In the Matter of S.L.--Appeal from 289th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00470-CV
IN THE MATTER OF S.L.
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-JUV-00618
Honorable Carmen Kelsey, Judge Presiding (1)

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: April 2, 2003

AFFIRMED

S.L. entered a plea of true to the offense of knowing possession of a controlled substance, one to four grams of cocaine. The issues on appeal are whether the trial court erred in denying S.L.'s motion to suppress and motion for disclosure of the identity of a confidential informant. We overrule these issues and affirm the judgment of the trial court.

Motion to Suppress

In reviewing a trial court's ruling on a motion to suppress evidence, we apply a bifurcated standard of review in which we afford almost total deference to a trial court's determination of historical facts and review de novo the court's application of the law of search and seizure. See Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997).

Law enforcement officers may in appropriate circumstances stop and briefly detain individuals suspected of criminal activity on less information than is constitutionally required for a probable cause to arrest. See Terry v. Ohio, 392 U.S. 1, 22 (1968). To justify the intrusion the officer must be able to point to specific articulated facts which, in light of the officer's experience and personal knowledge, together with inferences from those facts, would reasonably warrant the limited intrusion. Id. at 21; see also Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). The officer must have a "reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with the unusual activity, and some indication the activity is related to a crime." State v. Sailo, 910 S.W.2d 184, 188 (Tex. App.-Forth Worth 1995, pet. ref'd). The officer's information may be based on personal observation or on an informant's tip which bears sufficient indicia of reliability. See Carmouche, 10 S.W.3d at 328. The Supreme Court has held that the proper approach for determining whether an informant's tip establishes the requisite quantum of suspicion is the "totality of the circumstances" test. See Illinois v. Gates, 462 U.S. 213, 233-34 (1983); see also Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997).

In this case, S.L. argues that his arrest was unlawful because the officers did not independently verify or corroborate the information supplied by the informant about the alleged offense. Corroboration by the police officer means, that in light of the circumstances, the officer confirms enough facts so that he may reasonably conclude that the information is reliable and an investigative detention is justified. See Alabama v. White, 496 U.S. 325, 330-331 (1990). In the present case, the question becomes whether, under the "totality of the circumstances" in light of Officer Manriquez's knowledge and personal experience, and the informant's information, he corroborated enough facts to justify S.L.'s arrest.

Manriquez had information from a known informant that two males were selling drugs in the park. Manriquez knew from his work that the park was a known area for drug dealing. The description of the two suspects and their criminal activity was based on the informant's personal observation. The Supreme Court has stated that where "detailed description of the alleged wrongdoing, along with a statement that the event was observed firsthand, entitles an [informant's] tip to greater weight than might otherwise be the case." Gates, 462 U.S. at 234. When the officers approached the suspects in the park, the men turned their backs to them, and the officers noticed S.L. attempting to swallow something. Based on the officers' experience, this was consistent with a drug dealer's attempt to swallow drugs when approached by police officers. Under the "totality of the circumstances," the tip from the confidential informant when combined with the officers' experience, gave the officers sufficient probable cause to justify the officers' actions. See Gates, 462 U.S. at 233-34.

Motion for Disclosure

Under Texas Rules of Evidence, the State "has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer." Tex. R. Evid. 508(a). The privilege does not apply if: (1) the informant's identity has been voluntarily disclosed, (2) the informant may be able to give testimony necessary to a fair determination of guilt or innocence, or (3) the court is not satisfied that the information was obtained from an informant reasonably believed to be reliable. Tex. R. Evid. 508(c). S.L. contends the trial court erred in denying his motion for disclosure because the confidential informant in this case may be able to give testimony necessary to a fair determination of guilt or innocence.

The defendant has the threshold burden of demonstrating that the disclosure of the informant's identity is necessary for a fair determination of the defendant's guilt or innocence. See Rugendorf v. United States, 376 U.S. 528, 534-35 (1964); see also Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991). In order to carry this burden and invoke the second exception of Rule 508(c), the appellant must show that the informant's potential testimony "will significantly aid" the defendant and "mere conjecture or supposition about the possible relevancy" is insufficient. United States v. De Los Santos, 810 F.2d 1326, 1331 (5th Cir. 1987); see also Williams v. State, 62 S.W.3d 800, 802 (Tex. App.-San Antonio 2001, no pet.).

The informant told Officer Manriquez about her firsthand observation that two young men were selling drugs in the park. Based on this information, the officers approached the two young men and discovered balloons of cocaine in S.L.'s mouth. S.L. was charged with the offense of possession of a controlled substance. Mistaken identity was not an issue in the case. S.L. never argued that the officers apprehended the wrong person. Because S.L. has shown nothing more than mere speculation as to whether the informant's identity would significantly aid the defense, he failed to meet his burden of proving that the informant's identity must be disclosed. Williams, 62 S.W.3d at 802.

The judgment of the trial court is affirmed.

Alma L. L pez, Chief Justice

PUBLISH

1. The Honorable Carmen Kelsey presided over the hearing on the motion to suppress and signed the orders denying the motion to suppress and motion for disclosure. The Honorable Associate Judge Irma D. Hernandez presided over the plea proceedings.