The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge
This matter is before the Court on Defendant Robert McIntire's Motion to Disclose the Identity of the Confidential Informant (d/e 12) (Motion to Disclose). McIntire seeks an order directing the United States to disclose the identity of the confidential informant (CI) who signed an affidavit that was presented in connection with a sworn request by a police officer for a search warrant that allegedly led to the discovery of evidence upon which the instant charges are based. For the reasons set forth below, the Motion to Disclose is denied.
On May 3, 2005, a search warrant was issued by a state court judge in Adams County, Illinois, allowing the search of McIntire's residence, located at 522 Jackson Street, Quincy, Illinois and the seizure of cannabis, proof of residency and U.S. currency. Motion to Suppress Evidence Derived From Unlawful Execution of a Search Warrant (d/e 9) (Motion to Suppress), Ex. C. The Complaint for the search warrant was signed and sworn by Officer Lee Mangold of the Quincy Police Department. Id., Ex. A (Sworn Complaint). Attached to Officer Mangold's request was an affidavit in support by a CI, identified only as "Jane Doe." Id., Ex. B (Jane Doe Affidavit). According to information provided by the Government in response to inquiry by this Court, both Officer Mangold and the CI personally appeared before the issuing judge in connection with the application for the search warrant. Government's Response to the Court's Order for Clarification (d/e 15) (Government's Clarification), p. 2. At that time, the issuing judge made inquiries of the CI, involving the CI's identity, background, and the contents of the Jane Doe Affidavit. Id.
Law enforcement officials searched McIntire's residence pursuant to the May 3, 2005 warrant. In that search, law enforcement officials allegedly found and seized marijuana plants and methamphetamine. The instant charges were filed as a result of this search and seizure.
McIntire has filed a Motion to Suppress all of the evidence obtained as a result of the May 3, 2005 warrant, which has been referred to this Judge for Report and Recommendation. See Text Order, dated March 28, 2006. Defendant's Motion to Disclose is inextricably intertwined with his Motion to Suppress. The Motion to Suppress raises two alternative arguments for suppression. First, McIntire asserts that the information contained in the Sworn Complaint and the Jane Doe Affidavit is insufficient on its face to establish probable cause. In the alternative, he seeks a hearing under Franks v. Delaware, which, in limited circumstances, allows a defendant to obtain a hearing to challenge an allegedly false affidavit used to obtain a search warrant. See Franks, 438 U.S. 154 (1978). McIntire's Motion to Disclose is related to his request for a Franks hearing.
The Court has reviewed copies of the Sworn Complaint and the Jane Doe Affidavit which are attached as exhibits to McIntire's Motion to Suppress. In the Jane Doe Affidavit, the CI states that she had been in McIntire's residence within the 72 hours prior to the affidavit. The CI further states that, while inside McIntire's residence, she observed what appeared to be several pounds of a green leafy substance which she knew to be cannabis based on the fact that she had used cannabis on numerous occasions and was familiar with its appearance and smell. The CI stated that she had purchased cannabis from McIntire on several occasions in the past from inside the residence. The CI noted that she identified McIntire's residence to Officer Mangold in a drive-by and identified a photograph of McIntire as the person from whom she had purchased cannabis at the residence in the past.
The Jane Doe Affidavit is incorporated into Officer Mangold's sworn statement requesting a search warrant which sets forth the following facts:
(1) Mangold met with Jane Doe within the 48 hours preceding his statement and she provided him with the information set out in the Jane Doe Affidavit;
(2) another officer ran a criminal history check of McIntire which revealed an outstanding non-extraditable probation violation warrant out of Oregon for a previous conviction for manufacturing a controlled substance; and (3) Mangold received information in the past from confidential sources that McIntire was involved in selling methamphetamine. Mangold stated that he believed the information provided by Jane Doe to be correct. Specifically, Mangold stated that he knew marijuana to be a green leafy substance as described by Jane Doe, that he conducted a drive-by in which Jane Doe identified McIntire's residence, and that Jane Doe identified McIntire in a photograph.
From the information presented to the Court, including the Government's Clarification, the Court strongly believes that the information presented to the issuing state court judge is sufficient to support a finding of probable cause. Thus, when the Report and Recommendation is issued on the Motion to Suppress, this Court will recommend that the District Court reject McIntire's first argument for suppression. Given this recommendation, an analysis of McIntire's request for disclosure of the CI's identity to meet the threshold for a Franks hearing becomes necessary.
In order to secure a Franks hearing, McIntire must make "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause." Franks, 438 U.S. at 155-56. He "must offer direct evidence of the affiant's state of mind or inferential evidence that the affiant had obvious reasons for omitting facts in order to prove deliberate falsehood or reckless disregard." United States v. Souffront, 338 F.3d 809, 822 (7th Cir. 2003) (internal citation and quotation omitted). If McIntire makes the required showing of intentional or reckless falsehood, a hearing must be granted only if the affidavit would be insufficient to establish probable cause without the false statement. Id.
In the instant Motion to Disclose, Defendant asks the Court to order the United States to disclose the identity of the CI.*fn1 McIntire asserts that disclosure is necessary to allow him to fully develop his argument (1) that the CI lied in the Jane Doe Affidavit and (2) that Officer Mangold acted recklessly in believing the CI's statements. The Government asserts that it is entitled to withhold the CI's identity under the confidential informant privilege.
"The 'confidential informant privilege' protects from disclosure an informant's identity and his communications with the government that may tend to reveal his identity. The government is granted this limited privilege as a right, and need not make a threshold showing of likely reprisal or retaliation against the informant in order to assert the privilege." United States v. Valles, 41 F.3d 355, 358 (7th Cir. 1994) (citations omitted). A defendant can overcome the confidential informant privilege by demonstrating a need for the identity; however, he must meet this burden in the face of an assumption that the privilege should apply. Id.
Both parties cite the Court to Roviaro v. United States, 353 U.S. 53, 60 (1957). In Roviaro, the Supreme Court recognized that the Government has a limited privilege to withhold the identity of a confidential informant. Id. at 60. The Supreme Court noted that the purpose of this limited 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." Id. at 59. Thus, in determining whether to order disclosure of the identity of a confidential information, the Court must balance "the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. at 62. Under Roviaro, the Government may withhold the ...