State v. Casal

• Decision Date: 23 May 1985
• Docket Number: No. 50905-1,50905-1
• Citation: 103 Wn.2d 812,699 P.2d 1234
• Parties: STATE of Washington, Respondent, v. James Robert CASAL, Petitioner.
• Court: Washington Supreme Court

Page 812

103 Wn.2d 812

699 P.2d 1234

STATE of Washington, Respondent, v. James Robert CASAL, Petitioner.

No. 50905-1.

Supreme Court of Washington,

En Banc.

May 23, 1985.

Thomas M. Tarpley, Seattle, for petitioner.

Norman K. Maleng, King County Prosecutor, Ricardo S. Martinez, Deputy, Seattle, for respondent.

PEARSON, Justice.

In this appeal we determine the circumstances under which a defendant is entitled to an in camera hearing on the issue of a search warrant affiant's veracity regarding statements allegedly made by a secret informant. We hold that where a defendant presents information which casts a reasonable doubt on the veracity of material representations made by a search warrant affiant, and the challenged statements are the sole basis for probable cause to issue the search warrant, the trial court should exercise its discretion to conduct an in camera examination of the affiant and/or secret informant on the veracity issue.

On April 20, 1982, at approximately 11 a.m., detectives of the Seattle Narcotics Unit executed a search warrant at petitioner's home. That search warrant was based upon a police detective's affidavit stating that a reliable, confidential informant had been inside petitioner's home in the preceding 24 hours and had observed a quantity of marijuana growing and packaged as if for sale.

When officers executed the warrant, they found one marijuana-growing operation in the garage and another growing operation in a second floor bedroom. Officers confiscated several boxes of growing equipment (lights, timers), over 12 pounds of marijuana, and a Colt handgun.

Petitioner alleges that approximately 3 weeks after his arrest one Randy Batham (Batham) presented himself to petitioner professing to be the secret informant in the case. According to petitioner, Batham told him that he had heard of petitioner's marijuana operation from someone in a tavern and had reported the rumor to the police. Petitioner further alleges that Batham told him the Seattle police had directed Batham to trespass onto petitioner's property for the purpose of corroborating the marijuana suspicion. Batham allegedly told petitioner that he did trespass onto petitioner's property and pried boards from sealed windows, but saw no marijuana; Batham allegedly told petitioner that he reported this to the police. Petitioner has been unable to locate Batham since the day of this conversation, although he contends that he has searched diligently for him.

Relying on the information relayed by Batham as proof that the officer-affiant fabricated his story in seeking the search warrant, petitioner moved to suppress the seized evidence. He made three specific motions in this regard, two of which are relevant here:

1. Motion for an order allowing an evidentiary hearing on the question whether the affidavit of the police officer contained statements that were false or in reckless disregard of the truth;

2. Motion for an order directing the police to disclose the whereabouts of Randy Batham.

Petitioner submitted only his own affidavit and an offer of proof in support of these motions. These documents repeat the information alleged by petitioner: that Batham admitted to being the informant, that Batham's story differed in several specific aspects from the information given by the officer-affiant in the search warrant affidavit, and that petitioner's subsequent attempts to relocate Batham had failed.

The trial court denied the motions, holding that the affidavit was sufficient on its face to show probable cause and that the public interest in keeping police informants' identities confidential outweighed any interest petitioner might have in disclosure. The court did note that Randy Batham appeared to be the informant. A subsequent bench trial, on stipulated facts, resulted in petitioner's conviction for possession of marijuana with intent to deliver.

On appeal, Division One of the Court of Appeals held that a defendant cannot compel disclosure of an informant's identity merely to challenge factual statements in the affidavit upon which a warrant was issued. State v. Casal, 38 Wash.App. 310, 313, 684 P.2d 1375 (1984). The court further held that petitioner would be entitled to an in camera examination of the informant and/or the officer-affiant only if he could make a substantial showing that the informant's privilege had been waived. The court determined that petitioner failed to make this substantial showing because he submitted only a "self-serving" affidavit, with no corroborating evidence.

I

The importance of an "informer's privilege" has long been recognized as an aid to law enforcement. "[T]he use of informants in certain areas of enforcement is 'essential,' and the typical informer 'will make it a condition of cooperation that his identity remain confidential.' " 1 W. LaFave, Search and Seizure § 3.3(g), at 577 (1978).

The United States Supreme Court recognized the need for keeping secret an informant's identity in Roviaro v United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Nonetheless, the Court there held that the privilege must yield to the defendant's need to know the informant's identity in cases where the informant is a material witness on the question of a defendant's guilt or innocence. In such a case, the State must disclose to the defendant the identity of the informant if the trial court determines that the defendant's interest in disclosure outweighs the public interest in nondisclosure. See State v. Harris, 91 Wash.2d 145, 151, 588 P.2d 720 (1978).

The Court in a later case, however, rejected the contention that a defendant has a constitutional right to disclosure of the identity of an informant who supplied information relating only to probable cause, but not relevant to the issue of guilt or innocence. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). The Court stated that the trial judge has discretion to decide whether he needs disclosure of the informant's identity in order to decide whether the affiant is a believable witness.

Many courts have construed McCray to mean that disclosure of the identity of an informant relied upon to establish probable cause is virtually never required. See United States v. Bolton, 458 F.2d 377 (9th Cir.1972); United States v. Edge, 444 F.2d 1372 (7th Cir.1971); United States v. Newsome, 432 F.2d 51 (5th Cir.1970); United States v. Harrison, 432 F.2d 1328 (D.C.Cir.1970); United States v. Comissiong, 429 F.2d 834 (2d Cir.1970); other cases cited in 1 W. LaFave, Search and Seizure § 3.3(g), at 576 n. 293 (1978). Other courts uphold nondisclosure with very little discussion of the reason. See W. LaFave, at 575 n. 292; United States v. Poms, 484 F.2d 919 (4th Cir.1973); United States v. King, 478 F.2d 494 (9th Cir.1973).

The Courts of Appeals in Washington have similarly held that where the issue is probable cause only, rather than guilt or innocence, disclosure of a secret informant is not required; such disclosure has generally been denied. State v. Larson, 26 Wash.App. 564, 567-68, 613 P.2d 542 (1980); State v. Sewell, 11 Wash.App. 546, 548, 524 P.2d 455 (1974); State v. White, 10 Wash.App. 273, 518 P.2d 245 (1973).

Some courts and commentators, however, point out that McCray does not require a general rule of nondisclosure. LaFave notes,

Any assessment of McCray must begin by emphasizing that the Court did not hold that the Constitution, and in particular the Fourth Amendment, never requires disclosure of an informant's identity at a hearing ... to suppress evidence ... Rather, the Court simply rejected the notion that such disclosure is always required ... This strongly indicates that McCray should not be read as in any way foreclosing ... counsel ... from making a showing, based upon the ... facts of that case, that disclosure is needed to ensure a fair hearing on the probable cause issue.

W. LaFave, at 574. See also Rosenbach, Disclosure of Identity of Confidential Informant Under Franks v. Delaware, 10 Search and Seizure L.Rep. (1983).

We agree that McCray does not establish an absolute rule against disclosure. We hold that disclosure may be allowed where deemed necessary to assess the affiant's credibility or accuracy. See State v. Haywood, 38 Wash.App. 117, 684 P.2d 1337 (1984); United States v. Kiser, 716 F.2d 1268, 1271 (9th Cir.1983).

The United States Supreme Court addressed the disclosure question once again in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). There, the Court held that a defendant is entitled to challenge a finding of probable cause, in a special evidentiary hearing, if he makes a "substantial preliminary showing" that the affiant lied or acted in reckless disregard for the truth in obtaining the search warrant. Significantly, the Franks decision was specifically limited to the case where the defendant challenges the affiant's descriptions of what the affiant personally observed. Thus, the question of whether a defendant can compel the disclosure of a secret informant's identity in order to challenge an affiant's account of the informant's statements was not answered. Rather, the Court specifically reserved judgment on that issue.

The federal courts have, since Franks, generally denied disclosure of a secret informant's identity where the challenge was to probable cause only. The denial of disclosure has often been based on the fact that a defendant has failed to prove that the affiant misstated facts told to him by the informant. Accordingly, such a defendant has not made a "substantial preliminary showing" of falsity as required to get a Franks hearing on the issue of probable cause. See Rosenbach; United States v. Schauble, 647 F.2d 113 (10th Cir.1981); United States v. Skramstad, 649 F.2d 1259 (8th Cir.1981).

Notably, however, a defendant in the position of petitioner, faced with a secret informant, is unable to make the "substantial preliminary showing"...