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Wilson v. State (11/9/00) ap-1700
Wilson v. State (11/9/00) ap-1700
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBERT J. WILSON, )
) Court of Appeals No. A-7272
Appellant, ) Trial Court No. 3PA-S97-1629 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
) [No. 1700 - November 9, 2000]
Appellee. )
)
Appeal from the Superior Court, Third Judicial
District, Palmer, Eric Smith, Judge.
Appearances: Richard D. Kibby, Anchorage, for
Appellant. Ben M. Herren, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Respondent.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
In this case, the superior court sealed a search warrant
affidavit because certain details in that affidavit would have
revealed the identity of a confidential police informant. After
the search was conducted and the defendant was indicted, the
defendant asked the court to unseal the affidavit so that the
defendant could find out the court's basis for issuing the warrant.
The court again found that certain details in the affidavit would
tend to reveal the identity of the informant, and so refused to
unseal the affidavit.
Under Evidence Rule 509(a), the government has a
privilege to withhold the identity of its informants. But only the
informant's identity is privileged. Other information contained in
a search warrant application is not privileged except to the extent
that disclosure of this information would also disclose the
informant's identity. In the case before us, only a few passages
of the affidavit contained information that would disclose the
informant's identity, and those passages can easily be paraphrased
or edited so that the gist of those passages can be made public
without disclosing details that would identify the informant. For
these reasons, we hold that the superior court abused its
discretion in keeping the affidavit sealed.
Based upon a tip from a confidential informant, the
Alaska State Troopers began an investigation which led them to
obtain a search warrant to search the residence of Robert J.
Wilson. At the request of the troopers, Superior Court Judge
Beverly Cutler ordered the affidavit in support of the search
warrant sealed in order to protect the identity of the informant.
The troopers served the warrant and discovered evidence of a
marijuana-growing operation. Wilson and a co-defendant, Joel
Pennington, were indicted on four counts of misconduct involving a
controlled substance in the fourth degree, a class C felony.
Wilson then filed a motion seeking disclosure of the
identity of the confidential informant. In his memorandum in
support of the motion, Wilson argued that because the trial court
had sealed the affidavit in support of the search warrant, he had
no information about whether the affidavit established probable
cause to support the issuance of the search warrant. He pointed out
that he would be unable to determine whether the search of his
residence was reasonable under the United States and Alaska
Constitutions without this information. Wilson emphasized that
under Evidence Rule 509, the government's informer privilege
protects only the informant's identity, not the information the
informant supplied. The state opposed the motion and requested an
in camera hearing "to determine whether or not the search warrant
based on the informant's information was justified." The state did
concede, however, that the court could disclose to the defense
"discoverable information that is consistent with protection of
persons and effective law enforcement."
Because Judge Cutler had issued the search warrant, she
assigned Superior Court Judge Eric Smith to conduct the in camera
hearing. At the in camera hearing, Judge Smith heard testimony
from Alaska State Trooper Raymond L. Culbreth, the trooper who
swore to the affidavit in support of the search warrant, and
testimony from the informant. At the conclusion of the hearing,
Judge Smith ruled that the state had established legitimate reasons
to keep the informant's identity confidential. He also found that
the informant was a mere tipster who had provided information which
led to the police investigation and that therefore the informant's
identity was not critical to Wilson's defense. He accordingly
denied Wilson's motion to disclose the identity of the informant.
Judge Smith then went on to determine whether the search
warrant was supported by probable cause. He concluded that the
affidavit in support of the search warrant was sufficient to
establish probable cause even if the information supplied by the
informant was not used. He consequently denied the defendant's
motion to suppress the fruits of the search warrant.
We do not reach the merits of Judge Smith's various
rulings because we conclude that Judge Smith erred in the way he
handled the case. Under Alaska Evidence Rule 509(a), the
government has a privilege "to refuse to disclose the identity of
a person who has furnished information relating to or assisting in
[a law enforcement] investigation." But, as the commentary to this
rule declares, only the informer's identity is privileged.
Communications to and from the informer are not privileged "except
to the extent that disclosure [of these communications] would
operate also to disclose the informer's identity." [Fn. 1]
Evidence Rule 509 does not authorize the government or
the court to keep a search warrant application secret after the
search has been conducted and the defendant publicly charged with
a crime. The government is privileged to conceal or redact only
those portions of the application that identify its informant. [Fn.
2]
We have reviewed the search warrant application, the
testimony presented to Judge Smith during the in camera hearing,
and Judge Smith's written findings. We agree with Judge Smith that
the search warrant affidavit contains certain facts which, if
disclosed, would make identification of the informant relatively
easy. But most of the affidavit could be revealed to Wilson
without disclosing the informant's identity. Even the parts of the
affidavit that would disclose the informant's identity could be
paraphrased or edited so that the gist is revealed to Wilson
without disclosing details that would identify the informant.
For these reasons, we hold that the superior court abused
its discretion in keeping the search warrant affidavit secret. We
vacate the superior court's decision to keep the affidavit sealed,
and we direct the superior court to reveal to Wilson all parts of
the search warrant application that are not privileged under
Evidence Rule 509. We further direct the superior court to reveal
to Wilson all non-privileged portions of the testimony given at the
in camera hearing. [Fn. 3] With respect to the portions of the
affidavit and the in camera testimony that are privileged, we
direct the superior court to consider whether these portions might
be edited or paraphrased in a way that maintains the government's
privilege but nevertheless communicates pertinent information to
Wilson.
After the superior court has disclosed the appropriate
portions of the search warrant application and in camera testimony
to Wilson, the court shall give Wilson a renewed opportunity to
challenge the search warrant. If Wilson challenges the warrant,
and if the court again upholds the warrant, Wilson shall be
entitled to file a new appeal within thirty days from the superior
court's decision.
This case is REMANDED to the superior court for further
proceedings in conformity with this opinion. We do not retain
jurisdiction of this case.
FOOTNOTES
Footnote 1:
Commentary to Alaska Evidence Rule 509(a), third
paragraph.
Footnote 2:
See Peterson v. State, 813 P.2d 685, 690 (Alaska App. 1991).
Footnote 3:
See id. at 690-91.
