The opinion of the court was delivered by: VICTOR MARRERO, District Judge
Defendant Carlos Saltares ("Saltares") was arrested on November 18,
2003 during a search of his co-defendant's apartment (the "Apartment"),
and was charged with possession of heroin with intent to distribute and
possession of a firearm in furtherance of a drug trafficking crime. The
search was conducted by federal agents from the Drug Enforcement
Administration and detectives from the New York City Police Department,
and it was made pursuant to a search warrant issued by a magistrate judge
in this District. The warrant contains information that the Government
claims it obtained from a confidential informant.
The Government's initial discovery materials to Saltares's counsel
included redacted versions of the search warrant affidavits issued on
November 18, 2003 for the search of the Apartment and on December 2, 2003
for the search of the contents of a cellular phone found during the
search of the Apartment (collectively, the "Affidavits"). Saltares now
requests an order from this Court directing the Government to provide
unredacted copies of the Affidavits. Alternatively,
Saltares asks the Court to conduct an in camera review of the
Affidavits and order the release of all portions of the Affidavits that:
will not reveal the identity of the informant.
Federal Rule of Criminal Procedure 16 requires the Government to
disclose to a defendant any document that is "material to preparing the
defense." Fed.R.Crim.P. 16(a)(1)(E)(i). Despite that obligation,
the Government is usually not required to disclose the identity of a
confidential informant. See United States v. Fields,
113 F.3d 313, 324 (2d Cir. 1997). This so-called "informer's privilege" is
intended to encourage citizens to provide information to the Government
about criminal activity in furtherance of public safety and effective law
enforcement by preserving their anonymity, thereby protecting informants
and their families from potential harassment and other serious harms.
See Roviaro v. United States, 353 U.S. 53, 59 (1957).
The informer's privilege is not absolute. The Supreme Court has stated
in general terms that "[w]here the disclosure of an informer's identity,
or of the contents of his communication, is relevant and helpful to the
defense of an accused, or is essential to a fair determination of a
cause, the privilege must give way." Id. at 60-61. More
specifically, the Supreme Court has instructed lower courts confronted
with an assertion of informer's privilege to
consider "the crime charged, the possible defenses, the possible
significance of the informer's testimony, and other relevant factors."
Id. at 62; see also, United States v.
Jackson, 345 F.3d 59, 69-70 (2d Cir. 2003).
The Second Circuit has stated that "disclosure of the identity or
address of a confidential informant is not required unless the
informant's testimony is shown to be material to the defense."
United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988);
see also, United States v. Santiago, 174 P. Supp.2d
16 (S.D.N.Y. 2001); United States v. Belin, No. 99 CR 214, 2000
WL 679138, at *9-10 (S.D.N.Y. May 24, 2000).
Saltares argues that because the Government's paid informant is the
primary source of information regarding Saltares's alleged illegal
conduct, the identity and communications of the informant are relevant
and helpful to his defense and are essential to evaluating the
truthfulness of the Affidavits.
Pursuant to Franks v. Delaware, 438 U.S. 154 (1978), a
criminal defendant is allowed to challenge the issuance of a search
warrant if he can make a "substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit, and if the
statement is necessary to the finding of probable cause."
Id. at 155.
Saltares does not claim to be making such a showing now. Instead, he
asserts that he should receive unredacted copies of the Affidavits so
that he may determine the viability of a challenge to them. He argues
that because the bulk of the specific facts in the Affidavits which
presumably established probable cause for the issuance of the warrants
were redacted in the discovery materials that the Government produced, he
is presently unable to make even a preliminary showing that the affiant
knowingly, intentionally, or recklessly included a false statement in the
Affidavits. The difficulty is that the Government claims that the
redacted information in the Affidavits will reveal to Saltares the
identity of the confidential informant.*fn1
The Court is mindful of Saltares's plight. But Saltares has not made a
sufficiently specific showing under Fed.R.Crim.P. 16 that unredacted
copies of the Affidavits are material to his defense at this stage of the
proceedings to justify an order from this Court directing the Government
turn over information that it claims will reveal the identity of a
confidential informant. The Court notes that it is not presently faced
with a situation in which the defendant is attempting to discover the
identity of a witness against him at trial. Here, Saltares is attempting
to obtain the identity of the person who supplied the basis for a search
warrant. Saltares has net made any assertion that the information in the
Affidavits is likely to be false.
Saltares is not being prosecuted on the basis of any secret evidence.
The indictment indicates the amount of heroin and the type of firearm
that he allegedly possessed.*fn2 To convict Saltares of these charges,
the Government will need to introduce evidence in open court that
Saltares possessed the narcotics with the intent to distribute them and
possessed the firearm in furtherance of a drug trafficking crime, and
before trial the Government will have to provide Saltares with access to
that evidence. At trial, Saltares will be free to cross examine any
witnesses and object to the admission of any evidence. But at the present
stage of the proceedings, the materiality to Saltares's defense of the
unredacted Affidavits and the identity of the informant is low and the
Government's interest in protecting the identity of its informant is
In any event, as Saltares requested, the Court has
conducted an in camera review of the unredacted
Affidavits. The redacted portions of the Affidavits describe certain
interactions between Saltares and the informant. The Court is unable to
disagree with the Government's assertions that the redacted portions of
the Affidavits would provide sufficient information to Saltares to enable
him to identify the informant.
For the reasons discussed above, ...