State v. Matney

• Decision Date: 09 June 1970
• Docket Number: No. M--82,M--82
• Citation: 236 So.2d 166
• Parties: STATE of Florida, Appellant, v. James Eugene MATNEY, Leo Charles Schuty a/k/a Leo Dean Welsh, and Susan Lind Hyers a/k/a Susan F. Matney, Appellees.
• Court: Florida District Court of Appeals

Page 166

236 So.2d 166

STATE of Florida, Appellant, v. James Eugene MATNEY, Leo Charles Schuty a/k/a Leo Dean Welsh, and Susan Lind Hyers a/k/a Susan F. Matney, Appellees.

No. M--82.

District Court of Appeal of Florida, First District.

June 9, 1970.

Rehearing Denied June 30, 1970.

E. Allbritton, Asst. Atty. Gen., for appellant.

Joseph A. St. Ana, Jacksonville, for appellees.

WIGGINTON, Judge.

The State of Florida seeks appellate review of an order rendered by the Criminal Court of Record of Duval County dismissing the criminal prosecutions brought against appellees and discharging them from custody.

On November 22, 1968, an affidavit for a search warrant signed by a special agent of the Florida Bureau of Law Enforcement was filed before a Circuit Judge of the Fourth Judicial Circuit in Duval County. The affidavit averred partly upon personal knowledge, and partly upon information received from a reliable confidential informant, that certain stolen property was located in a specifically described apartment rented to and occupied by appellees. Based upon this affidavit, a search warrant issued and was executed on November 23, 1968, at which time appellees were arrested, the apartment searched, and certain alleged stolen property seized by the arresting officers. Appellees were then charged in informations filed by the State Attorney with numerous offenses including receiving stolen property, breaking and entering with intent to commit a felony and grand larceny, breaking and entering with intent to commit a misdemeanor and petit larceny, and others.

Appellees filed a motion to suppress the evidence seized during the search of their apartment and to quash the affidavit and search warrant pursuant to which the search was made. At a hearing on these motions extensive testimony was taken pursuant to which an order was rendered directing appellant to divulge the name and address of the confidential informer referred to in the affidavit for search warrant. In response to this order, the State filed its return asking to be relieved of the requirement that it disclose the name and address of its informant for the reason that appellees had failed to establish their entitlement to the disclosure as an exception to the general rule which relieves the State from the necessity of disclosing the name of its informer on whose information a search warrant is obtained. In further support of its return the State alleged it reasonably anticipated that the disclosure of the identity of its informant would endanger his life and well-being and would seriously and irrevocably hamper investigations theretofore conducted and to be conducted in the future by the Florida Bureau of Law Enforcement. Upon consideration of the State's response the court rendered the judgment appealed herein dismissing all causes pending against appellees and discharging them from custody because of the failure and refusal of the State to comply with the court's order requiring disclosure of the name and address of its informant.

Appellees challenge the jurisdiction of this court to consider this appeal on the ground that the judgment sought to be reviewed is nonappealable. It is appellees' contention that the order dismissing the charges against them does not fall within any of the categories of judgments or orders of which the State is entitled to seek appellate review under the statutes and rules relating to appeals in criminal cases. With this contention we are unable to agree.

Rule 1.190(b)(1), Rules of Criminal Procedure, 33 F.S.A. provides that all defenses available by a plea, other than not guilty, shall be made only by motion to dismiss the indictment, information, or affidavit. ¹ It was pursuant to this rule that appellees moved and the court dismissed the informations pending against them because of the State's refusal to disclose the name and address of its confidential informant.

Section 924.07(1) provides that an appeal may be taken by the State from an order quashing an information, ² and Rule 1.190(f), Rules of Criminal Procedure, provides that for the purpose of construing F.S. Section 924.07(1), F.S.A. the statutory term 'order quashing' shall be taken and held to mean 'order dismissing.' ³

Since the above-cited provision of the statute permits the State to appeal an order 'quashing an information,' which by Rule 1.190(f), Rules of Criminal Procedure, extends to an order 'dismissing an information,' the appeal from the order dismissing the informations rendered in the case sub judice is appealable by the State and appellees' contention must be rejected.

Turning now to the merits of this appeal, it clearly appears that although the trial judge, upon a consideration of the evidence adduced before him, indulged some doubts as to the legal sufficiency of the affidavit and the validity of the search warrant issued pursuant thereto because of the manner in which the search was conducted and inventory of the seized property prepared and filed, the sole and only ground upon which the informations against appellees were dismissed was the State's failure and refusal to disclose the name and address of its informant. We shall therefore confine our opinion to the propriety of the ground on which the challenged judgment is based.

The affidavit forming the basis of the search warrant and signed by the agent for the Florida Bureau of Law Enforcement avers that affiant was advised by a reliable confidential informant known by affiant to be a credible person that on a specified date the informant was in the company of two men known to him as James and Leo in the apartment occupied by them and located in the complex sought to be searched; that while in that apartment in the company of those two named men, they showed the informant a portable television set, several guns with long barrels, a large quantity of men's clothing, and a green statue of a woman in a kneeling position; that those men told the informant that they had stolen the above-described items of property, together with other property, when they broke into and robbed during the preceding month of August the apartment of one Rick Pauline located in Tampa. The affiant further avers that based upon the information received from his informant, he checked with the rental office of the apartment complex in Jacksonville and found that the numbered apartment described by the informant as the place where he met with James and Leo was in fact rented to one James Matney and Leo Schuty; that affiant thereupon checked with the Tampa Police Department and found that an apartment occupied by one Rick Pauline located in that city was reported to have been broken and entered during the preceding month of August, at which time a quantity of personal property was stolen and removed therefrom including three shotguns, one portable television set, a quantity of men's clothing, and a green statute of a female in a kneeling position; that a copy of the Tampa Police Department burglary report referred to was furnished to affiant and attached to his affidavit as an exhibit; that based upon the foregoing information affiant had reason to believe that the property stolen from the Rick Pauline apartment in Tampa was located in the apartment in Jacksonville then occupied by appellees James Matney and Leo Schuty a/k/a Leo Welsh. The issuance of a search warrant directed to the Sheriff of Duval County authorizing a search of the apartment described in the affidavit was prayed for by affiant. It was upon a consideration of the foregoing affidavit that the search warrant issued. At the hearing before the court the affiant testified that he had known his informant for a period of about one year prior to signing the affidavit, that during this time he had received information from him which proved to be entirely reliable. The testimony established that in his search of appellees' apartment, the officer found the exact personal property described to him by his informant which had been reported as having been stolen from the Pauline apartment in Tampa.

The issue to be decided is whether the trial court abused its discretion in dismissing the informations against appellees because of the State's refusal to disclose the name and address of its confidential informer. In the court's preliminary order directing the State to disclose to appellees the name and address of its informer, the court held:

'* * * the informer's identity is necessary and relevant to the guilt or innocence of the defendants herein and that said testimony of said informer would be helpful to them in the preparation of their defense.'

It appears to be the established law that the State is privileged to refuse disclosure of the confidential informant whose information is relied upon to establish probable cause, and the burden is upon the defendant to show why an exception should be invoked in his case. ⁴ It is recognized, however, that where the disclosure of an informer's identity is relevant and helpful to the defense of an accused or is essential to a fair determination of the cause, the privilege must give way. ⁵ In the Roviaro care the Supreme Court of the United States posed the overriding problem in the following manner:

'The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.'

In Spataro v. State ⁶ the Second District Court of Appeal suggested additional factors to be considered in resolving the question of whether an exception should be made to the State's right of nondisclosure:

'Other factors which are considered relevant in determining whether disclosure is required are...