John Nicholas Hill v. State of Florida ( 2020 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-3273
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JOHN NICHOLAS HILL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Escambia County.
Jan Shackelford, Judge.
September 24, 2020
ROWE, J.
John Nicholas Hill appeals his convictions for possessing a
trafficking amount of cocaine, possession of cannabis with the
intent to sell, possession of drug paraphernalia, and possession of
a firearm by a convicted felon. He argues that the trial court erred
when it denied his motion to unseal the affidavit used to obtain the
search warrant for the residence where Hill often stayed. He
asserts that the trial court also erred by not reviewing the sealed
affidavit in camera. We affirm because Hill did not make the
necessary showing required to unseal the affidavit and because
Hill did not preserve his argument on the need for in camera
review.
Facts
Law enforcement secured a warrant to search the residence of
Hill’s former girlfriend and their children. Hill often stayed at the
residence. After the warrant issued, the issuing judge sealed the
affidavit used to obtain the warrant.
The next day, police officers executed the warrant at the
residence. Hill was present on the premises. The officers found
large quantities of cannabis and cocaine, drug paraphernalia, two
loaded firearms, and $3,800 in cash. Based on the evidence
obtained in the search, the State charged Hill with trafficking in
cocaine, possession of cannabis with the intent to sell, possession
of drug paraphernalia, and possession of a firearm by a convicted
felon.
During discovery, the State provided Hill with a copy of the
search warrant, but it did not produce a copy of the sealed affidavit
used to secure the search warrant. Hill’s counsel moved to unseal
the affidavit, asserting that he needed to review it to determine
whether the affidavit omitted material facts or contained false
statements and whether there was probable cause to justify the
issuance of the warrant.
The State opposed the motion, arguing that defense counsel
failed to allege with specificity what in the affidavit he believed to
be false, incorrect, or misleading. The State also asserted that
unsealing the affidavit could prejudice ongoing criminal
investigations by revealing confidential informants; by revealing
the scope, status, and direction of ongoing criminal investigations;
or prematurely disclosing the existence of investigatory tools.
The trial court heard argument on Hill’s motion. When the
hearing began, Hill’s counsel agreed that he had the burden to
show good cause why the trial court should unseal the affidavit.
Counsel asserted that good cause existed because the affidavit and
resulting search warrant depended on stale information. Hill
testified at the hearing and contended that he did not sell,
distribute, or manufacture drugs at the residence in the thirty
days before the officers executed the warrant. Hill’s counsel argued
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that if the affidavit was not based on sales or buys, Hill had a right
to know what other information was used to obtain the warrant.
The prosecutor countered that the State did not charge Hill
with sale of cocaine or cannabis, so Hill’s testimony that he had
not sold drugs from the residence in the past thirty days did not
suggest any defect in the affidavit. And Hill did not testify that he
had not possessed drugs at the residence in the past thirty days.
The prosecutor insisted that Hill’s request was a “back-door way”
for Hill to discover the identity of the confidential informant. The
prosecutor maintained that if she were to redact from the sealed
affidavit all information related to the confidential informant and
the investigative techniques used by the police, Hill would be left
with a document containing only boilerplate language. The trial
court orally denied the motion without comment. Hill did not seek
rehearing or a written order on the motion.
Hill went to trial. The State presented the testimony of the
officers who executed the search warrant and the officer who
interviewed Hill. The officer testified that Hill confessed to selling
drugs from the residence, stating, “I’m a drug dealer, y’all.” The
State also presented an audio recording in which Hill confessed to
possessing and selling cocaine and cannabis.
The jury returned guilty verdicts on the counts for trafficking
in cocaine, possession of cannabis with the intent to sell, and
possession of drug paraphernalia. Hill later pleaded guilty to the
charge of possession of a firearm by a convicted felon. This timely
appeal follows.
Standard of Review
We review a trial court’s order denying or limiting criminal
discovery for an abuse of discretion. See Blake v. State, 180 So. 3d
89, 102 (Fla. 2014).
Analysis
Hill argues that he is entitled to a new trial because the trial
court denied him due process and his right to criminal discovery
when it denied his motion to unseal the affidavit used to obtain the
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search warrant. And Hill contends that before it could deny the
motion, the trial court had to review the sealed affidavit in camera.
For the reasons below, we affirm.
When Hill moved to unseal the search warrant affidavit, he
argued that he had a right to discover documents related to the
search. Although a criminal defendant has no constitutional right
to discovery, see Perry v. State, 395 So. 2d 170, 173 (Fla. 1980),
under Florida Rule of Criminal Procedure 3.220(b)(1)(I), the State
must reveal to a defendant who has elected to participate in
criminal discovery “whether there has been any search and any
documents relating thereto.” Still, not all documents related to a
search are discoverable under rule 3.220.
The State asserted that it did not have to produce the affidavit
to Hill because it contained information that could reveal the
identity of a confidential informant and information on ongoing
criminal investigations. Under Florida Rule of Criminal Procedure
3.220(g)(2), the State need not disclose a confidential informant
“unless the confidential informant is to be produced at a hearing
or trial or a failure to disclose the informant’s identity will infringe
the constitutional rights of the defendant.” Nor must the State
reveal the identity of a confidential informant “who merely
furnishes the probable cause basis for a search or arrest.” State v.
Chamblin, 418 So. 2d 1152, 1154 (Fla. 1st DCA 1982). The State
must reveal information about a confidential informant only when
the defendant shows that the disclosure is necessary for a specific
defense. See Garcia v. State, 521 So. 2d 191, 194 (Fla. 1st DCA
1988)(holding that the “defendant must allege a specific possible
defense” and “must show that the informant’s testimony is
essential to establish the defense”).
Hill insists that he did not need to make such a showing
because he was not seeking information about a confidential
informant. But Hill misses the point. The State claimed that the
sealed affidavit concealed so much sensitive information that
redaction of the information about the confidential informant
would leave a document containing only boilerplate language. So,
based on the State’s assertion, whether or not Hill was actively
seeking the identity of the confidential informant, unsealing the
search warrant affidavit could reveal the identity of a confidential
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informant. And because the State asserted that the sealed affidavit
included information exempt from disclosure, the burden shifted
to Hill to show a specific reason why disclosure was still
warranted. See Treverrow v. State, 194 So. 2d 250, 252 (Fla. 1967)
(“[S]ince it is the State which has the privilege of nondisclosure,
the burden is upon the defendant claiming an exception to the rule
to show why an exception should be invoked.”); Chamblin, 418 So.
2d at 1154 (“The general rule is that the State has the privilege of
nondisclosure of the identity of a confidential informant, and the
burden is on the defendant to show why disclosure should be
compelled.”). A bare allegation that defense counsel is unable to
prepare a defense without the requested information is not
enough. See Thomas v. State, 28 So. 3d 240, 244 (Fla. 4th DCA
2010). And so, defense counsel’s general argument in the trial
court that he needed the affidavit to prepare Hill’s defense was not
sufficient to compel the trial court to unseal the affidavit.
Hill’s counsel’s specific reason for seeking disclosure also falls
short of making the showing required to unseal the affidavit. At
the hearing on the motion to unseal the affidavit, Hill’s counsel
argued that he believed the affidavit stemmed from stale
information as no sales or distribution took place at the residence
in the thirty days before the officers executed the search warrant. *
∗
Although Hill filed a suppression motion on grounds that law
enforcement violated the knock-and-announce rule, he never
sought to suppress the evidence by arguing there was a lack of
probable cause based on staleness. See Johnson v. State, 660 So.
2d 648, 654 (Fla. 1995) (“Unlike the burdens of proof in a criminal
trial, the obligation to establish probable cause in an affidavit may
be met by hearsay, by fleeting observations, or by tips received
from unnamed reliable informants whose identities often may not
lawfully be disclosed.”); see also Wingate v. State, 289 So. 3d 566,
569–70 (Fla. 1st DCA 2020) (explaining that the good faith rule
announced in Leon applies and suppression is not required unless
a defendant moving for suppression can meet one of four
exceptions, including one where the search warrant affidavit is
“bare bones” or contains “wholly conclusory statements” such that
it is “so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable”).
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The State countered that the lack of drug activity at Hill’s
home before the execution of the warrant was immaterial because
the State charged Hill with possession, not sale. And Hill did not
testify that he did not possess drugs at the residence. After the
State challenged the basis for Hill’s motion to unseal the affidavit,
Hill advanced no other reason why the information in the affidavit
was necessary to prepare his defense. Because Hill did not meet
his burden to show a specific reason why he needed access to the
sealed affidavit that the State asserted contained information on a
confidential informant, the trial court did not abuse its discretion
by denying the motion without conducting an in camera review of
affidavit. See State v. Carter, 29 So. 3d 1217, 1219 (Fla. 2d DCA
2010) (holding that a trial court need not conduct an in camera
review when a defendant does not make an initial showing of
necessity for the confidential information to support a specific
defense).
Even so, if Hill still believed that there was information in the
affidavit to which he was entitled and wanted to challenge the
State’s asserted reason for nondisclosure, he should have availed
himself of the procedures outlined in Florida Rule of Criminal
Procedure 3.220(m) and made a record for appellate review. See
Damren v. State, 838 So. 2d 513, 519 (Fla. 2003) (“[W]here doubt
existed as to whether the State must disclose a particular
document, the proper procedure is to have a trial judge conduct an
in camera review of the documents.” (quoting Rose v. State, 774 So.
2d 629, 636 (Fla. 2000))). Rule 3.220(m) provides that a trial court
may consider sensitive matters in camera to determine whether
sensitive matters should be disclosed. And when a trial court
grants relief to a party seeking to restrict disclosure of sensitive
matters, the rule requires “the entire record of the proceeding . . .
be sealed and preserved and be made available to the appellate
court in the event of an appeal.” Fla. R. Crim. P. 3.220(m)(3).
But after the State asserted that the sealed affidavit
contained sensitive matters, including information about a
confidential informant and ongoing criminal investigations, Hill
never asked the trial court to review the sealed affidavit in camera
nor did he take any steps to make a record. This failure led to an
inadequate record on appeal and prevents this Court from
conducting meaningful review of Hill’s claim that the
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nondisclosure of the affidavit violated his due process rights and
right to criminal discovery under rule 3.220. See Terry v. State, 263
So. 3d 799, 803 (Fla. 4th DCA 2019) (observing that as part of the
appellant’s burden to show that an error occurred in the trial court,
“appellants must submit to the appellate court a record adequate
to support the appeal”).
Thus, because Hill did not meet his burden to show that
disclosure of the affidavit was essential to a specific defense, the
trial court did not abuse its discretion in denying Hill’s motion to
unseal the search warrant affidavit. And because Hill did not raise
with the trial court his argument that in camera review of the
affidavit was required, we find that Hill did not preserve this issue
for appellate review. The judgment of the trial court is AFFIRMED.
B.L. THOMAS, J., concurs; MAKAR, J., dissents with opinion.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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MAKAR, J., dissenting.
John Nicholas Hill requested a copy of the affidavit used to
issue the search warrant that empowered police officers to enter a
former girlfriend’s house (where he visits his children residing
there) and seize evidence that became the exclusive basis to charge
him with serious drug crimes. 1 Florida’s rules of criminal
1 Hill claims that his statements to police officers during the
search (that the contraband was his) were to protect his former
girlfriend who lived in the house with his children. If the search
was impermissible, Hill’s statements would be inadmissible absent
a showing they were the product of his own free will under the
circumstances. Wong Sun v. United States, 371 U.S. 471, 485
(1963) (verbal evidence, such as a defendant’s statements made
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procedure entitle Hill, who opted for reciprocal discovery, to
receive the affidavit because prosecutors are obligated to disclose
broad categories of information and documents, one of which
relates to “whether there has been any search or seizure and any
documents relating thereto.” Fla. R. Crim. P. 3.220(b)(1)(I) (2020)
(setting forth a “Prosecutor’s Discovery Obligation” as to thirteen
broad categories). An affidavit is a crucial document used to
establish probable cause for a warrant’s issuance and must be
disclosed under the rule. See, e.g., State v. Wooten, 260 So. 3d 1060,
1066 (Fla. 4th DCA 2018) (“Because the search warrants and
applications were documents related to a search or seizure, the
state was required to provide them to the defendant.”).
Though not required to do so, Hill stated an adequate basis to
establish the materiality of the affidavit, contending that he didn’t
engage in any drug-related activity at the house in the thirty days
before the warrant’s issuance, thereby making the warrant
potentially deficient, as either stale or invalid, because it relied on
false statements or omissions of material facts in the affidavit.
Without the affidavit, he lacked a vital document to contest the
issuance of the warrant; he’d also be denied potential information
as to how he was purportedly implicated in the crimes charged
(e.g., was he seen with contraband at the house?). Information of
this kind—including eyewitness reports of police officers
conducting surveillance or non-eyewitness testimony that “is
highly probative of the guilt or innocence of the accused”—is
“discoverable” under Rule 3.220. Downing v. State, 536 So. 2d 189,
191 (Fla. 1988).
Hill’s entitlement to the affidavit—redacted to exclude
confidential informant information or other proper and proven
grounds—is compulsory under the clear language of the discovery
rule, amounting to a due process violation if it is not made
available to him without adequate judicial review. Wooten, 260 So.
during an illegal search, are “fruits” of the “unlawful action” and
subject to exclusionary rule); Delap v. State, 440 So. 2d 1242, 1252
(Fla. 1983) (“For example, an individual who is present while his
home is being searched makes remarks to the searchers during
course of the search. Clearly, any such remarks are the result of
the search and, if the search is declared illegal, are tainted by it.”).
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3d at 1064, 1066 (holding that due process “mandates” the
“unredacted disclosure of the search warrants and applications”
based on the trial court’s in camera review and its findings that
the State’s reasons for restricting disclosure of the sealed affidavit
were inadequate).
Nonetheless, the trial judge—who never even saw the
affidavit—denied Hill’s request. She did so based solely on the
State’s unverified claim that disclosure of a redacted affidavit
would yield merely the “boiler plate language” contained in all
affidavits. Because Hill stated a reasonable basis for seeking the
affidavit, it was incumbent on the trial judge to review the affidavit
to determine whether the State’s assertions were meritorious;
simply adopting one side’s view without actually reviewing the
affidavit is no review at all. The trial judge’s failure to even look at
the affidavit—a document neither in the trial nor appellate
records—amounts to an abuse of discretion. See, e.g., Bailey v.
State, 994 So. 2d 1256, 1258 (Fla. 2d DCA 2008) (holding that a
“trial court is required to conduct an in-camera hearing to
consider the necessity of the [confidential] informant’s testimony
and the State’s interest in nondisclosure” when a “defendant files
a sworn motion or affidavit alleging facts regarding the
informant’s involvement that, if true, would support the possibility
of a specific defense”); see also House v. State, 283 So. 3d 451, 453
(Fla. 1st DCA 2019) (Bilbrey, J., specially concurring) (“By not
conducting an in camera review before prohibiting disclosure of the
affidavit and by not determining whether the court could ‘partially
restrict the disclosure’ and still protect any purported interest of
the State, the trial court may have committed error.”).
Circumstances may exist where review of an affidavit in camera is
unwarranted (e.g., review sought based on a patently frivolous
motion to unseal), but Hill has asserted meritorious grounds.
Criticism that Hill’s stated basis for accessing the affidavit
lacks sufficient specificity ignores that neither Hill nor his legal
counsel has ever seen the affidavit. Hill stated a manifestly
reasonable basis for the affidavit despite not knowing what
information it contained. Hill was charged with selling,
manufacturing, delivering, or possession of cannabis with intent to
sell, making his testimony that he had not sold, manufactured or
distributed any drugs at the house during the thirty days prior to
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the search directly relevant. Demanding that a criminal defendant
provide more detailed factual specifics potentially contained in a
sealed and undisclosed affidavit is asking for clairvoyance no
human possesses; defense counsel need only state a plausible basis
for the affidavit, even when under seal, so that in camera judicial
review can be done, which did not occur here.
That the affidavit had been sealed—for unknown reasons
after issuance of the warrant—does not negate Hill’s right to
receive it, fully or redacted, provided in camera review occurs that
complies with Rule 3.220. Wooten, 260 So. 3d at 1066-67 (noting
that plain language of Rule 3.220 requires disclosure of sealed
information based on a trial court’s in camera review). In contrast
to Wooten, neither the trial judge, nor appellate counsel, nor
members of our appellate panel have seen the affidavit or know
why it was sealed in the first place. Perhaps it contained
information involving a confidential source or the like, but Hill
does not seek disclosure of a “confidential informant,” which is one
of two “Matters Not Subject to Disclosure” set forth in the same
rule of criminal procedure. See Fla. R. Crim. P. 3.220(g) (the other
is work product). Hill repeatedly has agreed to accept an
appropriately redacted affidavit, making it a red herring to say he
seeks the identity of a confidential informant. He does not; if he
did, the burden would be on him to meet one of the requirements
of the rule that allows for disclosure. 2
On this point, although it is a criminal defendant’s burden to
require disclosure of a confidential informant under Rule 3.220(g),
it is the State’s responsibility to establish possible grounds for
barring disclosures otherwise required by the rule. For instance,
the section of Rule 3.220 that establishes a prosecutor’s discovery
2 Fla. R. Crim. P. 3.220(g)(2) states that “Disclosure of a
confidential informant shall not be required unless the
confidential informant is to be produced at a hearing or trial or a
failure to disclose the informant’s identity will infringe the
constitutional rights of the defendant.” See Treverrow v. State, 194
So. 2d 250, 252 (Fla. 1967) (criminal defendant has burden to
demonstrate that disclosure of confidential informant is
necessary); see also Bailey, 994 So. 2d at 1257; State v. Roberts, 686
So. 2d 722, 723 (Fla. 2d DCA 1997).
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obligations makes clear that in camera review is required when
the State seeks to protect its own interests by shielding specific
information from disclosure. As to police or investigative reports,
the rule states:
(2) If the court determines, in camera, that any police or
investigative report contains irrelevant, sensitive
information or information interrelated with other crimes
or criminal activities and the disclosure of the contents of
the police report may seriously impair law enforcement
or jeopardize the investigation of those other crimes or
activities, the court may prohibit or partially restrict the
disclosure.
Fla. R. Crim. P. 3.220(b)(2) (emphasis added). The obvious purpose
of subsection (b)(2) is to allow the State to demonstrate, via in
camera judicial review, that information in police or investigative
reports that would seriously impair or jeopardize an investigation
of other crimes may be prohibited or restricted. As to other
matters, the trial court—upon “a showing of good cause”—shall “at
any time order that specified disclosures be restricted, deferred, or
exempted from discovery” as may be appropriate under the
circumstances. See Fla. R. Crim. P. 3.220(l)(1) (entitled “Protective
Orders”). Again, it is the State that must show good cause to
restrict, defer or exempt information, not a criminal defendant to
show otherwise. See House, 283 So. 3d at 454 n.6 (Bilbrey, J.,
specially concurring) (“While rule 3.200(g)(2) allows the State to
withhold the identity of an informant, as to other purported
confidential information I read rule 3.220(b)(2) to put the burden
on the State to show the need for confidentiality for most other
discovery.”).
As such, the State had the burden to demonstrate that specific
portions of the affidavit should not be disclosed. It is immaterial
that Hill agreed to demonstrate “good cause” to unseal the affidavit
because demonstrating the materiality of the affidavit is merely
another way of saying good cause exists for its disclosure.
Materiality is a subset of good cause; if a criminal defendant states
a plausible basis that an affidavit may contain information that is
material to his defense, he has established good cause. To the
extent Hill agreed to shoulder a heavier burden than was required
11
of him, he met that burden. Full and fair criminal discovery
involves a “search for truth and justice” that “can be accomplished
only when all relevant facts are before the judicial tribunal. Those
relevant facts should be the determining factor rather than
gamesmanship, surprise, or superior trial tactics.” Wilcox v. State,
143 So. 3d 359, 376 (Fla. 2014) (citations omitted).
The relief that Hill seeks is exceptionally modest: provide the
affidavit as required by Rule 3.220(b)(1)(I), redacted if necessary,
after in camera judicial review to determine whether protected
information should be shielded. Rule 3.220 is a thoughtful,
balanced, and carefully crafted means of ensuring due process in
the context of criminal discovery. It specifically compels disclosure
of the information Hill seeks subject to trial court review to resolve
disputes as to confidential informant information and other listed
exceptions and specified police/investigative reports. See Fla. R.
Crim. P. 3.220(b)(2) & (g). Hill stated an adequate basis to present
and preserve his claim below; placing new hurdles on him and
others similarly situated—ones that exist neither in the text of
Rule 3.220 nor related precedent—is unwarranted and serves only
to tip the balance of Rule 3.220 against criminal defendants whose
rights it was designed to protect.
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Mark V. Murray, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Appellee.
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