Rugendorf v. United States/Dissent Douglas

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN and Mr. Justice GOLDBERG concur, dissenting.

Just prior to the presentation by the prosecution of its first witness at the trial, counsel for petitioner requested the name or names of the informers mentioned in the search warrant:

'Mr. Echeles: Roviaro v. United States (353 U.S. 53, 77 S.Ct.     623, 1 L.Ed.2d 639), which is cited by our Seventh Circuit as      authority for this proposition, states that if the      informants, if the names of the informants are necessary to a      proper defense or a proper presentation of the defendant's      case in attacking the search warrant, then in the interest of      justice it must be given to the defendant. The government has     no reason not to give it, said Roviaro, and that is the      controlling law.

'Let me demonstrate how in our opinion the names of the     informants are necessary.'

Counsel then went on to argue why disclosure of one informant's name was essential to his motion to suppress. Then he shifted to another attack stating:

'I would suggest that not only is this informant necessary to     the defendant because if he takes the stand it will      demonstrate that Sam Rugendorf had nothing to do with it, or      possibly his falsity, but I would suggest that perhaps he      would be a pretty good witness for the Government, that they      ought not to want to hide the witness, that he would pretty      much make out a case for the Government. (Italics added.)

'In any event, your Honor, I rely upon United States v.     Pearce, 275 F.2d, our Circuit. I rely upon Roviaro v. United     States, 353 U.S. 53, (77 S.Ct. 623, 1 L.Ed.2d 639). And I     rely upon Giordenello v. United States, 357 U.S. 480, (78      S.Ct. 1245, 2 L.Ed.2d 1503), as being the proper procedure      that I am trying to get here, your Honor.'

It is impossible to say that this motion related wholly to quash the search warrant. It is true that Pearce and Giordenello involved such motions. But Roviaro did not. Rather it presented the same issue this case presents, viz., whether the 'informer's privilege,' 353 U.S., at 59, 77 S.Ct., at 627, 1 L.Ed.2d 639, must give way in the interests of the defense of the accused.

The prosecutor objected, saying 'that if the Government is to reveal the name of any informants they might be and probably would be killed.'

The trial judge denied the motion and the trial started. During the trial the request was repeated, counsel for petitioner saying 'I need that information to defend my defendant, your Honor.' Whatever defect, if any, may have been present in his first motion did not appear this time. For now he was plainly addressing himself to the trial on the merits. Once again his request was denied.

It is obvious that these requests were made not only to challenge the sufficiency of the affidavit as a basis of the search warrant, but also for use on the issue of guilt or innocence-viz., knowing possession of stolen goods. The issue was considered by the Court of Appeals, 316 F.2d 589, 592; and we should do the same.

Petitioner and his wife were in Florida on vacation between February 17 and March 4, 1962. Before they left Chicago petitioner's brother Leo-an admitted 'fence' for stolen goods-came to his house to see him:

'Leo asked who was going to look after the mail, clean the     sidewalks and everything else and he told Leo that his son      Jerry would do it. Leo said that Jerry had to open the store     every morning and stated that he got down a little later      every day and so why not let him watch the house and bring in      the mail. Accordingly, he gave his brother the keys.

'From that day, on February 17, 1962, until this day (the     time of the trial) he had not seen or talked to his brother      Leo; nor had Leo returned the k y.'

Leo, the brother, had one key to the house during petitioner's absence. His sister, his son, and a neighbor also had keys. Since one of these was a known criminal, and since the informant had personally been in the basement of petitioner's home, the pertinency of the inquiry as to the informant's name becomes obvious.

Speaking of the 'informer's privilege,' we said in Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639: '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 lawenforcement officials and, by preserving their anonymity, encourages them to perform that obligation.'

But there are times when the privilege must give way. In Roviaro, we put one of those exceptions in these words: 'Where 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. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.' Id., 353 U.S. at 60-61, 77 S.Ct. at 628, 1 L.Ed.2d 639.

It is difficult to imagine a clearer case than the present one for application of that exception.

The Solicitor General seeks to avoid that conclusion by saying that even though the informant might disclose who stole the furs and how they reached the defendant's basement, 'this would not necessarily have cast light upon the issue of petitioner's knowledge.' The Solicitor General also argues that it is highly conjectural that identification of the person who admitted the informant to the basement would materially illuminate the question of petitioner's knowledge. We have, however, a case where the only proof implicating defendant was discovery of the stolen furs in his basement. Four keys to the house were in the hands of outsiders, one of whom had a criminal record for trafficking in stolen goods; the stolen furs may have reached defendant's basement during his absence and remained there without his knowledge. His only defense would be proof that someone without his knowledge put them there. Who that person was, when he placed the furs in the basement, what his motivations were in placing the furs there, what his relations with the defendant were, what connections he had with the stolen articles-these questions go to the very heart of the defense. Roviaro would, therefore, require in the exercise of sound discretion disclosure of the informant. Unless we allow that amount of leeway, we can only rest uneasy in the thought that we are helping send an innocent man to prison.

The Court does not face up to this crucial issue because, with due respect, it takes a Baron Parke approach when examining the record, the motions made, and the exceptions taken; and it concludes that the proper talismanic words were not used when the request for the informant's name was made. But that attitude belongs to an ancient regime, not to the one we administer under Rule 52(b) of the Federal Rules of Criminal procedure (see Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798), which provides: 'Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.' Our Rule 40(1)(d)(2) is to the same effect. Enough has been said to show that the issue was squarely raised in the trial court and squarely passed upon by the Court of Appeals. But if it is assumed arguendo that the point was not squarely raised, few clearer cases for applying Rule 52(b) have appeared, at least in recent years.