Opinion
CV-02-4270 (ADS) (ETB)
December 22, 2003
FACTS
Before the court is the motion of the plaintiff, Jose Adolfo Carbajal ("plaintiff or "Carbajal"), pursuant to Federal Rule of Civil Procedure 37(a), seeking to compel the defendants to disclose the following: (1) the identity of the confidential informant used by the defendants on March 16, 1999; (2) the 8MM audio/video tape depicting the events that occurred on March 16, 1999; (3) the location of the camera and audio equipment which recorded the events of March 16, 1999; and, (4) the records maintained by the defendants reflecting the activities of the subject confidential informant for two years prior to March 16, 1999. Plaintiff also seeks reimbursement of attorney's fees and expenses incurred in making the instant motion. For the following reasons, plaintiff's motion is granted in part and denied in part.
The complaint in this action was filed on July 30, 2002. In his complaint, plaintiff alleges that on October 22, 1999, at or around 8:45 p.m., he was unlawfully arrested by defendant Detective Salvatore Mancuso ("Detective Mancuso"), on the grounds that — seven (7) months earlier — plaintiff had sold cocaine to a confidential informant acting as an agent for the Hempstead Police Department on March 16, 1999. (Compl. ¶¶ 22, 25.) The alleged narcotics transaction on March 16, 1999 was audio/video recorded by the Police Department. (Id. ¶ 26.)
Following his arrest, the plaintiff was incarcerated for two and one-half months, and released from custody on January 3, 2000. (Id. ¶ 36.) All charges against the plaintiff were subsequently dismissed when the grand jury refused to indict. (Id. ¶ 39.) Plaintiff thereupon commenced the instant action, alleging that defendants had deprived him of his Fourth, Fifth, and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983, 1985 and 1986. (Id. ¶¶ 41-85.) The defendants assert that this is not a situation of mistaken identity as plaintiff claims, but rather that the plaintiff is in fact the person involved in the undercover drug sale on March 16, 1999, even though the charges were dismissed.
Plaintiff seeks an order of the court compelling defendants to turn over certain information that has been designated by defendants as privileged. Specifically, plaintiff seeks the following: (1) the identity of the confidential informant used by the Hempstead Police Department in the drug transaction that took place on March 16, 1999, which led to plaintiff's arrest; (2) the 8mm audio/video tape defendants made of the drug transaction that took place on March 16, 1999, for which plaintiff was arrested; (3) the location of the camera and audio equipment on the confidential informant on March 16, 1999; and, (4) any records maintained by defendants that reflect any other activity of the confidential informant for the two years prior to March 16, 1999.
DISCUSSION
A. Confidential Informant PrivilegeThe informant privilege, "allows the government to protect the identity of persons who furnish information to it regarding violations of law."Herman v. The Crescent Publ'g Group, Inc., No. 00-1665, 2000 U.S. Dist. LEXIS 13738, at *5 (S.D.N.Y. Sept. 21, 2000) (citing Roviaro v. United States, 353 U.S. 53, 59-61 (1957)). Although labeled the "informer's privilege," the privilege actually belongs to the government. See Roviaro, 353 U.S. at 59. "By withholding the identity of the informer, the government profits in that the continued value of informants placed in strategic positions is protected, and other persons are encouraged to cooperate in the administration of justice." In re United States, 565 F.2d 19, 22 (2d Cir. 1977). The privilege may be asserted by state law enforcement agencies and their subdivisions as well as federal law enforcement officers. See WEINSTEIN'S FEDERAL EVIDENCE, § 510.05[1] (Matthew Bender 2d ed. 2003).
The informant privilege applies in criminal and civil actions. See In re United States, 565 F.2d at 22. However, the privilege is not absolute. See Roviaro, 353 U.S. at 60; In re United States, 565 F.2d at 22; Herman, 2000 U.S. Dist. LEXIS 13738, at *6. "Where the identification of an informer or the production of his communications is essential to a fair determination of the issues in the case, the privilege cannot be invoked." In re United States, 565 F.2d at 22-23 (citing Roviaro, 353 U.S. at 60-61). Generally, the privilege applies to the informant's identity only and not the substance of the informant's communications. "Where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged."Roviaro, 353 U.S. at 60.
There is no fixed rule with respect to disclosure of an informant's identity. See Id. at 62. In applying the privilege, the courts must balance the public interest in protecting the flow of information against the public interest in a fair determination of the merits. See Id. The party seeking disclosure of the informant's identity and/or communications bears the burden of establishing the need for such disclosure. See In re United States, 565 F.2d at 23. The party seeking disclosure must establish that "the information sought is both relevant and essential to the presentation of his case on the merits, . . . and that the need for disclosure outweighs the need for secrecy." Cullen v. Margiotta, 811 F.2d 698, 715-16 (2d Cir. 1987), overruled on other grounds by United States v. Lovelock, 170 F.3d 339 (2d Cir. 1999).
"Whether the showing of need rises to the requisite level is a discretionary determination which necessarily must be made on a case-by-case basis." Herman, 2000 U.S. Dist. LEXIS 13738, at *6. "Disclosure should not be directed simply to permit a fishing expedition, . . . or to gratify the moving party's curiosity or vengeance, . . . but only after the trial court has made a determination that plaintiff's need for the information outweighs the defendant's claim of privilege." In re United States, 565 F.2d at 23 (citing Kerr v. United States Dist. Court, 426 U.S. 394, 405 (1976)) (internal citations omitted). The need for disclosure has been held to be the strongest when the informant was "a key witness or participant" in the alleged crime.United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988); People v. Goggins, 34 N.Y.2d 163, 169-70 (1974). Disclosure may also be appropriate where the informant performed more of a preliminary function, yet may be considered to have been "`an active participant in setting the stage.'"Goggins, 34 N.Y.2d at 169-70 (quoting Gilmore v. United States, 256 F.2d 565, 567 (5th Cir. 1958)).
B. The Identity of the Confidential Informant
Plaintiff asserts that the identity of the informant is necessary so that plaintiff may orally examine the informant in order to raise a question of fact as to whether probable cause existed to arrest Carbajal. (Id. at 8, 10.) Defendants, however, contend that plaintiff has not met his burden of demonstrating that disclosure is warranted in this instance.
There is a factual dispute as to whether the person identified by the informant to the defendants as being a drug dealer is actually the plaintiff. Detective Karlya testified at his deposition that the informant stated to the police that a known drug dealer lived at 264 Stewart Avenue, Hempstead, New York. (Dep. of Stephen Karlya at 61.) The informant only provided the police with the suspect's first name, Jose. (Id. at 132-33.) Upon receiving this information, Detective Karlya set up the drug transaction of March 16, 1999, which is allegedly depicted on the videotape also at issue in this motion. (Id. 56.) Approximately a day or two after the transaction was recorded, Detective Karlya went to 264 Stewart Avenue and inquired who lived there. (Id. at 101-104.) Jose Carbajal identified himself as well as another man, a woman and two children. (Id.) There is nothing in the record before the court that indicates whether Detective Karlya asked the name of the other male resident, or what that name was. Detective Karlya did not inquire if anyone might have been temporarily staying there. (Id. at 104.) Based on the plaintiff's first name and based on the videotape of March 16, 1999, the police arrested plaintiff on October 22, 1999. Detective Karlya testified that the transaction that took place on March 16, 1999 between the confidential informant and the drug suspect was in Spanish. (Id. at 92.) Detective Karlya does not speak Spanish. (Id.) Plaintiff maintains that he is not the person from whom the informant purchased drugs and that the police lacked probable cause to arrest him on October 22, 1999. The identity of the drug seller is not clear from the videotape produced for inspection to the court.
A copy was also provided to the plaintiff.
The informant used by the defendants was not only an eyewitness to the events of March 16, 1999, but also helped set the stage for the drug transaction and actively participated in the transaction itself. In fact, the confidential informant was the only person to have direct contact with the suspect during the course of the drug transaction. Detective Karlya testified at his deposition that the police were stationed some distance away, listening to the exchange over the audio equipment hidden on the informant. (Id. at 63.) It therefore appears neither Detective Karlya nor anyone other than the informant can identify the plaintiff as the person involved in the drug transaction.
In United States v. Jiminez, 789 F.2d 167 (2d Cir. 1986), the Circuit held that it is not enough to show that the informant was a participant in and witness to the crime charged but that the criminal defendant, or in this case the civil plaintiff, must also demonstrate that the testimony of the informant would be of more than "marginal value to the [plaintiff's] case." Id. at 170. The informant herein was "present during all significant events," United States v. Roberts, 388 F.2d 646, 649 (2d Cir. 1968), and "obviously a crucial witness to the alleged narcotics transaction," Id., for which plaintiff was arrested. The informant's identity and testimony is of critical importance to the plaintiff.
The necessity of the informant's identity to plaintiff's action is further demonstrated by the fact that all charges against the plaintiff were dismissed based on the failure of the grand jury to indict him. Although defendants maintain that they had probable cause to arrest plaintiff, there is no claim that the undercover informant involved in the March 16, 1999 drug transaction continues to conduct undercover work for any law enforcement authority. Nor is there any claim that his identity has never been revealed in any other action or that disclosure of his identity would jeopardize any pending investigation or prosecution. The informant "could clearly play a decisive role in resolving the very colorable factual dispute" between plaintiff and the defendants. Goggins, 34 N.Y.2d at 172. Accordingly, the defendants are directed to disclose the identity of the confidential informant to plaintiff within ten (10) days.
C. The 8 mm Audio/Video Tape
Defendants have provided plaintiff and the court with an excerpt of the videotaped surveillance conducted on March 16, 1999, which shows the drug transaction for which plaintiff was arrested. A review of the excerpt produced does not depict the undercover agent and does not reveal the identity of the person from whom the informant purchased the drugs. The quality of the tape is poor, the picture is grainy, and it is filmed in black and white. Moreover, the suspect's face is partially hidden by the upturned collar of his jacket and at times the picture is cut off so that the top of the suspect's face is not viewable. As stated supra, unless privileged on some other grounds, the content of the informant's communications are not privileged. See Roviaro, 353 U.S. at 60. Defendants have not demonstrated any other such grounds. Accordingly, plaintiff is entitled to the full audio/video recording of the transaction on which defendants base their probable cause to arrest plaintiff. Defendants are directed to disclose the entire 8 mm audio/video recording to plaintiff within ten (10) days.
D. The Location of the Audio/Video Equipment
Plaintiff argues that the location of the audio/video equipment on the confidential informant's person had an impact on the accuracy of the images contained in the videotape and thus, disclosure of the location of the equipment is necessary so that plaintiff may examine the reasonableness of defendants' reliance on those images. (Pl Mem. at 11.) The defendants, however, conclusorily assert that disclosing the exact location of the hidden equipment would jeopardize the safety of confidential informants. (Def. Privilege Log, at ¶ 3, annexed to Decl. of Judy Schwartz dated Aug. 15, 2003.) No facts are set forth to support this conclusory allegation of jeopardizing the safety of the informant.
One of the underlying concerns of the informant privilege is the safety of the informant and the removal of a fear of reprisal. See In re United States, 565 F.2d at 22. Defendants assert that disclosing the presence of the surveillance equipment may endanger informants or otherwise hinder police investigations. However, defendants have already disclosed that the camera is situated somewhere around or above the informant's waist. (Def. Privilege Log, at ¶ 3.) Defendants offer nothing more than conclusory legal generalizations for their need to conceal any further information as to the exact location of the recording equipment on their informants. Defendants have failed to demonstrate any factual support for their position. Accordingly, plaintiffs request to compel the disclosure of the location of the audio/video equipment on the informant's person is granted. This information shall be produced to the plaintiff within ten (10) days.
E. Records of the Confidential Informant's Activity
Plaintiff requests access to all information in defendants' custody pertaining to the activity of the confidential informant on behalf of the defendants for the two years prior to March 16, 1999. Plaintiff asserts that this information is necessary to establish the credibility, reliability and accuracy of the past information provided to defendants by the confidential informant so that plaintiff may examine the reasonableness of defendants' reliance on the information provided by the confidential informant pertaining to the plaintiff. (Pl Mem. at 12.) Defendants contend that although they maintain such information, disclosing such records would also disclose information regarding other subjects arrested based upon the cooperation of the confidential informant and the information he provided. (Def. Privilege Log, at ¶ 4.) Defendants assert that revealing this information would jeopardize both the informant's safety and other police operations in which confidential informants are utilized. (Id.) No specifics are disclosed to the court.
The plaintiff has adequately demonstrated that the information he seeks to be disclosed is essential to a fair determination of the merits of this action. See In re United States, 565 F.2d at 22-23 (citing Roviaro, 353 U.S. at 60-61). The credibility and reliability of the confidential informant will certainly have a bearing on plaintiff's action and on whether plaintiff can demonstrate the defendants' lack of probable cause for his arrest. Again, defendants have offered nothing in the way of factual support for their contention that the informant's records should be shielded from disclosure. They rely on conclusory allegations that fail to demonstrate why such records should be privileged. Out of an excess of caution however, the defendants are directed, within ten (10) days, to provide all such records to the court for an in camera inspection.
F. Attorney's Fees and Costs
If a motion to compel discovery is granted, Rule 37(a)(4) provides that the court "shall" assess costs and fees against the non-moving party "unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(a)(4)(A): see also Corp. of Lloyd's v. Lloyd's U.S., 831 F.2d 33, 36 (2d Cir. 1987) (affirming district court's decision to impose sanctions). The district courts have broad discretion in imposing sanctions. See Corp. of Lloyd's, 831 F.2d at 36. In the exercise of discretion, I do not find an award of counsel fees to be appropriate. Plaintiff's request for attorney's fees and reasonable expenses is denied.
CONCLUSION
Based on the foregoing, plaintiff's motion to compel is granted in part and denied in part. Defendants are directed to disclose to plaintiff, within ten (10) days: (1) the identity of the confidential informant; (2) the entire 8 mm audio/video tape depicting the events of March 16, 1999; and, (3) the location of the recording equipment used by the informant. Defendants are further directed to provide to the court, within ten (10) days, all records maintained by the police department regarding the informant for the two years prior to this action for an in camera inspection. Plaintiff's request for reasonable attorney's fees is denied.
SO ORDERED.
Dated: Central Islip, New York