State v. Montalvo, 82-2430
| Decision Date | 09 February 1983 |
| Docket Number | No. 82-2430,82-2430 |
| Citation | 428 So.2d 695 |
| Parties | STATE of Florida, Petitioner, v. Luis Antonio MONTALVO, Respondent. |
| Court | Florida District Court of Appeals |
E.J. Salcines, State Atty., and Daniel J. Fernandez, Asst. State Atty., Tampa, for petitioner.
Arthur N. Eggers, Tampa, for respondent.
The state petitions for writ of certiorari to review the trial court's order requiring it to disclose the identity of a confidential informant (CI). We grant the petition and quash the order to disclose.
Following the filing of charges of violation of the Florida Comprehensive Drug Abuse Prevention & Control Act, Chapter 893, Florida Statutes (1981), against him, respondent Luis Antonio Montalvo filed an unsworn motion for disclosure of the identity of the CI "participating in the investigation of this cause" on the grounds that the CI had made the arrangements for Detective Rodriguez, the arresting officer, to purchase the controlled drugs involved in the transaction and had introduced Rodriguez to codefendant David Mitchell, although consummation of the transaction occurred out of the CI's presence. The trial court granted this motion.
When the state notified defense counsel that it intended to seek appellate review, defense counsel, concerned that his original motion "may have been technically deficient," filed an amended motion for disclosure adding the following pertinent allegations:
2. The informant's testimony is material to the defense as to the following:
a. The informant can provide information as to whether Mr. Montalvo's name was ever mentioned during the negotiations with Mitchell and thus support his denial of participation.
b. The informant may be able to provide testimony as to statements by Mr. Mitchell as to his alleged source of contraband being other than Mr. Montalvo.
c. The informant may be able to provide information as to the existence or nonexistence of the telephone conversation by Mitchell with "Luis" [described by Rodriguez] and thus corroborate the Defendant's denial of the existence of any call between the two.
d. The informant may be able to corroborate the fact that Mr. Montalvo did not enter the bar [where the transaction occurred] and negate Rodriguez's testimony that he did.
e. The informant's testimony in (d) above may corroborate Mr. Montalvo's allegations that he was not in the driver's seat of the suspect vehicle when arrested and was thus also misidentified by Rodriguez as being both the man in the bar and the driver of the auto.
f. The informant may be able to provide information as to events in the parking lot though Rodriguez states he was not present.
3. All the factors noted in (2) above are relevant to the Defendant's position that he had no foreknowledge of any trafficking offense, did not participate in any events leading to such an offense, was not in the bar in question, has been misidentified as a participant in this offense and is the subject of a faulty observation by Detective Rodriguez as to the transfer of some object in a darkened car.
This motion was sworn to by defense counsel rather than by respondent himself.
Rodriguez' testimony on deposition was that on October 19, 1981, he received a telephone call from a CI advising him that Mitchell was interested in selling him 400 quaaludes for $600 in cash. The CI was to receive 100 of the quaaludes for his/her services. The CI wanted Rodriguez to meet him/her and Mitchell at Mike's Lounge as soon as possible.
Rodriguez went to the lounge, met the CI, and was introduced to Mitchell. The CI then left Rodriguez' and Mitchell's presence. Mitchell told Rodriguez that he was waiting for a telephone call from a Latin male named Luis. A few moments later, the telephone rang and Mitchell answered. Mitchell said, After conversing a few more minutes Mitchell hung up and asked Rodriguez to accompany him into the restroom so he could count Rodriguez' money. In the restroom, Rodriguez showed Mitchell the money, and they then left the restroom. A few minutes later, respondent came up and engaged in a brief conversation with Mitchell which Rodriguez did not overhear. Respondent then left the lounge. A few moments later, Mitchell and Rodriguez left the lounge. Mitchell walked over to a car occupied by respondent and one Portugese. Before Mitchell reached the car, Rodriguez saw respondent, the driver, hand Portugese a plastic package. When Mitchell reached the car, Portugese, the passenger, handed him something. Mitchell stuck it in his crotch, walked back over to Rodriguez, and got in the back seat of Rodriguez' car. Mitchell then took the quaaludes out of his crotch, and Rodriguez' partner arrested him. Respondent and Portugese were arrested immediately thereafter.
At the hearing on the amended motion, Rodriguez' deposition was before the trial court. Respondent presented no evidence, documentary or otherwise, but defense counsel represented that he had interviewed Mitchell, who had pled guilty to trafficking, the day before, and that Mitchell told him the following: Mitchell believed that a certain barmaid at the lounge was the CI. The negotiations took place at the bar before Rodriguez arrived. At that time, Mitchell removed a package from his crotch, displayed the contraband to the barmaid, then put it back in his pants. Mitchell had 1000 pills, but hid 600 of them in the bathroom under a trash can. He had the remaining 400 pills on his person before Rodriguez ever arrived.
At the conclusion of the hearing, the trial court granted the amended motion, and the instant petition for certiorari followed timely.
Florida Rule of Criminal Procedure 3.220(c)(2) provides: "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."
As this court stated in Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965):
As to the question when the privilege of non-disclosure applies and when an exception should be made and disclosure...
To continue reading
Request your trial
-
State v. Acosta
...of the informant's identity might aid in the defense is insufficient to support an order to reveal the identity. State v. Montalvo, 428 So.2d 695 (Fla. 2d DCA 1983). If there are other witnesses a defendant can call, disclosure may not be compelled. State v. Perez, 438 So.2d 436 (Fla. 3d DC......
-
State v. Harklerode
...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......
-
State v. Carnegie
...opportunity to establish possible defenses," is wholly inadequate in overcoming preservation of the state's privilege. State v. Montalvo, 428 So.2d 695 (Fla. 2d DCA 1983). The most that can be extracted from the hearing transcript is that the informant was present at two "buys" and he was m......
-
Ruiz v. State, 82-2308
...present at the transaction which resulted in the instant charges and convictions. We find no merit in this argument. State v. Montalvo, 428 So.2d 695 (Fla. 2d DCA 1983); Elkins v. State, 388 So.2d 1314 (Fla. 5th DCA 1980); Drayton v. State, 372 So.2d 983 (Fla. 3d DCA 1979); McCants v. State......