Summary
noting the defendant presented the sworn testimony of two individuals and deposition testimony of law enforcement officers together with counsel’s professional statement to support the defendant’s assertion that there was no confidential informant
Summary of this case from Pate v. StateOpinion
No. 1-949 / 01-0164.
Filed June 19, 2002.
Appeal from the Iowa District Court for Polk County, ROBERT A. HUTCHISON, Judge.
The State was granted discretionary review of a district court ruling that ordered disclosure of an informant's identity. AFFIRMED AND REMANDED.
Thomas J. Miller, Attorney General, Mary Tabor and Karen Doland, Assistant Attorneys General, John Sarcone, County Attorney, and Daniel C. Voogt, Assistant County Attorney, for appellant.
Robert A. Nading II, Ankeny, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
The State was granted discretionary review of the district court's ruling requiring the State to disclose the identity of a confidential informant. The State points out that its privilege to withhold the identity of a confidential informant is well established. It argues the trial court erred, in ordering disclosure of the confidential informant's identity, because the defendant's allegation that the search warrant application contains a false statement is not supported by the record. We affirm and remand.
I. BACKGROUND FACTS
On August 23, 2000 Deputy Michael Stevens of the Polk County Sheriff's Office drove by the rural residence of Kenneth Partington and purportedly smelled a strong odor of anhydrous ammonia emanating fromaround Partington's residence. Deputy Stevens notified his supervisor of the smell and was told to stay near the residence while the narcotics unit was contacted. Detective Lonnie Peterman of the narcotics division of the Polk County Sheriff's Department arrived at the scene approximately thirty minutes later. Detective Peterman contacted Deputy Richard Skinner, told him Stevens had smelled anhydrous coming from Partington's property, and asked Skinner if he would prepare a search warrant application for the property. Skinner then prepared a warrant application relying on information he received from Peterman.
In the warrant application Skinner included the information from Peterman regarding Stevens's detection of a smell of anhydrous ammonia. Skinner also stated in the application,
The Polk County Sheriff's Office Narcotics Division has received intelligence information on numerous occasions from Walmart Security in Ankeny, Iowa that Partington had been observed purchasing lithium batteries and starting fluid which are all common ingredients in the manufacturing of methamphetamine in a clandestine lab setting. The Walmart activity has occurred within the last two months from this date.
The last sentence regarding the two-month time period was handwritten, while the rest of this paragraph was typed. Skinner stated in his deposition testimony that this was added later on advice from the county attorney's office, and was based on what he believed Peterman told him. The "last two months" would have presumably been approximately late June, July, and early August of 2000.
The application also indicated Partington was a "convicted felon and has a criminal history of manufacturing illegal narcotics" and that he "is also associated [with] other subjects in the . . . area who have been arrested and convicted on manufacturing methamphetamine." The application stated that Partington did not farm and there was no legitimate reason for anhydrous odor to be coming from his property. It also stated the only reasonable explanation known for the smell was an active methamphetamine lab at this property. With the exception of Partington's prior criminal record Deputy Skinner stated he did not personally receive any of the information contained in the application, but rather had based the application on information from Detective Peterman. The application sought to keep the identity of the Wal-Mart security employee-informant confidential.
The search warrant was signed by the district court judge on August 23, 2000 and executed on Partington's residence and surrounding property the same day. The officers found materials consistent with manufacturing methamphetamine on the property. A six count trial information was filed against Partington on September 22, 2000. Partington pled not guilty to all counts. On October 27, 2000 Partington filed a motion to suppress all evidence seized by the State, alleging he had been arrested without probable cause and that his home had been illegally searched as a result of law enforcement officers obtaining the search warrant by the use of a false and misleading affidavit. Specifically, he alleged the statements relating to the information from the Wal-Mart informant were false and that in fact there was no such person.
On November 30, 2000 Partington filed a motion to compel discovery seeking the court to order the State to produce a variety of information "critical" for him to prepare for the suppression hearing. Two hearings were held on the motion to compel. At the first hearing on December 4, 2000 Partington moved the court to order the State to disclose the identity of the Wal-Mart security employee-informant mentioned in the warrant application. Partington argued disclosure of the informant was necessary because he had discovered evidence there was no security officer at the Ankeny Wal-Mart and that Wal-Mart did not sell AA lithium batteries during the relevant time period.
The alleged informant had purportedly told law enforcement it was AA lithium batteries Partington had purchased.
Following the two hearings on the motion to compel the court received copies of all relevant cell phone records for officers Skinner, Peterman, and Stevens as well as Officer Peterman's investigative report, to review in camera. The court filed a written ruling on Partington's motion to compel discovery on January 2, 2001. The court determined Partington was not entitled to disclosure of the cell phone records but that the State should provide him with a copy of Peterman's report because it did not contain any sensitive information. The court also ordered the State to disclose the identity of the confidential informant. Specifically, the court concluded,
The court is presented here with a difficult decision. If in fact there was no security employee at Walmart at the time of the search warrant application, then the information contained in the application is incorrect. If there is no such informant at all, then the defendant would have a valid reason to question the issuance of the warrant. But if the informant is simply a different type of employee at Walmart, the discrepancy is immaterial. Disclosure of the identity of such concerned citizens puts them at risk and diminishes the chance that they will provide assistance to law enforcement in the future.
On balance the Court concludes that defendant should be provided with the identity of the confidential informant . . . Disclosure of the informant will also allow the parties and the Court to ascertain exactly what information was provided to law enforcement.
The State filed a motion to reconsider the court's order to disclose the confidential informant with a memorandum of authority in support of the motion. The district court denied the State's motion to reconsider. The State then filed an application for discretionary review seeking review of the portion of the district court's order requiring the State to disclose the identity of the confidential informant. Partington filed a resistance. The supreme court granted the State's application.
The State makes two arguments in support of its claim that the district court erred in ordering disclosure of the confidential informant. First, the State asserts its privilege to withhold the identity of an informant and argues the court failed to require Partington to show his request was more than merely a "fishing expedition." Second, the State argues the court erred in failing to require Partington to present some quantum of evidence showing the police made false statements in the warrant application before ordering disclosure of the informant.
II. STANDARD OF REVIEW
This is an interlocutory appeal from the district court's ruling requiring the State to disclose the identity of a confidential informant. This issue arose in the context of Partington's motion to compel discovery of evidence he alleged was necessary in order to prepare for hearing on his motion to suppress. Because a constitutional issue is raised by Partington's allegation that the officers obtained the search warrant through the use of false and intentionally misleading information our review of the court's ruling is de novo. State v. Robertson, 494 N.W.2d 718, 722 (Iowa 1993).
III. MERITS
The defendant bears the burden of showing the necessity for disclosure of the informant's identity "and it is not sufficient to show that the identity of an informer might be helpful in preparation of the defense." State v. Todd, 468 N.W.2d 462, 467 (Iowa 1991) (emphasis added).
[I]n the context of a motion to suppress evidence seized pursuant to a warrant, the burden upon the defendant to establish that disclosure is needed to ensure a fair hearing on the probable cause issue is even greater than when a motion for disclosure is made at trial or at a suppression hearing for evidence obtained from a warrantless seizure.Robertson, 494 N.W.2d at 723-24. Partington bears this greater burden here.
The State is ordinarily privileged to withhold the identity of an informant who merely provides information used in obtaining a search warrant, as distinguished from a witness to the event constituting the basis for the charge. Id. at 722; Todd, 468 N.W.2d at 467. This privilege is premised upon the public interest in maintaining the flow of information essential to law enforcement. Robertson, 494 N.W.2d at 722; State v. Webb, 309 N.W.2d 404, 410 (Iowa 1981). "That the government has this privilege is well established, and its soundness cannot be questioned." Robertson, 494 N.W.2d at 722 (quoting 8 J. Wigmore, Evidence § 2374, 761-62 (1961)). To be weighed against this privilege, however, is the defendant's right to prepare and present a meaningful defense. Id. at 723. The defendant's need is weighed against the State's privilege in light of the facts and circumstances peculiar to each case. Robertson, 494 N.W.2d at 723.
As set forth above, Partington's request for disclosure of the informant's identity arises out of his motion to suppress which alleged officers obtained the warrant to search his house through the use of false and misleading statements. Partington challenged, among other things, the information the officers allege they received from "Walmart Security in Ankeny, Iowa." He also questioned whether such an informant even existed. Partington asserted at hearing that the only way to determine the veracity of certain statements by the officers in the affidavit was to have the alleged confidential informant disclosed to determine whether or not such an informant existed, and, if so, whether the informant in fact had told law enforcement that Partington had been buying lithium batteries and starting fluid.
Partington seeks disclosure of the identity of a purported informant, not for the purpose of presenting evidence at trial but rather to present evidence at a suppression hearing to support his claim that an affidavit for a search warrant contains false statements by one or more law enforcement officers. This case thus involves matters concerning both (1) challenges to the truthfullness of statements in an affidavit for a search warrant, and (2) disclosure of the identity of an informant. For the reasons explained below we conclude that Partington's need for disclosure of the purported informant's identity for the purpose of the suppression hearing outweighs the State's privilege under the facts and circumstances peculiar to this case.
Where a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in a warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667, 672 (1978). If at such a hearing the allegation of deliberate or reckless falsehood is proved by the defendant by a preponderance of the evidence, and, with the false material set aside the affidavit's remaining content is insufficient to establish probable cause the search warrant must be voided and the fruits excluded. Id. at 156, 97 S.Ct. at 2676, 57 L.Ed.2d at 672; see also State v. Groff, 323 N.W.2d 204, 207-08 (Iowa 1982) (adopting Franks standard for determining veracity claims under the Iowa Constitution).
As a preliminary matter it is important to note two potential issues related to Franks and Groff that are not involved in this appeal. First, there is no claim by the State that Partington had not made the substantial preliminary showing required for a Franks hearing. Second, the State does not claim that any false statements were not necessary to the finding of probable cause. We therefore do not have before us and do not address those potential issues. The issue before us is thus the narrow question of whether Partington has met the burden of showing a need for disclosure of the purported informant's identity.
The State argues on appeal that the district court erred based on our supreme court's decision in State v. Robertson, 494 N.W.2d 718 (Iowa 1993). However, for the reasons that follow we believe the facts and circumstances of this case are substantially and materially different than those in Robertson and fully support the trial court's order for disclosure.
In Robertson the supreme court reversed the district court's order granting the defendant's motion to disclose the identity of the State's confidential informant. The supreme court found that the defendants in Robertson failed to show any misstatements in the affidavit that indicated a perjured affidavit in part because they put forth no direct evidence of the alleged incorrect information. Robertson, 494 N.W.2d at 725. Furthermore, the court found that any errors in the affidavit were not of material proportion. Id. at 726. Having concluded the errors in the affidavit to be inconsequential the court determined the case did not warrant an in camera examination of the informant. Id.
In the case at hand Partington did present direct evidence of the falsity of material statements in the affidavit. He did so through the sworn testimony of David Weber and Steven Lant, a professional statement offered by defense counsel, and deposition testimony of law enforcement officers.
David Weber is the department manager of checkouts and candy at the Ankeny Wal-Mart store. Weber began employment with Wal-Mart approximately June 1, 2000. Since that time he has been in charge of ordering batteries for the store. Weber testified he did not recall carrying AA lithium batteries until October of 2000. He testified further that if anyone in the store would know if there were lithium batteries in the store in June, July or August of 2000 it would be him, he was pretty sure he would have known about such batteries, and he did not recall carrying such batteries in that time period. In addition, Weber stated that when he started in June of 2000 he was not aware of or introduced to any security persons at the store, nor did he know of any security personnel at the store from the time he started until early December of 2000 when Rod Rager started as in-store security.
Steven Lant, the district loss prevention officer for Wal-Mart since September of 2000, also testified at the hearing. Lant testified that he was aware from discussions with his manager there was a period of time when the store was without an in-store loss prevention associate and Rod Rager was not employed when Lant began in September. Lant further testified that Wal-Mart employees do sometimes call law enforcement to report suspicious sales but there would be no company record of such a contact unless law enforcement officials request a certain camera shot and then leave the store with it. Lant reviewed the store records to see if law enforcement ever made an inquiry as to Partington and testified that no such name ever appeared in his store records.
Rod Rager began as head of security at the Wal-Mart in Ankeny in approximately early December of 2000. Although Rager was ill and unable to testify at the hearing on the motion to compel, Partington's attorney spoke with Rager prior to the hearing and made a professional statement to the court that Rager had informed him the Ankeny Wal-Mart did not have a security officer for an eight-month period prior to the start of Rager's employment there, a period which encompassed the dates relevant to the search warrant application at issue.
Partington also points out numerous inconsistencies between the warrant affidavit and the deposition testimony of officers Skinner and Peterman which support his allegations, and the district court's concerns, regarding the existence of the alleged informant. First, the time frame within which information from the alleged informant was received is unclear and Partington presented substantial evidence that another statement in the affidavit was deliberately or recklessly false. As noted above, the words, "The Walmart activity has occurred within the last two months from this date," were handwritten on the warrant affidavit based on advice from the county attorney's office after its review of the warrant application. However, Skinner stated in his deposition he "believe[d]" Peterman told him the information from the informant had been in the "last couple of months," but that Peterman was not exact and Skinner did not call Peterman back to verify the time period. Additionally, Peterman testified that it was not true that the police had received reports of Partington having purchased lithium batteries and starting fluid within the last two months.
Furthermore, both Peterman and Skinner mention in their testimony that the information from the Wal-Mart informant was not all or primarily about Partington, although the warrant affidavit indicated it related solely to him. Skinner testified Wal-Mart security had made reports to Detective Peterman about either Partington "[o]r someone in his vehicle" buying materials that could be used in manufacturing methamphetamine. Peterman testified that some of the alleged reports were not about Partington, but maybe his "associates."
Finally, the evidence strongly indicates that yet other material statements in the warrant affidavit were made with at least reckless disregard for the truth. The affidavit was prepared and signed by Deputy Skinner, based on information provided by Detective Peterman. The affidavit states in part that, "Partington is also associated [with] other subjects in the . . . area who have been convicted on manufacturing methamphetamine." (Emphasis added). It then identifies the subjects as three named individuals. The words "is associated" state or strongly imply Partington was associated with the three individuals at the time of the affidavit, or had been associated with them in the very recent past.
Contrary to the affidavit, Detective Peterman testified that the first "associate" of Partington's might have been in prison at the time of the warrant affidavit; the second "associate" had been charged with manufacturing methamphetamine, but he did not know if he had been convicted; the third "associate" had in fact not been arrested or convicted for manufacturing methamphetamine; and he believed the third "associate" was in fact dead at the time the affidavit was made.
Partington thus presented substantial evidence that the purported informant may not exist, and if the informant exists he or she may not have provided the information asserted by law enforcement officers in the warrant affidavit. Partington also presented strong evidence that other material statements in the warrant affidavit are at least recklessly false. These false statements support and strengthen Partington's claim that the statements regarding an informant are false. We conclude, as the district court implicitly concluded in its decision, that in light of the facts and circumstances peculiar to this case Partington has met his burden of showing the necessity for disclosure of the informant's identity. We reach this conclusion because Partington has made a substantial preliminary showing of numerous false statements in the warrant affidavit and disclosure is necessary in order for him to have a meaningful hearing on his motion to suppress.
We note that in camera examination of an alleged informant may be appropriate. See, e.g., Robertson, 494 N.W.2d at 726. However, for two reasons we will not modify the trial court's ruling to provide for such a procedure. First, this case involves not only questions concerning what information an informant may have provided to law enforcement, but also a substantial question as to whether or not the purported informant exists and substantial evidence was presented that the informant does not exist. Second, neither the State nor Partington has, either in the trial court or on appeal, directly or alternatively requested or suggested in camera examination.
We affirm the trial court's ruling and remand for further proceedings.
AFFIRMED AND REMANDED.