State v. Dexter, A18-0761

941 N.W.2d 388

STATE of Minnesota, Appellant,

v.Tyler James DEXTER, Respondent.

A18-0761

Supreme Court of Minnesota.

Filed: April 8, 2020

Keith Ellison, Attorney General, Saint Paul, Minnesota; and Anthony C. Palumbo, Anoka County Attorney, Robert I. Yount, Assistant Anoka County Attorney, Anoka, Minnesota, for appellant.

Mark D. Kelly, Mark D. Kelly Criminal Defense LLC, Saint Paul, Minnesota, for respondent.

Adam E. Petras, Assistant Hennepin County Attorney, Minneapolis, Minnesota, for amicus curiae Minnesota County Attorneys Association.

OPINION

CHUTICH, Justice.

This case considers when the State must disclose non-identifying information about a confidential reliable informant’s relationship with police and the informant’s information-gathering activities. Relying on the observations of a confidential reliable informant, appellant State of Minnesota obtained a warrant to search the home of respondent Tyler James Dexter. During the search, police found firearms and several pounds of marijuana. The State charged Dexter with drug possession and sale crimes.

Dexter filed discovery and suppression motions, seeking information about the informant’s relationship with police and means of entry into Dexter’s home. The district court denied Dexter’s motions. Specifically, the court relied on the State’s common law privilege to withhold the identity of an informant and concluded that Dexter was not entitled to discover the informant’s identity or any other information about the informant. The court ultimately convicted Dexter of fifth-degree sale of a controlled substance. See Minn. Stat. § 152.025, subd. 1(1) (2018).

On appeal, the court of appeals held that the State’s privilege did not apply to non-identifying information and that Dexter’s specific request satisfied the requirements of Minnesota Rule of Criminal Procedure 9.01. Accordingly, the court reversed the denial of Dexter’s request for non-identifying information and remanded to the district court with instructions to carefully fashion an order that only discloses non-identifying information. Because the State’s common law privilege does not protect non-identifying information, Dexter’s specific request satisfies the requirements of Rule 9.01, and the court of appeals’ remand instructions protect the informant’s identity, we affirm.

FACTS

In February 2017, Officer Jesse Standal filed a search warrant application to search Dexter’s home and person. We quote the pertinent part of the warrant application in detail:

Your affiant was recently contacted by a Confidential Reliable Informant, CRI hereinafter, who indicated having knowledge of a party by the name of TYLER DEXTER who is involved in the distribution of controlled substances. Specifically, the CRI indicated that TYLER DEXTER is involved in the distribution of large quantities of marijuana and is commonly in possession of several pounds of marijuana at a time and also has several firearms commonly stored near the marijuana. The CRI indicated having previously observed handguns and rifles at the address and in the possession of TYLER DEXTER.... [S]everal other adults may also reside at the address but ... the CRI has only observed TYLER DEXTER to distribute marijuana and possess firearms at the address, most commonly within the garage. This CRI has previously provided your affiant with information that was found to be accurate and reliable which has resulted in the recovery of large quantities of controlled substances as well as firearms.

....

Within the past 72 hours your affiant was contacted by the CRI. The CRI told your affiant that they (the CRI) had been at TYLER DEXTER'S home address and had observed several pounds of what the CRI believed to be marijuana and also observed what the CRI believed to be an assault rifle present at the address.

The district court issued a search warrant based on the facts alleged in the application. Upon searching Dexter’s home, police found several pounds of marijuana, marijuana wax, narcotics, firearms, and other items. The State charged Dexter with fifth-degree sale of a controlled substance.¹ Minn. Stat. § 152.025, subd. 1(1).

Dexter then filed two discovery motions in which he sought to know the actual identity of the informant, the contours of the relationship between the police officers and the informant, and the informant’s information-gathering activities. According to Dexter, the non-identifying information was relevant to whether the informant was acting as an agent of the police and if so, whether the informant entered Dexter’s home in violation of the Fourth Amendment of the United States Constitution. The State asserted its common law privilege to withhold the identity of an informant. Concluding that Dexter failed to establish the prima facie showing required to overcome the State’s privilege, the district court denied Dexter’s requests for disclosure.

Dexter then moved to suppress the evidence obtained during the search of his home, relying upon the same grounds as in his first two discovery motions. The district court also denied this motion, finding that the issues that Dexter raised had already been decided by the court’s first order denying his discovery motions.

The parties then agreed to a stipulated-facts trial under Minnesota Rule of Criminal Procedure 26.01, subdivision 3. The court found Dexter guilty of fifth-degree sale of a controlled substance. See Minn. Stat. § 152.025, subd. 1(1).

Dexter appealed, arguing that the district court committed reversible error when it denied his pretrial requests for disclosure. The court of appeals acknowledged the State’s common law privilege to withhold the identity of an informant. State v. Dexter , 929 N.W.2d 455, 460 (Minn. App. 2019) (citing State v. Rambahal , 751 N.W.2d 84, 90 (Minn. 2008) ). Because Dexter failed to establish the prima facie showing required to overcome the State’s common law privilege, the court of appeals concluded that the district court properly denied Dexter’s request for disclosure of the identity of the informant. Id. But regarding Dexter’s request for disclosure of non-identifying information, the court of appeals concluded that the district court’s reliance on the common law privilege to withhold the identity of an informant was misplaced because the privilege did not apply to non-identifying information. Id. at 461.

The court of appeals also concluded that, under the unique facts of this case, the non-identifying information that Dexter requested "relate[d] to the case" under Minnesota Rule of Criminal Procedure 9.01. Id. at 460 ; see also Minn. R. Crim. P. 9.01, subd. 1 ("The prosecutor must, at the defense’s request ... allow access ... to all matters within the prosecutor’s possession or control that relate to the case, except as provided in Rule 9.01, subd. 3 ...."). The court observed that the warrant application alleged that the informant provided the police reliable information in past cases and had witnessed the criminal conduct while inside Dexter’s home, without describing the precise nature of the informant’s relationship with police or the manner in which the informant entered Dexter’s home.² Dexter , 929 N.W.2d at 461.

Accordingly, the court of appeals reversed and remanded to the district court to carefully "fashion the appropriate, limited order for disclosure." Id. The court also instructed the district court "to allow Dexter the opportunity to file a new motion to suppress, if he chooses to do so, after the state complies with the disclosure order." Id.

We granted the State’s petition for review.

ANALYSIS

The State makes three main arguments on appeal. First, it argues that the court of appeals erred when it concluded that the common law privilege to withhold the identity of an informant does not apply to disclosure of non-identifying information. Second, it claims that Dexter’s request to disclose non-identifying information was properly denied because it was based on mere speculation. Third, the State asserts that, even if individual items of non-identifying information are unprotected by the privilege, requiring disclosure of this information risks enabling a defendant to piece together the informant’s actual identity, thereby completely undermining the purpose of the privilege. We consider each argument in turn.

I.

The applicability of a privilege is a question of law that we review de novo. State v. Expose , 872 N.W.2d 252, 257 (Minn. 2015). Here, we must determine whether the State’s common law privilege to withhold the identity of an informant extends to withholding non-identifying information about the informant.

The State has a common law privilege³ that allows it "to withhold from disclosure the identity of persons who furnish information" to law enforcement officers. Roviaro v. United States , 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The purpose of the privilege is to protect "the public interest in effective law enforcement." Id. The privilege recognizes that, by preserving the anonymity of citizens who report crimes to police, these persons are encouraged to perform the duty of reporting. Id.

When defendants seek to discover the actual identity of an informant, the privilege applies, and they must "establish that such disclosure is necessary to complete [an] evidentiary attack on the supporting affidavit." State v. Luciow , 308 Minn. 6, 240 N.W.2d 833, 839 (1976). In those cases, we balance "the defendant’s right to prepare a defense and the public’s interest in effective law enforcement." State v. Rambahal , 751 N.W.2d 84, 90 (Minn. 2008).

Unlike our prior decisions on this privilege, however, Dexter seeks information other than the actual identity of the informant.⁴ This request therefore requires us to consider the scope of the privilege as it relates to non-identifying information.

The scope of the privilege is "limited by its underlying purpose." Roviaro , 353 U.S. at 60, 77 S.Ct. 623. That is, when "the disclosure of the contents of a...