Opinion
Case No. 5D20-1482
08-20-2021
STATE of Florida, Petitioner, v. Sara SULLIVAN, Respondent.
Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Petitioner. O.H. Eaton, Jr., Office of Criminal Conflict & Civil Regional Counsel, Casselberry, for Respondent.
Ashley Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Petitioner.
O.H. Eaton, Jr., Office of Criminal Conflict & Civil Regional Counsel, Casselberry, for Respondent.
LAMBERT, C.J.
The State of Florida petitions for a writ of certiorari regarding a nonfinal order entered by the trial court compelling it to disclose the name and address of the confidential informant ("CI") used in this case, together with producing copies of the CI's substantial assistance agreement with the State, the CI's separate plea agreement that she reached with the State in the criminal case that the State filed against her, the CI's "criminal history," and the substance of any statements allegedly made to the CI by the Respondent, Sara Sullivan. For the following reasons, we grant the petition, quash the order without prejudice, and remand with directions to the trial court to conduct an in camera hearing to determine whether the requested information about the CI should be released.
Sullivan is charged with conspiracy to traffic in twenty-eight grams or more of cocaine and trafficking in twenty-eight grams or more of cocaine. Sullivan made arrangements for an individual by the name of "Jared" to purchase cocaine from her "supplier," Lee Velez. Unbeknownst to Sullivan, "Jared" was an undercover law enforcement officer. After the drug transaction was consummated, Sullivan, who was not present at the transaction, called "Jared" to confirm that it had taken place and also to inquire about receiving a $100 fee that she had previously negotiated with the CI for arranging the sale. When Sullivan met "Jared" to receive her payment, she was arrested.
Velez is a codefendant in this case.
Sullivan would later file a sworn motion to compel the identity and address of the CI, together with the above-described information regarding the CI. Sullivan explained in her motion that she did not previously know the undercover officer and had been introduced to him through the CI. Sullivan alleged that the CI repeatedly called and messaged trying to convince her to arrange this drug transaction. Sullivan swore that "after weeks of [the CI's] enticing, urging, prodding, and convincing," including the CI outlining to her that, for her own personal reasons, the CI needed Sullivan to arrange this transaction, Sullivan relented and made contact with Velez and "Jared" in order to set up the drug transaction.
Sullivan averred in her motion that she was having financial difficulties at the time and that the CI had offered to her a "finder's fee" for her assistance in arranging the transaction. She also stated that she had no prior arrests for the trafficking or sale of illegal drugs and that she was not on law enforcement's "radar" for being involved in such activity. Sullivan further swore that the disclosure of the name and address of the CI, together with the previously-described information regarding the CI, was "material, relevant and essential" to establishing her defense that she was entrapped by the CI to commit the crimes for which she is charged. The trial court held an evidentiary hearing on Sullivan's motion to compel at which the undercover officer, Matthew Hobbs (i.e., "Jared"), testified. Hobbs explained that he was the handler for the CI and that it was the CI who introduced him to Sullivan for purposes of arranging the drug transaction with Velez. Hobbs also confirmed that the CI was not present when he purchased the cocaine from Velez.
Subjective entrapment is codified at section 777.201, Florida Statutes (2017). This statute provides:
(1) A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
(2) A person prosecuted for a crime shall be acquitted if the person proves by a preponderance of the evidence that his or her criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.
The only other testimony presented at the hearing was from the law enforcement officer who arrested the codefendant, Velez. His testimony is not pertinent to the instant proceedings.
The State represented to the trial court at this hearing that it did not intend to call the CI as a witness at trial. The trial court initially announced that it was denying Sullivan's motion to compel without prejudice to her alleging, with more specificity, how she was entrapped. Then, after Sullivan's counsel reminded the court that Sullivan was to receive a "finder's fee" for her services, the court orally "reversed" itself and thereafter granted the motion, entering the unelaborated written order now before this court for review.
The proceedings below have been stayed pending our resolution of the State's certiorari petition.
Preliminarily, an order granting a defendant's motion to disclose a confidential informant "is reviewable by certiorari, as it presents the possibility of irreparable harm." State v. Rivas , 25 So. 3d 647, 650 (Fla. 4th DCA 2010). The disclosure of a CI is governed by Florida Rule of Criminal Procedure 3.220(g)(2). This rule specifically provides that "[d]isclosure 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 the informant's identity will infringe the constitutional rights of the defendant."
Here, because the State has represented that it will not be calling the CI as a witness at trial, the CI's disclosure is required only if the failure to do so infringes on Sullivan's constitutional rights. To that end, disclosure of the CI's identity by the State is required when the identity is relevant and helpful to the specific defense raised or is otherwise essential to a fair determination of the cause at issue. See State v. Powell , 140 So. 3d 1126, 1130 (Fla. 5th DCA 2014) (citing Simmons v. State , 887 So. 2d 1283, 1284 (Fla. 2004) ).
The rub in the instant case is that the identity of the CI is actually well-known to Sullivan. Nevertheless, a defendant's knowledge of an informant's name does not necessarily extinguish the need for maintaining an informant's confidentiality. State v. Martin , 522 So. 2d 872, 873 (Fla. 3d DCA 1988) (citing United States v. Tenorio-Angel , 756 F.2d 1505, 1510 (11th Cir. 1985) ). For example, "[t]he need for the informant's safety, the avoidance of jeopardizing other operations, or the defendant's ability to locate the informant himself, ... may justify nondisclosure of the informant's address." United States v. Fischel , 686 F.2d 1082, 1092 (5th Cir. 1982). See also State v. McKinney , 765 So. 2d 137, 138 (Fla. 1st DCA 2000) (quashing the order requiring the State to disclose the requested information about the informant because "the trial court appears to have been of the mistaken impression that once the informant's identity was revealed, the state could no longer assert that release of further information about the informant would compromise the safety of the informant or others").
Sullivan's counsel has commendably conceded that the trial court's order requiring disclosure of the CI's information without conducting an in camera proceeding was essentially premature. We accept the concession.
Accordingly, the State's petition is granted, and we quash the order under review. This case is remanded to the trial court to conduct an in-camera hearing at which the court shall weigh the interests of the State in protecting against the disclosure of the CI's information and Sullivan's need for the requested information as being relevant and helpful to her defense of entrapment. This in-camera hearing should include taking the testimony of the CI. Cf. Joshua v. State , 205 So. 3d 851, 859–60 (Fla. 4th DCA 2016) (reversing and remanding the order disclosing the CI with instructions that the trial court conduct an in camera hearing that includes taking the testimony of the CI).
As the CI's identity here is known, the State will have the burden of showing the need to maintain the nondisclosure of the requested information. See United States v. Aguirre Aguirre , 716 F.2d 293, 300 (5th Cir. 1983). The trial court, however, must first determine whether Sullivan has met her burden of showing that the disclosure of information regarding the CI is, under the facts of the case, "relevant and helpful" to her entrapment defense. See State v. Ayala , 713 So. 2d 1050, 1052 (Fla. 3d DCA 1998) (holding that, when a defendant has filed a sworn motion or affidavit setting forth facts regarding the CI's involvement that, if true, would support a potential defense of entrapment, a trial court is "obligated to conduct an in-camera hearing" to determine whether anything the informant is capable of providing would be relevant and helpful to the defense).
PETITION GRANTED; ORDER QUASHED without prejudice; REMANDED for further proceedings consistent with this opinion.
EDWARDS AND WOZNIAK, JJ., concur.