State v. Ketchie , 286 N.C. 387 ( 1975 )

211 S.E.2d 207 (1975) 286 N.C. 387

STATE of North Carolina
v.
James Michael KETCHIE.

No. 79.

Supreme Court of North Carolina.

January 31, 1975.

James H. Carson, Jr., Atty. Gen., Ralf F. Haskell, Asst. Atty. Gen., Raleigh, for the State of North Carolina.

White & Crumpler by Fred G. Crumpler, Jr., and Michael J. Lewis, Winston-Salem, for defendant appellant.

HUSKINS, Justice:

The sole question brought forward on defendant's appeal to this Court is whether the prosecution is privileged to refuse disclosure of the informer's identity. Both the trial court and the Court of Appeals answered in the affirmative and defendant urges reversal of that decision.

The general rule, subject to certain exceptions and limitations, recognizes the prosecution's privilege to withhold the identity of an informer. State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973); State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971); State v. Swaney, 277 N.C. 602, 178 S.E.2d 399, appeal dismissed, 402 U.S. 1006, 91 S. Ct. 2199, 29 L. Ed. 2d 428 (1971); Annotation, Accused's Right To, And Prosecution's Privilege Against, Disclosure Of Identity Of Informer, 76 A.L.R. 2d 262 (1961). The privilege is founded upon public interest in effective law enforcement and its application turns on the facts of each particular case. State v. Boles, 246 N.C. 83, 97 S.E.2d 476 (1957). These principles were articulated by Justice Burton in Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), as follows:

"What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. . . . The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.

* * * * * *

"We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors."

Roviaro makes two things clear: (1) There is a distinct need for an informer's privilege but the general rule of nondisclosure is not absolute, and (2) disclosure is required where the informer directly participates in the alleged crime so as to make him a material witness on the issue of guilt or innocence.

The issue here concerns probable cause for an arrest and search without a warrant, not guilt or innocence; hence, Roviaro is not controlling on the facts in this case. Instead, we are guided by McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967), which dealt with disclosure of an informer's identity on a motion to suppress evidence obtained in a warrantless arrest and search. In that case the Court held that defendant had no constitutional right to disclosure of the informer's identity even though the information furnished by him was essential to a finding that the officers had probable cause to make the arrest and search.

In McCray the informant told police officers that defendant would be on a street corner at a particular time and that he would be in possession of narcotics. McCray appeared on the corner at the designated time and the informant pointed him out to the officers who arrested McCray without a warrant and discovered the narcotics on his person. Relying upon Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959), the United States Supreme Court held there was probable cause on those facts to sustain the arrest and incidental search. In reviewing defendant's argument that he was entitled to know the identity of the informant, the Court sustained an established principle in Illinois law that "[w]hen the issue is not guilt or innocence, but . . . the question of probable cause for an arrest or search . . . police officers need not invariably be required to disclose an informant's identity if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant."

In Draper v. United States, supra, a case dealing with probable cause for arrest, a particular informant named Hereford told police that Draper had gone to Chicago by train on September 6 and would bring back three ounces of heroin, returning to Denver by train either on the morning of September 8 or the morning of September 9. Hereford gave the police a detailed description of Draper and of the clothing he was wearing and said Draper would be carrying a tan zipper bag and that he habitually "walked real fast." Draper was arrested without a warrant on September 9 after leaving an incoming Chicago train. He had the exact physical attributes and was wearing the precise clothing described by the informant. A search incident to the arrest uncovered two envelopes of heroin. The informant had previously given reliable information to the police. On these facts the Court held that the officer had reasonable grounds to believe that defendant possessed heroin, once the officer had verified by personal observation every facet of the information. Speaking of the officer, the Court said:

"And when, in pursuing that information, he saw a man, having the exact physical attributes and wearing the precise clothing and carrying the tan zipper bag that Hereford had described, alight from one of the very trains from the very place stated by Hereford and start to walk at a ``fast' pace toward the station exit, Marsh [the arresting officer] had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford's information being thus personally verified, Marsh had ``reasonable grounds' to believe that the remaining unverified bit of Hereford's information — that Draper would have the heroin with him — was likewise true."

In Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), the Court adhered to its views expressed in Draper v. United States, supra, with respect to information furnished "with minute particularity" by an informant and said: "A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way."

So it is here. The additional information acquired by Officer Choate by personal observation corroborated the informant's tip in every minute detail — (1) defendant's time of arrival, (2) from High Point, (3) destination Fairchild Industries, (4) driving a 1968 Oldsmobile, (5) white over blue convertible, (6) license ADE-269, (7) driven by a white male, (8) approximately twenty-one years of age, (9) with long brown hair and (10) a moustache. With no time to obtain a warrant, Officer Choate contacted two other officers by radio and they set up a surveillance near the entrance to Fairchild Industries. Approximately fifteen minutes had elapsed from the time the information was received from the informant until Officer Choate stopped defendant. Certainly, under these facts and circumstances, the officers had probable cause and reasonable grounds to believe that defendant was violating the laws of this State relating to controlled substances at the time they arrested him and searched his car. The warrantless arrest, search and seizure were therefore lawful. Compare State v. Edwards, 286 N.C. 162, 209 S.E.2d 758 (1974), where the informant's tip contained neither underlying circumstances nor minute particularity sufficient to support a finding of probable cause to issue a search warrant.

Defendant has made no defense on the merits and does not contend that the informant participated in or witnessed the alleged crime. Therefore, he has no constitutional right to discover the name of the informant. McCray v. Illinois, supra; Roviaro v. United States, supra; United States v. James, 151 U.S.App.D.C. 304, 466 F.2d 475 (1972). As stated by the Court in McCray v. Illinois, supra: "Nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge in every such hearing to assume the arresting officers are committing perjury."

We further hold that defendant has not been deprived of his Sixth Amendment right to confront and cross-examine the witnesses against him by reason of their refusal to reveal the informant's name. Otherwise, "no witness on cross-examination could ever constitutionally assert a testimonial privilege, including the privilege against compulsory self-incrimination guaranteed by the Constitution itself. We have never given the Sixth Amendment such a construction, and we decline to do so now." McCray v. Illinois, supra; Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967).

In his supplemental brief filed in this Court, defendant did not raise or discuss his assignment urged in the Court of Appeals relating to lack of probable cause; and in oral argument here, counsel stated that the assignment had been abandoned. Even so, as heretofore noted, probable cause to arrest and search defendant existed on the basis of the minute particularity with which the informant described defendant and the physical and independent verification of this description by Officer Choate. Whiteley v. Warden, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971); McCray v. Illinois supra; Draper v. United States, supra.

For the reasons stated the decision of the Court of Appeals is

Affirmed.

COPELAND and EXUM, JJ., did not participate in the hearing or decision of this case.