State v. Burnett

Decision Date01 June 1964
Docket NumberNo. A--74,A--74
PartiesThe STATE of New Jersey, Plaintiff-Respondent, v. Fletcher BURNETT, Defendant-Appellant.
CourtNew Jersey Supreme Court

Clive S. Cummis, Newark, for appellant (Schiff, Cummis & Kent, Newark, attorneys).

Peter Murray, Asst. Pros., for respondent (Brendan T. Byrne, Essex County, Pros., attorney).

The opinion of the court was delivered by


Defendant was convicted of possession of lottery slips in violation of N.J.S. 2A:121--3, N.J.S.A. The Appellate Division affirmed, 79 N.J.Super. 242, 191 A.2d 208 (1963), and defendant appealed, asserting a constitutional question with respect to a search made without a search warrant. R.R. 1:2--1(a).

The arresting officers were told by a known confidential informant that in 10 or 15 minutes a blue Mercury of a given age driven by a colored male would enter a specified parking lot and that the driver would leave with lottery slips on him. The ensuing events squared with this information, and as the car was backed out of the lot some five minutes after it entered, the driver, the defendant here, was arrested. Lottery slips were found upon his person. The trial court found probable cause for the arrest and the incidental search, citing Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

The sole issue tendered on appeal was whether the State was obliged to reveal the confidential informant upon the inquiry into the validity of the search. The Appellate Division said it inclined to the view that disclosure would not be required but did not decide the question because it was not raised. The court held that to raise the issue a defendant must demand disclosure and move to strike the related testimony if disclosure is not made. 79 N.J.Super., at p. 248, 191 A.2d 208. This the defendant did not do, and hence the state was never given the choice between disclosure and the loss of the officer's testimony. The Appellate Division's view that the issue must thus be tendered is well supported. 8 Wigmore, Evidence (McNaughton rev. 1961) § 2374, p. 771; Annotation, 76 A.L.R.2d 262, 302 (1961).


Although the judgment of the Appellate Division must be affirmed for the reason it gave, we will deal with the issue it left open, i.e., the right to disclosure, since the issue is so much involved in the current scene.

N.J.S. 2A:84A--28, N.J.S.A. provides:

'A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.'

This statute codified existing case law and reflects the holding in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

In Roviaro the defendant sought disclosure of the identity of the informant in connection with the issue of guilt rather than, as here, in connection with a motion to suppress the product of a search. Roviaro held that an informant must be revealed upon pain of dismissal if it appears he is a material witness upon a basic issue of the trial. See State v. Dolce, 41 N.J. 422, 435--436, 197 A.2d 185 (1964).

In the case before us, however, it is not suggested that the informant could exculpate defendant. Indeed, guilt is not questioned. Rather defendant seeks to suppress evidence which establishes guilt and seeks to do so upon the thesis that if disclosure as to the alleged informant were required it might develop that the arresting officers did not have the probable cause for arrest which they asserted in their testimony, in which eventuality the search would be illegal and the resulting evidence inadmissible under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

But although in Roviaro disclosure was sought with reference to the ultimate issue of guilt, rather than the use of the product of a search, the Court, after saying that 'Where the disclosure of an informer's identity, or of the contents of his communication, is revelant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way,' added (353 U.S., at p. 61, 77 S.Ct. at p. 628, 1 L.Ed.2d at p. 645):

'* * * Most of the federal cases involving this limitation on the scope of the informer's privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.'

The federal cases disagree as to whether such disclosure must be made. Roviaro cited four cases in connection with the excerpt we have quoted. One was Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938). There the informant advised that about midnight a specific car would move liquor from a specific dwelling. The officers observed movements which coincided with that information but which, absent the informant's tip, would not seem sufficient to establish probable cause. Nonetheless the informant was not revealed and the search was upheld. Scher may then stand for the proposition that the informant need be disclosed only if the officer relied solely upon him, i.e., if there were no ensuing events giving credit to the informant's communication.

The second case cited in Roviaro is United States v. Li Fat Tong, 152 F.2d 650 (2 Cir. 1945). There the informant advised the officer that defendant was arriving by plane with narcotics. The officer knew of prior arrests of defendant for allied offenses. The trial court's refusal to require disclosure of the informant was sustained.

In the third case, Wilson v. United States, 59 F.2d 390 (3 Cir. 1932), the quarters of a private club were searched. The search was not under a warrant or in connection with an arrest. We gather the Government sought to sustain the search on the claim that a member of the club authorized the entry, the officer asserting that he used a key supplied by a member. The majority held that disclosure of the 'member' must be made since, if he was not a member of the club, the entry was without permission, the sole basis upon which it was sought to be sustained.

The last case cited in Roviaro is United States v. Keown, 19 F.Supp. 639 (W.D.Ky.1937). That case does support the thesis that the informant should be disclosed to the end that the defendant may attempt to dispute the truth of the officer's testimony. To the same effect are United States v. Blich, 45 F.2d 627 (D.Wyo.1930), and Costello v. United States, 298 F.2d 99 (9 Cir. 1962); see Jones v. United States, 105 U.S.App.D.C. 326, 266 F.2d 924 (D.C.Cir. 1959), appeal dismissed 106 U.S.App.D.C. 228, 271 F.2d 494 (D.C.Cir. 1959). On the other hand, a number of federal cases have held that it was not error to refuse to require disclosure. Bruner v. United States, 293 F.2d 621 (5 Cir. 1961); Pegram v. United States, 267 F.2d 781 (6 Cir. 1959); United States v. One 1957 Ford Ranchero Pickup Truck, 265 F.2d 21 (10 Cir. 1959); Nichols v. United States, 176 F.2d 431 (8 Cir. 1949); McInes v. United States, 62 F.2d 180 (9 Cir. 1932); Goetz v. United States, 39 F.2d 903 (5 Cir. 1930); Mitrovich v. United States, 15 F.2d 163 (9 Cir. 1926).

There are not many state decisions in this area. A majority of them hold against a firm right to disclosure. The leading case requiring disclosure is Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39 (Sup.Ct.1958), decided by a vote of 4 to 3. To the same effect is Ford v. City of Jackson, 153 Miss. 616, 121 So. 278 (Sup.Ct.1929). Tennessee had held the same way in Smith v. State, 169 Tenn. 633, 90 S.W.2d 523 (Sup.Ct.1936), but that case was disapproved in Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487 (Sup.Ct.1955), which commits the matter to the discretion of the trial court, as do also the Missouri cases, State v. Edwards, 317 S.W.2d 441 (Sup.Ct.1958), and State v. Cookson, 361 S.W.2d 683 (Sup.Ct.1962). We read Drouin v. State, 222 Md. 271, 160 A.2d 85, 92 (Ct.App.1960), to eschew an invariable requirement of disclosure. By a vote of 4 to 3 the Supreme Court of Illinois held that disclosure should not be required. People v. Durr, 28 Ill.2d 308, 192 N.E.2d 379 (Sup.Ct.1963). The Ohio Supreme Court has held against disclosure, State v. Beck, 175 Ohio St. 73, 191 N.E.2d 825 (1963), cert. granted, 376 U.S. 905, 84 S.Ct. 664, 11 L.Ed.2d 604 (1964), and so also has the New York Court of Appeals (one judge dissenting), at least where there is 'strong and dependable proof of the accuracy of his (the informer's) information.' People v. Coffey, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263, 267 (Ct.App.1963). Also arrayed against disclosure are Dixon v. State, 39 Ala.App. 575, 105 So.2d 354 (Ct.App.1958); State v. Hardy, 114 So.2d 344 (Fla.D.Ct.App.1959); Bridges v. State, 166 Tex.Cr.R. 556, 316 S.W.2d 757 (Tex.Cr.App.1958).

Recently the United States Supreme Court decided Rugendorf v. United States, 84 S.Ct. 825 (March 30, 1964). There a search warrant had issued. In an attack upon the warrant defendant sought unsuccessfully to obtain the identity of the informant whose information figured prominently in the narration of probable cause. The majority opinion noted that with respect to an attack upon a warrant, 'This Court has never passed directly on the extent to which a court may permit such examination when the search warrant is valid on its face and when...

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