March 20, 1967
Ponente: Stewart, J.
FACTS
- On January 16, 1964, two Chicago police officers -- Officer Jackson and Officer Arnold – had a conversation with an informant, who told them that McCray was selling narcotics (heroin) and that he had narcotics on his person. The informant also told the officers where McCray could be found.
- The two officers drove to that vicinity in the police car. When they spotted McCray, the informant pointed him out and then departed on foot.
- After seeing the police car, McCray hurriedly walked away, prompting the two police officers to go out of the car. Upon catching him, they informed him they had information he had narcotics on his person. McCray was then placed in the police vehicle where, after inspection, heroin in a cigarette package was found on his person.
- During the pretrial, McCray filed a motion to suppress the evidence against him, arguing that his arrest was invalid for having been made in violation of his right to due process and right to confrontation and cross-examination. During the trial for the said motion, the two officers sat as witnesses, providing details of how they conducted the arrest. They also testified that the informant who supplied them with the information that led to McCray's arrest was reliable and was known to them for a long time. In fact, the same informant had supplied them with information 20 or 25 times prior, which resulted in convictions.
- During their cross-examination, both police officers were asked to divulge the identity of said informant. The State of Illinois objected, relying on the testimonial privilege under state law against such disclosure. The State's objections were sustained, McCray's motion to suppress was denied, and he was thereafter convicted upon the basis of the evidence seized.
- Hence, the instant petition.
RULING
Whether a court is under duty to require the disclosure of an informer's identity for the purpose of determining the question of probable cause for an arrest or search. – NO.
- The arresting officers in this case testified, in open court, fully and in precise detail as to what the informer told them and as to why they had reason to believe his information was trustworthy. Each officer was under oath. Each was subjected to searching cross-examination. The judge was obviously satisfied that each was telling the truth, and for that reason he exercised the discretion conferred upon him by the established law of Illinois to respect the informer's privilege.
- In permitting the officers to withhold the informant's identity, the court was following well-settled Illinois law. When the issue is not guilt or innocence, but, as here, the question of probable cause for an arrest or search, the Illinois Supreme Court has held that 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. This Illinois evidentiary rule is consistent with the law of many other States.
- As held in State v. Burnett: " If a defendant may insist upon disclosure of the informant in order to test the truth of the officer's statement that there is an informant or as to what the informant related or as to the informant's reliability, we can be sure that every defendant will demand disclosure. He has nothing to lose and the prize may be the suppression of damaging evidence if the State cannot afford to reveal its source, as is so often the case. And since there is no way to test the good faith of a defendant who presses the demand, we must assume the routine demand would have to be routinely granted. The result would be that the State could use the informant's information only as a lead and could search only if it could gather adequate evidence of probable cause apart from the informant's data. Perhaps that approach would sharpen investigatorial techniques, but we doubt that there would be enough talent and time to cope with crime upon that basis. Rather we accept the premise that the informer is a vital part of society's defensive arsenal. The basic rule protecting his identity rests upon that belief."
- Professor Wigmore described the "informer's privilege" as follows: "A genuine privilege must be recognized for the identity of persons supplying the government with information concerning the commission of crimes. Communications of this kind ought to receive encouragement. They are discouraged if the informer's identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an assurance of anonymity - to protect himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest in non-disclosure of the identity of its informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities. Revelation of the dual role played by such persons ends their usefulness to the government and discourages others from entering into a like relationship."
- The Court in the exercise of its power to formulate evidentiary rules for federal criminal cases has consistently declined to hold that an informer's identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search.