The Qualified Privilege to Protect Sensitive Investigative Techniques from Disclosure.

Law enforcement officers use many different techniques in conducting criminal investigations. The public is familiar with the most common techniques. In certain investigations, however, the government may seek to protect information regarding particularly sensitive equipment, surveillance locations, listening posts, or investigative techniques (all hereinafter referred to as sensitive investigative techniques) from disclosure during suppression hearings or at trial. In such cases, the government may seek to assert a legal privilege to not disclose the sensitive investigative technique.

Courts addressing the issue of protecting sensitive investigative techniques from disclosure have generally recognized the existence of a qualified privilege. This article discusses the rationale behind the privilege in the context of various court decisions recognizing the privilege [1] and one that rejected it. [2] The article also addresses some practical considerations on how law enforcement can effectively use this privilege.

Privilege Recognized

Courts that recognize a sensitive investigative techniques privilege treat it as a qualified privilege based on the following rationales: 1) revealing the technique may endanger the lives of law enforcement officers; [3] 2) revealing the technique may endanger the lives of those who allow their property to be used for such activity; [4] 3) once a technique is revealed it will be of no value in future cases; [5] 4) disclosure of such information will educate criminals on how to employ such techniques themselves; [6] 5) law enforcement officers may have limited surveillance options in certain high-crime areas; [7] 6) law enforcement officers may be too well known in an area to conduct open surveillance; [8] 7) if the location of the surveillance post is revealed, citizens who previously allowed their property to be used for surveillance purposes may no longer consent to such use in the future; [9] 8) nondisclosure of surveillance posts avoids compromising ongoing surveillances; [10] and 9) the disclosure of su rveillance posts may encourage criminal offenders to relocate to an area that cannot be observed from the existing post. [11]

Courts facing the issue decide cases under existing rules of evidence relating to privileges. [12] Consequently, the requirements for asserting or opposing the application of the privilege vary between jurisdictions. The differing approaches taken by courts include: balancing the defense's need for disclosure against the government's need for confidentiality, [13] requiring that the government first demonstrate why the privilege should be recognized, [14] requiring that the defense demonstrate the necessity of obtaining the information, [15] and requiring that the defense show why the information is both necessary and material. [16]

Many courts recognizing the privilege analogize the protection of sensitive investigative techniques from disclosure to the privilege to protect the identity of confidential informants from disclosure. [17] Courts making this comparison cite the U.S. Supreme Court decision in Roviaro v. United States, [18] in which the Court concluded that the disclosure of the identity of an informant calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstance of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors. [19]

The applicability of the privilege is determined on a case-by-case basis and is, therefore, highly factual in nature. One of the earlier federal cases to recognize the privilege provides a good example of this. In United States v. Van Horn, [20] during the prosecution of a large marijuana conspiracy case, the government used information obtained via electronic interception of oral communications in an office. The defendants argued on appeal that the trial court erred in denying their request to discover the type of microphone used and where it was hidden. The U.S. Court of Appeals for the 11th Circuit recognized the privilege but stated that the "privilege will give way if the defendant can show need for the information." [21] The defendants argued that they needed the information to demonstrate that the voices on the tapes could have been distorted.

In rejecting the defendants' argument and finding that the defendants had failed to show the necessity for disclosure, the court of appeals noted that the trial court had conducted an in camera hearing regarding the matter, heard testimony that the voices on the tape could have been distorted by the way the microphone was hidden, and listened to the agent's actual voice and his voice on the tape to determine the accuracy of the recording. The defendants also were allowed to examine the tapes and were told that the transmission was by air and not wire. The defendants were allowed to argue the possibility of misidentification, and therefore, the jury had the opportunity to address the question of voice identification on the tape.

Courts recognizing the privilege have reached varying conclusions as to disclosure based not merely on the particular test used but also on the specific facts presented in the case. For example, applying the same test, the U.S. Court of Appeals for the District of Columbia Circuit recognized the government's position to not disclose a technique in one case while ordering the disclosure of a technique in another. In United States v. Harley,[22] the court addressed the issue of whether the privilege applied in revealing the location of a police surveillance post in a heroin distribution investigation. In Harley, an undercover detective drove to a house in an attempt to buy heroin. As the detective approached the house, the defendant came down the steps, walked up to the detective, and asked him what he wanted. The detective gave the defendant $50 for some heroin. The defendant went back to the house, went inside, came back to the detective, and gave him a small plastic bag containing white powder. Three law en forcement officers watched the transaction from a surveillance post. The officers at the surveillance post filmed the transaction with a zoom lens-equipped camera. The undercover detective returned to the station after the transaction. Investigators obtained a positive result from a field test on the white powder. Additionally, the detective identified the defendant from among the 10 to l2 photos shown to him of individuals known to frequent the area near the house.

During the cross-examination of the investigator who performed the field test, the defense asked the location of the apartment used for police surveillance. The trial court ruled that the location of the surveillance post did not have to be disclosed, stating that

A defendant seeking to learn the location of a police surveillance post should ordinarily show that he needs the evidence to conduct his defense and that there are no adequate alternative means of getting at the same point. The degree of the handicap he establishes must then be weighed by the trial judge against the policies underlying the privilege. This is necessarily a somewhat ad hoc balancing process so that, as Roviaro said, "no fixed rule with respect to disclosure is justifiable."[23]

In balancing the interests in this case, the court stated that the defense made no attempt to demonstrate either a need for the information or that alternative methods to obtain the information were unavailable. The court noted that even if the police no longer used the surveillance post, the safety of the owner of the apartment and the willingness of others to cooperate with law enforcement in the future were "weighty considerations supporting the privilege."[24]

The court found identification to be the only issue in question at trial. The detective who purchased the heroin from the defendant positively identified him. While the investigator who conducted the field test had never been in the apartment used as the surveillance post, he was familiar with the area. During cross-examination, the investigator testified that the surveillance post was between 20 and 30 yards from the courtyard where the transaction occurred and was approximately 10 to 12 feet above street level. The trial court sustained the government's objection to the defense's obtaining the exact location of the apartment. The Harley court stated that this testimony was sufficient information for the defense and did not require disclosure of the exact location.[25] The government's videotape of the transaction made from the surveillance post, while not essential to the privilege, also indisputably showed the officer's unobstructed view of the transaction.

In United States v. Foster, [26] the U.S. Court of Appeals for the District of Columbia Circuit considered whether the trial court properly sustained the prosecution's objections to cross-examination questions into the location of a police observation post. In Foster, an officer observed the defendant sitting in the front seat of a car in a parking lot. The officer watched the defendant leave the car after giving something to a person in the back seat. The officer then observed the defendant go over to a basketball court, obtain money from a person, count the money, and hand over a small white object. The defendant walked away, taking two plastic bags from his pocket, putting them into a paper bag, and dropping the bag over a chain-link fence. The defendant proceeded to pick up the bag again, go over to a building, and drop the bag near another fence. The officer radioed other officers who arrested the defendant. On cross-examination, the defense asked the officer the location of his observation post.

The government cited United States v. Green [27] and United States v. Harley [28] in support of its position that the location of the observation post should not be disclosed. The court stated that none "of the considerations mentioned in Harley in favor of the privilege is present in this case." [29] Unlike Harley, the Foster case turned exclusively on the testimony of the observing officer, prompting the court to note that "[t]he more important the witness to the government's case, the more important the defendant's right, derived from the Confrontation Clause of the Sixth Amendment, to cross-examine the witness." [30] Additionally, the defense in Foster challenged the officer's observations at trial. Fifteen people were in the vicinity of the transaction, and one of the responding officers initially arrested the wrong person. The court stated that [w]ithout knowing the location of the observation post, the defense could not effectively probe the officer's memory or veracity about these subjects. The right of the defense to engage in such lines of inquiry is at the heart of our system of criminal justice. The videotape in Harley preserved the right. No comparable substitute was available in this case. [31]

In concluding the discussion regarding this issue, the court likened the crucial nature of the officer's testimony in this case to the situation involving the informant in Roviaro v. United States, [32] who was the sole participant in the transaction with the defendant in that case and whose identity, the Supreme Court ruled, was essential to the defense.

Privilege Not Recognized

The only decision to date in which the privilege has been rejected is Weaver v. Commonwealth. [33] In Weaver, an informant made a purchase of $30 worth of cocaine from the defendant. Just prior to the purchase, a detective met with the informant, searched both him and his vehicle, placed a tape recorder on his person, and gave him $40 to buy the drugs. The informant met with the detective after the purchase and gave him the drugs, a statement, the tape recorder and $10. At the trial, the informant denied he had ever been involved in any other drug sting operations. The detective contradicted this testimony and stated that the informant had been involved in other drug investigations for which he had been paid approximately $500.

During the cross-examination of the defendant, the defense sought to obtain information regarding the type of recording device used even though the tape was inaudible. The defense argued that a thorough cross-examination regarding the tape recorder was essential to show that the recorder could have been manipulated by the informant. This would support the defendant's argument that the transaction never occurred and that the informant manufactured the case in order to receive $50 from the detective for informing.

The Kentucky Supreme Court refused to recognize the "police surveillance privilege" because under Kentucky law, recognition of the privilege would require an amendment to the Kentucky Rules of Evidence. [34]

Practical Considerations

In jurisdictions where the privilege has been recognized, a number of practical issues should be taken into consideration. Because the privilege is qualified and not absolute, the trial court has a great deal of discretion in determining the scope of the privilege. [35] In reviewing the decision of the trial court as to the extent of the privilege, appellate courts will examine whether the defense had adequate opportunity to cross-examine and confront witnesses on the particular issue in question. As illustrated by the Harvey case, for example, the defense still should be able to thoroughly cross-examine witnesses in surveillance-post cases regarding weather or other viewing obstructions without learning the actual location.

A trial court making the determination of whether the privilege applies may hold some form of in camera hearing regarding the defense's need for the information or an ex parte hearing on the government's need to protect the information. [36] An ex parte in camera review may even include a viewing of the sensitive investigative technique in question. [37]

After considering the applicability of the privilege, the trial court may reach a number of possible conclusions, including that the sensitive investigative technique must be fully disclosed, that some information regarding the technique must be disclosed and the defense can ask certain cross-examination questions regarding the technique, or that no information need be disclosed. If the court orders disclosure, the prosecutor should argue that the disclosure be made under a protective order limiting the persons with whom the defense may share the information and directing that all materials the prosecution provides to the defense during the case be returned at the end of the trial. [38] In the event that disclosure is ordered, the prosecutor may even consider the possibility of dismissing the case based upon the nature of the offense, the nature of the technique, and the harm that would result should the technique be disclosed. [39]

Conclusion

Law enforcement officers should ensure that they are familiar with the law in their jurisdictions and consider the following prior to using a sensitive investigative technique:

* any department policies that exist regarding the use of sensitive investigative techniques;

* any policies or positions of the prosecutor's office regarding the use of sensitive investigative techniques. The use of a sensitive investigative technique in a case should be coordinated in advance with the prosecutor;

* the likelihood that the sensitive investigative technique will be disclose;.

* informing citizens that may be affected by disclosure;

* if the sole or substantial evidence to be used in the prosecution comes from the use of a sensitive investigative technique, it is likely that the technique will have to be disclosed;

* if a sensitive investigative technique is used and the prosecutor decides to argue that it is privileged, officers should work closely with the prosecutor to more effectively articulate why the technique is sensitive;

* if the court allows limited cross examination regarding a sensitive investigative technique, officers should work closely with the prosecutor to understand the parameters of the court's orders;

* if the court orders that a sensitive investigative technique be disclosed, officers should work closely with the prosecutor, who may file a motion for a protective order or have to decide whether to proceed with the case.

Many courts have never addressed the issue of whether a privilege exists to protect sensitive investigative techniques from disclosure. Of the courts that have addressed the issue, all but one have determined that there is a qualified privilege to protect the information.

Ms. Walker serves as a legal instructor and attorney for the DEA at the FBI Academy.

Endnotes

(1.) See, e.g., United States v. Grier, 866 F.2d 908 (7th Cir. 1989); United States v. Cintolo, 818 F.2d 980 (1st Cir. 1987); United States v. Fernandez, 797 F.2d 943 (11th Cir. 1986); United States v. Gazie, 786 F.2d 1166 (6th Cir. 1986) (unpublished); United States v. Porter, 701 F.2d 1158 (6th Cir. 1983); United States v. Green, 670 F.2d 1148 (D.C. Cir. 1981); United States v. Chimurenga, 609 F. Supp. 1066 (S.D.N.Y. 1985); Hines v. Superior Ct., 203 Cal. App. 3d c1231 (1988); Anderson v. United States, 607 A.2d 490 (D.C. 1992); State v. Moss, 648 So. 2d 206 (Fla. Dist. Ct. App. 1994); People v. Criss, 689 N.E.2d 645 (III. App. Ct. 1998); Commonwealth v. Lugo, 548 N.E.2d 1263 (Mass. 1990); In the Matter of Chris C., 658 N.Y.S.2d 929 (1997); State v. Garcia. 618 A.2d 326 (N.J. 1993); Commonwealth v. Jennings, 630 A.2d 1257 (Pa. Super. Ct. 1993); Hollins v. Commonwealth, 450 S.E.2d 397 (Va. Ct. App. 1994).

(2.) Weaver v. Commonwealth, 955 S.W.2d 722 (Ky. 1997).

(3.) See, e.g., Hicks v. United States, 431 A.2d 18, 21 (D.C. 1981); People v. Criss, 689 N.E.2d 645, 649 (Ill. App. Ct. 1998); State v. Laws, 621 A.2d 526, 530 (N.J. Sup. Ct. App. Div. 1993); Commonwealth v. Jennings, 630 A.2d 1257, 1261 (Pa. Super. Ct. 1993).

(4.) See, e.g., Hicks v. United States, 431 A.2d 18, 21 (D.C. 1981); People v. Criss, 689 N.E.2d 645, 649 (Ill. App. Ct. 1998); Commonwealth v. Santiago, 631 A.2d 1323, 1327 (Pa. Super. Ct. 1993); Commonwealth v. Jennings, 630 A.2d 1257, 1261 (Pa. Super. Ct. 1993).

(5.) See, e.g., Hicks v. United States, 431 A.2d 18, 21 (D.C. 1981); People v. Criss, 689 N.E.2d 645, 649 (Ill. App. Ct. 1998); Commonwealth v. Santiago, 631 A.2d 1323, 1327 (Pa. Super. Ct. 1993).

(6.) See, e.g. United States v. Van Horn, 789 F.2d 1492, 1508 (11th Cir. 1986).

(7.) See, e.g., State v. Williams, 571 A.2d 1358, 1366 (N.J. Super. Ct. App. Div. 1990).

(8.) See, e.g., State v. Garcia, 618 A.2d 326, 330 (N.J. 1993).

(9.) See, e.g., United States v. Foster, 986 F.2d 541, 543 (D.C. Cir. 1993); People v. Criss, 689 N.E.2d 645, 649 (Ill. App. Ct. 1998); Commonwealth v. Santiago, 631 A.2d 1323, 1327-28 (Pa. Super. Ct. 1993).

(10.) See, e.g., State v. Laws, 621 A.2d 526, 530 (N.J. Sup. Ct. App. Div. 1993); State v. Garcia, 618 A.2d 326, 330 (N.J. 1993).

(11.) Id.

(12.) See, e.g., United States v. Cintolo, 818 F.2d 980, 1002 (1st Cir. 1987); United States v. Foster, 986 F.2d 541, 542 (D.C. Cir. 1993); Haider v. Director of Corrections, 992 F. Supp. 1192, 1196 (C.D. Cal. 1998); State v. Garcia, 618 A.2d 326, 328 (N.J. 1993); Commonwealth v. Jennings, 630 A.2d 1257, 1258 (Pa. Super. Ct. 1993). The constitutionality of the privilege to protect sensitive investigative techniques has yet to be addressed. Haider v. Director of Corrections, 992 F. Supp. 1192, 1196 (CD. Cal. 1998).

(13.) See, e.g., Haider v. Director of Corrections, 992 F. Supp. 1192, 1197 (C.D. Cal. 1998). See also Zana E. Holley, Annotation, Police Surveillance Privilege, 67 A.L.R. 5th 149 (1999) (provides an extensive list of cases using a balancing approach and an excellent, detailed discussion of cases specifically addressing the police surveillance privilege).

(14.) State v. Garcia, 618 A.2d 326, 332 (N.J. 1993).

(15.) See, e.g., United States v. Harley, 682 F.2d 1018, 1020 (D.C. Cir. 1982); State v. Moss, 648 So. 2d 206, 208 (Fla. Dist. Ct. App. 1994); People v. Criss, 689 N.E.2d 645, 649 (Ill. App. Ct. 1998); Commonwealth v. Rodriguez, 674 A.2d 225, 229 (Pa. 1996).

(16.) See. e.g., Commonwealth v. Grace, 681 N.E.2d 1265, 1267 (Mass. App. Ct. 1997).

(17.) See, e.g., United States v. Cintolo, 818 F.2d 980, 1002 n.13 (1st Cir. 1987); United States v. Foster, 986 F.2d 541, 543 (D.C. Cir. 1993); United States v. Green, 670 F.2d 1148, 1155 (D.C. Cir. 1981); Hicks v. United States, 431 A.2d 18, 21 (D.C. 1981); State v. Moss, 648 So.2d 206, 207-08 (Fla. Dist. Ct. App. 1994); Commonwealth v. Lugo, 548 N.E.2d 1263, 1268 (Mass. 1990); Commonwealth v. Rodriguez, 674 A.2d 225, 228 (Pa. 1996); Hollins v. Commonwealth, 450 S.E.2d 397, 399 (Va. Ct. App. 1994).

(18.) 353 U.S. 53 (1957).

(19.) Id. at 62.

(20.) 789 F.2d 1492 (11th Cir. 1986).

(21.) Id. at 1508.

(22.) 682 F.2d 1018 (D.C. Cir. 1982).

(23.) Id. at 1020.

(24.) Id.

(25.) Id. at 1021.

(26.) 986 F.2d 541 (D.C. Cir. 1993).

(27.) 670 F.2d 1148 (D.C. Cit. 1981).

(28.) 682 F.2d 1018 (D.C. Cir. 1982).

(29.) 986 F.2d 541, 543 (D.C. Cir. 1993).

(30.) Id.

(31.) Id. at 543-44.

(32.) 353 U.S. 53 (1957).

(33.) 955 S.W.2d 722 (Ky. 1997). In Weaver, the Kentucky Supreme Court overruled the Kentucky Court of Appeals' decision in Jett v. Com,nonwealth, 862 S.W.2d 908 (Ky. Ct. App. 1993), to the extent it recognized the existence of a "police surveillance privilege."

(34.) Even though the Kentucky Supreme Court refused to recognize the privilege, the court ruled that any error occurring in not disclosing evidence further identifying the type of recording device was harmless because the detective admitted that the informant could have tampered with the recorder to prevent it from producing an audible recording of the transaction and that this was the information the defense sought to prove.

(35.) People v. Criss, 689 N.E.2d 645, 649 (Ill. App. Ct. 1998).

(36.) See, e.g., United States v. Fernandez, 797 F.2d 943, 952 (11th Cit. 1986); Haider v. Director of Corrections, 992 F. Supp. 1192, 1195 (CD. Cal. 1998); State v. Garcia, 618 A.2d 326, 332 (N.J. 1993).

(37.) See, e.g., Commonwealth v. Logo, 548 N.E.2d 1263, 1265 (Mass. 1990).

(38.) See, e.g., United States v. Jenkins, 530 F. Supp. 8 (D.C. Cir. 1981) (the court ordered the government to identify a surveillance location to the defendant's attorney, subject to the condition that counsel could not disclose the location to anyone, including his client, absent a court order).

(39.) See, e.g., State v. Williams, 571 A.2d 1358, 1366 n.3 (N.J. Super. Ct. App. Div. 1990).