People v. Otte

• Decision Date: 18 October 1989
• Docket Number: No. B037686,B037686
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Stuart Carel OTTE, Defendant and Respondent.

Page 393

263 Cal.Rptr. 393

214 Cal.App.3d 1522

The PEOPLE, Plaintiff and Appellant, v. Stuart Carel OTTE, Defendant and Respondent.

No. B037686.

Court of Appeal, Second District, Division 7, California.

Oct. 18, 1989.

Review Denied Jan. 18, 1990.

Ira Reiner, Dist. Atty., Maurice H. Oppenheim and Sterling S. Suga, Deputy Dist. Attys., for plaintiff and appellant.

Tyson & Ipswitch, Richard P.B. Tyson, Law Offices of Torres & Brenner and Anita Susan Brenner, Pasadena, for defendant and respondent.

LILLIE, Presiding Justice.

Defendant was charged by information with possession of marijuana for sale, and sale or transportation of marijuana. (Health & Saf.Code, §§ 11359 and 11360, subd. (a).) His motion to discover the identity of an informant who had supplied information relied upon by the police in obtaining a search warrant for defendant's residence and vehicle, was granted; when the People refused to disclose the identity of the informant, the court dismissed the information. The People appeal from the order of dismissal. (Pen.Code, § 1238, subd. (a)(8).)

The trial court determined as a matter of law that the informant did not give information to the police "in confidence" within the meaning of Evidence Code section 1041, subdivision (b)(1). At the time the informant provided to police the information about defendant, the informant had recently been in police custody as a suspect in a narcotics case and had been released or released without charges being filed, as a result of providing that information.

The primary appellate issue is whether the criminal suspect who furnished information about defendant did so "in confidence" within the meaning of Evidence Code section 1041, pertaining to the privilege of a public entity to refuse to disclose the identity of an informant.

PROCEDURAL AND FACTUAL BACKGROUND

After the superior court denied defendant's motion to quash and traverse search warrants and to suppress evidence, defendant filed motion for identification of informant or dismissal of the information, claiming (1) that the informant is not properly a "confidential" informant and (2) that he is a material witness on the issues of possession for sale, mistaken identity, and dominion and control. ¹ The motion for disclosure of the informant's identity was submitted on the transcript of the hearing on the motion to quash and traverse supplemented by additional testimony of Deputy Cofield, as well as the court's in camera discussion with Deputy Cofield. ²

Deputy Cofield testified that prior to November 3, 1987, he met with an informant, who had not before that time given information to the police that had resulted in arrests. The informant told Cofield that a man known only to the informant as "Stuart" was selling marijuana on an "out call" basis whereby one wishing to purchase marijuana calls Stuart on the telephone, orders the desired amount, and arranges to meet Stuart at a pre-arranged location; Stuart delivers the marijuana in a black two-door 1986 Subaru. The informant also gave Cofield Stuart's telephone number and a detailed physical description of Stuart, and told him that Stuart is a truck driver and is away periodically.

At the time Cofield received the information about defendant from the informant, the informant was not under arrest but had been a suspect in a narcotics investigation, in custody within the previous 48 hours and released without charges being filed as a result of having provided the information. Between the time Cofield spoke to the informant and the time of execution of the search warrant of defendant's residence and car on November 19, 1987, Cofield was not aware of any contact between the informant and the defendant. Cofield further stated that he was claiming the privilege under Evidence Code section 1041; he felt that if the identity of the informant were known, "there is not a question in my mind that his life would be in danger"; and he had some information relating to the safety of the informant, the nature of which would tend to disclose his identity, but which he (the officer) was willing to disclose to the court only in camera.

After the in camera discussion, the court ruled that there was insufficient evidence that the information was given in confidence within the meaning of Evidence Code section 1041, or that the disclosure would render the informant unusable to law enforcement or that his personal safety would be in danger. The prosecutor stated: "Your Honor, I understood that Deputy Cofield was going into chambers to establish the threat to the safety of the informant. I have not attempted thus far to make any kind of a report with respect to the confidentiality of the information. I would like to proceed as far as I can with Detective Cofield in making a record on that in open court." The court responded, "You already have. It was also [made by defense counsel] on cross-examination with respect to the deputy's prior testimony." After the prosecutor offered to have the deputy testify as to his understanding with the informant as to the confidentiality of his identity, the court stated, "In view of the testimony that he has given the informant as a matter of law did not give the information under confidence." After the court ordered disclosure, the court gave Cofield time to discuss the matter with his superiors, and continued the matter; at the subsequent hearing, Cofield told the court that he would refuse to divulge the identity of the informant because he had told the informant that "anything told to me would be taken in confidence," and he feared for the informant's safety.

In making its determination that the information was not furnished in confidence, and thus that the privilege did not apply, the court appeared to rely on language in a case cited by defense counsel, Shepherd v. Superior Court (1976) 17 Cal.3d 107, 130 Cal.Rptr. 257, 550 P.2d 161, to the effect that "it cannot be maintained that voluntary statements of a criminal suspect to investigating authorities are 'confidential.' " (Id., at p. 124, 130 Cal.Rptr. 257, 550 P.2d 161.) Before addressing the issue of confidentiality, it is important to discuss the nature of the privilege in Evidence Code section 1041.

I PRIVILEGE FOR IDENTITY OF INFORMANT

As is evident from the common-law history of the privilege of the police to refuse to disclose the identity of an informant, as well as from the language of Evidence Code section 1041, it is primarily the identity of the informant which is sought to be kept confidential, and not necessarily the information which he imparts to the police. (See People v. McShann (1958) 50 Cal.2d 802, 807, 330 P.2d 33.) As occurred in the instant case, the information provided by the informant about respondent was indeed disclosed in Deputy Cofield's affidavit in support of the search warrant for respondent's residence and vehicle, but the affidavit did not disclose the identity of the informant.

" 'The common-law privilege of nondisclosure [of the identity of an informer] is based on public policy. "The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation." [Citation.] The informer is thus assured of some protection against reprisals. The use of informers is particularly effective in the enforcement of sumptuary laws such as those directed against gambling, prostitution, or the sale and use of liquor and narcotics. Disclosure of the informer's identity ordinarily destroys his usefulness in obtaining information thereafter.' [Citation.]" (People v. Aguilera (1976) 61 Cal.App.3d 863, 867, 131 Cal.Rptr. 603.)

Evidence Code section 1041 ³ permits a public entity to refuse to disclose the identity of an informer when disclosure "is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice...." Evidence Code section 1042, subdivision (d), enacted in 1969, provides the courts with a method for determining whether nondisclosure of the informant's identity would deprive the defendant of a fair trial. (People v. Aguilera, supra, 61 Cal.App.3d at pp. 867-868, 131 Cal.Rptr. 603.) "Under the statute the court is to hold an adversary hearing on the issue of disclosure, and, if requested by the People, an in camera hearing from which the defendant and defense counsel will be excluded. The court is not to order disclosure ... nor dismiss the criminal proceeding 'unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.' " (Id., at p. 868, 131 Cal.Rptr. 603; original emphasis.)

II THE CONCEPT OF CONFIDENTIALITY IN SECTION 1041

Because the informant in the instant case had been a suspect in custody and had apparently traded information about defendant for his release, the trial court concluded that the information was not "furnished in confidence" within the meaning of Evidence Code section 1041, subdivision (b).

In support of this ruling, respondent argues that the phrase "furnished in confidence" in Evidence Code section 1041, subdivision (b) refers to the state of mind of the informant and not the recipient police officer; accordingly, substantial evidence supports the trial court's implied findings that the prosecution failed to meet the burden of showing the informant's intent and that Officer Cofield's promise of confidentiality occurred after the informant gave his information and thus is not pertinent to the informant's state of mind when...