Treverrow v. State, H--30

• Decision Date: 15 March 1966
• Docket Number: No. H--30,H--30
• Citation: 184 So.2d 473
• Parties: James A. TREVERROW, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 473

184 So.2d 473

James A. TREVERROW, Appellant, v. STATE of Florida, Appellee.

No. H--30.

District Court of Appeal of Florida, First District.

March 15, 1966.

Rehearing Denied April 11, 1966.

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

Earl Faircloth, Atty. Gen., and John S. Burton, Asst. Atty. Gen., for appellee.

RAWLS, Chief Judge.

Treverrow appeals from a judgment of conviction entered upon a jury verdict of guilty of the moonshine offenses of unlawful possession of a container containing mash, unlawful possession of moonshine still, and unlawful possession of a piece and part of a moonshine still. The two points posed by appellant which give us concern involve the sufficiency of an affidavit as to probable cause for issuance of a search warrant and the failure of the trial court to require the disclosure of the name of the confidential informer.

At the outset, it is noted that a timely motion to suppress the fruits of this search was filed and same was overruled at the beginning of the trial. One L. B. Boyette, Jr., a Beverage Department Officer, executed an affidavit for a search warrant before the County Judge of Columbia County in which the following allegation was set forth:

'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.'

At the beginning of the trial, the County Judge testified that Boyette executed the affidavit in his presence and that no other charges or statements were given as a predicate for the issuance of the search warrant. Thus, it is undisputed that the quoted language in the affidavit was the sole predicate considered by the County Judge for the issuance of the warrant.

Appellant insists that the search warrant was not properly issued since it was based solely upon hearsay evidence, or stated another way, that some circumstances other than information received from a confidential informer are necessary to support an affidavit for a search warrant. He also insists that the name of the above mentioned confidential informer would have assisted him in preparing his defense. In this respect, the facts disclose that upon conducting the search pursuant to the mandate of the search warrant, two drums of mash were found in a barn located on the premises described in the search warrant, and the defendant was found in close proximity to same. It is defendant's theory that he was not in possession of the contraband and if the name of the confidential informer had been revealed to him, he might well have been able to prove that the informer was the one who had possession of the illicit merchandise. We note that other facts produced tend to destroy defendant's contention in this regard, but find it unecessary to review same in light of the wide discretion vested in the issuing magistrate and the trial judge.

In Chacon v. State, ¹ the Florida Supreme Court concluded that the United States Supreme Court's opinion in the case of Roviaro v. United States of America ² controlled in that it held that a limitation on the privilege from revealing the name of a confidential informer did not extend where disclosure of the informer's identity would aid the accused in preparing his defense. On rehearing in the Chacon case, in an opinion by Justice Thornal, the Supreme Court reversed its decision in which it had ordered the defendant discharged, holding that the search warrant was legally issued, the search was legally conducted, and that the trial court did not err in not revealing the name of the informer. In Chacon the affiant listened in on an extension while a confidential informer received bets on a telephone. In reviewing this factual situation, the Supreme Court held that 'the so-called hearsay rule just isn't applicable.'

In Harrington v. State, ³ this Court considered the legality of a search made pursuant to a search warrant issued upon an affidavit executed by the Sheriff of Putnam County. The affidavit in that case recited information received from a confidential informer and independent information known by the affiant. Upon the facts of that case, this Court, in finding that '(t)he facts recited by the affidavit are sufficient in law and in fact to support the search warrant based thereon,' held that disclosure of the confidential informer's name may be required '(w)hen such information is material to the issue * * * but when it is immaterial the courts will not compel its disclosure.'

In State v. Hardy, ⁴ this Court was again confronted with the same question. Mrs. Hardy attempted to quash a search warrant upon the ground that the state should furnish her the name of the confidential informer. The trial court on authority of Roviaro v. State, supra, a United States Supreme Court decision, granted a new trial because it had refused to require disclosure of the name of the confidential informer. This Court, in reversing the order, reviewed the Roviaro case and distinguished same from the facts in Hardy by observing that the charge against Mrs. Hardy was one of possession of moonshine and not of sale; that the information recited in the affidavit from the confidential informer concerned sale and, therefore, the informer was not a participant in the transaction charged. Thus, if Hardy was the last word on the subject, the instant cause would follow the rule of the Roviaro case and the distinguishing facts in Hardy, because here the informer's information goes to the transaction charged. It is also noted that the contents of the affidavit, which are not recited in the opinion, disclose that affiant searched the confidential informer immediately prior to his entering the Hardy premises, furnished him money to use in making the 'buy', kept him under observation at all times except for about five minutes during which time the informer was inside the premises, and upon his return again searched him and found him to have in his possession change from the money the affiant had furnished and 1/2 pint of moonshine whiskey. So, in Hardy the affiant had independent knowledge beyond the facts given to him by the informer.

The Third District Court of Appeal considered the problem in Baker v. State. ⁵ There the affidavit for the search warrant was executed by one R. Brown. The defendant alleged in a motion to suppress the evidence seized pursuant to the search warrant issued upon the affidavit that there was no such person as R. Brown and the State refused to produce the affiant. The Third District in an opinion authorized by Judge Barkdull reversed the conviction holding that the rule--the prosecution may not be required to reveal the name of a confidential informer--is not applicable where the '* * * so-called alleged confidential informer actually executes the affidavit.' The same problem was again reviewed by the Third District in City of Miami v. Jones ⁶ wherein that court held that the crux of the Baker case was that no one was exposed to punishment for perjury for the possible execution of a false affidavit, and therefore, the search warrant issued upon such an affidavit was invalid. A copy of the affidavit in the Jones case from the Third District reveals that the affiant there searched the confidential informer immediately prior to his purchasing the subject lottery tickets and again searched him immediately after the purchase and found the tickets in his possession, which tickets he did not have prior to making the purchase. So, again we find that the affiant had independent information in addition to that furnished by the confidential informer. ⁷

To summarize, it appears that in each Florida case, save the Baker case, the prosecution has not been required to disclose the name of the confidential informer; however, in each case the affidavit has contained independent information known to affiant over and beyond that which had been furnished by the informer. Conversely, it appears that if 'probable cause' is to be found to exist solely by reason of hearsay, the Florida rule in the name of fair play might well require the prosecution to furnish a defendant the name of a confidential informer. However, it appears that the Florida decisions are based to a great extent upon the holding in Roviaro, so it is necessary to examine the United States Supreme Court decisions rendered on the subject subsequent to Roviaro.

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