State v. Thennes
| Decision Date | 20 October 1982 |
| Docket Number | No. 81-2126,81-2126 |
| Court | Florida District Court of Appeals |
| Parties | STATE of Florida, Petitioner, v. Gere J. THENNES, Respondent. |
Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for petitioner.
William M. Winkel of Winkel, Sims, Kenney & Crosswell, Palm Beach, for respondent.
This is a petition for review by certiorari of an order compelling the State to disclose the identity of a confidential informant. We grant the writ and quash the order.
An agent of the Organized Crime Bureau within the Palm Beach County Sheriff's Department received a telephone tip from a confidential informant that respondent and Brian Marron owned marijuana cached in a motor home parked near Marron's residence. The agent located Marron's address and, in the early afternoon of June 29, 1981, drove with another agent to the two or three-acre parcel of rural property.
The agent who received the informer's tip testified in his deposition that he and the other agent searched the residence after Mrs. Marron had consented and informed them that respondent was staying in one of the rooms. Afterwards the agents proceeded to the motor home, which was parked on the premises. Therefrom emanated the odor of marijuana and, through a window screen, the deponent agent touched what felt "like a bale of marijuana." They could not search the motor home at the time, however, because Mrs. Marron told them respondent, not she, owned the vehicle; as the deponent agent surmised, she lacked authority to consent to its search.
By this time, the agents had become aware of a utility trailer adjacent to the motor home that exuded a strong odor of marijuana. Thus, it also was included in the warrant issued that afternoon, which resulted in the search of both vehicles. As anticipated, they yielded marijuana, prompting the agents' decision to remove the vehicles from the premises. While the agents were attempting to do this, respondent arrived at the scene in a car. The deponent agent arrested and searched respondent and found the keys to the motor home in his possession.
Respondent was charged with trafficking in marijuana in excess of 2,000 pounds but less than 10,000 pounds. Simultaneously he filed (1) a notice of alibi, contending he had been in the Netherlands Antilles for a month and did not return to this country until June 25, 1981, four days before the search, and (2) a motion for disclosure of the confidential informant on the ground that the tipster had information tending to prove respondent's innocence, i.e., that the marijuana was placed in the motor home while respondent was out of the country and that the informant "might know" who placed the marijuana inside the vehicle.
Subsequent to filing these motions, the deposition of the agent to defense counsel disclosed whatever information was made known to him by the confidential informant:
Q. What did he tell you when he talked to you?
A. He told me that he knew a motor home was parked in front of or on the property of Bryan [sic] Marron's residence that was loaded with marijuana.
Q. Was this on the phone?
A. Yes, sir.
Q. Go ahead.
A. He also told me it was owned by Marron and Thennes, the marijuana that is. He gave me an area for the house, but not a specific address.
Q. How many conversations did you have with him?
A. Probably it was two or three.
Q. Did he tell you when the marijuana was put there?
A. He told me it had been there for about a month and that Marron and Thennes were unable to move it, that the market was down, some reason--they couldn't move it for some reason and they were just holding on to it.
Q. Okay. Did he say how long that he had known it had been there?
A. No. The only thing he told me was that he knew--as far as he knew it had been there at least a month.
Q. It could have been there longer?
A. Yes, sir.
Q. He didn't relate to you?
A. No. He didn't know for a fact how long it had been there.
Q. Did he say how he knew--did he say whether or not he knew the individuals that were at that address?
A. I think. Well, I don't recall whether he said that or not. It's my impression that he did know them. As I say, that is only an impression.
Nothing in the deposition indicates the confidential informant knew who put the marijuana in the motor home or if such a person was someone other than respondent. Nevertheless, the trial court expressed that if the confidential informant knew of such a person, respondent was entitled to establish that fact by calling the tipster as a witness. But, for the trial court to have ordered the State to disclose the identity of such an effective tipster so that respondent could investigate what he "might know," we believe was unsupported.
Generally, the rule regarding confidential informants precludes disclosure of their identities:
The State is privileged to withhold, notwithstanding its relevance, the identity of persons who furnish information or otherwise aid officers in matters relating to violations of law, and such privilege is founded upon public policy and in furtherance of the public interest. State v. Hardy, Fla.App.1959, 114 So.2d 344; Garcia v. State, Fla.App.1959, 110 So.2d 709; Harrington v. State, Fla.App.1959, 110 So.2d 495; Ferrara v. State, Fla.1958, 101 So.2d 797.
Pearson v. State, 221 So.2d 760, 762 (Fla. 2d DCA 1969). We believe public policy and public interest, the justifications for this rule, should not be overlooked.
In South Florida a deadly game is being played: its aim is profit; its instruments are illegal drugs; and its players are bandits whose corpses fill canals, residences and automobile trunks. The...
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