Commonwealth v. Whitfield

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SJC-13323
COMMONWEALTH vs. SHAMIA WHITFIELD.
Suffolk. March 6, 2023. - May 19, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Practice, Criminal, Discovery, Disclosure of identity of
informer. Privileged Communication. Evidence, Informer,
Privileged communication, Relevancy and materiality.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on August 31, 2022.
The case was reported by Wendlandt, J.
Kathryn Sherman, Assistant District Attorney, for the
Commonwealth.
John P. Warren for the respondent.
Luke Ryan, Molly Ryan Strehorn, & Joshua M. Daniels, for
Massachusetts Association of Criminal Defense Lawyers, amicus
curiae, submitted a brief.
GEORGES, J. This matter is before us on a reservation and
report by a single justice of the Commonwealth's petition for
2
relief pursuant to G. L. c. 211, § 3.1 The Commonwealth
challenges a Boston Municipal Court judge's order allowing the
defendant's motion for discovery and requiring the Commonwealth
to disclose significant, albeit redacted, information about a
confidential informant (informant).2 The Commonwealth relied on
information from the informant to obtain a search warrant that
led to the seizure of firearms from the defendant's apartment,
as well as the defendant's arrest on charges of unlicensed
possession of firearms and ammunition. The Commonwealth
maintains that the information ordered to be disclosed is
protected under the confidential informant privilege. See
Commonwealth v. Bonnett, 472 Mass. 827, 847 (2015), S.C., 482
Mass. 838 (2019), citing Roviaro v. United States, 353 U.S. 53,
60 (1957); Mass. G. Evid. § 509 (2019).
We conclude that, if disclosed, the information requested
in the defendant's motion for discovery would, in effect, reveal
the informant's identity. In addition, the defendant does not
dispute that disclosure of the informant's identity would give
1 Although the Commonwealth commenced this action by filing
a petition in the county court, for convenience we refer to the
respondent as the "defendant."
2 This case is one of two that we decide today involving a
petition for relief pursuant to G. L. c. 211, § 3, concerning
the potential disclosure of information that has been asserted
as protected by the informant privilege. See Commonwealth v.
Gandia, 492 Mass. (2023).
3
rise to a concern for the informant's safety. Accordingly, the
Commonwealth's invocation of the informant privilege was proper,
and the burden shifted to the defendant to show that the
requested information was material and relevant to her defense.
See Bonnett, 472 Mass. at 847. We further hold that the
defendant failed to make the required showing here; accordingly,
the motion judge abused her discretion in allowing the
defendant's motion for disclosure.3 The case is remanded to the
county court for entry of a judgment reversing the order
allowing the defendant's motion for discovery and remanding the
matter for further proceedings consistent with this opinion.4
1. Background. We summarize the facts as found by the
motion judge, supplemented with undisputed facts from the
record.5 See, e.g., Commonwealth v. Johnson, 481 Mass. 710, 712,
cert. denied, 140 S. Ct. 247 (2019). On April 16, 2019,
3 The defendant conceded at oral argument that, if this
court determined that the Commonwealth properly invoked the
informant privilege and that the standard set forth in
Commonwealth v. Bonnett, 472 Mass. 827, 846-848 (2015), S.C.,
482 Mass. 838 (2019), applied to the defendant's discovery
motion, the defendant had failed to meet her burden under that
standard. For the reasons discussed infra, we would reach the
same conclusion with or without the defendant's concession.
4 We acknowledge the amicus brief of the Massachusetts
Association of Criminal Defense Lawyers.
5 The defendant's motion, with the assent of the
Commonwealth, to expand the record to include the transcripts of
eight hearings that took place in the Boston Municipal Court, is
allowed.
4
Detective Brian Ball of the Boston police department (BPD),
acting on information provided by a "carded"6 informant, filed an
application for a search warrant, with a supporting affidavit,
to search the defendant's person and her home for firearms. The
informant had told Ball and BPD Detective John Burrows that,
within the previous thirty days, the informant had seen the
defendant in possession of two black rifles on multiple
occasions. One of the rifles was an AK-47-style weapon with a
wooden stock and curved, "banana" feeding device, and the other
was described as long with a straight feeding device. The
informant had seen the weapons at the defendant's house and had
observed them being loaded and unloaded with live ammunition.
The informant identified the defendant from a photograph.7
6 A "carded" informant is one whose identity is known to
commanding officers and whose cooperation with law enforcement
has been approved. BPD's use of informants is governed by rule
333 of the BPD Rules and Procedures. This rule requires BPD to
keep certain records on each confidential informant, including
payment receipts, debriefing reports, confidential informant
cards, photographs, informant working agreements, and criminal
history checks of the informant. With the exception of the
confidential informant card and the informant working agreement,
all other BPD records concerning a confidential informant must
refer to the informant only by a code substituted for the
informant's name. Boston Police Department Rules and
Procedures, Rule 333: Confidential Informant Procedures (Mar.
1, 2006).
7 The photograph is described in Ball's affidavit as a
"sanitized booking photo[graph]." The record before us does not
indicate exactly which measures were taken to "sanitize" the
photograph at issue here. However, we note that the term
5
The warrant affidavit also included some information about
the informant's reliability. Ball averred that, on at least
three prior occasions, the informant had provided reliable
information to the BPD that had led to numerous arrests for
firearms and drug violations. Examples of these arrests were
included in the warrant affidavit. The informant also had
informed police of the location of an individual who was wanted
on a default warrant, leading to that individual's arrest. In
addition, the informant had conducted controlled purchases of
drugs, which led to the seizure of drugs and firearms. Ball
averred that the informant has maintained regular and prompt
contact with investigators during multiple BPD investigations.
In describing the informant's prior involvement in BPD
investigations, Ball purposefully omitted certain information to
protect the identity of the informant. Specifically, Ball
omitted the precise dates of the investigations and the
identities of those arrested, as well as the seizures that the
informant's information had produced. Ball stated that the
defendant, who was then under BPD investigation, might know one
or more "individuals who have come into contact with" the
informant as a result of the informant's cooperation with BPD.
"sanitized," when used in these contexts, indicates that
information identifying the photograph as a booking photograph
has been removed. See Commonwealth v. Cruz, 445 Mass. 589, 594
(2005).
6
The informant requested anonymity due to safety concerns. Ball
averred that disclosure of the informant's identity "would pose
an undue risk to [the informant's] safety" and would place the
informant in "imminent danger of bodily harm or death." Ball
also averred that such disclosure would harm the BPD's
reputation for protecting informants and, thus, would hinder the
BPD's investigations and its ability to recruit cooperators. An
assistant clerk of the Boston Municipal Court issued the warrant
on April 16, 2019.
BPD officers executed the search warrant on April 22, 2019.
After advising the defendant of the Miranda warnings, officers
inquired whether there were any firearms in the house. The
defendant responded that the guns were under her bed and a crib
in her bedroom. Officers recovered a Model 9 rifle and a
twelve-gauge shotgun from the bedroom, and loose ammunition and
shotgun shells from several locations in the apartment.8 The
defendant was arrested and charged with two counts of possession
of a firearm without a firearm identification (FID) card, G. L.
c. 269, § 10 (h), and one count of possession of ammunition
without an FID card, G. L. c. 269, § 10 (h).
Citing Mass. R. Crim. P. 14 (a) (1) (C), as appearing in
442 Mass. 1518 (2004), and Mass. R. Crim. P. 17, 378 Mass. 8858 At the time of the warrant's execution, no one present in
the apartment was licensed to possess firearms or ammunition.
7
(1979), the defendant filed a motion seeking discovery of
"rewards and promises" offered to the informant, and documents
and information related to the informant's participation in
other criminal investigations. Specifically, the defendant
requested "all documents" held by the BPD involving its
recruitment of the informant and its work with the informant on
any prior occasion, including debriefing reports. These
included any documents regarding whether the informant was paid
or made agreements with any law enforcement agency, and any
related documentation. The defendant also requested a "complete
history" of the informant's involvement with "any law
enforcement agency," including case names, docket numbers, and
the outcomes of those cases. In addition, the defendant sought
disclosure of the dates of warrants to which the informant had
contributed, and copies of any police reports that pertained to
the informant.
The defendant argued that the requested information was
necessary because the warrant lacked indicia of the informant's
reliability, credibility, and veracity. See Commonwealth v.
Amral, 407 Mass. 511, 520 (1990), citing Franks v. Delaware, 438
U.S. 154, 155-156 (1978) (establishing defendant's entitlement
to in camera hearing where defendant asserts facts that cast
doubt on veracity of material representations in warrant
affidavit concerning reliability of confidential informant).
8
The defendant specifically did not request the identity of the
informant, positing further that "the requested information
should in no way reveal the identity of the informant." The
Commonwealth filed an opposition, arguing that the requested
information was protected by the informant privilege, see
Commonwealth v. Dias, 451 Mass. 463, 468 (2008), and that its
disclosure effectively would identify the informant.
At a nonevidentiary hearing on the defendant's motion, the
prosecutor offered to provide the defendant with receipts of any
monetary transactions between the BPD and the informant. The
prosecutor asserted, however, that the Commonwealth was not
obligated to disclose the requested information if there were a
"safety concern." He also observed that, to overcome the
privilege, the defendant bore the burden of showing that the
information was material and relevant, and necessary to the
administration of a fair trial. Defense counsel maintained that
the information sought in the discovery motion corresponded with
the information that the BPD was required to retain as part of
its collaboration with any informant and offered to sign a
protective order. He also observed that he believed the motion
was appropriate, given the difficulty defendants confront in
prevailing on motions to suppress.
The judge subsequently issued written findings of fact and
a decision allowing the motion in full. In the decision, the
9
judge recognized that, "[a]ssuming that the Commonwealth has
asserted the informer's privilege, the defendant must first make
a showing that the discovery sought is both 'material and
relevant.'" The judge then concluded that the information the
defendant sought was "relevant and material to the issue of
probable cause" and was "essential" for defense counsel's
"preparation for a zealous defense . . . regarding his client's
anticipated [m]otion to [s]uppress." See Amral, 407 Mass.
at 518.
The factual findings on which the judge's decision was
based included the following: (1) "[t]he application for [the]
search warrant contained no particularity about [the
informant's] track record"; and (2) "[d]isclosure of BPD Rule
333 information, via code number, will not reveal the true
identity of [the informant]." With these factual findings in
mind, the judge reasoned that the Commonwealth's offer to
disclose records of payments received by the informant was "not
sufficient to test the veracity of the affidavit and/or the
reliability of [the informant]." The judge concluded that
because disclosure of the information requested, using the
informant's code number, would not reveal the informant's
identity, such disclosure properly balanced the informant's
safety with the defendant's rights to due process and to a
zealous defense.
10
The Commonwealth moved for reconsideration. A decision on
that motion was delayed for approximately one year, due to
scheduling issues resulting from the COVID-19 pandemic; the
Commonwealth subsequently filed a motion for a decision on its
motion for reconsideration. In response to the Commonwealth's
request for a decision, the judge ordered defense counsel to
submit an affidavit in support of the defendant's original
motion for discovery. In the ordered affidavit, defense counsel
averred that, inter alia, "[t]he search warrant affidavit does
not contain any information regarding [the informant]'s track
record or anything that could indicate the veracity of [the
informant]," and "[c]ounsel needs this information to prepare
for trial."
At a subsequent nonevidentiary hearing, the prosecutor
argued that defense counsel's affidavit did not satisfy the
"high standard" to establish that the requested information was
relevant and material to the defense, and essential to a fair
determination of the case. When the judge commented that the
prosecutor had provided "no information" about the informant's
reliability, the prosecutor responded that the defendant was not
permitted to attack the reliability of the informant through a
discovery motion and had to file a motion to suppress in order
to do so. The judge denied the motion for reconsideration,
ordered the Commonwealth to produce all ordered discovery by no
11
later than September 2, 2022, two weeks from the date of the
hearing, and ordered that a show cause hearing be held if the
discovery were not produced by that date.
On August 31, 2022, the Commonwealth filed a petition for
extraordinary relief in the county court pursuant to G. L.
c. 211, § 3. A single justice then stayed the discovery
deadline and reserved and reported the matter to this court.9
2. Discussion. a. Standard of review. We review a
decision on a motion for disclosure of information subject to
the Commonwealth's assertion of the informant's privilege for an
abuse of discretion. See Commonwealth v. D.M., 480 Mass. 1004,
1006 (2018). Where, as here, the motion judge conducted a
nonevidentiary hearing, and the record before the judge
consisted only of documentary evidence, such as the warrant
affidavit, "'we are in the same position as the motion judge' to
9 Where the single justice has exercised her discretion to
reserve and report the matter, we proceed to adjudicate the
merits. See Martin v. Commonwealth, 451 Mass. 113, 119 (2008).
However, we reiterate that neither this court nor a single
justice thereof "is required to review, pursuant to G. L.
c. 211, § 3, the substantive merits of every confidential
disclosure order." Commonwealth v. D.M., 480 Mass. 1004, 1004
n.2 (2018). "To the contrary, disclosure of information
relating to confidential informants and witnesses does not in
and of itself constitute exceptional circumstances" warranting
exercise of this court's extraordinary power of superintendence.
Id. No party, including the Commonwealth, should expect this
court to exercise its extraordinary powers of general
superintendence lightly. See Commonwealth v. Richardson, 454
Mass. 1005, 1005-1006 (2009), citing Commonwealth v. Narea, 454
Mass. 1003, 1004 n.1 (2009).
12
assess the documentary evidence put forward by the parties."
Johnson, 481 Mass. at 715, quoting Commonwealth v. Monroe, 472
Mass. 461, 464 (2015). See Commonwealth v. Tremblay, 480 Mass.
645, 654-655 (2018) ("We now affirm the principle that an
appellate court may independently review documentary evidence,
and that lower court findings drawn from such evidence are not
entitled to deference").
"An appellate court's review of a [motion] judge's decision
for abuse of discretion must give great deference to the judge's
exercise of discretion; it is plainly not an abuse of discretion
simply because a reviewing court would have reached a different
result." Vazquez Diaz v. Commonwealth, 487 Mass. 336, 344
(2021), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014). Concluding that there was an abuse of discretion does
not equate to a finding that "the judge was not conscientious
or, for that matter, not intelligent or honest." Vazquez Diaz,
supra at 345, quoting L.L., supra. Rather, "a judge's
discretionary decision constitutes an abuse of discretion where
we conclude the judge made a clear error of judgment in weighing
the factors relevant to the decision, such that the decision
falls outside the range of reasonable alternatives." Vazquez
Diaz, supra, quoting L.L., supra.b. Informant privilege. "The government's privilege not
to disclose the identity of an informant has long been
13
recognized in this Commonwealth." Bonnett, 472 Mass. at 846,
quoting Dias, 451 Mass. at 468. See Mass. G. Evid. § 509. The
privilege is meant to "encourage 'every citizen' in his [or her]
'duty . . . to communicate to [the] government any information
which [the citizen] has of the commission of an offense against
its laws." Commonwealth v. Swenson, 368 Mass. 268, 276 (1975),
quoting Worthington v. Scribner, 109 Mass. 487, 488 (1872).
"While the privilege is not absolute, it should be respected as
far as reasonably possible consistent with fairness to a
defendant" (quotation and citation omitted). Commonwealth v.
Shaughnessy, 455 Mass. 346, 353 (2009). The scope of the
informant privilege is limited by its underlying purpose:
"where the disclosure of the contents of a communication will
not tend to reveal the identity of an informer, the contents are
not privileged." Roviaro, 353 U.S. at 60.
The informant privilege thus "extends to information that
would tend to reveal the identity of the informant" (citation
omitted). United States v. Tzannos, 460 F.3d 128, 140 (1st Cir.
2006). As such, the privilege "not only protects the release of
the name of the informant but also forbids the disclosure of
details that would in effect identify the informant" (emphasis
in original). Commonwealth v. John, 36 Mass. App. Ct. 702, 706
(1994). See Commonwealth v. Douzanis, 384 Mass. 434, 436 n.4
(1981) (disclosure of dates, times, and locations of all
14
meetings between defendant and informant, as well as copies of
all written and oral statements made by informant, in effect
would identify informant); John, supra at 703, 707 (same).
The analysis of whether an informant's identity should be
kept confidential under the privilege or disclosed "may best be
described as generally occurring in two stages." Bonnett, 472
Mass. at 846. In the first stage of the analysis, a court makes
a preliminary determination whether the Commonwealth properly
asserted the informant privilege, see Mass. G. Evid.
§ 509(a)(1), and if so, whether the defendant has met his or her
burden to challenge the Commonwealth's invocation of the
privilege by establishing "an impermissible interference with
[the defendant's] right to present a defense." Bonnett, supra.
The informant privilege may be asserted by the Commonwealth
where the Commonwealth otherwise would be required to provide an
informant's identity to a defendant as part of its discovery
obligations under Mass. R. Crim. P. 14. See id., quoting
Roviaro, 353 U.S. at 59. Should a defendant wish to overcome
the informant privilege, the defendant bears the burden of
challenging the Commonwealth's assertion. Dias, 451 Mass. at
464. "We have characterized a defendant's obligation at this
juncture as 'relatively undemanding,' but it does require the
defendant to articulate a basis sufficient for the judge to
'assess the materiality and relevancy of the disclosure to the
15
defense, if that relevancy is not apparent from the nature of
the case.'" D.M., 480 Mass. at 1006, quoting Bonnett, supra at
847.
Only if both the Commonwealth and the defendant have met
their burdens in the initial stage should a judge then proceed
to the second stage of the analysis, where the judge must
"decide whether the informant's identity and concomitant
information are sufficiently 'relevant and helpful to the
defense of an accused' that it must be disclosed." Bonnett, 472
Mass. at 847, quoting Dias, 451 Mass. at 468. This
determination necessitates a balancing of "the public interest
in protecting the flow of information against [the defendant's]
right to prepare his [or her] defense." Bonnett, supra at 847-
848, quoting Roviaro, 353 U.S. at 62. The inquiry at the
balancing stage must be case-specific: "[w]hether a proper
balance renders nondisclosure erroneous must . . . tak[e] into
consideration the crime charged, the possible defenses, the
possible significance of the informer's testimony, and other
relevant factors." Roviaro, supra. Where disclosure (1) is
sufficiently "relevant and helpful to the defense of an accused"
or (2) "is essential to a fair determination of a cause, the
privilege must give way." Dias, supra, quoting Roviaro, supraat 60–61.
16
c. Application. i. Commonwealth's assertion of informant
privilege. The defendant argues that because she did not seek
disclosure of the informant's name, and because the judge found
that disclosure of the information requested would not reveal
the informant's identity, the informant privilege does not
apply. She contends that the judge's order therefore should be
reviewed in the context of a motion judge's broad discretion to
order discovery under Mass. R. Crim. P. 14.10 We disagree.
Rather, based on the record before us, we conclude that the
extensive amount of information requested by the defendant
would, in effect, reveal the informant's identity such that the
informant's privilege is applicable to this case.11
10The defendant does not refute the Commonwealth's
assertion that the informant's safety would be in danger if his
or her identity were revealed. Compare D.M., 480 Mass. at 1005
(disclosure of identity of informant with current and prior
involvement in firearms cases would endanger informant).
11In concluding that the informant privilege has been
properly asserted here, where the information requested would in
effect reveal the informant's identity, we do not set forth a
rigid test or add any additional step to the analysis laid out
in Bonnett, 472 Mass. at 846. Rather, consideration of whether
disclosure of requested information, short of an informant's
name and address, might place an informant in danger has always
been part of a case-specific inquiry into whether the informant
privilege is properly invoked. See Commonwealth v. Amral, 407
Mass. 511, 526 n.11 (1990) (privilege properly asserted where
disclosure of requested information "would be tantamount to
revealing the informant's identity"); Commonwealth v. Douzanis,
384 Mass. 434, 436 n.4 (1981) (applying privilege where
requested information "would in effect identify the informant"
and permitting judge on remand to consider "whether full or
17
Here, the search warrant issued to search the defendant's
home and person relied on the informant's assertions that the
informant had seen the defendant load and unload firearms inside
her home within the thirty days prior to the application for the
warrant. The expansive nature of the ordered discovery would
risk providing details that would allow the defendant, or others
familiar with her home, to retrace their activities over the
preceding thirty days and discern the identity of the informant
on that basis. See Commonwealth v. Benlien, 27 Mass. App. Ct.
834, 838 n.7 (1989) (date of controlled purchase remained
undisclosed because of "need not to pinpoint the encounter and
thus impair the anonymity of the informer"). Moreover, the
informant has provided information leading to the arrest of
three other individuals for firearms offenses, the execution of
a search warrant that located firearms and drugs, and the arrest
of one person on a default warrant. The disclosure of the
details of those events -- their dates, locations, and the names
of the involved parties -- would permit those familiar with the
informant to piece together a detailed picture of the
partial disclosure of the demanded information would in fact
reveal the informant's identity"); Commonwealth v. John, 36
Mass. App. Ct. 702, 706 (1994) ("the privilege not only protects
the release of the name of the informant but also forbids the
disclosure of details that would in effect identify the
informant" [emphasis in original]). See also Roviaro v. United
States, 353 U.S. 53, 60 (1957) (contemplating whether contents
of communication would "tend to" reveal informant's identity).
18
informant's assistance to law enforcement, effectively
identifying the informant.12
Given our conclusion that the requested disclosure would in
effect disclose the informant's identity, and the parties'
agreement -- appropriate in the circumstances of this case --
that disclosure of the informant's identity would place the
informant in danger, we conclude that the Commonwealth properly
met its burden to invoke the informant privilege.
ii. Defendant's burden to make showing of materiality and
relevancy. Because the Commonwealth properly invoked the
informant privilege, the burden shifted to the defendant to
"challeng[e] the assertion of the privilege as an impermissible
interference with . . . her right to present a defense."
Bonnett, 472 Mass. at 846. While a defendant's burden at this
stage is "relatively undemanding," see D.M., 480 Mass. at 1006,
quoting Bonnett, supra at 847, "[c]ases that have required
disclosure have done so on a 'standard of materiality or
12As noted supra, the motion judge's contrary finding,
based solely on the documentary evidence, is due no deference.
See Commonwealth v. Johnson, 481 Mass. 710, 714–715, cert.
denied, 140 S. Ct. 247 (2019); Commonwealth v. Tremblay, 480
Mass. 645, 654-655 (2018). We note only that, to the extent the
motion judge relied solely on the substitution of a code for the
informant's name in concluding that disclosure of the requested
evidence would not reveal the informant's identity, her reliance
was inconsistent with the fact-specific inquiry into the
practical implications of disclosure that this stage of the
analysis demands. Compare Douzanis, 384 Mass. at 436 n.4; John,
36 Mass. App. Ct. at 706-707.
19
something roughly akin thereto," Dias, 451 Mass. at 469, quoting
Commonwealth v. Lugo, 406 Mass. 565, 571 (1990). "As to
materiality, we have said that the 'proper inquiry' concerns
'whether disclosure would have provided material evidence needed
by the defendant for a fair presentation of his case to the
jury.'" Dias, supra, quoting Commonwealth v. Madigan, 449 Mass.
702, 706 (2007).
A defendant must make "some offering" so that the judge
"may assess the materiality and relevancy of the disclosure to
the defense." Dias, 451 Mass. 469, quoting Swenson, 368 Mass.
at 276. "In other words, the defendant has some obligation to
show an exception to the privilege that the informer remain
anonymous." Dias, supra, quoting Swenson, supra. A distinction
exists between a demand for disclosure for pretrial purposes,
where the issue is probable cause for arrest or a search, and a
demand for disclosure at trial, where the issue is the
defendant's guilt or innocence. See Lugo, 406 Mass. at 571.
While the standards of disclosure for pretrial purposes are
"more demanding" than those applicable when disclosure is sought
for trial purposes, in either instance a defendant nevertheless
must offer some evidence to support the materiality and
relevancy of disclosure. See D.M., 480 Mass. at 1006.
The defendant maintains that the requested discovery was
material and relevant to an anticipated "Franks/Amral" motion
20
challenging the accuracy of the information in the warrant. See
Amral, 407 Mass. at 520, citing Franks, 438 U.S. at 155-156. As
she did at the motion hearing, the defendant argues on appeal
that she demonstrated her material need for the requested
information by stating that there was "no track record"
supporting the informant's reliability and no other means of
verifying the information in the affidavit. The Commonwealth
argues that the defendant made an insufficient showing that the
requested information was material and relevant to a pretrial
defense or to a defense at trial.
Although we have no doubt that the motion judge engaged in
a good faith effort to weigh the interests involved, as
presented to her by the parties, we conclude that the judge
erred in finding that the defendant made a sufficient showing of
materiality to satisfy her burden in the initial stage of the
analysis under Bonnett, 472 Mass. at 847, and accordingly, the
judge abused her discretion in ruling that disclosure was
warranted, whether for pretrial or trial purposes.
To be entitled to a Franks/Amral hearing, a defendant must
"by affidavit assert[] facts which cast a reasonable doubt on
the veracity of material representations made by the affiant
concerning a confidential informant." Amral, 407 Mass. at 522.
The defendant did not assert any case-specific facts in her
original motion, at either hearing, or in the requested
21
affidavit that cast a reasonable doubt on the informant's
veracity or the facts in the affidavit. Indeed, although the
defendant's motion cited to Amral, supra, the record does not
indicate that the defendant meant to assert that the search
warrant affidavit was untruthful -- only that the possibility of
its untruthfulness existed, due to the lack of information about
the informant's "track record" and information about the
investigation itself. However, "[m]ere suspicion that there was
no informant, or that the informant's 'reliability' credentials
have been misstated, or that his information was other than as
recited by the affiant," as was the case here, does not rise to
the level of an articulated challenge that warrants a
Franks/Amral hearing. Id. See Douzanis, 384 Mass. at 439(requiring something more than "naked claim" that affiant
fabricated information before ordering Franks/Amral hearing).
The defendant's suggestion that the requested information may
bear on an eventual Franks/Amral defense, without more, was not
a sufficiently articulated basis that would have allowed the
judge to assess the materiality and relevancy of the disclosure.
See John, 36 Mass. App. Ct. at 706 ("A discovery motion, by
itself, seeking information about facts contained in the warrant
affidavit, is not sufficient to overcome [the warrant's]
presumption of validity").
22
Finally, the brief, vague, and conclusory assertion in
defense counsel's affidavit that the requested information was
"needed to prepare for trial" does not pass muster for a showing
of materiality. A judge "cannot be required to assess the need
for disclosure . . . without some guidance" as to the "scheme of
the defense." Swenson, 368 Mass. at 276. Although the
defendant's burden at this stage is "relatively undemanding,"
see Bonnett, 472 Mass. at 847, it was not met here, and the
motion judge abused her discretion in concluding otherwise when
faced with this evidentiary record.13
3. Conclusion. We hold that the information requested by
the defendant would in effect disclose the informant's identity
and that the defendant failed to show that the requested
information was relevant and material to her defense.
Accordingly, the matter is remanded to the county court for
entry of a judgment reversing the motion judge's order allowing
the defendant's motion for discovery and remanding the matter to
13Because we find that the defendant has failed to meet her
burden, albeit a "relatively undemanding" one, at the initial
stage of the analysis under Bonnett, 472 Mass. at 847, "[w]e
need not speculate about what the results of a second-stage
Roviaro balancing exercise might have been." Id. at 850.
23
the Boston Municipal Court for further proceedings consistent
with this opinion.14
So ordered.
14On remand, the motion judge may entertain a request, if
any is made, for compromise relief that might allow disclosure
of some lesser amount of information "while minimizing danger to
the [informant]" (citation omitted). Bonnett, 472 Mass. at 850.
We express no view as to the appropriateness of any potential
compromise. Rather, it is within the motion judge's discretion
to consider any such request in the first instance, consistent
with the legal principles discussed supra.