GREENE, J.
In this case, we are asked to determine whether the intermediate appellate court erred in applying the doctrine of inevitable discovery sua sponte, where the State did not argue the doctrine at any point during prior proceedings. In addition, we are asked to determine whether the Circuit Court erred in failing to grant defense counsel's motion to compel disclosure of the identity of a confidential informant where the identity of the informant was material to the issue of the defendant's guilt or innocence.
On April 12, 2006, Winston Elliott was arrested in a parking lot in Prince George's County, Maryland, based on information provided by a confidential informant ("CI"). That morning, a CI, who is a registered source with the Prince George's County Police Department, contacted Detective Melvin Powell of the Narcotics Enforcement Division of the Prince George's County Police Department. Powell is the primary contact for the source within the police department. He testified that the CI previously provided information on numerous occasions which was "accurate, [] proven and corroborated" and lead to the "seizure of large quantities of marijuana" in previous cases. Previously, the source had been involved in buying and selling drugs, but police agreed not to arrest him in exchange for his cooperation in future police investigations.
The CI told Powell that a man named Winston would be arriving at a movie theater near Marlow Heights later that day, in order to deliver a large quantity of marijuana. The CI described Winston as a slim, black male, approximately five feet, eight inches tall, with a heavy Jamaican accent. The CI contacted Powell a second time and told Powell that the location had changed to the Southern Marketplace shopping center, with an estimated arrival time between 1:00 p.m. and 3:00 p.m. The CI also provided the officers with a description of a black Nissan Maxima, including the license plate number, which later proved to be almost an exact match to Elliott's car.
Once the men were secured, SOD officer Anthony Cline called over DEA Agent Brian Silvestro, who was standing nearby. Silvestro approached the officers and requested the keys to the car. Silvestro testified that upon approaching the vehicle, he smelled the odor of marijuana emanating from the trunk. Silvestro opened the trunk using the keys, saw a large suitcase and two other bags, and smelled marijuana. He then closed the trunk. Agent Silvestro testified at the suppression hearing that the K-9 unit arrived approximately 15 minutes after he opened the trunk. When the K-9 unit arrived, Officer Andrew Logan and the police dog conducted a scan of the vehicle, and the dog alerted to the trunk area. The officers then transported the two men and the car to the Oxon Hill police station for processing. The entire sequence of events, from the initial apprehension until Elliott was placed in a police vehicle for transport to the police station, took about 30 minutes. At the police station, Agent Silvestro searched the vehicle and removed 20 pounds of marijuana contained in the suitcase, which was wrapped securely in closed, thick plastic bags. No marijuana or drug paraphernalia was uncovered anywhere else in the vehicle. No drugs or weapons were found on the two men.
Based on the evidence seized, Elliott was charged with possession of marijuana and possession with intent to distribute marijuana. Elliott filed preliminary motions in the Circuit Court for Prince George's County. He moved to suppress the drug evidence and to compel disclosure of the identity of the CI. The hearing on the motion to suppress was held on January 19, 2007, and the hearing on the motion to compel disclosure of the identity of the informant was held on February 16, 2007. Elliott argued at the suppression hearing that he was arrested when he was initially apprehended and ordered to the ground, and that the information from the CI was insufficient on its own to establish probable cause for a warrantless arrest. Elliott therefore moved to suppress the evidence seized from the car under the "Fruit of the Poisonous Tree" doctrine. The Circuit Court judge denied the motion after hearing testimony from four officers involved in the arrest. The sole focus at the motions hearing was whether the stop was a detention or arrest, and whether the information provided by the CI was sufficient to furnish probable cause. The court held that the initial seizure of Elliott was
On February 16, 2007, the Circuit Court held a hearing on the motion to compel disclosure. The parties incorporated the testimony of the suppression hearing by reference, and no additional testimony was taken. Elliott argued that the CI gave Elliott the drugs in order to set him up, and informed the court that the intended defense at trial would be entrapment. The defense attorney, however, was not permitted to question officers at the suppression hearing as to the identity of the CI. When the defense presented their theory that Elliott was set up by a specific person, the Circuit Court held that the State did not have to disclose the identity of the CI because the defense was just "fishing" and in fact knew the informant's identity. The Circuit Court denied the motion to compel, concluding that the information was not relevant to any defenses or charges, and emphasizing the obligation of the court to protect confidential sources.
Mr. Elliott's first trial was held on August 21-22, 2007. The jury was unable to reach a verdict and the court declared a mistrial. The second trial was held on April 8-9, 2008, and Elliott was found guilty on both counts. At both trials, Elliott testified in his own defense, presenting evidence to show lack of knowledge of the controlled dangerous substance, in addition to expanding on the defense's theory of entrapment. Elliott testified that he did not know the marijuana was in the trunk of his car. Rather, an acquaintance of Elliott's, known to him only as "Christopher Lodge," was responsible for the drugs. According to Elliott, Lodge called Elliott the day before the incident, requesting that Elliott help store some of Lodge's possessions. Lodge told Elliott that Lodge had a fight with his girlfriend and that she had kicked him out of their shared apartment. Mr. Lodge asked Elliott if Elliott could help store Lodge's belongings temporarily. Elliott drove to Lodge's apartment, and Lodge placed a backpack, large suitcase, and garment bag in the trunk. Elliott testified that he did not get out of the car; he merely popped the trunk, allowing Lodge to place the items in the trunk, and Lodge then closed the trunk. The next morning, Elliott received a call from Lodge asking Elliott to meet Lodge at the shopping center, in order for Lodge to retrieve his belongings. Elliott testified that following his arrest, he believed Lodge was the CI and was unable to contact or locate Lodge. In its rebuttal, the State called Detective Powell, who testified he had never heard of Lodge. Ultimately, Elliott was convicted as a result of the second trial.
Elliott filed a timely appeal to the Court of Special Appeals. Elliott argued that the evidence of the contraband found in the trunk of the car should have been suppressed as the product of an illegal arrest and that the failure to compel disclosure of the informant's identity precluded Elliott from effectively presenting his defense at trial. The State maintained that the initial stop of Elliott was an investigative detention, not an arrest, and that the Circuit Court was correct in withholding the informant's identity. On November 3, 2009, in an unreported opinion, the Court of Special Appeals affirmed Elliott's convictions. The court held that Elliott was in fact arrested, not merely detained, when he was initially apprehended. The court concluded, however, that the evidence was nonetheless admissible under the inevitable discovery doctrine. This issue was not raised or argued by either party; rather, the court raised the issue sua sponte. The intermediate appellate
Elliott filed a petition for writ of certiorari in this Court. The Questions Presented were:
In its answer to the petition, the State filed a conditional cross-petition, asking this Court to determine if:
We granted both the petition and cross-petition. Elliott v. State, 413 Md. 228, 991 A.2d 1273 (2010).
Regarding the denial of a motion to suppress evidence:
Belote v. State, 411 Md. 104, 120, 981 A.2d 1247, 1256 (2009) (internal citations omitted). Specifically, this standard applies when evaluating whether a detention becomes a de facto arrest, requiring probable cause. See Longshore v. State, 399 Md. 486, 498, 924 A.2d 1129, 1135 (2007).
Regarding the issue of disclosure of the identity of a confidential informant, the ultimate decision is within the discretion of the trial court. An appellate court will "look to see whether the court applied correct legal principles and, if so, whether its ruling constituted a fair exercise of its discretion." Edwards v. State, 350 Md. 433, 442, 713 A.2d 342, 346 (1998). In determining whether a court properly exercised its discretion, the question "is whether the court reached the right balance among the competing interests." 350 Md. at 441, 713 A.2d at 346.
We agree with the Court of Special Appeals that the detention of Elliott constituted an arrest at the time the SWAT team apprehended him, and that the police lacked probable cause to conduct a warrantless arrest. We do not agree, however, with that court's determination sua sponte that the evidence was properly admitted under the doctrine of inevitable discovery. Despite this conclusion, we shall affirm the Court of Special Appeals' determination
We defined the term "arrest" in Bouldin v. State, 276 Md. 511, 350 A.2d 130 (1976). We stated, "it is generally recognized that an arrest is the taking, seizing, or detaining of the person of another (1) by touching or putting hands on him; (2) or by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest . . ." 276 Md. at 515-16, 350 A.2d at 133. Recently, in Longshore, we relied on Bouldin's definition of arrest and considered the distinction between a brief, investigative detention and a de facto arrest.
In determining whether a Terry
The State argued that we have approved of hard take-downs as "permissible Terry detentions rather than as arrests," relying on our opinion in Cotton v. State, 386 Md. 249, 872 A.2d 87 (2005) (holding that the defendant was not under arrest when he was handcuffed and detained for twenty minutes while police investigated the scene). The State misinterprets our limited approval of hard take-downs. In Cotton, we held that the temporary detention by police of persons found in or around the premises "to minimize the risk of harm to both police and occupants" did not reach the level of an arrest. 386 Md. at 258, 872 A.2d at 92. The State, however, overlooks the fact that we sanctioned the use of force precisely because one of the special circumstances listed above was present — reasonable suspicion of danger.
In the present case, Elliott was arrested as he walked away from the vehicle he drove to the parking lot. Applying the Bouldin definition, Elliott was seized and detained by the physical touching of officers and by acts indicating an intent to take Elliott into custody. Testimony at the suppression hearing by Officer Powell revealed that the arrest was made two minutes after Elliott's car arrived at the parking lot. To confirm this, Powell later admitted at trial that "we arrested him as soon as he arrived." This was also corroborated by Agent Silvestro at trial, stating that the arrest signal was given once Mr. Elliott exited the car. These statements indicate that the police believed Mr. Elliott to be under arrest when he was initially detained. Further, Officer Cline testified at the suppression hearing that the SOD unit "drove the van towards the intended targets and we jumped out, placed them on the ground and handcuffed them." He indicated that the officers were carrying M-4's, which are short "assault rifle type [guns] for close quarters," and MP-5's, which are a type of "submachine gun." This "threatening presence of several officers, the display of a weapon by an officer, [and] some physical touching of the person" would make "a reasonable person [believe] that he was not free to leave." Swift v. State, 393 Md. 139, 150, 899 A.2d 867, 873 (2006). Finally, as Officer Cline stated during his testimony at the suppression hearing, there was "no attempt to flee whatsoever." There was therefore no indication that Elliott posed a flight or safety risk in order to justify a hard take-down, which supports the holding that Elliott was arrested when he was initially detained.
Having found that Elliott was arrested without a warrant, we must next decide if there was probable cause to justify the arrest. We agree with the Court of Special Appeals when it held that the arrest was not supported by probable cause. "Probable cause exists where the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested." Longshore, 399 Md. at 501, 924 A.2d at 1137 (quotations and alterations omitted). When officer apprehension of a suspect is based on information provided by a confidential informant, reliability of the informant is "critical to any constitutional validity of the warrantless seizure" of a person. Lee v. State, 311 Md. 642, 653, 537 A.2d 235, 240 (1988) (applying Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). In making this determination, we apply the "totality of the circumstances" test, which mandates that we look to the veracity, reliability, and basis of knowledge of the informant to establish if the CI's report furnishes probable cause. 311 Md. at 654, 537 A.2d at 240. Prior relations with the police and specificity of the tip contribute to this determination. 311 Md. at 654-55, 537 A.2d at 240.
In Dixon v. State, 133 Md.App. 654, 758 A.2d 1063 (2000) the Court of Special Appeals provided an in-depth analysis of our jurisprudence on the issue of confidential informants providing reasonable suspicion and probable cause. In Dixon, an officer received a tip from a confidential informant with whom the officer had previously worked and considered to be "reliable and accurate." 133 Md.App. at 659, 758 A.2d at 1066. The informant told the officer that a "black man named Orville Dixon would be transporting approximately ten
On appeal, the Court of Special Appeals held that Dixon was arrested in the parking lot, rather than detained. 133 Md. App. at 673, 758 A.2d at 1073. Employing the totality of the circumstances test, the Court of Special Appeals also held that the informant's tip did not provide probable cause to support the arrest. The court stated:
133 Md.App. at 695, 758 A.2d at 1085. The court then applied this reasoning to the case at hand and held that the tip was not sufficiently corroborated and that the informant's reliability was undeveloped. 133 Md.App. at 696, 758 A.2d at 1085.
In this case, the officers were provided with a fairly specific tip from an apparently reliable CI. Similar to Dixon, while the information most assuredly provided articulable, reasonable suspicion sufficient to justify a brief investigative detention, the information was not alone sufficient to furnish probable cause to arrest Elliott on the spot.
Despite holding that Elliott was illegally arrested without probable cause, the Court of Special Appeals nevertheless invoked the inevitable discovery doctrine, and upheld the denial of the motion to suppress the evidence seized. We hold that the intermediate appellate court erred in raising the issue sua sponte, because the record below was not sufficiently developed for the State to meet its burden of proving inevitable discovery by a preponderance of the evidence, and applying the doctrine would result in unfair prejudice to the defendant.
As we stated above, we are constrained to a review of the record of evidence presented at the suppression hearing in determining whether a court may review an issue sua sponte. Belote v. State, 411 Md. 104, 120, 981 A.2d 1247, 1256 (2009). We may only rely on the "facts and information contained in the record of the suppression hearing" and will defer to the hearing judge's factual findings. Longshore, 399 Md. at 498, 924 A.2d at 1135. This case presents the question of whether an issue may be raised and determined at the appellate level that was not raised at the suppression hearing and goes beyond the record developed. We have discussed extensively the scope of appellate review. The scope of appellate review is defined in Maryland Rule 8-131, which provides in part: "Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal." Rule 8-131(a). "This Court has often stated that the primary purpose of Rule 8-131(a) is to ensure fairness for all parties in a case and to promote the orderly administration of law." State v. Bell, 334 Md. 178, 189, 638 A.2d 107, 113 (1994) (internal citations omitted). There are, however,
Robeson v. State, 285 Md. 498, 502, 403 A.2d 1221, 1223 (1979) (citations omitted). Appellate review of issues not previously raised is therefore discretionary, but, "this discretion should be exercised only when it is clear that it will not work an unfair prejudice to the parties or the court." Bell, 334 Md. at 189, 638 A.2d 107 at 113.
As stated above, there must be an adequate record below in order to justify an appellate court's departure from the general rule against raising issues sua
In Williams, police entered a hotel room without a warrant, arrested Williams, and found cocaine in his pajamas. 372 Md. at 395, 813 A.2d at 236-37. The discovery of the evidence was then communicated to an officer standing by, and was used to furnish the necessary probable cause to obtain a warrant for the search of the premises and seizure of the evidence. 372 Md. at 396, 813 A.2d at 237. Before trial, the defendant filed a motion to suppress the cocaine seized. 372 Md. at 398, 813 A.2d at 238. The State argued that the search was justified by exigent circumstances because the police feared evidence would be destroyed. 372 Md. at 398, 813 A.2d at 239. The Circuit Court granted the motion to suppress, finding that there was insufficient information to support probable cause and that exigent circumstances did not exist. Id. On appeal, the Court of Special Appeals reversed, holding that the inevitable discovery doctrine applied to the evidence and the trial court erred in suppressing the evidence.
The State then argued in this Court that the evidence would have been inevitably discovered because the police were actively pursuing a search warrant and, presumably, the police would have found the evidence if they waited at the premises for the search warrant to be issued. 372 Md. at 418, 813 A.2d at 250. We rejected this argument, pointing out that the State must "demonstrate that the evidence inevitably would have been found." 372 Md. at 423, 813 A.2d at 253. We reversed the intermediate appellate court's judgment, emphasizing that "speculation will not satisfy the demands of the inevitable discovery doctrine," and holding that the record was
In reaching this conclusion, we discussed examples of the reluctance of other courts to apply inevitable discovery based on speculation. We cited United States v. Boatwright, 822 F.2d 862 (9th Cir.1987), where the government argued inevitable discovery based on police seizure of evidence pursuant to an illegal entry, and the 9th Circuit held that the doctrine was inapplicable. We stated, "[s]ome courts have been reluctant to apply the doctrine to evidence which is by its nature ephemeral or to evidence somehow dependant upon a person `waiting patiently beside his [contraband] for an agent to arrive with a warrant.'" Williams, 372 Md. at 425, 813 A.2d at 254 (quoting Boatwright, 822 F.2d at 865). Williams emphasized that the "applicability of the inevitable discovery doctrine is a highly fact-based determination and involves review by the trial court whether the evidence in question would have been found." 372 Md. at 424, 813 A.2d at 254 (emphasis added). We noted that the inevitable discovery of the cocaine was "never raised or argued at the suppression hearing." Id. The emphasis on fact finding and the duty of the trial court is instructive, and demonstrates the limitation on the ability of an appellate court to decide a factual issue. A reasonable interpretation of Williams suggests that absent evidence relating to inevitable discovery, the doctrine should not be applied sua sponte because an appellate court's determination of the issue would be based on speculation rather than "historical facts that can be verified or impeached." Id.
Stokes v. State is also instructive. 289 Md. 155, 423 A.2d 552 (1980). In Stokes, we emphasized the importance of determining what would have happened absent the illegal activity. We stated:
289 Md. at 164, 423 A.2d at 556-57 (internal citations omitted) (emphasis added). In Stokes, evidence was obtained pursuant to an involuntary statement. 289 Md. at 162, 423 A.2d at 556. The State argued that, even if the statement was involuntary, the evidence would have been inevitably discovered by police conducting a lawful search. Id. We were not persuaded. We said:
289 Md. at 165-66, 423 A.2d at 557-58 (emphasis added). Although the State, in Stokes, argued inevitable discovery on appeal, it could not meet the burden of proving the exception because no evidence was produced at the suppression hearing to support the exception, and correspondingly no evidence for this Court to review. 289 Md. at 166, 423 A.2d at 558.
In addition to determining whether the record is adequate to support a finding of inevitable discovery, appellate courts must evaluate if the state's failure to raise an issue at the trial stage unfairly prejudiced the defendant's case. State v. Bell, 334 Md. at 188, 638 A.2d at 112. One recognized form of prejudice results when the State's failure to raise an issue prevents the defendant from rebutting a claim or adducing evidence necessary to form defenses. This works in conjunction with the need to prove the adequacy of the record because, "[i]f a party's presentation of his or her case was prejudiced by an opponent's failure to raise an issue at the trial stage [or other proceeding] (i.e., the party did not adduce the requisite evidence), then the record is necessarily lacking and will not be `adequate' to support the alternative ground raised on appeal." 334 Md. at 188, 638 A.2d at 112-13.
In State v. Bell, police stopped a suspect standing near a car and observed a vial of white powder lying on the floor of the passenger seat. 334 Md. at 181, 638 A.2d at 109. Under the authority of the Carroll doctrine,
On appeal, the State changed its argument, attempting to merge the searches and justify both under Carroll. Id. This Court rejected the State's ability to change the structure of its argument for the first time on appeal. 334 Md. at 191, 638 A.2d at 114. The Court explained, "[b]y structuring its argument in such a way, the State dissuaded Bell from offering evidence on the matters of probable cause for the second search and exigency of the circumstances." Id. This resulted in unfair prejudice because the defendant, "cannot be expected to rebut possible justifications for the search on his own initiative. The State may not lead the defendant and the trial court down a primrose path, only to leave them stranded when, on appeal, the State deems it advantageous to its strategy." Id. In reaching this conclusion, we were persuaded by a United States Supreme Court case dealing with the same issue, Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), in which the Supreme Court stated:
357 U.S. at 488, 78 S.Ct. at 1251, 2 L.Ed.2d at 1510-1511 (1958); See also Bell, 334 Md. at 189-90, 638 A.2d at 113, ("[a] criminal defendant could suffer unfair prejudice if, for example, the defendant's response to a new argument posited by the State on appeal depends on evidence which was not offered in the trial court.").
Although appellate courts have some discretion in raising different justifications for lower court decisions, we may not use such discretion without restriction. In the present case, the record does not support a sua sponte holding of inevitable discovery. We are bound by the evidence presented at the suppression hearing. Unfortunately, in this case the record is not complete and cannot support a sua sponte finding of inevitable discovery. Even assuming arguendo that the evidence would inevitably have been discovered, the defense was unfairly prejudiced by the issue being raised for the first time in the appellate court. Further, any decision by the appellate court must be based on historical facts capable of easy verification, rather than speculation, which cannot be done in this case. See Williams, 372 Md. at 418, 813 A.2d at 250.
Regarding the issue of inevitable discovery, we are bound by the facts in the record before us. The timing of the call to the K-9 unit is integral in determining whether the evidence would have been inevitably discovered absent the illegality. The exact timing of the apprehension and the call to the K-9 unit, however, is unclear from the record. While Officer Mills testified that she called the K-9 unit before Elliott's apprehension, Agent Silvestro indicated that he opened the trunk of the car, smelled marijuana, and then closed the trunk to wait for the K-9 unit. This is consistent with the notion that the police waited until Silvestro smelled the marijuana and then called the K-9 unit. Apparently, the suppression hearing judge thought this was the case, stating in his summation of the evidence presented at the suppression hearing that, "[t]he investigation included the sniff or the smell of the marijuana by DEA Agent Silvestro and then they called the drug dog." The distinction is key to the determination of whether the record was sufficient to support a sua sponte application of the inevitable discovery doctrine. Despite the importance of this information to the issue on appeal, the issue of timing was not argued at the suppression hearing because it was not relevant to the issue of probable cause or the classification of the stop as a detention versus an arrest. The defense, therefore, had no impetus to challenge the apparent discrepancy or to further question officers as to the precise timing of the call to the K-9 unit. Furthermore, this case is like Williams, regarding the lack of clarity in the record.
In Williams, the police could have waited for the pending search warrant to be processed before making the arrest, rather than preemptively arresting Williams and searching him without a warrant. Here, police could have waited for the K-9 unit to arrive in order to obtain probable cause to arrest Elliott and search the vehicle. They knew in advance, based upon the informant's tip, that contraband would be in the trunk of the vehicle and the approximate time of arrival. Moreover, we do not know why the K-9 unit was not in the immediate vicinity of the stop when it occurred.
Further, the State should not be permitted to benefit from the appellate court's raising of an issue that the State did not raise at the suppression hearing pursuant to a failed "trial strategy[,]" or oversight. The State's position at the suppression hearing was that the detention of Elliott was lawful, and that the subsequent alert on the vehicle by the dog provided the probable cause necessary to arrest. Taking that legal position, which was legally incorrect, and failing to argue an alternate theory to justify the admission of evidence seized, was, therefore, subject to risks. The State refused to concede any illegality in the detention. This strategic election, or oversight, was made to the State's detriment, as we have determined based on our review of the record that Elliott's apprehension constituted an arrest. As in Williams, where the State elects to argue one exception to the warrant requirement over another because the exceptions are contradictory or may undermine each other, the failure to preserve the issue for appellate review in this case by raising inevitable discovery or having it decided in the trial court cannot be remedied after the fact. Similar to Bell, the State may not now benefit from a failed trial strategy or oversight which unfairly prejudices the defense's ability to rebut evidence on appeal. Instead, we "merely accept[] the State's presentation of the case."
Finally, the defense was unfairly prejudiced in this case because counsel did not have the opportunity to rebut the application of the inevitable discovery doctrine at the suppression hearing, as the State did not raise the issue. As in Bell, the defense was effectively dissuaded from offering evidence regarding inevitable discovery, because the State did not raise the issue and only argued the legality of the arrest. The defense cannot, and should not be expected to rebut all possible justifications for an illegal search in the event that a search or arrest is later found invalid on appeal. Similar to Stokes, there was no testimony as to police procedure and what the police actually would have done absent the illegal arrest. Specifically, we do not know whether it is typical police procedure, in a case involving information furnished by a confidential informant, to call a K-9 unit as soon as a suspect is spotted, or to wait until after the suspicion of drugs is verified. In this case, either method is plausible, but the record is not clear as to the underlying historical facts. Our prior reluctance to apply inevitable discovery absent a clear factual record, combined with the failure of the State to raise the issue below and the resulting unfair prejudice to the defense, precludes this Court and the intermediate appellate court from relying on the doctrine sua sponte.
Notwithstanding our holding that the Court of Special Appeals erred in raising the issue of inevitable discovery sua sponte, we nonetheless affirm the intermediate appellate court in upholding the denial of the motion to suppress. It is
The Court of Special Appeals erred in affirming the Circuit Court's denial of the motion to compel disclosure of the identity of the confidential informant. In reviewing a trial court's determination not to compel disclosure, "we look to see whether the court applied correct legal principles and, if so, whether its ruling constituted a fair exercise of its discretion." Edwards v. State, 350 Md. 433, 442, 713 A.2d 342, 346 (1998). This standard applies in determining "whether the State's privilege accedes to the defendant's constitutional rights of due process and confrontation." Brooks v. State, 320 Md. 516, 523, 578 A.2d 783, 786 (1990). The burden is on the defendant to show a "substantial reason indicating that the identity of the informer is material to his defense or the fair determination of the case." 320 Md. at 528 n. 3, 578 A.2d at 789 n. 3 (relying on Drouin v. State, 222 Md. 271, 286, 160 A.2d 85, 93 (1960)).
Maryland has long recognized the privilege of the State to protect the identity of informants. Brooks, 320 Md. at 522, 578 A.2d at 786. There are, however, certain limitations on the State's privilege to withhold the identity. First, "[w]hile the State's interest in maintaining the anonymity of its informers is manifestly important, that interest is necessarily circumscribed by the defendant's interest in a fair trial." Id. Thus, in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Supreme Court limited the privilege of nondisclosure based on principles of "fundamental requirements of fairness." The Court stated, "[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." 353 U.S. at 60, 77 S.Ct. at 628, 1 L.Ed.2d at 645. Second, the privilege is limited to its underlying purpose: "once the identity of the informer has been disclosed to those who would resent the communication, the privilege no longer applies." Brooks, 320 Md. at 523, 578 A.2d at 786-87.
When evaluating whether the privilege applies, we have stated that "the key element is the materiality of the informer's testimony to the determination of the accused's guilt or innocence." Warrick v. State, 326 Md. 696, 701, 607 A.2d 24, 27 (1992). In undertaking this analysis, Roviaro established that judges must perform a balancing test, weighing "the public interest
Further, in cases where the materiality of the informant's identity arises in the context of an alleged Fourth Amendment violation, this Court and the United States Supreme Court have emphasized the importance of ensuring a fair determination of probable cause. See Edwards, 350 Md. at 446, 713 A.2d at 348. Specifically, in a case involving a warrantless search based on information provided by a CI, "the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication [to establish probable cause]." Roviaro, 353 U.S. at 61, 77 S.Ct. at 628, 1 L.Ed.2d at 645. The trial judge has discretion to determine whether disclosure is warranted, by taking into account whether probable cause is a significant issue in the case. Edwards, 350 Md. at 445, 713 A.2d at 348. As this Court stated in Edwards, "`[i]f the accused asserts any substantial ground indicating that the identity of the informer is material to his defense or the fair determination of the case on the issue of probable cause, the trial court should require the informant's name to be given (or the evidence suppressed).'" 350 Md. at 446, 713 A.2d at 348 (quoting Drouin v. State, 222 Md. 271, 286, 160 A.2d 85, 92-93 (1960)). Finally, in cases where the record is insufficient for the court to perform a balancing test, we have recommended that the proper course should be for the court to hold an in camera hearing, enabling the judge to speak with the informant and determine his or her role in the matter. This allows the court to make "an informed judgment as to whether the informant's identity should be disclosed." 350 Md. at 446-47, 713 A.2d at 348.
In this case, the Circuit Court and the Court of Special Appeals did not apply the correct legal principles. The facts compelled a limit on the State's privilege based on fundamental fairness, because disclosure was both relevant and helpful. The Circuit Court judge stated, "the [c]ourt does have an obligation, . . . to make sure that these confidential sources are protected, and I'm going to see — I'm going to do everything that I can to make sure that they are protected." The motions court therefore did not perform a balancing test but rather merely invoked and applied the State's privilege.
Further, had the court applied the Roviaro balancing test, Elliott's right to prepare his defense would outweigh the public interest in protecting the flow of information. In performing the balancing test, the motions judge should have taken into account the crime charged and the possible defenses. Contrary to the Court of Special Appeals's holding, the defendant satisfied his burden of showing a substantial
The information provided by the CI in this case was also integral in establishing the alleged probable cause to stop and search Elliott's vehicle. According to Elliott's entrapment defense, the CI was a material participant in the exchange, as the CI arranged it by delivering the suitcase to Elliott. The CI was the only source of information connecting Elliott with the drugs; there were no drugs on his person or in the passenger compartment of the car, and no drug paraphernalia or distribution paraphernalia were found. Similar to Edwards, the case against Mr. Elliott was based on the evidence seized from the vehicle and the admissibility of that evidence "depended almost entirely on the credibility of the unnamed informant" who provided the information about the drugs to the police. 350 Md. at 447, 713 A.2d at 349. Under Roviaro, the State was required to disclose the identity because there was "[in]sufficient evidence apart from his confidential communication" to establish probable cause. Therefore, Elliott was denied a fair determination on the issue.
Finally, the fact that Elliott claimed knowledge of the identity of the CI, in asserting that the CI was Lodge, does not protect the State from disclosing the identity. Rather, as stated in Brooks, such knowledge, if true, would destroy the privilege. Elliott, however, was never allowed to determine if his assumption was correct. The Court of Special Appeals held that Elliott undermined his own argument in requesting the disclosure, because his argument implied he knew the CI was Lodge. The intermediate appellate court, however, held that Elliott did not in fact know the identity of the informant and therefore the privilege was not destroyed. Were it to stand, the holding of the Court of Special Appeals would completely undermine a defendant's ability to assert a defense. Elliott believed he knew who the CI was, but was not sure. He was not permitted to question officers or obtain information. Instead, the motions judge told Elliott he could subpoena the person he believed was the CI. This results in circular logic. The motions court denied Elliott's motion because the court believed Elliott knew the identity, but denied him ability to determine if his assumptions were correct. The court then held his assumed knowledge against him in refusing to vitiate the privilege. If Elliott was wrong in assuming the identity of the CI, then he could have altered his trial strategy accordingly, rather than being forced to argue both entrapment and lack of knowledge without being permitted to argue identity of the informant to the jury. If Elliott was correct, the privilege would have been vitiated. Either way, Elliott needed police confirmation to establish his defense and was unfairly prejudiced in not
Judge ADKINS joins in the judgment only.
