United States v. Hurse

• Decision Date: 11 January 1972
• Docket Number: No. 71-1274.,71-1274.
• Citation: 453 F.2d 128
• Parties: UNITED STATES of America, Appellee, v. Edward HURSE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

453 F.2d 128 (1971)

UNITED STATES of America, Appellee, v. Edward HURSE, Appellant.

No. 71-1274.

United States Court of Appeals, Eighth Circuit.

December 23, 1971.

Rehearing Denied January 11, 1972.

Samuel Raban, St. Louis, Mo., for appellant.

Robert B. Schneider, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before GIBSON and HEANEY, Circuit Judges, and VAN PELT, Senior District Judge.

GIBSON, Circuit Judge.

The defendant was convicted of possession of a sawed-off shotgun in violation of 26 U.S.C. § 5861(d) (unlawful possession of an unregistered firearm). On appeal defendant contends the search of his home without a warrant and the seizure of the weapon complained of in the indictment was illegal. He also asserts errors during the trial relating to the receipt of evidence and the failure of the trial court to order disclosed to him the identity and whereabouts of an informer.

A pretrial motion to suppress the evidence of the sawed-off shotgun was heard by the trial court and denied. The Government's position there and on appeal was that the offending gun was seized pursuant to a lawful arrest. Admittedly no search warrant was obtained, and probable cause to enter the defendant's home and execute a search there is based on alleged information received by the police officers from an undisclosed informer's statement to them that the informant had just bought heroin from the defendant at his home and that the defendant had a sawed-off shotgun in his possession.

The defendant requested the Government to disclose the identity of the informer and upon refusal, a formal motion to disclose the identity of the informant was filed. This motion was overruled by the trial court on the basis that the informant's testimony was not necessary in prosecuting defendant on the charge of unlawful possession of a firearm. The Government's position is that the identity and whereabouts of the informer should not be disclosed for security reasons and as a matter of public policy.

This Court appreciates the need to protect informants from retaliatory actions and possible harm and we do not think an informer's identity should be disclosed unless the disclosure is vital to a fair trial or, as in this case, vital to the integrity of the conviction. See United States v. Hanna, 341 F.2d 906 (6th Cir. 1965); United States v. Coke, 339 F.2d 183 (2d Cir. 1964).

The privilege against disclosing the identity of an informer is based on public interest in effective law enforcement but must be balanced by the fundamental requirement of fairness. As expressed in Roviaro v. United States (1957), 353 U.S. 53 at 60-61, 77 S.Ct. 623, at 628, 1 L.Ed.2d 639 "Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way"; and as earlier noted in Scher v. United States (1938), 305 U.S. 251 at 254, 59 S.Ct. 174 at 176, 83 L.Ed. 151 "Public policy forbids disclosure of an informer's identity unless essential to the defense, as for example, when this turns upon an officer's good faith."

In further considering the common law privilege against revealing the identity of an informer the Supreme Court in a sharply divided opinion in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1966) held that the identity of an informer need not be disclosed even where the informant's information was the predicate for probable cause for a warrantless arrest. Of course, as Roviaro, supra held,

"No fixed rule with respect to disclosure is justifiable. 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." 353 U.S. at 62, 77 S.Ct. at 628-629.

In resolving the dilemma arising between honoring the privilege of nondisclosure and disclosure necessary to legitimate a search, the Third Circuit in United States v. Jackson, 384 F.2d 825 (3d Cir. 1967), approved an in camera proceeding in which the trial court determined whether or not disclosure of the informer's identity would be essential to a fair determination of the cause. The proposed Rules of Evidence for the United States District Courts (Draft of September 1971) in Rule 510, "Identity of Informer", recognizes the privilege, states the exceptions to it as set forth in Roviaro, and also provides for an in camera proceeding in ¶ c(3), which states in...