State of Connecticut v. Rafael Senhouse (2011)

MEMORANDUM OF DECISION.

The defendant, Rafael Senhouse, moves this court to enter an order requiring the State of Connecticut to disclose the name and address of the “credible concerned citizen” referred to in the affidavit for the search and seizure warrant issued for 85 Tremont St., First floor, Meriden, Connecticut.   A hearing on the motion was presented before the court on June 22, 2011.

The defendant contends that the disclosure of the identity of the “credible concerned citizen” is necessary so that individual can be interviewed by the defendant's counsel.   The defendant did not present any evidence or case law to support his proposition.

The state argues that it is under no obligation to disclose the identity of the concerned citizen as he was not a witness to the conduct to which the defendant is charged, nor was he a participant.   Further, the state claims the privilege to withhold said information in the furtherance of the protection of the public interest.

Facts

In the search warrant affidavit, paragraph 3, the affiant states that certain information was received from a credible concerned citizen during the months of September and October of 2010 concerning activities surrounding a business known as “Square Biz Entertainment” located at 85 Tremont St., first floor, in Meriden.   Based on that information the members of the Meriden Police–Crime Suppression Unit, on October 6, 2010, went to the building for observation and surveillance purposes.   In the search and seizure affidavit the affiant states that on that date he was able to observe small pieces of a green plant substance known as marijuana at the rear door of the Square Biz Entertainment business, that he detected a strong odor of fresh marijuana while standing at the front door of the business, that he observed that the outside windows of the business were covered with black plastic and he observed hoses used to water plants and detected the operation of air conditioners and dehumidifiers commonly used by those growing marijuana inside a building.   Based on the affiant's observations, and other information, the Meriden Police–Crime Suppression Unit applied for a search warrant of the premises known as Square Biz Entertainment located at 85 Tremont St., first floor, Meriden.

Subsequently, the search and seizure warrant was executed and the Meriden police seized quantities of marijuana and growing paraphernalia and the defendant was charged with multiple criminal offenses related thereto.

Discussion

As a matter of law the privilege not to disclose an informant's identity must yield when it would interfere with the defendant's right to trial.  Roviaro v. United States, 353 U.S. 53, 77 S.CT. 623 (1957).   Whether disclosure is warranted depends on the particular circumstances of each case.  State v. West, 178 Conn. 444, 445, 423 A.2d 117 (1979).   A defendant must demonstrate that the informant would be a desirable witness to the defense and cannot rely on merely surmise or a bare allegation to that effect.  State v. Harris, 154 Conn. at 529.   Further, where an informer was neither a participant in the case, nor a witness to the crime, disclosure of the informer's identity is not required.  State v. Conger, 183 Conn. 386, 392–93, 439 A.2d 381 (1981).   Further, the court must consider whether the case involves federal evidentiary rules or whether it rests on constitutional grounds.  State v. Richardson, 204 Conn. 654, 658, 529 A.2d 1236 (1987).

In Richardson, where the informant was not a participant in the crime, the court held that the disclosure of an informant's identity is not constitutionally required, even if the information obtained was the sole basis for probable cause.

In the case at hand the state invokes the privilege and the burden is shifted on the defendant to show that the balance falls in favor of disclosure.   State v. Jackson, 239 Conn. 629, 687 A.2d 485 (1997).   This burden can be met by showing that disclosure is “essential to the defense.”   In the case at hand the defendant has failed to present this court with any evidence or argument supporting any showing of essential need.

In addition, the defendant argues that since the information was obtained by the police from a “credible concerned citizen” as opposed to an informant, the identity should be disclosed.   The defendant offers no legal basis for this court to conclude that the defendant's burden would be lessened by that distinction.   This court recognizes that the purpose of the State's privilege not to disclose such identities is to protect the public interest in law enforcement by encouraging its citizens to communicate their knowledge of crimes to the proper authorities and that this privilege belongs to the state's attorney and not to the informant or the accused.  State v. Harris, supra at 597.

For the foregoing reasons the defendant's motion for disclosure of identity of credible concerned citizen dated April 13, 2011 is hereby denied.

Markle, J.

Markle, Denise D., J.