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Editor: Colin Miller
Univ. of South Carolina School of Law

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Wednesday, September 5, 2012

Informer, You Know Say: NJ Court Finds that Identity Of Confidential Informant Didn't Have To Be Disclosed

A defendant is charged with possession of cocaine with intent to distribute. That cocaine was seized pursuant to a search warrant obtained in large part on the basis of information from a confidential informant.  After the defendant is convicted, he appeals, claiming that the identity of the confidential informant should have been disclosed so that he could mount a challenge to the search warrant. Does he have a winning argument? As the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Colon, 2012 WL 3705087 (N.J.Super.A.D. 2012), the answer is likely "no." But did the court's analysis make any sense?

In Colon, the facts were as stated above. Specifically, police officers set up controlled buys between teh confidential informant and the defendant's girlfriend, Raneesha Griffin. The police then used this information to obtain a search warrant that was eventually used to seize the cocaine used to convict the defendant, Israel Colon.

In addressing Colin's argument, the Superior Court of New Jersey, Appellate Division found that the issue was governed by New Jersey Rule of Evidence, which provides that

A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.

Then, in finding that the informant's identity was not essential to a afair determination of the issues, the court concluded that

 

In this case, CI# 2 was involved in undercover purchases of cocaine from Griffin. CI# 2 never had any face-to-face interaction with defendant in the course of the two undercover purchases. Consequently, the informant's participation had little relevance to the alleged entrapment of defendant with respect to a substantial quantity of cocaine and other evidence of drug distribution activity seized from defendant's home.
Furthermore, the indictment did not charge defendant with distribution of cocaine based on the controlled purchases. Rather, the indictment charged conspiracy and related narcotics offenses based on the evidence seized directly by law enforcement authorities pursuant to search warrants on March 16, 2009. Thus, the potential testimony of the informant was tangential to the specific charges on which defendant was indicted.

 

Huh? Colon wanted the informant's identity to challenge the validity of the search warrant. It is thus irrelevant that the crimes did not stem from the controlled purchases. The search warrant stemmed from the controlled purchases, which is why the informant's identity could have been essential to Colon's challenge to the warrant. And who cares whether the informant had a face-to-face interaction with Colon? Ostensibly, Colon was claiming that the informant was lying about the controlled purchases. Does it matter whether those alleged purchases involved Colon or his girlfriend? I do not get the court's logic at all.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/09/informers-privilege-state-v-colonnot-reported-in-a3d-2012-wl-3705087njsuperad2012.html

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