United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN DISTRICT JUDGE
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, see Fed.
R. Crim. P. 59(a); see also United States v. Bailey,
No. 14-CR-78, 2015 U.S. Dist. LEXIS 19201, at *4 (E.D. Wis.
Feb. 18, 2015), I decline to set it aside.
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; see also R.
18-1 at 5 ¶ 10, stating that the informant has
"seen other armed males within this same residence
within the last month".) A Milwaukee County court
commissioner issued the warrant on February 26, 2016. (R.
18-1 at 1.)
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. (R. 1 at 6-7
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.)
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 Informer's Privilege
government enjoys a limited privilege to withhold from
disclosure the identity of persons who furnish to the police
information about law violations. Roviaro v. United
States, 353 U.S. 53, 59 (1957). "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." Id. The government
is granted this privilege as a right and need not make a
threshold showing of likely reprisal or retaliation against
the informant in order to assert the privilege. United
States v. Valles, 41 F.3d 355, 358 (7th Cir. 1994).
While a defendant can overcome the privilege by demonstrating
a need for the information, he bears this burden in the face
of an assumption that the privilege should apply.
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.
Roviaro, 353 U.S. at 60-61. The court must balance
the public interest in protecting the flow of information
against the defendant's right to prepare his defense,
taking into consideration the crime charged, the possible
defenses, the possible significance of the informant's
testimony, and other relevant factors. Id. at 62.
The defendant must offer more than conclusory assertions, as
the privilege will not yield based on speculation that the
information could be useful. Valles, 41 F.3d at 358.
Seventh Circuit has held that the role of the informant is an
important factor to consider when determining whether his
identity must be disclosed. United States v.
McDowell, 687 F.3d 904, 911 (7th Cir. 2012);
United States v. Harris, 531 F.3d 507, 515
(7th Cir. 2008). The court distinguishes between
two types of informants: a "mere tipster" - someone
whose only role was to provide the police with the relevant
information that served as the foundation for obtaining a
search warrant, and a "transactional witness" -
someone who participated in the crime charged against the
defendant or witnessed the event in question.
McDowell, 687 F.3d at 911; see, e.g.,
United States v. Wilburn, 581 F.3d 618, 623
(7th Cir. 2009); United States v.
Jefferson, 252 F.3d 937, 941 (7th Cir. 2001);
United States v. Bender, 5 F.3d 267, 270
(7th Cir. 1993). For informants falling in the
first category, the rationale for the privilege is stronger
and the case for overriding it is generally weak; for
informants who performed a transactional role, the case for
requiring disclosure is stronger. McDowell, 687 F.3d
at 911; see also Harris, 531 F.3d at 515 ("When
the confidential informant is a mere ‘tipster' . .
. rather than a ‘transactional witness' . . .
disclosure will not be required.").
Disclosure in This Case
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. See
Harris, 531 F.3d at 515 (denying disclosure where the
informant's report that the defendant was selling cocaine
from a residence and that there were guns in the residence
led to acquisition of a search warrant, but those activities
were not part of the charges against the defendant, which
were based on his possession of cocaine discovered on
execution of the warrant; the informant did not actively
participate in the investigation by, for example, purchasing
cocaine from the defendant; and the informant was not present
when the warrant was executed); Jefferson, 252 F.3d
at 941-42 (denying disclosure where the informant was a mere
tipster, who provided law enforcement with information
leading to acquisition of search warrant, and where charges
were based on evidence obtained when the search warrant was
executed and on statements made by the defendants at the time
of their arrests, not on any criminal activity the informant
had witnessed); Bender, 5 F.3d at 270 (denying
disclosure where the informant supplied information leading
to acquisition of search warrant, the ...