Treverrow v. State, 35311

• Decision Date: 25 January 1967
• Docket Number: No. 35311,35311
• Citation: 194 So.2d 250
• Parties: Iames A. TREVERROW, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 250

194 So.2d 250

Iames A. TREVERROW, Petitioner, v.STATE of Florida, Respondent.

No. 35311.

Supreme Court of Florida.

Jan. 25, 1967.

A. K. Black, Lake City, for petitioner.

Earl Faircloth, Atty. Gen., and Thomas E. Boyle, Asst. Atty. Gen., for respondent.

SACK, Circuit Judge.

We granted certiorari on an alleged conflict between the decision below of the District Court of Appeal, First District, in Treverrow v. State of Florida, Fla., 184 So.2d 473, and our opinions in Cooper v. State, Fla., 143 So. 217, andChacon v. State, 102 So.2d 578, andHarrington v. State, 110 So.2d 495.

At issue are the questions of the sufficiency of the affidavit upon which the search warrant was issued and the right of the defendant-petitioner to have disclosed to him the name of the informer.The Beverage officer's affidavit contained the following material language:

'On Wednesday, January 6, 1965, a reliable confidential informer told me that about two days prior to this date, he saw two metal drums containing fermented mash inside the above described premises.'

It will be seen that the agent here affirmed under oath: (a) that the information given him was by one whom he considered reliable, and (b) that the information consisted of a direct observation by the informer of the presence of the mash inside the premises in question.

In the Coopercase, supra, the affidavit only said:

'That the aforesaid belief of affiant is based upon the following facts; upon information furnished affiant by parties who have knowledge of such sale and possession and whom affiant believes to be truthful and reliable.'

This affidavit stated no factual basis for the alleged knowledge of the informer.Such knowledge could have been based on hearsay or hearsay on hearsay.It contained no statement that the informer had seen or participated in the sale or the possession of the liquor.As we pointed out in our opinion:

'It will be observed that this language does not state any fact on which such reason or belief is based, but is equivalent only to an allegation 'that affiant has reason to believe and does believe, on information and belief.''

While the information given to the officer in the case sub judice came from a third person and would not be admissible at the trial of the cause, yet in Chacon, supra, we announced that the information forming the basis for a search warrant is not to be measured by its admissibility as evidence in the trial of the case.Harrington v. State, supra, lends no support to Petitioner's contention.Accordingly, we find no conflict on the question of the sufficiency of the affidavit.

As to the necessity for disclosure of the identity of the informer, the applicable principles were laid down by the District Court of Appeal, Second District in Spataro v. State, Fla., 179 So.2d 873, where they said:

'As to the question when the privilege of non-disclosure applies and when an exception should be made and disclosure required, no 'fixed rule * * * is justifiable.'Roviaro v. United States(353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639)supra.As the Supreme Court stated in Roviaro:

'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...