as tothe participant informer is given, the informer'sevidence is also material as to those counts withwhich he was not directly involved and disclosurewill be required.-5 However, where a search ismade pursuant to a warrant valid on its face theprosecution is not required to reveal the identity

148 55 Cal. 2d at 722, 361 P. 2d at 591.'49 Mitchell v. Superior Court, 50 Cal. 2d 827, 330

P.2d 48 (1958).150 Priestly v. Superior Court, 50 Cal. 2d 812, 330

P.2d 39 (1958).151 People v. McShann, 50 Cal. 2d 802, 330 P.2d 33

(1958); People v. Lawrence, 149 Cal.App. 2d 435, 308P.2d 821 (1957).

"' Priestly v. Superior Court, 50 Cal. 2d 812, 330P.2d 39 (1958).

153 People v. McShann, 50 Cal. 2d 802, 330 P.2d 33(1958).

of the informer in order to establish the legality ofthe search and seizure. "'

Florida

The three Florida District Courts of Appealappear to be in conflict with each other concerningthe informer privilege. The First District inHarrington v. State,155 a prosecution for conductinga lottery, held that the affidavit of a sheriff, thoughbased largely on information received from an un-identified confidential informer, stated facts suffi-cient to show probable cause for issuance of asearch warrant to search the taxicab operated bydefendant, and that the state was not required toidentify this informer. The court further statedthat, "what we have said is not to be construed asindicating that such disclosure is absolutely priv-ileged. The trial court may compel the disclosurewhen necessary to avoid the risk of false testimonyor to secure useful testimony."

The Harringlon rationale was adhered to by thesame district court in State v. Hardy,57 aprosecu-tion for unlawful possession of moonshine whiskey,where the defendant filed a motion for a bill ofparticulars to furnish the name, address, telephonenumber and size and description of an alleged con-fidential informer, who was alleged to have goneinto her house. She also demanded to be confrontedby the same alleged informer who claimed to havemade a buy of moonshine whiskey. At the trial,the defendant again requested information con-cerning the informer, claiming that the searchwarrant was predicated upon an affidavit made bya fictitious person; that in fact no buy was made;and that she was deprived of her right to be con-fronted by, and to cross-examine, this fictitiousinformant. The court, in upholding the informerprivilege, relied upon its recently decided Harring-ing opinion. The court also distinguished this casefrom Roviaro, by holding that Roviaro was a pros-ecution for the unlawful sale of contraband, notunlawful possession, and further, that there was

15 People v. Keener, 55 Cal. 2d 714, 361 P.2d 587(1961). In a recently enacted Evidence Code, to becomeoperative January 1, 1967, California decisional law inthe informer privilege area was to a large extent codified.See CAL. EVIDENCE CODE §§1041, 1042.

115 110 So. 2d 495 (1st D.C.A. Fla. 1959), appealdismissed without opinion, 113 So. 2d 231 (Fla. 1959).

256 110 So. 2d at 497. The court further stated: "Theidentity of the informant is in no manner material indetermining the guilt or innocence of the defendant whoproduced no testimony whatever in rebuttal of thestate's case." Id. at 498.157 114 So. 2d 344 (1st D.C.A. Fla. 1959).

1967]

MELVIN GUTTERMAN

no showing that the informer was a participant inthe transaction charged or that he would be amaterial witness at the trial.158

In Byers v. State,' 1' a prosecution for conductinga lottery, the Second District Court of Appealsheld that there was no authority requiring thestate to produce the affiant (informer) upon whoseaffidavit a search warrant was based, or to con-tinue the case until such time as the defendantmight be able to locate him. The court furtherpointed out that, in fact, far from refusing to dis-close the informer's identity, the evidence showedthat the state cooperated in the defendant's effortto ascertain the identity of the affiant (informer)and freely afforded defense counsel all informationthat the state had as to his identity and wherea-bouts.

A directly opposite ruling was announced by theThird District Court of Appeals in Baker v. State,' 0a prosecution for operating a gambling house. InBaker, the trial court, as in Byers, refused to quashan affidavit and search warrant, and refused toforce production of the affiant (informer) on motionof the defense for a bill of particulars. The courtheld that the failure of the trial judge to requirethe state to disclose information it had relating tothe individual assertedly signing the affidavit uponwhich the search warrant was issued vitiated allevidence obtained thereunder. The court based itsdecision on two grounds. First, the court reliedupon the principle that one accused of a crime isentitled to be confronted by his accusers, citing thesixth amendment to the United States Constitu-tion, and second, that "to expand the rule protect-ting confidential informants to protect one whoactually executes an affidavit ... would do violenceto provisions of the Federal and State Constitu-tions .... ,,161 But in a subsequent decision, City ofMiami v. Jones,162 the Third District's decision inBaker was severely limited, the court now holdingthat the defendant was not entitled to the name of

150 The court apparently failed to notice that thedefendant in Roviaro was convicted on two counts; saleof narcotics to the undisclosed informer, and possessionof narcotics. The Government in the Supreme Court didnot defend the first count, which charged a sale. Seesupra note 27 and accompanying text.

1 109 So. 2d 382 (2d D.C.A. Fla. 1959). See Garciav. State, 110 So. 2d 709 (2d D.C.A. Fla. 1959), recog-nizing that subject to certain limitations, not discussedbut citing Harrington, the identity of an informant whogives information concerning the commission of a crimeis privileged.

160 150 So. 2d 729 (3d D.C.A. Fla. 1963).1 150 So. 2d at 730.'6' 165 So. 2d 775 (3d D.C.A. Fla. 1961).

a confidential informer upon whose information anidentified officer made an affidavit on which asearch warrant was issued. The court distinguishedthe Baker case by reasoning that in Baker the in-formant was the affiant, and it being charged thata fictitious name had been signed to the affidavit,there was no one who could be held for perjury;while in the instant case the affidavit was sworn toby an identified police officer who was exposed topunishment for perjury.Y3

It would seem that it is necessary that the issuesmust be resolved by the Florida Supreme Court. 16

Georgia

The Georgia appellate courts have made a sharpdistinction between an informer and a decoy, rec-ognizing that in cases of decoys, the defendant hasa right to be informed of the decoy's identity,while the rule is otherwise in the case of in-formers.0 5 It is apparent, however, that the courtshave only drawn the usual distinction between amere tipster (the informer) and a person whoparticipates in the crime charge (the decoy).

This distinction is clearly shown in Crosby v.State,0 6 a prosecution for the illegal sale of whiskey.The Court of Appeals ruled that a person who ac-companied a revenue agent and aided in the pur-chase of the whiskey was a decoy rather than aninformer and that the trial court's refusal to re-quire the prosecution witness to divulge the decoy'sname was an improper abridgement of the defend-ant's fundamental right of cross-examination. Thecourt then commented on the distinction between

113 It is most difficult to follow the court's rationale.If the court conceded that it is permissible to accept anaffidavit based on the unsworn statement to the affiant,by an undisclosed informant, known only to affiant, whothus becomes the sole arbiter of the informant's credi-bility, why should the court attach greater suspicion toan affiant who comes before the magistrate in person,discloses his identity, is sworn, and is available tothorough cross-examination by the magistrate?

'1 See Ferrera v. State, 101 So. 2d 797 (Fla. 1958),where the Florida Supreme Court refused to reverse adefendant's conviction for participating in a lotterybecause "lurking in the background was some informerwho the appellant should have been permitted to ex-amine." Id. at 799. It appears that the court wasdiscussing the informer privilege only in relation to thepossible prejudice to the jury by the police officer'stestimony that he had reason to believe that the defend-ant was participating in a lottery. See also Chacon v.State, 102 So. 2d 578 (Fla. 1958).

165 Hodges v. State, 98 Ga.App. 97, 104 S.E. 2d 704(1958), reersed on other grounds, 214 Ga. 614, 106 S.E.2d 795 (1959); Crosby v. State, 90 Ga.App. 63, 82 S.E.2d 38 (1954); Anderson v. State, 72 Ga.App. 487, 34S.E. 2d 110 (1945).

"090 Ga.App. 63, 82 S.E. 2d 38 (1954).

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an informer and a decoy. "There is, however, avast difference between an informer (usually acitizen who communicates to public authoritiessuspected infractions of penal laws) and a decoy(usually a person employed by law-enforcementagencies to obtain evidence upon which prosecu-tions are based).'u67

The Court of Appeals in Greeson v. State,1' aprosecution for the possession and sale of illegalwhiskey, ruled that the prosecution's refusal tosummon as a witness or produce in court the in-former or decoy upon whom the state did not relyupon to make out its case before the jury did notdeprive the defendant of his constitutional right toconfrontation and cross-examination. It would alsoappear, from Staggers v. State,'69 that the burdenis upon the defendant to show that the person is adecoy, rather than an informer, and the prosecu-tion will not be required to divulge the person'sidentity to determine if he was a mere informer ora decoy.

Illinois

In People v. Mack, 70 a search warrant for thedefendant's apartment was procured on the basisof an affidavit of an informant who admittedlyused a fictitious name. The affidavit stated thatthe informer saw, andhad in fact purchased, narcot-ics on the premises tc be searched. On the motionto suppress the evidence the defense requested theinformer's identity. This request was refused andthe motion to suppress was denied. The defendantthen proceeded to trial but made no further requestfor the informer's identity.

167 82 S.E. 2d at 39. Accord, Smallwood v. State, 95Ga.App. 766, 98 S.E. 2d 602 (1957); Roddenberry v.State, 90 Ga.App. 66, 82 S.E. 2d 40 (1954). See alsoAnderson v. State, 72 Ga.App. 487, 34 S.E. 2d 110(1945), where, in a prosecution for unlawful possessionof illegal whiskey, the Georgia Court of Appeals, relyingupon a Georgia statute that provides that official per-sons shall not be called upon to disclose State mattersof which the policy of the State requires concealment,held, that ordinarily one who acts in the capacity of apeace officer will not be required to disclose the name ofhis informant concerning the crime for which theaccused is being held. However, the facts in Andersonshow that the informer merely supplied the police withinformation, and did not participate in the investigationor act as a decoy.

The Georgia Supreme Court, in Morgan v. State, 211Ga. 172, 84 S.E. 2d 365 (1954), a murder prosecution,relying upon the same statute, and upon Anderson,ruled that a police officer was not required to disclosethe names of persons who had given the officer informa-tion leading to the defendant's arrest.16s 97 Ga.App. 245, 102 S.E. 2d 503 (1958).10 101 Ga.App. 463, 114 So. 2d 142 (1960).170 12 ill. 2d 151, 145 N.E. 2d 609 (1957).

On appeal to the Supreme Court of Illinois froma conviction for unlawful possession of heroin, thedefense asserted that the prosecution's refusal todisclose the identity of the informant denied thedefendant due process of law and also denied himthe right under the state constitution to meet thewitnesses against him face to face and to have proc-ess to compel the attendance of witnesses in hisbehalf. The court, in affirming the conviction,noted that it was only during the hearing on themotion to quash the search warrant that the de-fense made any demand for the informer to beidentified, and that the attack on the search war-rant was not pursued in the appellate court. Thecourt further held that there was no basis for up-setting the public purpose upon which the informerprivilege rests where it appears that the informertook no part in serving the search warrant or in thedefendant's arrest; that he neither participated inthe defendant's crime nor helped set up its com-mission; and that no part of his communication tothe police or conversations with defendant wereused as evidence in the case.

In People v. Reed,m the trial court restricted thedefendant's cross-examination of the arrestingofficer, and of a federal agent, as to the identityand whereabouts of an informer who introducedthe federal agent to the defendant. The IllinoisSupreme Court, citing Mack, held that this re-striction on cross-examination was not impropersince there was no showing that the informer par-ticipated in the transaction with which defendantwas charged or that his testimony would in anyway be helpful to the defendant.

The leading Illinois informer privilege case isPeople v. Durr,72 a probable cause informer de-cision. In Durr, the arresting officer testified at themotion to suppress, that a short time prior to thearrest charged a reliable informer told him that aman named Ray was peddling narcotics, wastraveling in an old blue car and would be making adelivery of narcotics at a designated place. Theinformer also gave the officer a detailed descriptionof the man. Acting on this information, the officerwent to the described area and observed a manfitting the informer's description driving the de-scribed car into a parking lot. The officer followedthe auto into the lot and as the defendant alightedfrom the car he was placed under arrest. A search

17121 Ill. 2d 416, 173 N.E. 2d 422 (1961), cert. denied,368 U.S. 990 (1962).

17 28 Ill. 2d 308, 192 N.E. 2d 379 (1963), cert. denied,376 U.S. 973 (1964).

19671

MELVIN GUTTERMAN

of his person revealed the heroin forming the basisfor the motion to suppress and defendant's sub-sequent conviction for possession of narcotics.

The Illinois Supreme Court, in sustaining thetrial court's refusal to reveal the identity of theinformer, commented as follows:

In our consideration of this question we havebeen unable to perceive any necessity to holdinherent in the constitutional safeguards pro-tecting those charged with crime the right toinformation completely irrelevant to the ques-tion of innocence, disclosure of which wouldseriously hamper effective law enforce-ment.... Considering also the deterrent as-pects of the civil and criminal remedies forfalse arrests, it is our opinion that determina-tion of probable cause by reliance upon theofficer's testimony as the reliability of anotherwise anonymous informer is likely toproduce evils of far less consequence thanthose resulting from depriving the public of animportant source of information necessary tothe suppression of a particularly vicious formof crime.,

The Durr opinion was recently re-examined inPeople v. McCray, 74 where the defense argued thatthe policies underlying the Durr decision ought tobe reconsidered and Durr overruled. After discuss-ing the recent federal informer privilege cases, thecourt adhered to its former ruling in Durr stating:

[W]e believe that an accused is afforded con-stitutional protection against unreasonablesearch and seizure if the State is compelled tosupport a search incidental to an arrest with-out a search warrant by credible evidenceshowing the basis for reasonable cause by thearresting officer. We do not believe that it isnecessary to bare the identity of every inform-ant assisting society in its struggle against thenarcotic traffic in order to preserve the funda-mental guarantees of the Constitution. Other-wise the so-called informant's privilege and itsvalue would disappear.17

Kentucky

In Brewster v. Commonwealth,176 a police officer,acting upon information furnished to him by an

173 Id. at 314, 192 N.E. 2d at 382.

174 33 Ill. 2d 66, 210 N.E. 2d 161 (1965).17

5 Id. at 73, 210 N.E. 2d at 165, cert. granted, McCrayv. Illinois, 384 U.S. 949 (1966).

176 278 S.W. 2d 63 (Ky. 1955).

informer, arrested an identified individual. Thisindividual gave the officer further information im-plicating the defendant in a burglary. The Ken-tucky Court of Appeals, quoting from a federaldistrict court's opinion, United States v. Keown,177

that an "officer may use the facts furnished by theinformer as a basis for his own investigation anddiscover sufficient facts to search or arrest withoutdisclosing the source of his information, 178 heldthat the officer was not required to divulge thename of the informer.

Maine

In State v. Fortin,79 a prosecution for maintain-ing a nuisance, the Supreme Judicial Court ofMaine, in upholding the trial judge's ruling thatthe defendant was not entitled to the names of theindividuals who initiated complaints against him,stated:

It is a well-settled rule that a defendant uponthe trial of an indictment against him is notentitled as of right to know who gave the in-formation or made the complaints whichstarted the prosecution. Such communica-tions to officers of the law should ordinarilybe regarded as privileged as to the identity ofthe informant or complainant on the groundof public policy, so that no one from fear ofconsequences to him personally shall hesitateto give information of offenses.'18

Maryland

In two recent cases, the Maryland Court ofAppeals has defined the state's privilege of non-disclosure in both the probable cause and partici-pant informer area. In McCoy v. State,18' a prosecution for possession and control of narcotic drugs,the accused, when questioned by a police lieu-tenant admitted he knew the informer, who, byarrangement with the police had bought the drugs

177 19 F.Supp. 639 (W.D. Ky. 1937).17s 278 S.W. 2d at 61.179 106 Me. 382, 76 Atl. 896 (1910).180 Id.at 383, 76 Atl. at 896. In sustaining the privi-

lege of nondisclosure, the court also held that it was im-material whether reference to the complainant was madeby the prosecution or by the defense.

See also State v. Soper, 16 Me. 293 (1839), where itwas held that the owner of property alleged to havebeen stolen is not bound to disclose the names of personsin his employ who supplied him with informationwhich induced him to take measures leading to the de-tection of the accused.

181 216 Md. 332, 140 A. 2d 689 (1958), cert. denied, 358U.S. 853 (1958).

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THE INFORMER PRIVILEGE

from the defendant. At the trial, one of the policeofficers disclosed the name of the informer withoutany demand being made. Several other questionswere asked about the informer. Was the informera dope addict? Had he ever been arrested? Did thepolice officer know where the informer was at thistime? But at no time did the defendant ask for theidentity of the informer, demand that the statecall him as a witness, or request the state to explainhis absence.

The court held that ordinarily the state has aprivilege of nondisclosure, and is not required todivulge the name of a person who furnished infor-mation of violations of law to an officer chargedwith enforcing that law. An exception to this gen-eral rule is when the informer is an integral part ofthe illegal transaction. This exception does notapply, however, if the informer was already knownto the accused or if he is not known, the accusedfails to make proper demand at the trial for dis-closure of the identity of the informer.8 2 Since theinformer was already known to the defendant, andno demand was made for further identification, theexception in the instant case did not apply. Thecourt further stated that the mere fact that thestate failed to call the informer as a witness wasnot important.

In the second case, Drouin v. State,ls3 the state,in order to establish a lawful arrest so that evidenceobtained by police officers would be admissibleagainst the accused with respect to the misde-meanor count of statutory theft, attempted toshow that the officers had reasonable grounds tosuspect that a felony had been committed and thatthe accused was the guilty party. To this effect thestate offered proof that the officers knew that ahome had been burglarized and certain propertystolen therefrom. Further testimony by the officerstended to show that on the evening of the crimethey had been informed by certain neighbors thatthe accused had been seen in the rear of the bur-glarized home shortly after its occupants had left,acting in a suspicious manner.

The court found that the trial court did not pur-port to decide whether the names of the informers

18n For this proposition the court cites Sorrentino v.United States, 163 F.2d 627 (9th Cir. 1947) (informerdisclosed by record); United States v. Conforti, 200F.2d 365 (7th Cir. 1952), cert. denied, 345 U.S. 925(1952) (no demand); and United States v. Colletti, 245F.2d 781 (2d Cir. 1957), cert. denied, 355 U.S. 874 (1957)(no demand). For a discussion of other cases involvingthis problem, see supra notes 42 through 48 and accom-panying text.

183 222 Md. 271, 160 A.2d 85 (1960).

were material to the defendant's defense or to thedetermination of the issue of probable cause, andthat the accused was entitled to this proper exer-cise of the trial court's discretion as to the necessityof disclosure. In so holding, the court commentedas follows:

We think the reasonable and proper rule aftercareful consideration of all of the authorities,to be that in criminal cases where the prob-able cause for the defendant's arrest dependswholly, or in part, on information receivedfrom a nonparticipating informer, if the nameof the informer is useful evidence to vindicatethe innocence of the accused, lessen the risk offalse testimony or is essential to a proper dis-position of the case, disclosure should be com-pelled, or the evidence obtained by reason ofthe arrest and search suppressed. If the ac-cussed asserts any substantial ground indicat-ing that the identity of the informer is materialto his defense or the fair determination of thecase on the issue of probable cause the trialcourt should require the informant's name tobe given [or the evidence suppressed] so thatthe informant may be summoned and interro-gated if it be necessary to do so in order todetermine whether or not the officer had prob-able cause to make the arrest."4

Massachusetts

In an action for maliciously and falsely repre-senting to the Treasury Department of the UnitedStates that the plaintiff was intending to defraudthe revenue, the Supreme Judicial Court ofMassachusetts, in Worthington v. Scribner,185 heldthat the defendant cannot be compelled to answerinterrogatories filed by the plaintiff inquiring as to

18 Id. at 286, 160 A.2d at 92. The court furtherdiscussed the California rule enunciated in Priestly v.Superior Court, 50 Cal. 2d 812, 330 P.2d 39 (1958),stating: "While there is much logic and sound reasoningin the Priestly case. . . we do not deem it necessary nordesirable to establish such a hard and inflexible rule asstated in that case. Of course, disclosure may be nece.-sary in many instances as the only means available toafford the traverser an opportunity to establish that noinformers did, in fact, exist; or, if they did exist, theydid not transmit the information claimed. On the otherhand, there may be circumstances that call for the trialjudges to exercise their sound discretions as to whetherdisclosure should be required." 222 Md. at 285, 160 A.2dat 92. Cf. State v. Burnett, 42 N.J. 377, 201 A.2d 39(1964), in which the New Jersey Supreme Court com-mented: "We read Drouin v. State... to eschew aninvariable requirement of disclosure." 42 N.J. at 383,201 A.2d at 42.

185 109 Mass. 487 (1872).

MELVIN GUTTERMAN

whether they did not give or cause to be given tothe department information of supposed frauds onthe revenue contemplated by the plaintiffs.

judge Gray, in expressing this rule, stated theoft quoted reason therefore:

It is the duty of every citizen to communicateto his government any information which hehas of the commission of an offense against itslaws. To encourage him in performing thisduty without fear of consequences, the lawholds such information to be among the secretsof state, and leaves the question how far andunder what circumstances the name of the in-formers and the channel of communicationshall be suffered to be known, to the absolutediscretion of the government, to be exercisedaccording to its views of what the interests ofthe public require. Courts of justice thereforewill not compel or allow the discovery of suchinformation, either by the subordinate officerto whom it is given, by the informer himself,or by any other person, without the permissionof the government. The evidence is excluded,not for the protection of the witness or of theparty in the particular case, but upon generalgrounds of public policy, because of the confi-dential nature of such communications. 186

Michigan

People v. Laird187 was a prosecution for burglaryin which the police officers, in explaining theirpresence in the place of the burglary, testified thatthey received information that the place would beburglarized. On cross-examination each officer wasasked a number of questions relating to the sourcefrom which they derived their information that aburglary was planned, but the questions were dis-allowed. In sustaining the trial court, the MichiganSupreme Court stated the general rule that persons

16 Id. at 488. In Pihl v. Morris, 319 Mass. 577, 66N.E. 2d 804 (1946), the Massachusetts' Supreme Judi-cial Court, in a trial for slander and malicious prosecu-tion, held, that evidence of statements made by thedefendant to a police officer was not excludable on thegrounds that the statements were privileged communi-cations. The court reasoned that defendant's identity asthe informer against the plaintiff, and the substance ofthe accusations, had already become a matter of publicrecord when the defendant instituted a criminal com-plaint against the plaintiff. The court further explainedits earlier decision in Commonwealth v. Congdon, 265Mass. 166, 165 N.E. 467 (1928), as holding that theprivilege announced in Scribner does not apply when theinformer is known or when the communication hasalready been divulged.

187 102 Mich. 135, 60 N.W. 457 (1894).

engaged in the detection of crime are not bound todisclose the source of information which led to theapprehension of the prisoner. However, the courtremarked that "a case might arise where a personclaiming to have been innocently at the place ofthe crime, at the solicitation of a person suspectedof being the informant, would be entitled to in-quire whether such person was the informant."'8Apparently the court was referring to the defenseof entrapment and since the defense in hand wasalibi, no such case was presented.

Mississippi

The Mississippi Supreme Court, in the informerprivilege-probable cause area, has apparentlyadopted the federal court's Scher rationale, i.e.,that disclosure will be required unless there is suffi-cient information, aside from the informer's tip,to constitute probable cause.

In the early case of Ford v. Jackson,5 9 a policeofficer testified that he had been informed by relia-ble persons that defendant was handling whiskey oncertain streets. Suspecting that the defendant hadintoxicating liquor, the police officer pursued himfor the purpose of arrest and search. In this pur-suit the defendant threw a pint bottle of whiskeyfrom his car. After stopping the car and arrestingthe defendant, a further search of the car revealedadditional whiskey.

The court ruled that the search began at thetime of pursuit and that no crime was committedin the officer's presence. The court further heldthat the undisclosed informant's information tothe police officer making the search did not consti-tute probable cause, and that the evidence regard-ing the names of the persons giving this informa-tion was improperly excluded. "[Tihe defendantwas entitled to know the source of the officer's in-formation upon which he acted with a view ofchallenging its sufficiency as well as the credibilityof the officer claiming to have the information con-stituting probable cause."'19

Hill v. State'9' involved a search of an automobile,without a warrant, for intoxicating liquor. Thecourt held that the defendant had a right to knowthe name of the party who had given the police

188 Id. at 140, 60 N.W. at 457. The general ruleenunciated in Laird was quoted in People v. Asta, 337Mich. 590, 602, 60 N.W. 2d 472, 479 (1953). CompareLaird with State v. Boles, infra note 212.

m 153 Miss. 616, 121 So. 278 (1929).190 Id. at 619, 121 So. at 279.191 151 Miss. 518, 118 So. 539 (1928).

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officer information which, if believed and actedupon by the officer, constituted probable cause:

The informant might have been shown to be anotorious liar in that community, or a personof unquestionable integrity. These facts thecourt must have, in order to determinewhether the officer's belief in the truth of thestatement was warranted, and in order toallow the defendant an opportunity to showthat the statement upon which the officeracted was unworthy of belief and no probablecause existed for such search.192

More recently, in Harris v. State'", a prosecutionfor transporting illegal whiskey, the sheriff had beeninformed that a load of whiskey would be deliveredthat night at a certain place. Acting on this infor-mation, the sheriff proceeded to a concealed posi-tion near a public highway, and from this positionhe observed the defendant drop and break a jug ofliquor. He testified that he was dose enough tosmell and know that it was whiskey. He thereuponarrested the defendant. The court, in affirming thedefendant's conviction, held that the sheriff wouldnot be required to name his informer inasmuch asthe arrest was made on what he learned throughhis own knowledge. The court commented that"this arrest was not made upon information giventhe sheriff by his unnamed informant. True hewent to this particular place pursuant to that in-formation but he made his arrest on what he saw.... This was a misdemeanor being committed inhis presence."'14

Missouri

State v. Edwards"' involved a prosecution forunlawful possession of heroin. The defendant com-plained that the trial court erred in refusing torequire a police officer, at the pre-trial motion tosuppress the evidence, to divulge the name of theinformant whose tip led to the arrest of the defend-ant and the discovery of narcotics hidden in thedefendant's car. The officer testified that the de-fendant was a known narcotics addict and that ithad been rumored that he was selling narcotics inthe street. About ten minutes before the defendantwas arrested, the informant, who from past experi-

12 Id. at 520, 118 So. at 539. Accord, Mapp v. State,

148 Miss. 739, 114 So. 825 (1927); Hamilton v. State,149 Miss. 251, 115 So. 427 (1928).193 216 Miss. 895, 63 So.2d 396 (1953).9'Id. at 901, 63 So.2d at 397.

195 317 S.W. 2d 441 (1958).

ence was thought to be reliable, personally told theofficer that the defendant was selling narcoticsfrom his car; that the defendant would pick up acustomer and take him around the corner to makethe sale; and that he (the informer) had seen thedefendant approach a user. Upon receipt of thisinformation the officer went in search of the defend-ant and spotted him as he drove his car with aknown drug addict riding alongside him. The de-fendant's car was stopped and he was placed underarrest. A capsule of heroin, the evidence sought bythe defense to be suppressed, was found under theseat.

The trial judge did not require that the name ofthe informer be divulged, although he did permitfull interrogation of the officer as to the age, sex,and habits of his informant, and the methods,places, and times of the informant's communica-tions with the officer. In making this ruling thetrial judge expressly stated that he was followingState v. Bailey,96 which held that a police officerwas not required to divulge the identity of an in-formant upon whose information he bases hisright to arrest or search.

The Missouri Supreme Court held, however, thatto the extent that the Bailey case held the privilegeunqualified, it was overruled. The court stated:

[lit would simplify matters if the question ofdivulgence or non-divulgence of the identityof any informant could be finally ruled oneway or the other so as to apply to all cases....It is dear, however, that if due regard begiven to the demands of justice to the publicon one hand and the constitutional rights ofthe defendant on the other, each case miLstbe considered on its merits. * * *

[T]he question of whether the disclosure of theidentity of a non-participating informant isessential to assure a fair determination of theissue in any given criminal case is-for the trialcourt in the first instanct.19

Consequently, the judgement was reversed, andthe case remanded to the trial court for the exerciseof its discretion, to determine whether the defend-ant could have a fair trial without requiring disclo-sure of the informant.'13196 320 Mo. 271, 8 S.W.2d 57 (1928). Bailey adopted

the unqualified rule that an officer is not required toreveal the name of the person from whom he receivesinformation upon which he bases his right to krrest orsearch.1"7 317 S.W.2d at 447. ", "I's Is the court holding diccsure.ablolute in informer

1967]

MELVIN GUTTERMAN

New Jersey

In People v. Doke,'" a prosecution for receiving,buying and having stolen certificates of ownershipof motor vehicles, the defense sought to obtain, bydemand for particulars, the identity and addressof the informant who introduced the police officerto him. The prosecution refused to name and lo-cate the person relying on the common law priv-ilege reflected in recently enacted laws.2 At trial,on cross-examination, the defense again sought theidentity of the informant.

The Supreme Court of New Jersey held thatunder the facts of this case the evidence of entrap-ment was insufficient to require a finding that dis-closure of the identity and whereabouts of thepolice collaborator was essential to a fair deter-mination of that defense. In so ruling the court

stated:

The legislative policy of New Jersey as de-clared by [statute] is opposed to such revela-tion unless the trial judge finds it is essentialto a fair determination of the issue of entrap-ment. A frivolous demand for the informa-tion, or one based only on an unsworn asser-tion that the defendant was seduced intoperpetrating the crime by the creative activityof police officers need not be recognized. ...

The public interest to be served by preserv-ing the free flow of information of criminal ac-tivities, and by employing investigative agents

participant cases? See State v. Redding, 357 S.W. 2d103 (1962), recognizing the rule that disclosure restswithin the discretion of the trial court, and is notrequired where the informer was not a participant. Seealso State v. Cookson, 361 S.W. 2d 683 (1962), holdingthat the trial court's failure to exercise discretion indetermining whether the defendant could have a fairtrial, without requiring officer to disclose the identity ofan informant on whose information the arrest was made,constituted reversible error. The trial court evidentlydid not know that Bailey was modified, if not overruled,by Edwards. The Cookson court stated: "Not only didthe court treat the privilege against disclosure asunqualified, it does not appear whether the informerwas a participant or nonparticipant in the offense." 361S.W.2d at 684.

1- 41 N.J. 422, 197 A.2d 185 (1964).200 N.J.S. 2A:84 A-28, N.J.S.A."A witness has a privilege to refuse to disclose the

identity of a person who has furnished informationpurporting to disclose a violation of a provision of thelaws of this State or of the United States to a repre-sentative of the State or United States or a govern-mental division thereof, charged with the duty ofenforcing that provision, and evidence thereof is inad-missible, unless the judge finds that (a) the identity ofthe person furnishing the information has already beenotherwise disclosed or (b) disclosure of his identity isessential to assure a fair determination of the issues."

who have, or acquire by deception or other-wise, access to persons engaged in such activ-ities, should not be thwarted unless a showingis made that a defense such as entrapment ispresented in good faith, with some reasonablefactual support, and that the informer is amaterial witness necessary to the fair deter-mination of the defense. If the rule were other-wise, a defendant by the mere naked allega-tion that he intended to rely on the defensecould force the state to reveal the name andwhereabouts of the informer and, on its refusalto do so, gain dismissal of the prosecution.20'

Recently, the New Jersey Supreme Court, in awell reasoned opinion, State v. Burnett,202 had occa-sion to deal with the informer privilege in the prob-able cause area. InBurnett, a prosecution for posses-sion of lottery slips, the arresting officer was toldby a known confidential informant that in about10-15 minutes a blue Mercury of a given age, drivenby a colored male, would enter a specified parkinglot and that the driver would leave with lotteryslips on him. The ensuing events squared with theinformation given by the informer and as the carwas backed out of the lot the driver and the de-fendant (a passenger) were arrested.

The court held that the defendant could notraise the issue as to whether the trial court's re-fusal to suppress the evidence obtained in a searchwithout a warrant was in violation of his constitu-tional right-on the basis that the state did not re-veal the confidential informant upon inquiringinto probable cause-since there was no demandfor disclosure or demand to strike the testimony onnondisclosure. Since the state was never given achoice between disclosure and loss of the officer'stestimony by proper demand, the issue was im-properly raised. However, the court realized thatthe doctrine of the informer privilege was thenprovoking so much current litigation that it pro-ceeded to deal with therightto disclosure when prob-able cause is an issue.

After discussing the recent federal court opinionsin Roviaro and Rugendorf, the court felt that theywere not bound by the federal constitution in theinformer privilege area. "We are satisfied thatthere is no federal expression settling the issue inconstitutional terms. More specifically ... Roviarohas not been thought to state a view of the FourthAmendment binding upon us under Mapp v.

20141 N.J. at 435, 197 A.2d at 192.20242 N.J. 377, 201 A.2d 39 (1964).

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Ohio.. ."0 The court then stated its views andfuture judicial policy in this area. Since this de-cision is a realistic approach to a most difficultproblem, an extensive quote from Burnett may behelpful and enlightening:

If a defendant may insist upon disclosure ofthe informant in order to test the truth of theofficer's statement that there is an informantor as to what the informant related or as tothe informant's reliability, we can be surethat every defendant will demand disclosure.He has nothing to lose and the prize may bethe suppression of damaging evidence if theState cannot afford to reveal its source, as isso often the case. And since there is no way totest the good faith of a defendant who pressesthe demand, we must assume the routine de-mand would have to be routinely granted. Theresult would be that the State could use theinformant's information only as a lead andcould search only if it could gather adequateevidence of probable cause apart from theinformant'sdata. Perhaps that approach wouldsharpen investigatorial techniques, but wedoubt that there would be enough talent andtime to cope with crime upon that basis.Rather we accept the premise that the in-former is a vital part of society's defensivearsenal. The basic rule protecting his identityrests upon that belief. * * *

The question then is whether in view of allof these circumstances it is reasonable andconsistent with the purpose and the effectiveenforcement of the Fourth Amendment todeny disclosure of the informer upon a chal-lenge to the existence of probable cause. Wethink the public can be accorded the benefitof the informer privilege without a significantdilution of the Fourth Amendment.

The Fourth Amendment is served if a judi-cial mind passes upon the existence of probablecause. Where the issue is submitted upon anapplication for a warrant, the magistrate istrusted to evaluate the credibility of theaffiant in an ex parte proceeding. As we havesaid, the magistrate is concerned, not withwhether the informant lied, but with whetherthe affiant is trustful in his recitation of whathe was told. If the magistrate doubts thecredibility of the affiant, he may require that

203 Id. at 384, 201 A.2d at 43.

the informant be identified or even produced.It seems to us that the same approach isequally sufficient where the search was withouta warrant, that is to say, that is should restentirely with the judge who hears the motionto suppress to decide whether he needs suchdisclosure as to the informant in order to de-cide whether the officer is a believable wit-ness

. 204

New York

Until the celebrated Mapp case, New York hadbeen functioning under the Defore235 doctrinewhich did not require exclusion of illegally ob-tained evidence. In People v. Coffey,2°' the trial forburglary took place prior to the Mapp decision,but because defense counsel had preserved thesearch and seizure issue by proper objection, theNew York Court of Appeals returned the case fora hearing to determine if the evidence admitted atthe trial should have been excluded.

At that hearing, an F.B.I. agent testified thathe had received information from an informant,whom he had used in the past, that the defendantand another were burglars of a certain jewelry store,and that they along with a third person, wereattempting to dispose of the jewels. The agentfurther testified that the informant told him hehad seen the jewels in the defendant's possession,and the description given by the informant talliedwith that of the missing jewels. The agent alsotestified that he listened to a telephone conversa-tion between the informant and the third personin which the theft was discussed and in which thethird person indicated that all three men wouldmeet in front of a theater at a specified time todispose of the jewels. The agent checked andlearned that all three men had criminal records.

Armed with this information the federal agentnotified New York City detectives, told them whathe had learned, and in conjunction with the detec-tives an arrest and search took place near thetheater. The search uncovered the stolen jewels-the evidence admitted at the trial and the subjectof the hearing. The two New York City detectivesthat were notified testified to substantially thesame facts. In addition, two New York AssistantDistrict Attorneys testified that they had met the

2 4 Id. at 385, 388, 201 A.2d at 43, 45.205 People v. Defore, 242 N.Y. 13, 150 N.E. 585

(1926).206 12 N.Y. 2d 443, 191 N.E. 2d 263 (1963), cerl.

denied, 376 U.S. 916 (1964).

MELVIN GUTTERMAN

informer after the search and that the informerverified the federal agent's story.

Defense counsel, at the hearing, repeatedly re-quested the informer's identity to check the agent'stestimony, but the People successfully pleaded theinformer privilege, asserting that disclosure mightendanger the informer's life. In sustaining theruling by the hearing judge, the New York Courtof Appeals held that there was enough proof whichadded up to "probable cause" for the defendant'sarrest, and that the People's refusal to name theinformer was not error. The court stated that"when as here, the person whose name is held backis a mere transmitter of information and not inany sense a competent witness as to the crime it-self and when there is, as there is here, strong anddependable proof of the accuracy of his informa-tion, 'proper balance' makes nondisclosure appro-priate. [Citing People v. McShann1." 7 The courtsreliance on McShann,2° a California prosecutioninvolving the informer privilege in the participantinformer area, and the quoted statement, bothreflect the court's failure to draw the necessarydistinctions between the informer privilege whenprobable cause is in issue, as distinguished fromthe trial on the merits when guilt or innocence isbeing determined329

The Coffey decision was later distinguished, inPeople v. Malinsky,210 on rather questionable

207 Id. at 453, 191 N.E. 2d at 267.209 For an analysis of the McSlann decision see supra

notes 129 through 136 and accompanying text.209 The dissenting judge in Coffey drew the necessary

distinction. He commented as follows: "In the casebefore us, a showing of probable cause necessarilydepended in part upon the information furnished by theunknown informer .... It may well be that the proofof the defendant's guilt is clear but that does not decidethis appeal, for, as the court emphasized in the Roviarocase 'fundamental requirements of fairness' are in-volved." 12 N.Y. 2d at 455, 191 N.E. 2d at 269.

Coffey subsequently proceeded by way of the federaljudicial system, petitioning the federal district court fora writ of habeas corpus. The district court, in grantingCoffey's petition, agreed with the dissenting judge'sdecision that "a showing of probable cause necessarilydepended in part on the information furnished by theunknown informer." The court stated that "upon all thecircumstances disclosed by this record, the conclusionis compelled that the privilege exercised by the State inwithholding the identity of the informer deprived thapetitioner of his constitutional right to a fair hearing onthe issue of probable cause." 234 F.Supp. 543, 552(S.D.N.Y. 1964). On appeal by the State to the Court ofAppeals, the district court's judgment was reversed, andthe writ denied. 344 F.2d 625 (2d Cir. 1965). For a dis-cussion of the Court of Appeals opinion, and of the dueprocess questions posed, see supra notes 117 through 122and accompany text.

210 15 N.Y. 2d 86, 204 N.E. 2d 188 (1965).

grounds and it would appear that the New YorkCourt of Appeals has reconsidered the former hold-ing. The problem in Malinsky arose at the hearingon a motion to suppress, at which time defensecounsel requested the name of the informant. Thedefense claimed that the police had no such in-formant but had acquired their information bymeans of an illegal wire tap. The People assertedthe informer privilege, and they were sustained bythe motion judge. The New York Court of Appealsreversed and remanded the case for a new hearingon grounds other than those involved in the in-former privilege area. In discussing the procedureto be followed at the new hearing the court statedthat the requirements of fairness necessitateddisclosure unless the People could produce otherevidence at the hearing-apart from the informant'stale-sufficient to constitute probable cause. Thecourt further stated, in language that seems to re-flect second thoughts on its earlier Coffey opinion,the following:

[D]isclosure of the informer's identity is re-quired only in those cases, and they are rela-tively rare, where there is insufficient evidence,apart from the arresting officer's testimony asto the informer's communications, to establishprobable cause. Where such separate evidenceexists, the arrest and consequent search will beupheld without requiring disclosure of the in-former. But where disclosure is demanded bythe requirements of a fair trial-where, inother words, to refuse disclosure would com-pletely deprive the defense of the opportunityof showing that there was in truth no reliableinformer or, if there was, that his communica-tion to the police was different from that testi-fied to and that, for either of these reasons,the police did not have probable cause to makethe arrest-the prosecution must either dis-close or run the risk of having the arrest andsearch held illegal.

21'

North Carolina

In State v. Boles,22 the North Carolina SupremeCourt held that the refusal of the trial court tocompel a state's witness to disclose the name of aconfidential informer who accompained him inpurchasing intoxicating liquor from the defendantwas not error, when at the time the witnesses'testimony was uncontradicted and nothing ap-

21 Id. at 93, 204 N.E. 2d at 194.22 246 N.C. 83, 97 S.E. 2d 476 (1957).

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THE INFORMER PRIVILEGE

peared in evidence concerning the informer exceptthe fact that he was present when the witness madethe purchase. After the prosecution rested, thedefendant took the stand and denied the sale,claiming he was not even home at the time of thealleged sale. He did not renew his request for theinformer's identity. The court stated that "hadthe defendant, in light of this conflict, requestedthe name of the confidential informer as a possibledefense witness, a more serious question wouldhave been presented .... The propriety of disclosingthe identity of an informer must depend on thecircumstances of the case and at what stage of theproceedings the request is made." 2' The courtheld that at the stage of the trial when disclosurewas requested the defendant had not made a suffi-cient showing to require disclosuren 4

Ohio

In State v. Beck,2 5 on information given to thepolice by an informer, the defendant's car wasstopped and the defendant was searched. Thispreliminary search revealed nothing, but the de-fendant was arrested and taken to the police sta-tion. At the police station, and after a morethorough examination of the defendant's clothing,illegal clearing house slips were discovered. Theseslips formed the basis for the charge against himand his subsequent conviction.

On appeal, the Ohio Supreme Court held thatthere was probable cause for the defendant's arrestbased upon the information supplied by the in-former, coupled with the arresting police officer'sknowledge of the defendant's prior history. Infailing to draw the necessary distinction betweenthe informer privilege on the trial of the merits, asdistinguished from disclosure to test probablecause, the court, in refusing disclosure, commented:

Only in an instance where an informer's iden-tity would be beneficial and helpful to a de-fendant is there any basis for requiring disclo-sure .... The revelation of the name of the in-former and the information supplied by himwould not alter the fact of defendant's guilt.And a mere desire to test the credibility andreliability of the informer is hardly a compel-ling consideration in the circumstances nar-rated.2e

2-Id. at 85, 97 S.E. 2d at 477.214 Compare Boles with People v. Laird, supra note

187.215 175 Ohio St. 73, 191 N.E. 2d 825 (1963), reversed

on otlier grounds, 379 U.S. 89 (1965).216 Id. at 77, 191 N.E. 2d at 828.

South Dakota

In State v. Martin,"7 a prosecution for unlawfultransportation of intoxicating liquor, the trialcourt refused to have the witness disclose the nameof the person who told him where the liquor couldbe bought. The South Dakota Supreme Court sus-tained the trial court stating that they were unableto see in what manner the source of informationwould have a bearing on the question of whetheror not the defendant unlawfully transported theliquor, i.e. the defendant's guilt or innocence.

Tennessee

Tennessee has had occasion to deal with theinformer privilege in the probable cause area, butthe state's decisions appear to be in conflict. InSmith v. State,m the police officers testified thatthey had searched the defendant's car without awarrant and solely upon information received byan officer from an informer that the defendant wasbringing whiskey into a named place on the after-noon in question. The Supreme Court of Tennesseeheld:

[W]hen an officer seeks to justify an arrestupon a charge made upon reasonable cause,the officer should be required to reveal theidentity of the person making the charge aswell as the nature of the charge. The Courthas to pass upon the officer's justification, andthat justification is open to impeachment. Adefendant should not be bound by the officer'sstatement that a charge had been made, and,unless the source of the charge is ascertained,neither its good faith nor reality could well bechallenged. An unscrupulous officer, upon afictitious story of a 'charge made', might vin-dicate any arrest, however unlawful, if therecould be no further inquiry." 9

The authority of this decision, however, isseriously impaired by its criticism in Simmons v.State."' In Simmhons, a highway patrolman had,upon information and without a warrant, stoppedand searched the defendant's automobile andfound therein some whiskey. On the trial for theunlawful possession of whiskey, and in the ab-sence of a jury, the patrolman testified that ashort time before he stopped the defendant's car,an informer told him that a certain automobile,

-7 55 S.D. 594, 227 N.W. 66 (1929).218 169 Tenn. 633, 90 S.W. 2d 523 (1936).29 Id. at 637, 90 S.W. 2d at 524.

0 198 Tenn. 587, 281 S.W. 2d 487 (1955).

MELVIN GUTTERMAN

describing it, would be traveling along the high-way in question (apparently transporting illegalwhiskey). On appeal, the defense contended thatthe police officer upon request (there was a requestfor the informer's name at the trial) must be re-quired by the trial court to disclose the name ofthe informant as part of the proof of "reasonablecause."

On the first hearing of the case, the TennesseeSupreme Court held that it was in the discretionof the trial court whether to require disclosure ofthe name of the informant in its determination asto whether there was "reasonable ground" for abelief that a felony was about to be committed.On petition for rehearing, it was again urged bythe defense that prior opinions of the court, in-cluding Smith, required disclosure of the informer'sname. The court declined to change its previousruling, resting its decision on the ground that inview of the provisions of its Code-that an officer isprivileged to arrest "when the person has com-mitted a felony, though not in his presence,"--theproper rule is to the effect, "that it is a discretion-ary matter with the trial judge as to whether ornot he requires the officer to give the name of theinformant when testifying about this arrest inthe absence of the jury."m

Texas

The informer privilege at this time appears tobe absolute in Texas. In Bridges v. State,= theCourt of Criminal Appeals of Texas held that "anOfficer is not required to reveal the name of theperson from whom he receives information uponwhich he bases his right to arrest or search upon

n1 Id. at 598, 281 S.W. 2d at 492. It was further statedthat the court, in Smith, overlooked the provisions inthe Code referred to in the text, and that the Smithdecision was written by a court consisting of differentpersonnel from that now.

But, only one year prior, the court in Shields v. State,197 Tenn. 83, 270 S.W. 2d 367 (1954), apparentlyconcurred in the Smith opinion. The question in Shieldswas unique, in that a police officer, as defendant in acriminal trial, tried to defend his firing of a pistol, shotinto an automobile, on the theory that he had informa-tion that the automobile owner was transporting illegalwhiskey [a felony in Tennessee]. The State objected tothe officer's telling what information he received tojustify his belief that the automobile contained illegalwhiskey until he disclosed the name of the informant.The trial court sustained the State's objection, requiringdisclosure of the informant prior to permitting thedefendant detailing the facts leading up to the allegedoffense. This ruling was affirmed by the Supreme Court,holding that the question was controlled by the rulingin Smith.

2 166 Tex. Cr. 556, 316 S.W. 2d 757 (1958).

probable cause." In Bridges, police officers re-ceived information from an informant that thedefendant was going to deliver heroin in a certainmanner, at a certain place. The police officers wentto the designated area, and upon arriving, sawthe defendant place a gum wrapper in his mouth.The court held that under these circumstances thepolice officer had sufficient reason to believe thatthe defendant possessed a narcotic drug and wascommitting a felony in his presence. SubsequentTexas cases accept the rule enunciated in Bridgesas absoluteY

4

In Campbell v. State,n5 the defendant was con-victed of an unlawful sale of narcotic drugs to apolice officer. The officer was introduced to thedefendant by the informer, but it does not appearfrom the facts whether the informant was presentwhen the alleged sale took place. The court citedBridges, a probable cause situation, in holdingflatly that "an officer is not required to name hisinformer."26

However, the recent decision of Artell v. Texas,m

is interesting to note at least for the language usedby the court. In Artell, a conviction for possessionof a weapon, the court held that an officer whoreceived information, later verified, from onebelieved a reliable informant could search withoutwarrant. The court further commented that,"the court did not err in declining to require...[the officer] to name his informer. This is especiallyso since there is no showing that the informanttook any material part in bringing about theoffense, was present when it occurred or might bea material witness as to whether or not accusedcommitted the offense."s

2id. at 559, 316 S.W. 2d at 760.2 Sikes v. State, 169 Tex. Cr. 443, 334 S.W. 2d 440

(1960); Arredondo v. State, 168 Tex. Cr. 110, 324 S.W.2d 217 (1959).

25 168 Tex. Crim. 520, 329 S.W. 2d 875 (1959).n26 Id. at 521, 329 S.W. 2d at 877. Cf. Brown v. State,

135 Tex. Crim. 394, 120 S.W. 2d 1057 (1938). In Brown,a prosecution for the sale of whiskey in a dry area, thecourt upheld the trial court's refusal to require thestate's witness [who worked for the State Liquor ControlBoard] to disclose the identity of the party who accom-panied the witness at the time the witness made apurchase of whiskey from the accused. The court heldthat the accompanying party was merely a person whopointed out to the witness where liquor could be found,and could see no benefit from divulging his name.

7 372 S.W. 2d 944 (1963), cert. denied, 375 U.S. 951(1963).

218 372 S.W. 2d at 945. See Phillips v. State, 168 Tex.Cr. 463, 328 S.W. 2d 873 (1959), cert. denied, 361 U.S.839 (1961), where the court held that a police officer isnot required to disclose the name of an allegedly reliableinformer, upon whose information the officer relies in hisaffidavit for a search warrant.

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THE INFORMER PRIVILEGE

Virginia

Webb v. Comrnonwealth,m was a prosecution fora violation of the state's prohibition act. TheVirginia Supreme Court upheld, on public policyconsiderations, the trial court's refusal to compelthe arresting officer to disclose the name of theinformant who gave him information which led tothe issuance of a search warrant to search theoutbuilding of the accused. It appears, however,that the legality of the search was never in issue.

Washington

In Washington, the informer privilege, and itsdisclosure aspects, both in the probable cause andtrial of the merits area, appear to be largely dis-cretionary with the trial judge. The latest Wash-ington Supreme Court ruling, State v. Driscoll,2°

a prosecution for burglary, held that the trialcourt did not err in refusing to require a witnessto disclose the identity of an alleged police in-former, where, at the time of the request andruling thereon, the defendant had not advised thecourt of his proposed defense of entrapment orotherwise enlighten the court as to the materialityor relevancy of the desired disclosure. The courtadopted the proposition that the accused is re-quired at the time that he seeks disclosure to showthat the circumstances justify an exception to theprivilege.

The Driscoll decision is in accord with an earlierruling of the Washington Supreme Court, State v.Hull.21 Hull was also a prosecution for burglary,the defense being entrapment The court held thatwhether or not disclosure would be required islargely discretionary with the trial judge, and itsruling will not ordinarily be disturbed.

The earliest informer privilege case, State v.Kittle,m was an appeal from a conviction forunlawful possession of liquor, the legality of thesearch being the prime issue. The court pointedout that the evidence showed reasonable cause forthe arrest. The court held that the reputation ofthe defendant, the information given to the sheriff,and the entry of the defendant into the premisesfrom a moving vehicle at night carrying a sack, alltended to support the view that a crime was com-mitted in the officer's presence. The court con-cluded that the trial court did not abuse its discre-

137 Va. 833, 120 S.E. 155 (1923).2061 W.2d 533, 379 P.2d 206 (1963).23 189 Wash. 174, 64 P.2d 83 (1937).= 137 Wash. 173, 241 P. 962 (1926).

tion in refusing to require the sheriff to disclosethe source of information upon which he actedsince the source was wholly immaterial to theissue involved.

West Virginia

In State v. Paun,m the defendant was convictedof ualawfully selling liquor to an officer. The ex-planation given by the officer for attempting topurchase liquor from the defendant was that hehad information of whiskey being sold in the poolroom. This statement was the only connectionbetween the informer and the transaction charged.The West Virginia Supreme Court of Appeals heldthat the defendant could not complain that hewas not permitted to cross-examine the officer as tohis source of information since "the proper execu-tion of the law in detecting criminals ordinarilyforbids requiring officers to disclose informants ofcrime.... No reason appears for taking this caseout of the general rule. 2 4

CONCLUSION

Any defense of the informer privilege mustunquestionably accept the view that the informantis vital in society's constant effort to combatcrime. Once this view is accepted, the assuredanonymity of the informant appears as the onlyeffective method of preserving the informantsystem and of protecting those individuals whohave participated in the process.

But, at times, fundamental concepts of fairnessmay necessitate the disclosure of the informant.The principal pronouncement in Roviaro, that theinformer privilege is not absolute but is subject toa balancing test, has met with begrudging ac-ceptance. This dissatisfaction has gone far in con-fusing and disregarding the difference between thestandards applicable when the informer privilegeis invoked on guilt or innocence issues, as distin-guished from when probable cause is the factor tobe determined. There is a large distinction betweenthe two things (guilt and probable cause) as wellas a difference between the rules of evidence re-quired to establish them.

The principle guiding disclosure at trial shoulddepend upon the significance of the informant'stestimony as bearing upon the accused's guilt orinnocence. The fact that an informant is a par-ticipant in the crime charged should be only one

=a 109 W.Va. 606, 155 S.E. 656 (1930).29 Id. at 608, 155 S.E. at 657.

MELVINV GUTTERMAN

relevant factor in this determination. More par-ticularly, the informer privilege should yield wherethe informant's identity is so essential to theaccused's defense as to outweigh the public interestinvolved in protecting his identity.

There is no tidy formula for determining whenthe privilege must yield when probable cause is inissue. Clearly, however, if probable cause existsindependent of the confidential communication,there is no need to disclose the informant's iden-tity, for in such a case his identity is immaterial.The clue to the problem, when the confidentialcommunication is a necessary ingredient of prob-able cause, may lie in the purpose for which thedefense seeks disclosure. Aside from the tacticalreason of hoping that the Government will dismissthe charge rather than disclose the informant, thedefendant may seek disclosure for any of threepurposes.

(1) To test the existence of the informant.(2) To ascertain whether the information given

to the police officer was materially differentthan that sworn to by the officer either inhis affidavit for a warrant or at the hearingto suppress.

(3) To determine if the informant is reliable.The first and second purpose involve the credi-

bility of the officer, and whether he has misrepre-sented to the court either the existence of the in-formant, or the recitation of the facts the inform-ant has told him. It would seem sufficient to satisfythese purposes that a judicial officer has passedupon the credibility of the police officer. If themagistrate doubts the officer's credibility he mayrequire that the informant be identified or evenproduced.

The third purpose for which a defendant mayseek disclosure presents a more difficult but notinsurmountable problem. Certainly, probablecause cannot be satisfied on the mere naked con-clusionary statement by the officer that the in-formant was reliable. The officer must disclosesome of the underlying factors which promptedhim to conclude that the informant was reliableand his information credible. The Governmentshould be required to disclose enough of theseunderlying factors so as to satisfy the magistrate,that based upon the evidence produced in opencourt, (such evidence being subject to properexamination) the information received was from areliable source. If these standards are accepted,the benefit the public derives from the informerprivilege can be maintained without significantdiminution of the fourth amendment.

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