LYNN ADELMAN, District Judge.
Defendant Alphonso Murphy objects to a magistrate judge's order denying his motion to compel the government to disclose the identity of a confidential informant. Because the order is not contrary to law or clearly erroneous,
On February 26, 2016, the police applied for a search warrant for a residence on North 44th Street in Milwaukee. The application was based primarily on the statements of a confidential informant, who indicated that defendant used the residence to store and distribute heroin and marijuana. The informant further stated that defendant "is armed with multiple firearms in the target residence." (R. 18-1 at 4 ¶ 4.) The informant advised that within the past 72 hours s/he had observed defendant in possession of a firearm inside the target residence and in possession of heroin and marijuana. The informant had also observed other armed black male suspects "inside the residence in the past month." (R. 18-1 at 4 ¶ 6;
Officers executed the warrant on February 29, 2016 (R. 1 at 4 ¶ 8), seizing from a computer tower central processing unit in the northwest bedroom suspected marijuana and ecstasy, more than $10,000 in cash, and three firearms (R. 1 at 5-6 ¶ 9). Three individuals were present at the time of the search, including defendant. (R. 1 at 4 ¶ 8.) In a post-arrest statement, defendant allegedly admitted that he sold the drugs and that he was aware of the guns in the bedroom. (R. 1 at 6 ¶¶ 12-13.) He further stated he knew where the guns were hidden and that either he or his uncle would put the guns away in the location from which they were recovered before they would leave the residence.
The government obtained a three count indictment charging that on February 29, 2016, defendant unlawfully possessed three firearms as a felon; possessed ecstasy with intent to distribute; and possessed a firearm in furtherance of a drug trafficking crime. (R. 9.) Defendant filed a motion to compel the government to disclose the identity of the informant who provided the basis for the search warrant. (R. 18.) The government resisted. (R. 19.)
The magistrate judge handling pre-trial proceedings in this case denied the motion, finding that the informant was a "mere tipster" rather than a "transactional witness." (R. 22 at 2-3.) Defendant argued that the informant's testimony would be important at trial because s/he was the only person to see defendant in physical possession of a gun and because s/he also claimed to have seen other armed men in the residence (which could establish that someone other than defendant was responsible for the firearms recovered pursuant to the warrant). The magistrate judge rejected these arguments, noting that the indictment charged defendant with possessory offenses occurring on February 29, 2016, the date the search warrant was executed, not with any crimes witnessed by the informant prior to February 26, 2016, the date the warrant was issued. (R. 22 at 3.) The magistrate judge further noted that it did not appear the government intended to use the informant as a witness at trial. (R. 22 at 4.) Finally, the magistrate judge rejected as speculative defendant's argument that the informant might be able to support a defense that someone else possessed the charged contraband, noting defendant's alleged post-arrest statement admitting drug trafficking and knowledge of the firearms. (R. 22 at 4-5.)
The government enjoys a limited privilege to withhold from disclosure the identity of persons who furnish to the police information about law violations.
The privilege will give way if the defendant shows that disclosure "is relevant and helpful to the defense" or "essential to a fair determination" of the case.
The Seventh Circuit has held that the role of the informant is an important factor to consider when determining whether his identity must be disclosed.
As the magistrate judge noted, the informant here was a tipster who provided information leading to the search warrant; s/he was not present for the search, and his/her information does not form the basis for the charges. Rather, the charges are based on the evidence seized during the execution of the search warrant and on defendant's post-arrest statement.
Defendant argues that disclosure should nevertheless be required, as his defense requires showing that other people possessed the drugs and guns found in the residence. He contends that the informant could serve as an investigative lead; perhaps he will learn that the other armed men the informant saw in the residence prior to the search had ties to the residence and/or are responsible for the contraband. I agree with the magistrate judge that this is too speculative to overcome the privilege.
In reply, defendant indicates that these armed men were there just a day or two before the search (R. 28 at 2), but that is not what the affidavit, quoted in the preceding paragraph, says. Defendant also notes that the indictment says he possessed the guns "[o]n or about February 29, 2016" (R. 9 at 1), but that is merely a drafting convention; the evidence before me is that the guns were found on February 29, 2016. Defendant further notes that two other African-American men were present at the time of the search; these men were not charged, but defendant wishes to determine if they might have been the armed men the informant described. As the government notes, defendant knows the identities of the two men present on February 29, 2016, and he is free to interview or call them to testify at trial; the identity of the informant need not be disclosed to pursue such a defense.
Defendant next argues that the informant will likely be an important government witness, as he is the only one who can put defendant in direct possession of any guns or drugs. This overlooks defendant's alleged post-arrest admissions. In any event, in its response to the objections, the government specifically indicates that it has no intention of calling the informant as a witness at trial.
Finally, defendant argues that the informant has information relevant to sentencing, as the guideline range may increase based on the number and type of firearms and the type and quantity of controlled substances. This, too, is speculative.