Opinion
No. CV 03 048 38 62
December 5, 2005
On January 21, 2004 the plaintiff filed a two-count amended complaint against the City of New Haven and two of its police officers, Timothy Wilson and Edward Reynolds. The plaintiffs allege that on September 11, 2002, the defendant police officers, acting under color of law, executed an affidavit and an application for a search and seizure warrant seeking permission to enter the plaintiffs' apartment. According to the plaintiffs, the police officers intentionally and/or recklessly misrepresented material facts and omitted others from the affidavit.
Specifically, the plaintiffs allege that in their affidavit and application for a search and seizure warrant, the defendant police officers represented that an informant purchased crack cocaine from inside their apartment, when in fact no such purchase occurred in the plaintiffs' apartment. Furthermore, according to the plaintiffs, the defendants averred in their affidavit that they were able to corroborate the information supplied to them by the informant, when in fact they were unable to adequately corroborate the said information.
Based upon the affidavit and accompanying application, a search and seizure warrant was issued and executed. No illegal narcotics were found within the plaintiffs' apartment. The plaintiffs allege that the search and seizure of their apartment was unreasonable and violated their right to be free from unreasonable search and seizure as guaranteed by both the United States Constitution and the Connecticut State Constitution.
The defendants filed their answers and special defenses, essentially admitting that the events as recited by the plaintiffs occurred. However, they deny that the search was unreasonable. In special defense of the complaint, the defendants assert that at all times they were governmental employees whose actions at the time of the incident were discretionary and are therefore immune from liability. Furthermore, the actions did not violate any "clearly established right" under the United States Constitution and in addition it was objectively reasonable for the defendants' to believe that their actions were not unlawful.
On February 8, 2005, the plaintiffs served interrogatories upon the defendants. Included in the interrogatories is a question seeking the name and date of birth of the informant referenced in the search warrant including any aliases or other names under which the informant may be known. In addition, the plaintiffs seek the informant's address as well as the informant's criminal record.
The defendants responded to the plaintiffs' interrogatories and request for production, however did not respond to the questions seeking information about the informant. They informed the plaintiffs that the informant was no longer in the area and his/her whereabouts were unknown. The defendants did not file an objection to this particular disclosure request within the time limits established in Practice Book § 13-7(a)(4).
On September 8, 2005, the plaintiffs deposed the police officers. According to the plaintiffs, at the deposition the defendant police officers acknowledged that they did not see the informant enter the apartment of the plaintiffs, "but rather had only seen the informant enter a door which led to the common hallway for the second and third floor apartments." The plaintiffs argue that since the police officers were unable to see where the informant purportedly purchased the drugs, "information concerning the veracity of the confidential informant is critical to the determination of probable cause."
During the deposition, the police officers also stated that they would not disclose the identity of the informant unless ordered to do so by a court.
Plaintiffs have filed a motion (#117) seeking compliance with their discovery request concerning the disclosure of the identity of the confidential informant. The defendant City seeks a protective order (#118) in connection with a notice of deposition of a designee of the City of New Haven. The plaintiffs have filed an objection to the motion for protective order (#125).
The plaintiffs seek to depose a designee of the City of New Haven to respond to questions in four areas:
1. Any matters in which the confidential informant provided information to the police which resulted in arrests, the seizure of contraband, the securing of search and seizure warrants, and subsequent convictions in a court.
2. Any matters in which the confidential informant provided information which resulted in the issuance of warrant which did not lead to an arrest or to the seizure of contraband.
3. Any verbal statements allegedly made by the plaintiffs during the execution of the search and seizure warrant.
4. Any tips, reports and/or complaints concerning narcotics activity at the plaintiffs' address in the six-month period preceding the search of the plaintiffs' apartment.
The plaintiffs' request that the City's designee produce any and all documents in their possession that will serve as evidence of the confidential informants previous participation with the New Haven police as well as any records memorializing the alleged statements that the plaintiffs' made during the execution of the search warrant in their apartment.
The City seeks a protective order to preclude any testimony in these areas arguing that to do so could "potentially compromise and identify the confidential informant and have an impact on other confidential relationships between the police and other informants." In addition, the City argues that to provide the records that the plaintiffs are seeking "would be unfair and unfairly burdensome . . . to have to try and develop such information on such short notice." Lastly, the City alleges that these requests are nothing more than a fishing expedition on the part of the plaintiffs.
The court heard arguments on these matters at short calendar on November 7, 2005. During the arguments, counsel for the City stated that information concerning the identity of the confidential informant would be provided to the plaintiffs' attorney on the condition that the attorney would not share the information with the plaintiffs or anyone else.
Regarding the records that the plaintiffs seek in response to questions in the four areas mentioned above, counsel stated that they are not kept by the police department and therefore they are unable to produce such records because they do not exist. At the suggestion of the court, counsel agreed to submit an affidavit averring to the non-existence of the documents that the plaintiffs are seeking. Disclosure of the identity of the confidential informant, however, remains strongly objected to by the defendants.
I. STANDARD OF REVIEW
"The discovery rules are designed to facilitate trial proceedings and to make a trial less a game of blindman's [bluff] and more a fair contest with the basic issues and facts disclosed to the fullest [practicable] extent." (Internal quotation marks omitted.) Vitone v. Waterbury Hospital, 88 Conn.App. 347, 357, 869 A.2d 672 (2005). "The granting or denial of a discovery request rests in the sound discretion of the court . . . That discretion is limited, however, by the provisions of the rules pertaining to discovery; [Practice Book § 13-1, et seq.]; especially the mandatory provision that discovery `shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action . . .' [Practice Book § 13-2]. The court's discretion applies to decisions concerning whether the information is material, privileged, substantially more available to the disclosing party, or within the disclosing party's knowledge, possession or power . . . A complete denial of discovery, however, is seldom within the court's discretion unless the court finds that one or more of the limitations on discovery expressed above applies." (Internal citations omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57-60, 459 A.2d 503 (1983).
II. DISCUSSION
The question before the court, disclosure of the identity of a confidential informant, is one that requires a balancing test. State v. Jackson, 239 Conn. 629, 687 A.2d 485 (1997). "In Roviaro v. United States, supra, 353 U.S. 53, the United States Supreme Court had occasion to define the nature and scope of the informant's privilege. "What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law . . . The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation . . ."
" Roviaro established a test for assessing challenges to the applicability of the informant's privilege. This test involves the balancing of two competing interests: (1) the preservation of the underlying purpose of the privilege; and (2) the fundamental requirements of fairness . . . The underlying purpose of the privilege is to protect the public interest in the flow of information to law enforcement officials. The fundamental requirements of fairness comprise the defendant's right to a fair trial, including the right to obtain information relevant and helpful to a 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." (Citations omitted, emphasis in original, internal quotation marks omitted) State v. Jackson, 239 Conn. 629, 632, 687 A.2d 485 (1997).
As a preliminary matter, the court states that this is not a criminal matter where the identity of the confidential informant is necessary to ensure a defendant's right to a fair trial. If it were a criminal matter, the defendant would have certain remedies available to him to challenge the veracity of the warrant, such as a Franks hearing. Franks v. Delaware, 438 U.S. 154, 164-65, 98 S.Ct. 2674 (1977).
This is a civil case that has been filed by citizens seeking the protection of their civil right to be free from unreasonable searches. In this case, the plaintiffs argue that disclosure of the informant's identity is necessary to show that the police officers' actions were intentionally and/or recklessly based upon facts that were misrepresented by the informant.
According to the information obtained by the plaintiffs during the deposition of the police officers, the confidential informant entered the premises through a front door that serviced two apartments. The plaintiffs resided in one of those apartments. Although the police officers observed the confidential informant enter through the front door, they did not see the informant enter the plaintiffs' apartment. Notwithstanding that the police officers did not personally observe the confidential informant enter the plaintiffs' apartment, they chose to believe and accept the informant's report that he/she had purchased drugs in their apartment.
Following the receipt of this information, the police officers proceeded to prepare an affidavit representing that they could corroborate the information obtained from the confidential informant. As the plaintiffs have discovered, this is not the case.
The court notes that the informant here was not merely a "tipster" but rather the informant was a willing participant in the crime itself. Furthermore, this informant's identity and reliability go directly to the heart of the plaintiffs' case, and thus, "is essential to a fair determination of a case. Roviaro v. United States, supra, 61.
". . . one who provides information leading to the issuance of a search warrant, but is neither an eye witness to, nor a participant in, the alleged crimes charged. See State v. Hernandez, 254 Conn. 659, 670, 759 A.2d 79 (2000).
"When the defendant demonstrates that disclosure of an informer's identity, or the contents of his communication, is relevant and helpful to the defense, or is essential to a fair determination of a cause, the government's privilege must yield . . . Disclosure is essential to the defense where nondisclosure could hamper the defendant's right to a fair trial, such as where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence . . . Specific defenses that may merit disclosure include entrapment, mistaken identity and lack of knowledge . . . Before a court will compel disclosure, the informant typically must be a participant in the alleged crime or an eyewitness thereto." (Citations omitted; internal quotation marks omitted.) State v. Bunker, 89 Conn.App. 605, 872 A.2d 928 (2005).
The court finds that the "fundamental requirements of fairness," dictates that the identity of the confidential informant should be disclosed to the plaintiffs in this case. In reaching this decision, the court has considered and given weight to the fact that, according to the defendants, the informant is not involved in any current investigations or legal proceedings with their department. Furthermore, the current whereabouts of the informant are unknown. In this court's view, these additional considerations help to preserve the "underlying purpose of the privilege."
It is true that strong public policy considerations weigh heavily in favor of the defendant's desire to protect confidential informants. However, this interest is not sacrosanct and must yield when a balancing of the interests involved, requires. Here, the confidential informant is not involved in any ongoing investigations, nor is his testimony required in any pending criminal matters. There is also no indication that disclosure would compromise his safety, or that of any law enforcement personnel.
Furthermore, there is no public safety or law enforcement goal which will be advanced through continued secrecy. This is particularly true in a case in which those sworn to uphold and enforce the law, are alleged to have violated a citizen's civil rights.
This court recognizes, as a general rule, the need to protect confidential informants. However, based on the facts presented in this case, there can be no compelling argument for continued secrecy.
Accordingly, the motion for disclosure of the identity of the confidential informant is granted.
The motion for protective order is denied, and the objection is sustained.