Miller v. United States
| Decision Date | 22 January 1960 |
| Docket Number | No. 17629.,17629. |
| Parties | Larry Joe MILLER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles W. Tessmer, Dallas, Tex., for appellant.
Minor Morgan, Asst. U. S. Atty., Dallas, Tex., W. B. West, III, U. S. Atty., Fort Worth, Tex., for appellee.
Before RIVES, Chief Judge, and BROWN and WISDOM, Circuit Judges.
The principal issue in this appeal from a conviction for illegal possession and transportation of narcotics, 26 U.S.C.A. § 4744(a) (1) & (2), concerns the Government's privilege against disclosure of the identity of an informer who brought criminal information to the police.
Being tipped off by an informer, Dallas police officers and a federal narcotics agent located a quart Miracle Whip jar secreted in a leaf-covered hole several feet off a dirt road described as intersecting and dead-ending Celestial Road near a cemetery in an uninhabited area in northern Dallas. The jar contained approximately 1527 grains of marijuana, as laboratory tests subsequently confirmed. Detectives Beatty and Stroud and Special Agent Brown concealed themselves in the underbrush around the location and began the first lap of what was to be a 30-hour vigil. At 6:45 the following evening, the original officers — Beatty, Stroud and Brown, all of whom had been relieved but had returned for the climax — saw a 1955 white Cadillac on Celestial Road turn onto the dirt road and continue on it past the location of the jar down to the cemetery. It turned around and stopped near the spot where lay the jar still carefully concealed. Leaving the motor running, the driver got out and went directly to the leaf-covered hole and picked up the jar. Detective Beatty shouted "Police" and ordered him to halt. The driver bolted to the Cadillac and driver and car roared down the dirt road. Detective Stroud jumped in the path of the oncoming car waving his arms. As the Cadillac bore down, Stroud leaped back out of the road and it sped by him. Just before, the driver hurled the jar of marijuana through the open car window. The driver attempted a precarious 90° turn onto Celestial Road. Detective Stroud was back on the dirt road with a .12 gauge shotgun and blasted away four times at the tires of the Cadillac. The automobile swerved dangerously but somehow made the turn and sped away.
Later that evening, the Cadillac was found parked on a street in Dallas in front of the home of the adoptive parents of the 18-year-old accused, Larry Joe Miller. The car belonged to Larry Joe's mother. Several days later Larry Joe voluntarily surrendered to the police in another city after a newspaper article appeared stating that Larry Joe was being sought by the Dallas police. Detective Beatty and Agent Brown both testified that they had known Larry Joe previously and that he was the driver of the Cadillac. Detective Stroud testified that although he had not known Larry Joe previously he was able to identify Larry Joe as the driver.
On cross examination of Detective Beatty, counsel for Larry Joe elicited the fact that a confidential informer communicated in person to Detective Beatty. It was this information which enabled the police to find the hidden jar of marijuana. On the ground of the Government's privilege against disclosure of the identity of an informer, the District Judge refused a demand for the name of the informer. Appellant asserts this ruling is reversible error.
The Government's privilege in a criminal prosecution is subject to the important qualification that when evidence of the identity of the informer or contents of his communications "may be relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause," the court will require the disclosure, and if it is still withheld, will dismiss the prosecution.1
The standard for determining when the privilege must give way to the needs of the accused is laid down in Roviaro v. United States.2
We think that the circumstances of this case differ crucially from those cases in which disclosure was required. We hold that it was not error to refuse to require the Government to divulge the identity of its source of information.
Here we are dealing with an individual who, knowing that someone has committed or is about to commit a crime, communicates that knowledge to the police who, acting independently, go to the scene and procure evidence of the crime. We are not dealing with one who was an active participant in the crime3 nor with one whose presence gave the "atmosphere of confidence" during critical moments and who would have been able to testify directly about the very transaction4 constituting the crime. But this is not to say that physical presence at the scene of the alleged crime is conclusive5. Neither is this a situation in which the informer is the person with whom the accused is charged to have been dealing, such as an indictment alleging a sale to anonymous with anonymous being the informer.6 The Government presented its case without mention of the informer; the fact of the existence of an informer was brought out on cross examination. We think all the evidence discloses is that the informer was an informer and nothing more.
There is some testimony that there was another person in the car with Larry Joe. In response to a statement in the Government's brief that there is no conduct in connection with the crime in which an informant could possibly have figured "unless it be contended that the person who accompanied the defendant in the automobile at the time he committed the offenses * * * was the informant," a Reply Brief for Appellant was filed which stated "it is well within the realm of probability that the second passenger * * * was the informer." But this is but a belated suggestion of a possibility as the record does not, as, for example, it did in Roviaro and Gilmore, supra, reveal any factual basis for the assertion that "it is well within the realm of probability." If the informer's relation to the acts leading directly to or constituting the crime may be assumed from a fertile imagination of counsel, the Government in practically every case would have to prove affirmatively that the informant had not done any such likely acts. Having done that, all would be revealed and the informer privilege, deemed essential for the public interest, for all practical...
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