State v. Maier, HH-478

• Decision Date: 19 January 1979
• Docket Number: No. HH-478,HH-478
• Citation: 366 So.2d 501
• Parties: STATE of Florida, Appellant, v. Woodrow MAIER, Appellee.
• Court: Florida District Court of Appeals

Page 501

366 So.2d 501

STATE of Florida, Appellant, v. Woodrow MAIER, Appellee.

No. HH-478.

District Court of Appeal of Florida, First District.

Jan. 19, 1979.

Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for appellant.

William J. Sheppard, Jacksonville, for appellee.

BOOTH, Judge.

This cause is before us on appeal from the order of the Circuit Court granting appellee's motion to compel discovery of the confidential informer of one W.L. Merritt, a special agent for the Naval Investigative Service. Agent Merritt made the following affidavit which formed the basis for the search warrant for a house trailer owned by appellee:

"Your affiant has been working with a previously reliable confidential informant who has been inside the above-described house trailer within the past seven days. While inside the house trailer said confidential informant observed two large bags of cannabis, commonly known as marijuana. The occupant of the trailer also represented to said informant that the substance was marijuana.

The confidential informant has identified cannabis in the presence of your affiant. Your affiant is a Special Agent for Naval Investigative Service and is familiar with the appearance of marijuana. Said confidential informant bought a portion of the substance from the occupant of the above-described house trailer and turned it over to your affiant and your affiant recognized it to be cannabis, commonly known as marijuana. Said confidential informant has given information to Naval Investigative Service which has proven reliable on at least four occasions, two of which led to convictions, the other two are still pending."

The search by Duval County authorities revealed drugs and drug paraphernalia, and appellee was charged with possession of: (1) more than five grams of cannabis, (2) mescaline, (3) tetrahydrocannibinolis and (4) drug paraphernalia. Appellee moved to suppress the evidence and to compel disclosure of the confidential informer.

The trial court correctly upheld the validity of the search warrant based on information given by an unnamed informant and denied the motion to suppress. The law is clear, and the trial court Correctly held, that a search warrant may be based on hearsay information given by an unknown or unidentified person. ¹

The second order of the trial court, however, requiring disclosure of the unnamed informer, is erroneous since that individual is, admittedly, the confidential informer of Agent Merritt, a special agent for the Naval Investigative Service, and appellee makes no showing that the identity of the informer is necessary for preparation of his defense. The trial court required disclosure even though the court expressly found that defendant "had not shown sufficient factors to cause the disclosure of the informant," stating:

"(E)ither Defendant possessed the controlled substance, or he didn't the informant can not add anything to the facts as charged, so There is no known benefit that can accrue to the Defendant at the trial and the truth of the charge against Defendant will not depend upon the testimony of the informer. . . ." (e. s.)

The trial court's conclusion was that the privilege did not attach to Agent Merritt's informer in the State proceeding.

Appellee's contention is that the privilege of nondisclosure does not attach as to the informer in this case because Agent Merritt was not "charged with the enforcement of That law," i. e., Florida Statute § 893.03, which is the basis of the charges against appellee. Specifically, appellee urges that the officer or other public official to whom the informer imparts his information must have the power to arrest for the offense disclosed by the informer's tip or there is no privilege of confidentiality. Appellee also contends that Agent Merritt has no investigative powers outside the naval installation if non-military personnel are involved. Neither contention has merit.

The governmental privilege of non-disclosure of the confidential informer is not limited to law enforcement officers or to officers charged with enforcement of the particular law for which the accused is on trial. ² As authority to the contrary, appellee relies on the following statement in Roviaro v. U. S., 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957):

"What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law To officers charged with enforcement of that law." (e. s.)

The foregoing defines the privilege in terms of the factual situation in the Roviaro case ³ and the situation generally encountered, but does not thereby limit the confidential informer privilege as contended by appellee. ⁴ No subsequent decisions have interpreted Roviaro to impose the underscored words in the above quote as a new and additional requirement of the privilege of non-disclosure. Nor do we.

The question here is not whether Agent Merritt could enforce, or arrest for violation of, Florida laws, but whether he received the information supporting the issuance of the search warrant in the course of his official duties as an investigative officer for the U.S. Navy. There is no contention that Agent Merritt received the information other than in the course of his official duties. The holding below is, however, that Agent Merritt is no more than a private individual insofar as matters occurring off the naval base and therefore no privilege of confidentiality exists as to the informer who supplies information as to matters occurring off the naval base. In the lower court and on appeal, appellee relies on a portion of the Department of Navy Instructions which defines the duties of "command investigators" and improperly equates these investigators with NIS special agents, whose duties are defined in the same instructions. ⁵ Command investigators, defined to include military police, shore patrol, provost marshals, are limited in their activities to the investigation of "minor criminal offenses" and those "of a purely military character," with off-base investigative activities restricted to a minimum and to the immediate area surrounding the installation. ⁶

Agent Merritt, the affiant in this case, is not a "command investigator" and is not so limited. As a special agent of the NIS he is invested with the responsibility for investigation of major criminal offenses, defined to include offenses against state laws as well as minor criminal offenses which have aspects involving "narcotics, dangerous drugs or controlled substances." ⁷ Therefore, it is clear that Agent Merritt was acting properly within the scope of his duties in receiving the information, and as required by the naval instruction, in "making investigative referrals in behalf of command." ⁸ As stated in U. S. v. Brouillette, 478 F.2d 1171, 1177 (C.A. 5th 1973):

"After all, under the system of federalism, there is room for dual State-federal activity. Federal officials often refer information they have received to State officials for possible prosecution. . . ."

The trial court recognized that its decision requiring disclosure would make cooperative efforts between law enforcement agencies difficult, stating:

"Obviously, as numerous as our law enforcement agencies are, there are bound to be cases, similar to this one, wherein one agency, not charged with enforcement of a law, obtains information that would be helpful to another law enforcement agency charged with the enforcement of a particular law. In such case the information should be turned over to the proper law enforcement officer . . . However, this might in some instance, such as this, lead to a 'Catch 22' situation. In this case if the affiant had introduced the informant to the Sheriff's Office, the Sheriff's Office would not be able to vouch for the (sic) reliability since the informant had not previously been used and produced reliable results for the Sheriff's Office. . . ." (e. s.)

Indeed, under the lower court's ruling, cooperation among law enforcement agencies in cases involving a confidential informer can jeopardize the informer of the cooperating officer without the accused having to make the showing of necessity for disclosure traditionally required. ⁹ There is no basis in law or reason to penalize cooperation between law enforcement agencies by refusing to recognize the confidentiality of the informer of the cooperating agency to the same extent as informers of the agency charged with the enforcement of the particular law violated. ¹⁰

In U. S. ex rel. Coffey v. Fay, 344 F.2d 625 (2nd Cir. 1965), a state prosecution for robbery, the court refused to require disclosure of the confidential informer of an FBI agent who provided information leading to the arrest and accompanying search by state officers. The opinion states (344 F.2d at 629):

"About two months after the theft of the jewels, Gilhofer (FBI agent) obtained information implicating (the defendants) in the crime. He decided that 'there was no apparent federal violation' involved, so he invited the New York City authorities to join in arresting the two men. . . .

FBI agents presumably have no authority under federal law to make arrests on state charges. . . . " (e. s.)

The FBI agent testified, in the State prosec...