State v. Harklerode

• Decision Date: 04 October 1990
• Docket Number: No. 90-1187,90-1187
• Citation: 567 So.2d 982
• Parties: 15 Fla. L. Weekly D2454 STATE of Florida, Petitioner, v. Terry Lee HARKLERODE, Respondent.
• Court: Florida District Court of Appeals

Page 982

567 So.2d 982

15 Fla. L. Weekly D2454

STATE of Florida, Petitioner, v. Terry Lee HARKLERODE, Respondent.

No. 90-1187.

District Court of Appeal of Florida Fifth District.

Oct. 4, 1990.

Bradley E. King, State Atty., and Paul R. Norville, Asst. State Atty., Inverness, for petitioner.

Howard H. Babb, Jr., Public Defender, and David J. Tarbert, Asst. Public Defender, Inverness, for respondent.

COBB, Judge.

The state seeks review by certiorari of the circuit court's order requiring disclosure of the identity of a confidential informant, claiming that the order is a departure from the essential requirements of law for which there would be no remedy on appeal. ¹ We agree and quash the lower court's order.

The defendant, Terry Lee Harklerode, is charged with possession of cocaine. After a confidential informant alerted a deputy sheriff that drugs were being sold at a certain residence, and while that residence was under surveillance, the defendant was observed driving away from the premises in a vehicle without taillights. The car was stopped for this traffic infraction and a subsequent search of the vehicle revealed cocaine. A motion to suppress the cocaine, alleging a lack of probable cause for the stop, was denied. Defendant then filed a motion to disclose the identity of the confidential informant. Although the motion, as amended, was signed by the defendant, there was no statement that the facts alleged were true and correct. The state moved to strike the motion for that reason, and because the defendant failed to establish that the disclosure was necessary to a viable defense. Alternatively, the state argued that an in camera hearing should be held, a procedure also sought in the defendant's motion for disclosure. However, without holding an in camera hearing or taking any evidence, the trial court denied the state's motion to strike and granted the defendant's motion for disclosure.

The seminal case on compelling the disclosure of a confidential informant's identity is Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The Court in Roviaro acknowledged the existence of a governmental privilege to withhold disclosure of the identity of persons furnishing information regarding crimes, noting that the purpose of the privilege is "[t]he furtherance and protection of the public interest in effective law enforcement." Id. at 59, 77 S.Ct. at 627. However, the privilege is limited by the fundamental requirements of fairness:

Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of the accused, or is essential to a fair determination of a cause, the privilege must give way.

Id. at 60-61, 77 S.Ct. at 628. The determination of when disclosure is justified calls for balancing of the public interest in protecting the flow of information against the individual's right to prepare his defense which depends on the circumstances in each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony and other relevant factors. Id. at 62, 77 S.Ct. at 628-629.

In Treverrow v. State, 194 So.2d 250 (Fla.1967), the Florida Supreme Court incorporated the Roviaro standard, also noting that since the state has the privilege of nondisclosure, the burden is on the defendant claiming an exception to the rule to show why he is entitled to disclosure. See also State v. Hassberger, 350 So.2d 1, 2 (Fla.1977) (where disclosure of an informer's identity is relevant and helpful to the defense of an accused, or is essential to the fair determination of the cause, the privilege must give way).

When a defendant seeks disclosure because a confidential informant's identity or communications are allegedly relevant and helpful to his defense, the defendant must allege a legally recognized defense to the crime charged and support the defense with sworn evidence. State v. Zamora, 534 So.2d 864 (Fla. 3rd DCA 1988). See also State v. Pautier, 548 So.2d 709, 711 (Fla. 3d DCA 1989) (disclosure is warranted where defendant asserted a legally recognized defense and supported the defense with sworn proof).

Alternatively, where the defendant seeks disclosure claiming it is essential to the fair determination of the case, the focus is on general due process concerns. See State v. Zamora, 534 So.2d at 868. Disclosure on this ground has been consistently denied by the Florida courts where the confidential informant acted as a mere "tipster" or merely provided police with probable cause for a search or arrest. See, e.g., Treverrow v. State, supra (one factor to be weighed in determining disclosure is whether informant merely supplied lead); State v. Hernandez, 546 So.2d 761 (Fla. 2d DCA 1989) (disclosure of confidential informant who merely furnished probable cause for search or arrest not required); State v. Acosta, 439 So.2d 1024 (Fla. 3d DCA 1983) (fact that informant provided good cause for arrest not sufficient to overcome privilege of nondisclosure); State v. White, 418 So.2d 411 (Fla. 2d DCA 1982) (state is privileged to refuse to disclose identity of confidential informant whose information was relied on to establish probable cause); State v. Kirksey [Chamblin], 418 So.2d 1152 (Fla. 1st DCA 1982) (state not required to disclose identity of confidential informant who merely furnishes probable cause for search or arrest); Elkins v. State, 388 So.2d 1314 (Fla. 5th DCA 1980) (factor to be considered in determining whether disclosure is required is whether informant merely supplied a lead).

Regardless of whether disclosure is sought because it is necessary to a defense or on due process grounds, the burden is clearly on the defendant to establish an exception to the nondisclosure privilege. See Treverrow v. State, supra; State v. Hernandez, supra; State v. Zamora, supra; State v. Montalvo, 428 So.2d 695 (Fla. 2d DCA 1983); State v. Thennes, 422 So.2d 46 (Fla. 4th DCA 1982); State v. White, supra; Elkins v. State, supra. The state argues that the defendant in this case failed to meet that burden when he filed an unsworn motion. Although Rule 3.220, Florida Rules of Criminal Procedure, does not specifically require that a motion to disclose a confidential informant's identity be sworn, in order to sustain the burden of overcoming the nondisclosure privilege, a defendant must not only allege a legally cognizable motion, but must also support the defense with sworn evidence. See, e.g., State v. Pautier, supra (disclosure is warranted when defendant asserts a legally recognized defense and supports the defense with sworn proof); Garcia v. State, 548 So.2d 284 (Fla. 3d DCA 1989) (in camera review required when defendant files a sworn motion or affidavit); State v. Zamora, supra (disclosure only ordered where defendant asserts a legally recognizable defense, supported by sworn proof); Beasley v. State, 354 So.2d 934 (Fla. 2d DCA 1978) (before defendant establishes right to in camera review, defendant must at least swear to the facts upon which the motion for disclosure is based).

Even assuming an unsworn motion is sufficient to support disclosure, in this case the defendant failed to overcome the state's privilege of nondisclosure. Defendant claimed in his motion that he gave a ride to a stranger on the day preceding his arrest and that the stranger, who may have been the confidential informant, entrapped him by leaving drugs in defendant's car, or alternatively, that defendant had no knowledge of the drugs allegedly...