STATE OF NEW JERSEY v. SEAN MCARDLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

SEAN MCARDLE,

Defendant-Respondent.

Argued May 5, 2014 Decided June 5, 2014

Before Judges Parrillo, Harris and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 13-07-1338.

Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Heinzel, of counsel and on the briefs).

Edward C. Bertucio argued the cause for respondent (Hobbie, Corrigan & Bertucio, P.C., attorneys; Mr. Bertucio, of counsel and on the brief; Justin L. Klein, on the brief).

PER CURIAM

We granted the State leave to appeal from an interlocutory order requiring disclosure of the identity of a confidential informant (CI) who provided information that led to the surveillance of defendant Sean McArdle and his eventual arrest on charges of possession of large quantities of marijuana and hashish with intent to sell. We reverse for the following reasons.

According to the State's proffer, on February 27, 2013, the Drug Enforcement Administration (DEA) commenced an investigation into defendant's alleged drug dealing activities. The DEA used a CI to place a "controlled call" to defendant, resulting in defendant's agreement to sell three pounds of marijuana to the CI in Massachusetts. The next day, February 28, 2013, the CI met with defendant in Massachusetts, observed by members of the DEA and the New York State Police. The CI purchased three pounds of marijuana from defendant.

Two weeks later, on March 11, 2013, a DEA agent involved in the Massachusetts investigation notified the New Jersey DEA office that defendant was being investigated as a "high volume distributor of marijuana[.]" On March 13, the DEA monitored a call between a CI (supposedly the same CI from the Massachusetts transaction) and defendant, during which the CI arranged to purchase marijuana from defendant the following day.

The next day, March 14, 2013, members of the DEA, the Monmouth County Prosecutor's Office and the Middletown Police Department set up surveillance at defendant's residence in Port Monmouth. The officers observed two vehicles parked in the driveway: a black 2012 GMC Sierra pick-up truck and a red 2002 Dodge Ram van. Both were registered to defendant.

At about 10:28 a.m., Special Agent Ted Nelson of the DEA observed defendant exit the house, retrieve a "large black bag with a visible weighted bulky appearance" from the garage and place the bag in the rear hatch of the Sierra. Defendant then returned to the house. About twenty minutes later, defendant retrieved the black bag from the Sierra and placed it instead in the Dodge Ram; he then again returned to the house.

At 11:09 a.m., defendant got into the Dodge Ram and drove away from the house. Defendant pulled over almost immediately, "suspiciously scanning in all directions and repeatedly checking his rear view mirror." One of the officers, Richard Pizzuti, "observed [defendant] driving at a high rate of speed and in an erratic fashion." Another member of the task force, Detective Jose Goncalves, then contacted Corporal Gerald Weimer of the Middletown Police Department and asked him to "effect an investigative stop" of the Dodge Ram.

A few minutes later, Weimer pulled over the Dodge Ram at an intersection in Hazlet Township. Weimer notified Goncalves that he noticed "an overwhelming odor of suspected marijuana emanating from the van immediately upon approaching the vehicle." Goncalves and Special Agent Raymond Morrison of the DEA, who had been observing the traffic stop, approached defendant, who by then had exited the van. They both also noted the smell of marijuana coming from the van.

A drug-sniffing dog brought to the scene gave a "positive indication in the rear area [of the van.]" The officers then requested and received consent from defendant to search both the Dodge Ram and the Sierra (still parked at defendant's house), as well as defendant's home. The search of the Dodge Ram uncovered the black bag, which contained numerous small clear plastic bags with marijuana inside. A search of the house uncovered more clear plastic bags containing marijuana as well as a large quantity of cash, hidden in a "concealed compartment room[.]" Two handguns and a shotgun were also discovered. According to the State, 394 pounds of marijuana were seized.

Later than day, while in police custody, defendant gave a statement admitting to possessing the marijuana, money and guns uncovered during the searches and admitting to operating a narcotics distribution business. Defendant was eventually charged with first-degree possession of marijuana and hashish with intent to distribute, fourth-degree possession of an illegal firearm, and first-degree financial facilitation of criminal activity, among other charges.

Defendant moved pre-trial to suppress the evidence seized during the searches of his car and home as well as his post-arrest confession. He also moved to reveal the identity of the CI, claiming that he actually knew who the CI was and thus was merely seeking confirmation. Specifically, defendant argued that the "detailed recitation" of the Massachusetts incident on February 27-28, which had been provided by the State, as well as other information obtained during discovery, essentially had revealed the CI's identity, that the CI's "tip" was central to the basis for reasonable suspicion to conduct the initial motor vehicle stop, and that the CI's identity would be inevitably disclosed once charges were filed in the Massachusetts/New York matter.

The motion judge agreed, citing the "unique facts and circumstances of this case, particularly in light of the large quantity of drugs that we're talking about moving, the investigation at this point still ongoing in New York, together with the information that defense counsel has already gleaned from that discovery that's already been provided" as the basis for his decision. Accordingly, the judge ordered disclosure of the name, date of birth and address of the CI to defendant. We granted the State's emergent application for a stay and its subsequent motion for leave to appeal.

We review an order compelling disclosure of a CI's identity under an abuse of discretion standard, that is "whether the trial court abused its discretion after weighing the competing considerations of the balancing test." State v. Milligan, 71 N.J. 373, 384 (1976). By the same token, there is a presumption protecting the informer's identity, Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 627, 1 L. Ed. 2d 639, 644 (1957), which is even stronger in narcotics cases given that "informants are an important, indeed indispensable, part of the arsenal that law-enforcement forces bring to bear against drug crimes." State v. Florez, 134 N.J. 570, 582 (1994); see also Milligan, supra, 71 N.J. at 381 n.3.

There is a privilege for CIs, N.J.S.A. 2A:84A-28; N.J.R.E. 516, that belongs to the State. State v. Sessoms, 413 N.J. Super. 338, 343 (App. Div. 2010). The purpose of the privilege is twofold: "to protect the safety of the informant and to encourage the process of informing." Ibid. The privilege is in fact intended "to protect the public interest in a continuous flow of information to law enforcement officials." Grodjesk v. Faghani, 104 N.J. 89, 97 (1986). Indeed, the public has a strong interest in sustaining the flow of information about crime to law enforcement, and informants are a key source of that intelligence. See Roviaro, supra, 353 U.S. at 59, 77 S. Ct. at 627, 1 L. Ed. 2d at 644.

To be sure, the privilege is not absolute. Florez, supra, 134 N.J. at 578. Under N.J.R.E. 516, the State may decline to disclose the identity of a police informant "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."

Under the first exception, once the State has affirmatively disclosed the identity of a CI, it cannot claim the privilege. When the identity of an informant "has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable." Roviaro, supra, 353 U.S. at 60, 77 S. Ct. at 627, 1 L. Ed. 2d at 644-45. However, since the privilege belongs to the State and not to the informer, State v. Williams, 356 N.J. Super. 599, 603 (App. Div. 2003), the disclosure of the CI's identity by a third-party does not generally negate the privilege. Sessoms, supra, 413 N.J. Super. at 343-44 (holding that the privilege existed even when the CI himself had given defendant a statement revealing his identity). Moreover, the CI's identity may be protected by the State even if only "thinly concealed[,]" State v. Salley, 264 N.J. Super. 91, 101-02 (App. Div. 1993), because the State still maintains an interest in not further disclosing the informant's identity. In re Application for a Protective Order, 282 N.J. Super. 244, 253-54 (App. Div. 1995). Even where the defendant claims to know the identity of the informant, there has been no disclosure under the rule absent any evidence that the State disclosed that fact. See State v. Williams, 364 N.J. Super. 23, 38 (App. Div. 2003) (finding "no waiver of the informant's privilege by the State through any prior disclosure [] by it" where defendant claimed to "know the informant").

Under the second exception, where the defense claims disclosure is essential to a fair determination of the issues, the trial court balances "'the public interest in protecting the flow of information against the individual's right to prepare his defense[,] . . . taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.'" Milligan, supra, 71 N.J. at 384 (quoting Roviaro, supra, 353 U.S. at 62, 77 S. Ct. at 628-29, 1 L. Ed. 2d at 646). Thus, the court must balance the State's interest in encouraging the reporting of confidential information with a criminal defendant's right to fairness. State v. Burnett, 42 N.J. 377, 385-86 (1964). As noted, there is a presumption against disclosure. Id. at 385. "[F]rivolous demands for information [or] unsubstantiated allegations of need" will not be enough to justify disclosure because "[s]omething more than speculation should be required of a defendant before the court overrules an informer's privilege of nondisclosure." Milligan, supra, 71 N.J. at 393. First, the defendant must demonstrate the materiality of the informer's identity or testimony. Id. at 383-84. Additionally, in order to overcome this presumption, defendant must make a "substantial showing of need" in favor of the disclosure. State v. Oliver, 50 N.J. 39, 47 (1967).

There are certain circumstances in which disclosure may be required, as for example, when the informant was directly involved or played an integral role in the crime for which the defendant has been indicted. Milligan, supra, 71 N.J. at 386-87; Maudsley v. State, 323 N.J. Super. 579, 594 (App. Div. 1999). Our courts have also required disclosure when a reasonably plausible claim of entrapment has been made by the defendant. Florez, supra, 134 N.J. at 581-82; State v. Dolce, 41 N.J. 422, 435-36 (1964). And, as previously noted, disclosure may be required when fundamental fairness requires it. Cashen v. Spann, 66 N.J. 541, 553-54, cert. denied, 423 U.S. 829, 96 S. Ct. 48, 46 L. Ed. 2d 46 (1975).

"On the other hand, absent a strong showing of need, courts generally deny disclosure where the informant plays only a marginal role, such as providing information or tips to the police or participating in the preliminary stage of a criminal investigation." Milligan, supra, 71 N.J. at 387; see State v. Infante, 116 N.J. Super. 252, 259 (App. Div. 1971) (holding that disclosure was not warranted when the informant had made a bet on the phone with defendant as police listened because that "was not [] the criminal activity for which the defendant was convicted").

Additionally, when disclosure is sought in order to further a challenge to the existence of probable cause, our Court has found it "reasonable and consistent with the

purpose and effective enforcement of the Fourth Amendment" to

deny disclosure, based on the principle that a probable cause

determination has a lower standard of proof. Burnett, supra,

42 N.J. at 387-88 (rejecting disclosure in support of a

defendant's motion to suppress evidence gained under a

challenged warrant). And, where the challenge, as here, is not even based on the higher probable cause standard, but rather on the more lenient reasonable suspicion one, State v. Stovall, 170 N.J. 346, 356 (2002) (noting that "[r]easonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause [21] necessary to sustain an arrest"), the identity of the CI is entitled to even more protection.

Here, the defense claims the benefit of both exceptions and the motion court permitted disclosure based on defendant's claim to already know the identity of the CI both from information provided by the State in discovery and the memorable nature of the Massachusetts transaction itself, and also the possibility of disclosure in the New York prosecution. We find none of these a proper ground for disclosure.

First, suffice it to say that the CI's identity (assuming one and the same CI was involved in both the Massachusetts sale and the New Jersey telephone transaction) has not, in fact, been disclosed in the New York prosecution. The mere possibility of disclosure in an entirely separate matter is purely speculative and does not justify disclosure in this case.

Second, there is no claim that the State actually disclosed the CI's identity. The fact that defendant may have gleaned that fact from information obtained from the State in discovery that he had then pieced together is hardly a basis to find a purposeful waiver on the State's part. Because police are under an obligatory duty to disclose the presence of a confidential informant in their reports, State v. Cooper, 301 N.J. Super. 298, 306 (App. Div. 1997), for a defendant to then claim that the privilege somehow no longer exists simply because he can "figure out" who that informant is would sap the privilege of its long-recognized vitality and drastically weaken critical law enforcement interests. To otherwise accept the motion court's view would deprive the privilege of any meaning inasmuch as any claim to know a CI's identity would warrant disclosure.

In this case, the State's discovery revealed that the CI took part in a controlled buy in Massachusetts, which appears to be the subject of a New York prosecution, and not, most notably, this matter. It also showed that the CI made a phone call to defendant on March 13, 2013, to arrange for another purchase of marijuana, which by the way never took place due to defendant's arrest. The simple fact that defendant met the CI under what may be characterized as "memorable" circumstances in Massachusetts and then received a phone call from that same person may not reasonably equate with a "disclosure" by the State sufficient to constitute its waiver of the privilege. Otherwise, all but the most routine transactions in which police use a CI to arrange a purchase would suffice to waive the privilege's protection. Because accepting defendant's and the motion court's interpretation of "disclosure" would render toothless the protections of N.J.R.E. 516, we find that the State did not disclose the CI's identity.

Nor has defendant made any showing, much less a "strong showing," of need for the CI's identity. Milligan, supra, 71 N.J. at 387. Here, the CI was neither directly involved nor played an integral role in the actual crimes for which defendant has been indicted. On the contrary, the CI participated, at most, in the preliminary stages of the criminal investigation, his involvement limited to his "controlled buy" in Massachusetts and his monitored telephone call with defendant two weeks later, on March 13, 2013, the day before his arrest. Markedly, defendant was not charged with any offense arising from the CI's limited engagement. As such, the CI played only a marginal and tangential role in connection with the search of defendant's car and home and, by extension, any evidence found during that search and his post-arrest confession.

Thus, defendant's claimed need for the CI's identity to advance his motion to suppress hardly compels disclosure. As noted, the need for disclosure at a suppression hearing is far less than at trial, where guilt or innocence is at issue, and even lesser, if virtually non-existent, where it is sought to challenge a determination not of probable cause but only of reasonable suspicion to support a motor vehicle stop. And in this case, defendant's justification is at its weakest since the State is asserting a totally independent basis for the investigatory stop, namely defendant's speeding and erratic driving, not reliant in any respect on any information or tip from the CI.

Furthermore, the suppression hearing has yet to occur and the motion judge has had no opportunity to evaluate the credibility of the officers who will testify to what was learned from the CI, particularly any information related to the monitored communication of March 13, 2013, where the CI placed an order to purchase marijuana, the day before the surveillance and stop of defendant's van. As the State asserts, it is anticipated that the agent who monitored that March 13, 2013 conversation will testify at the suppression hearing directly as to what he personally heard during an "overhear" of the phone call between the CI and defendant, thus obviating the typical "basis of knowledge" issue that presents itself during motions to suppress when a CI merely tells an officer about criminal activity. See Infante, supra, 116 N.J. Super. at 253 (when officer conducts "overhear" of telephone call and hears both ends of the call, the content of the call is "within the detective's personal knowledge and not the result of information conveyed to him"). Thus, given that the motion court has yet to conduct a hearing as to whether the stop or search was justified, and the police officers who conducted the investigation have yet to provide testimony on those issues, any claimed need by defendant for the CI's identity to test his reliability is speculative and conclusionary. Speculation simply does not rise to the level of a "strong showing" of need necessary to overcome the presumption of confidentiality and compel disclosure.

In a last ditch effort to obtain the CI's identity, defendant vaguely mentions a possible entrapment defense. This bare assertion, however, hardly satisfies defendant's substantial burden. Defendant offers no facts giving rise to that defense or even to a fair inference that he was entrapped. See Oliver, supra, 50 N.J. at 47 ("[A] defendant may not call for disclosure of a participant-informer upon an unverified assertion of entrapment[.]").

In conclusion, because defendant has failed to show that the State waived the protections of the privilege by actual disclosure to the defense or that disclosure is essential to the fair determination of the issues in his case, he is not entitled to revelation of the CI's identity, and the State may not be compelled to make such disclosure.

Reversed and remanded.