State v. Katz

• Decision Date: 31 May 1974
• Docket Number: No. 73--1484,73--1484
• Parties: STATE of Florida, Petitioner, v. Sanford KATZ and Milton Prenner, Respondents.
• Court: Florida District Court of Appeals

Page 356

295 So.2d 356

STATE of Florida, Petitioner, v. Sanford KATZ and Milton Prenner, Respondents.

No. 73--1484.

District Court of Appeal of Florida, Fourth District.

May 31, 1974.

Philip S. Shailer, State's Atty., and Jon H. Gutmacher, Asst. State's Atty., Fort Lauderdale, for petitioner.

Edward M. Kay, of Varon, Stahl & Kay, Hollywood, for respondents.

WALDEN, Judge.

Defendants, Katz and Prenner, were charged with a gambling offense under F.S. 849.01, F.S.A. (1971).

Pre-trial, the trial court ordered the state to disclose the identity of a confidential informant. We grant the writ of certiorari at the state's behest, quash the order under review, and remand for further proceedings consistent herewith.

Going back, a search warrant ¹ had been issued for the premises of defendant, Milton Prenner. It was based upon an affidavit. ² The warrant was duly executed and alleged betting paraphernalia seized.

Defendants filed a motion to suppress the seized evidence and a hearing was conducted. Testifying was a security guard, Healy, and Detectives Dailey, Hodges and Wilton. Also testifying were Sonny Mathis (the 'Sonny' referred to in the affidavit) and Salvatore Indviviglia (the 'Sal the bartender' referred to in the affidavit).

As we view it, very little of moment was extracted at the hearing. The contents of the search warrant were explained, confirmed and corroborated in detail. Mrs. Scherer was named as the female who complained that her husband had been betting with Prenner for over a year losing in excess of $5,000.00. Finally, and this is apparently where the defendants find comfort reference the instant proceedings, Sonny and Sal deny that they ever said that Milton Prenner was a bookie. All the other witnesses controvert their denial in detail and so, post warrant, there appears to be a dispute as to whether Sonny and Sal ever said that Prenner was a bookie--for whatever difference that makes.

Thereafter, and pre-trial, the defendants moved for the disclosure of the confidential informant referred to in the search warrant affidavit upon the naked averment, '* * * that the failure to disclose his identity will infringe upon the constitutional rights of the accused.'

Relying upon the earlier Motion to Suppress and testimony adduced at the hearing thereon, the trial court entered the order under review responsive to the defendants' Motion for Disclosure of Confidential informant. (We assume from our record that there was no hearing or testimony on the motion to disclose.)

With reference to the disputed statements of Sonny and Sal, the trial court did not find either that they testified falsely or that the police officers testified falsely. Rather it was recited,

'In the case at bar, this Court finds that based upon the testimony and demeanor of the witnesses, there is a serious question as to the credibility of the affidavit and in order to avoid this risk, the name of the confidential informant must, therefore be disclosed.'

Deleting all references to 'Sonny' and 'Sal' contained in the search warrant affidavit, 'Two of the people who most readily speak of Prenner in those terms (Bookie) art: Sal the Bar Tender in the club and 'Sonny' Mr. Marvin Orleans' personal body guard," it is our position there is still more than adequate legal probable cause to support the warrant. The allegations of the reliable informant, C--41, coupled with the corroboration and investigation of Detectives Dailey and Tobey are sufficient. ³ As a matter of fact, it is our view that the general suggestion that Sal and Sonny readily speak of Prenner as a bookie is nothing more than surplus and simply adds a little flavor to the documents. See State v. Gallo, 279 So.2d 71 (2d D.C.A.Fla.1973); State v. Lemon, 212 So.2d 322 (2d D.C.A.Fla.1968).

And so we have an unremarkable affidavit combined with the not unusual problem of balancing the rights of the accused with the rights of society. We know that the secrecy of the informer is normally privileged unless the accused is able to show some exception prescribed by case law, and that the ultimate test is one of fairness. In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1956), the court stated:

'A further limitation on the applicability of the privilege (of confidentiality) arises from 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 an accused, or is essential to a Fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure . . ..' 353 U.S. at 60--61, 77 S.Ct. at 628 (Emphasis added.)

Florida precedent on this matter includes Tollett v. State, 272 So.2d 490 (Fla.1973) and Spataro v. State, 179 So.2d 873 (2d D.C.A.Fla.1965), in which informant's identity had to be disclosed by the state to afford the defendants a fair trial of their cause.

The question of whether the identity of an informant must be revealed in order to verify probable cause for a warrant has been dealt with in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967):

'. . . Indeed, we have repeatedly made clear that federal officers need Not disclose an informer's identity in applying for an arrest or search warrant . . . we have 'recognized that 'an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,' so long as the magistrate is 'informed of some of the underlying circumstances' supporting the affiant's conclusions and his belief that any informant involved 'whose identity need not be disclosed . . . was 'credible' or his information 'reliable."" 386 U.S. at 311, 87 S.Ct. at 1062.

See 46 Fla.Bar J. No. 11 644 (1972).

Finally, there is Florida law that directly confronts the issue and is in line with the precedent mentioned above. The Florida Supreme Court has enacted as the governing procedural law of this state F.R.Cr.P. 3.220(c)(2), 33 F.S.A.:

'Rule 3.220. Discovery

(c) Matters Not Subject to Disclosure.

'(2) Informants. Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial, or a failure to disclose his identity will infringe the constitutional rights of the accused.'

and we believe it reflective of the criteria we must employ. The state assures that the informant will not be produced at a hearing or trial and we accept this as correct--otherwise our result would be different. See Spata ro v. State, Supra. The real question then is whether the failure to disclose at this state of the proceedings will infringe the defendants' constitutional rights. We specifically invited counsel to advise us on this issue and they have now carefully done so.

It is our opinion and holding here that there is no constitutional infringement and hence the state is not obliged to reveal the identity of its confidential informant. State v. Johnson, 285 So.2d 53 (2d D.C.A.Fla.1973); State v. Petillo, 61 N.J. 165, 293 A.2d 649 (1973); See Harrington v. State, 110 So.2d 495 (1st D.C.A.Fla.1959).

The defendants relied upon Roviaro v. United States, Supra, Spataro v. State, Supra, and Monserrate v. State, 232 So.2d 444 (3d D.C.A.Fla.1970) in their advice to the court and we distinguish each of these as concerning the efforts of a defendant to obtain the identity of an informant whose identity must be known to afford the defendant a fair trial. Should the state attempt to introduce evidence related to the informant testimony, or should it occur that the informant must be confronted to allow defendant his Sixth Amendment right to confront a witness, then these named cases would apply. Presently, however, there is no abridgement of defendants' constitutional rights--as the affidavit supports a judicial finding of probable cause to issue a warrant.

Certiorari granted, with directions.

CROSS, J., and MOUNTS, MARVIN, Associate Judge, concur.

1 'SEARCH WARRANT

'IN THE NAME OF THE CITY OF POMPANO BEACH, FLORIDA, To All and Singular, the Chief of Police and/or Police Officers of the City of Pompano Beach, Broward County, Florida:

'WHEREAS, Det's M. Dailey & W. Tobey, as Police Officers of the City of Pompano Beach, Broward County, Florida, has this day made application before me for a Search Warrant and said application being supported by verified statement of the said, Det's Dailey & Tobey, wherein it has been alleged in said application that the affiant has reason to believe and does believe that a person or persons known to him as MILTON PRENNER UNLAWFULLY HAS, USES,...