State v. Mason, 73536

• Decision Date: 17 February 1987
• Docket Number: No. 73536,73536
• Citation: 353 S.E.2d 915,181 Ga.App. 806
• Parties: The STATE v. MASON.
• Court: Georgia Court of Appeals

Page 915

353 S.E.2d 915

181 Ga.App. 806

The STATE v. MASON.

No. 73536.

Court of Appeals of Georgia.

Feb. 17, 1987.

Harry N. Gordon, Dist. Atty., Gerald W. Brown, Asst. Dist. Atty., for appellant.

Robert N. Elkins, Athens, for appellee.

BIRDSONG, Chief Judge.

The defendant Ernest P. Mason is charged with possession of more than a pound of marijuana with intent to distribute, based upon the execution of a search warrant obtained by affidavit wherein the affiant officer reported a confidential informant alleged the substance to be in defendant's possession. The defendant filed a motion to suppress on grounds the affidavit contained certain deliberate falsifications. At the motion to suppress hearing, defendant sought to produce as a witness John Doe, whom he had subpoenaed, to prove the confidential informant did not tell the officer what the affidavit asserted.

The State objected to the production of this witness by saying: "[We] are going to object to anyone being required to testify that he was or was not an informant with respect to the warrant issued in this case." The defendant asserted that he was not asking the State to divulge the identity of its confidential informant, but was seeking merely to exercise his right of compulsory process to prove by his own witness a falsified affidavit and, therefore, the absence of probable cause. Ultimately, the trial court ruled that the State's invocation of an absolute privilege against being required to produce, or allow testimony of, a confidential informant operated to bar the defendant from asserting the testimony of John Doe "which, if heard, could constitute the necessary offer of proof ... of deliberate falsehood or reckless disregard of truth by the [affiant]." Thereupon, the trial court suppressed the evidence without any determination in camera. Held:

1. The appellee defendant contends the State waived, induced or acquiesced in any error in granting the defendant's motion to suppress, by inviting the trial court grant the motion: "I would ask the Court to allow us to assert [the informer] privilege at this time, and if the result of that is granting the Motion to Suppress, well then that of course would be the result of it." The State also said: "I would ask the Court to ... allow me to assert the State's privilege and if this frustrates the defense's ability to prosecute the Motion to Suppress, I would invite the Court to grant the motion to Suppress; but, Your Honor, I feel that the issue must be preserved here, we cannot go merrily along and accomplish what the State has a right to preserve, one way or the other, either by virtue of an appeal, or by virtue of prosecutorial discretion as to whether or not to prosecute." (Emphasis supplied.)

Neither the defendant nor the trial court thought the State was acquiescing in an adverse ruling. They discussed the form of the ruling, and the trial court said: "I think that gives you a clear appeal." The State replied: "I believe that fits exactly the contentions of both parties...." The defense attorney then said: "I think the record would clarify [the court's conclusions] if the appeal becomes necessary." It is clear the State did not as a matter of fact acquiesce in the suppression of the evidence or waive its right to object to it in an appeal. In fact, the State clearly indicated it intended to appeal. To infer that the State wanted the trial court to suppress this evidence would fly in the face of common sense. Moreover, the law does not take waivers lightly, and a waiver of the important right to appeal an adverse ruling should not be inferred unless it is clear and unmistakeable.

"Induced error" commonly refers to an error in the proceedings that is caused by or elicited by the one complaining of it. See Burrell v. State, 171 Ga.App. 648, 649, 320 S.E.2d 810. The State did not commit error or induce a wrong ruling by asserting the informer privilege, and inviting the court to rule as it must. The State asserts its privilege knowing that if in the court's opinion the privilege materially frustrates the defendant's right to prove lack of probable cause, the evidence will be suppressed and there can be no prosecution and no trial. In this context, the State's "invitation" to the trial court to grant the motion if it must, in fact amounted to an insistence upon the privilege and an adamant refusal to waive it. We thus decline to hold that by the very act of asserting its privilege the State waived it, or the right to appeal the suppression of the evidence.

2. The defendant grounds his motion to suppress, and the trial court its ruling, on Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667, which defendant contends allows him to attack the warrant by subpoena to the confidential informant, upon a substantial preliminary showing that probable cause was based upon "deliberate false or reckless disregard for the truth."

The Supreme Court in Franks held that a defendant is entitled to a hearing where at to challenge the truthfulness of the affiant's factual statements in an affidavit for a search warrant, if the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally or with reckless disregard for the truth, was included in the affidavit by the affiant. However, the Supreme Court expressly declined to decide "the difficult question whether a reviewing court must ever require the revelation of the identity of an informant once a substantial preliminary showing of falsity has been made." Id., at p. 170, 98 S.Ct. at 2683.

In Colorado v. Nunez, 465 U.S. 324, 104 S.Ct. 1257, 79 L.Ed.2d 338, the Supreme Court dismissed a writ of certiorari to a Colorado case suppressing evidence for the State's refusal to disclose a confidential informant upon a challenge to the informant's veracity; certiorari was dismissed apparently on the basis that the Colorado court could in its discretion require disclosure on more liberal grounds than assured by the Federal Constitution. Three members of the court pointed out that neither the Federal Constitution nor any decision by the Supreme Court requires the result reached by the Colorado Supreme Court, and said at pp. 326-327, 104 S.Ct. at pp. 1257-1258: "[T]his Court 'has consistently declined to hold that an informer's identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause'.... Nothing in the Federal Constitution ... requires a State 'to abolish the informer's privilege from its law of evidence, and to ... disclos[e] ... the informer's identity in every such preliminary hearing where it appears that the officers made the arrest or search in reliance upon facts supplied by an informer they had reason to trust.' [Cit.] ... We have, to be sure, recently concluded that the Fourth and Fourteenth Amendments entitle a defendant to a veracity hearing if he makes a substantial preliminary showing that an affiant knowingly and intentionally, or with reckless disregard for the truth, included in a warrant affidavit a false statement necessary to the finding of probable cause. Franks v. Delaware, [supra].... [But] ... The decision in Franks neither required nor contemplated routine disclosure of informants' identities...."

Thus we conclude, on good authority, that Franks does not hold a defendant may obtain disclosure of a confidential informant's identity or compel his appearance at a hearing challenging the probable cause of a search warrant.

3. The defendant's right to disclosure of a confidential informant's identity or whereabouts, or to compel his testimony or that of one who would reveal or expose the confidential informant, is an independent question which must be met on its own ground. The State contends its informer's privilege is absolute, that its invocation can bar the defendant even from producing his own witness if it will tend to reveal the confidential informant. We note here that the State has not conceded this John Doe is the confidential informant, while defendant obviously contends he is.

It is fundamental that the privilege here is not simply one against disclosing identity of a confidential informant; but the public and the informant have a clear interest which can, and in the particular case should, be protected even when the informant's identity has been disclosed or discovered. In Roviaro v. United States, 353 U.S. 53, 59-60, 77 S.Ct. 623, 627-628, 1 L.Ed.2d 639, the court said: "What is usually referred to as the informer's privilege is in reality the Government's privilege.... 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.... The scope of the privilege is limited by its underlying purpose."

In a seminal case, the Supreme Court said: "It is ... [the informant's right and duty] to communicate to the executive officers any information which he has of the commission of an offense against those laws.... [I]t is the duty of that government to see that he may exercise this right freely, and to protect him from violence while so doing, or on account of so doing. This duty does not arise solely from the interest of the party concerned, but from the necessity of the government itself, that its service shall be free from the adverse influence of force and fraud practiced on its agents." (Emphasis supplied.) In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080.

It is basic to the right that it might extend beyond the defendant's ability to guess or speculate who among his friends and acquaintances might have been the informant. The wonder to us is not that a defendant might know who has informed against him, but that there ever is a...