STATE OF FLORIDA, PETITIONER,
v.
DAVID C. HERNANDEZ AND CAROL S. GETREU, RESPONDENTS
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Florida's state prosecutors sought review of a trial court order requiring disclosure of a confidential informant's identity. The appellate court held that disclosure is not required merely because an informant provided probable cause for a search warrant, and quashed the trial court's order because defendants failed to make the requisite showing.
Disclosure of a confidential informant who merely furnished probable cause for a search or arrest is not required unless the informant will be produced at trial or failure to disclose will infringe the defendant's constitutional rights. Defendants must allege a specific defense and make a preliminary showing of the colorability of that defense before disclosure is warranted.
[1] Disclosure of a confidential informant is not required when the informant merely furnished probable cause for a search or arrest.
[2] A party seeking disclosure of a confidential informant bears the burden of showing entitlement to an exception to the rule of non-disclosure.
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Join FLexlaw to unlock all legal intelligence“Disclosure of the identity of a confidential informant who merely furnished the probable cause for a search or arrest is not required.”
Establishes the core rule that confidential informant disclosure is not automatic when the informant provided probable cause
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Join FLexlaw to unlock all legal intelligenceFollowing execution of a search warrant based on information from a confidential informant, defendants Hernandez and Getreu were charged with traffick…
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PER CURIAM.
The state timely petitions this court for a writ of certiorari to review the circuit court’s order granting the defendants’ mo tion for disclosure of the confidential informant. We agree that the circuit court’s order departs from the essential requirements of law, grant the petition, and quash the order. Following the execution of a search warrant, the defendants were charged with trafficking in cocaine and possession of cannabis. Defendant Hernandez was also charged with possession of a firearm during the commission of a felony. The search warrant was based upon an affidavit which contained information provided by a confidential informant.
The defendants filed a motion for disclosure of the confidential informant alleging the following:
1. The confidential informant was the sole source of the probable cause for the search warrant which was the basis for the defendants’ arrest;
2. The confidential informant was an eyewitness and a participant to the alleged offense; and
3. It was necessary to depose the confidential informant to “determine his or her potentiality as a defense witness.”
The state objected to the motion on the ground that the motion was totally inadequate. The defense argued that the facts showed that there was only one witness to the case, the confidential informant. The defense further argued that, on its face, the search warrant was ambiguous. The state rebutted stating that the defendants were not charged with anything that the confidential informant observed and that the confidential informant was not even a witness. The circuit court judge granted the defendants’ motion for disclosure.
Following the circuit judge’s ruling, but prior to rendition of the order, the state made attempts to comply with the ruling. The defendants now argue that those actions waive the state’s right to seek review of the order. We reject their argument.
Disclosure of the identity of a confidential informant who merely furnished the probable cause for a search or arrest is not required. State v. White, 418 So. 2d 411 (Fla. 2d DCA 1982); McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). Florida Rule of Criminal Procedure 3.220(c)(2), provides as follows:
(2) Informants. 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.
The defendant has the burden of showing that he is entitled to an exception to the rule. Treverrow v. State, 194 So. 2d 250 (Fla.1967); State v. White, 418 So. 2d 411 (Fla. 2d DCA 1982).
In order to obtain the disclosure of the confidential informant, the defendant must allege a specific defense. The mere allegation that the disclosure is necessary in order for the defendant to properly and adequately prepare for trial is insufficient. The defendant must make a preliminary showing of the colorability of the defense prior to disclosure. State v. Acosta, 439 So. 2d 1024 (Fla. 3d DCA 1983). Here, the defendants failed to even swear to the facts upon which the motion to disclose was based.
The state is correct that the defendants’ motion was “wholly insufficient.” Accordingly, the order is quashed and the case remanded to the trial court for further proceedings.
SCHOONOVER, A.C.J., and HALL and THREADGILL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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State v. Mashke, 577 So. 2d 610 (Fla. 2d DCA 1991)…ssed the information. Absent allegations of a specific defense sought to be established through the confidential informant, the privilege of nondisclosure must not be invaded. State v. Davila, 570 So. 2d 1035 (Fla. 2d DCA 1990); State v. Hernandez, 546 So. 2d 761 (Fla. 2d DCA 1989). A bare allegation that the defendant cannot prepare his case without disclosure is insufficient. Davila; Hernandez. Mere speculation that the confidential informant’s testimony would be useful is insufficient. State v. Carnegie,…
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State v. Borrego, 970 So. 2d 465 (Fla. 2d DCA 2007)…Fla. R.Crim. P. 3.220(g)(2).1 When asserting that disclosure of information is necessary to establish a specific defense, “[t]he defendant must make a preliminary showing of the colorability of the defense prior to disclosure.” State v. Hernandez, 546 So. 2d 761, 762 (Fla. 2d DCA 1989); see Harris v. State, 939 So. 2d 338 (Fla. 4th DCA 2006), review dismissed, 946 So. 2d 1070 (Fla.2006). The defendant must not only allege a legally cognizable defense, but he or she must also support the defense with sworn e…
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State v. Harklerode, 567 So. 2d 982 (Fla. 5th DCA 1990)…acted as a mere “tipster” or merely provided police with probable cause for a search or arrest. See, e.g., Treverrow v. State, supra (one factor to be weighed in determining disclosure is whether informant merely supplied lead); State v. Hernandez, 546 So. 2d 761 (Fla. 2d DCA 1989) (disclosure of confidential informant who merely furnished probable cause for search or arrest not required); State v. Acosta, 439 So. 2d 1024 (Fla. 3d DCA 1983) (fact that informant provided good cause for arrest not sufficient t…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McCRAY v. Illinois, 386 U.S. 300 (U.S. 1967)
- Westberry v. Daves Auto Parts, 194 So. 2d 250 (Fla. 1967)
- State v. Acosta, 439 So. 2d 1024 (Fla. 3d DCA 1983)
- State v. White, 418 So. 2d 411 (Fla. 2d DCA 1982)