Opinion
No. 70-407
Decided July 21, 1971.
Criminal law — Evidence — Witnesses — Identity of informer — Must be disclosed, when — Where essential to fair trial — R.C. 3719.20 — Narcotic drugs — Conspiracy — Appeal — Errors not raised in Court of Appeals not considered.
Where an informer, acting on behalf of the police, purchases narcotics with marked money, some of which is later found in the possession of an accused, and the informer does not present the narcotics purchased to police, and there is no evidence that appellant was present at the time of sale, and the testimony of the informer is relevant, helpful, and beneficial to the accused in making a defense to, or is essential to a fair trial on, a charge of possession of narcotics for sale in violation of R.C. 3719.20(A), the privilege to withhold the disclosure of the informer's identity is inapplicable and the identity of the informer must be disclosed or the defendant discharged as to such charge.
APPEAL from the Court of Appeals for Montgomery County.
Sometime before October 4, 1967, pursuant to information received from an informer that a man named "Reno" or "Michigan Man," and one Charles "Little Bill" Evans were involved in selling narcotics at the Stewarty Motel on Germantown Pike, in Montgomery County, outside the corporate limits of the city of Dayton, the Dayton police began an investigation.
The services of an informer, who was a known narcotics addict, were enlisted. The informer was a person who had been arrested and was waiting disposition of his case. However, Sergeant Spencer of the Dayton police stated that the informer was promised no assistance in the other matter in return for his services as an informer.
On the afternoon of October 4, 1967, the informer was furnished twenty dollars in marked money, and the police officers and the informer proceeded to a meeting spot west of the Stewarty Motel. The informer left the rendezvous point and drove to the motel. When the informer returned, he did not bring any narcotics, but he did return five dollars of the twenty dollars marked money.
Detective Walley, testifying on cross-examination, stated that that afternoon the informer went into the motel and made a "buy," but for some reason was required "to shoot the narcotic up in the room with a co-defendant in this case, William Evans and several other subjects."
Later that night, at about 9:00 p. m., after being furnished with more marked money, the informer again drove to the motel for the purpose of purchasing narcotics. A number of police officers took positions for surveillance outside the motel so that they could see down a hallway. The police officers observed the informer entering room 111, from which a man identified as Evans later emerged. They observed Evans going to rooms 110 and 110A, returning to room 111 a short time later. The informer then returned to the police officers with a capsule purchased inside. Sergeant Spencer testified at the hearing on the motion to suppress certain evidence that this purchase was made from one Patty Amos. A field test was performed on the capsule, from which a determination was made that the substance was an opium derivative.
After the field test, and without first obtaining either arrest or search warrants, the police then entered the motel, and upon entering, observed Evans coming out of room 106. Evans, seeing the police, threw certain objects that he was carrying back into room 106. These objects, which were paraphenalia used in taking narcotics, were recovered by police and were admitted in evidence at trial.
After arresting Evans, the police took him to room 110. Hearing another person in room 110, they broke down the door. Patty Amos was found in 110, and both that room and 110A were searched by the police. The search uncovered 56 capsules of heroin which had been concealed under a mattress.
Clothing and personal papers identified as belonging to Louis Phillips, appellant herein, were also found in 110 and 110A.
About 12:30 a. m. on October 5, 1967, appellant, Louis Phillips, arrived at the motel and was arrested as he was entering room 106, and then taken to room 110. At that time, room 110A was again searched. This search enabled the officers to find "a quantity of white powder, white crystals, some dolophine tablets and other narcotic cutting instruments — screens and spoons, sifting and measuring devices, capsules and so forth * * *." Phillips had in his possession five dollars of the money marked by the police, which they had given to the informer the afternoon of October 4. At no time were narcotics found on the person of or in the automobile belonging to Phillips.
Appellant was charged by indictment with the unlawful possession of narcotics, the unlawful possession of narcotics for sale, and conspiracy to possess narcotics. Pleading not guilty, appellant was tried, together with Patty Amos, before a jury on February 20, 1968. Before trial, appellant moved to require the state to disclose the identity of the informer, to suppress evidence seized by the warrantless search of the motel room, to dismiss the case against codefendant Patty Amos for lack of jurisdiction in that she was under the age of 18, and for a dismissal of the charges against Phillips. Those motions were overruled. At the trial, defense counsel was again unsuccessful in his attempt to compel the state to reveal the identity of the informer. During trial, defense counsel moved that the case against Patty Amos be dismissed, offering a Michigan birth certificate as proof of her age of 17. The motion was overruled, but was granted at the close of the state's case, and her case was dismissed.
Appellant was convinted on all three counts of the indictment. Upon appeal, the Court of Appeals reversed as to the first count (unlawful possession of narcotics), holding that it was a lesser included offense in the offense of possession for sale. The state did not take exception to this by cross-appeal. The convictions on the remaining two counts were affirmed. The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Lee C. Falke, prosecuting attorney, Mr. James T. Burroughs and Mr. Paul R. Leonard, for appellee.
Messrs. Rion, Rion Rion and Mr. Paul W. Rion, for appellant.
In the Court of Appeals, the appellant raised this assignment of error: "The court sustained the state's objection to questions put to the state's witnesses on cross-examination as to the identity of their informer." The Court of Appeals held that the facts of this case do not require such a disclosure. We reverse.
In our decision in State v. Roe (1971), 26 Ohio St.2d 243, Justice Corrigan discussed the value of, and the reasons for the legal genesis of the qualified privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Scher v. United States (1938), 305 U.S. 251, 254; In re Quarles (1894), 158 U.S. 532; Vogel v. Gruaz (1884), 110 U.S. 311, 318.
Roviaro v. United States (1957), 353 U.S. 53, 60, cited in our recent decision in State v. Roe, supra, well communicates the delicate balancing of our societal interest in the apprehension of criminals with the fundamental fairness that must be extended to those charged with crimes. That balance is so fine that a determination must come only after a thorough analysis of the facts of each case. Appreciating the fact that the holding in Roviaro was a reversal of a conviction under a federal statute, rather than a constitutional decision dictating the course of state law, and therefore not binding on this court, the grasp of the problem and the legal solution in Roviaro are persuasive.
This court has pronounced a similar rule. It has been held that the state has the privilege to withhold the identity of an informer, unless the disclosure would be helpful and beneficial to the accused in making a defense to a criminal charge lodged against him. State v. Beck (1963), 175 Ohio St. 73 (reversed on other grounds, 379 U.S. 89). Language somewhat similar is used in Roviaro, supra, where it is stated, at page 60: "Where the disclosure of an informer's identity * * * 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."
It is interesting to note the standards used in Roviaro when evaluating the need for disclosure of an informer's identity as a defensive necessity. At page 62 therein the opinion states:
"Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors."
Further at page 63, in discussing the import of the informer's potential value to the trial, the court said, "The circumstances of this case demonstrate that John Doe's possible testimony was highly relevant and might have been helpful to the defense."
In the case at bar, after the decision of the Court of Appeals, Phillips remains convicted of the unlawful possession of narcotics for sale, and conspiring to possess narcotics.
Two of the steps in the ladder of circumstances which can reasonably be said to provide the jury with the inference that appellant was in possession of narcotics for sale, is the evidence of the two "buys" of narcotics by the informer. There is no specific evidence identifying any person from whom the informer purchased drugs on the afternoon of October 4, 1967. Pertaining to the afternoon sale, the trier of the facts knew only that the informer entered the motel, returned to the police officers, stated that he had been required to "shoot" the narcotics in the motel, and that appellant had in his possession five dollars of the marked money with which the purchase was consummated. Appellant was connected with this particular sale of narcotics only through the activity of the informer. The presence of other facts in evidence from which inferences could be drawn, such as that appellant was involved in possession of narcotics for sale, does not lessen the impact of the evidence of the afternoon sale.
However, a key part of the state's case against appellant hinged upon his possession of "marked" money which the informer allegedly used for the purchase of narcotics. That being the case, the examination of the informer would be relevant, and could well have been extremely helpful to Phillips.
In this case, the informer was the sole witness to the claimed sales of narcotics. He had the knowledge which might have been helpful to Phillips, who was not shown by the evidence to have been present at either sale.
In State v. Beck, supra ( 175 Ohio St. 73), Judge Zimmerman, in distinguishing Roviaro v. United States, supra ( 353 U.S. 53, 77), used this language: "This case is distinguishable from that of Roviaro v. United States, 353 U.S. 53, 1 L.Ed. (2d) 639, 77 S.Ct., 623, where the informer not only gave information but took an active part personally in trapping and apprehending the offender." (Emphasis added.) A similar basis of distinction of the instant case from Beck exists. Unlike the Beck fact pattern, in this case the informer personally took an active part in the transaction which led to appellant's apprehension. Moreover, appellant presented an active defense.
In State v. Beck, 175 Ohio St. 73, information was given police by an informer that defendant would be in a certain locality at a certain time pursuing his unlawful activities.
Although the appellant, Phillips, did not testify at trial, Anna Williams, an employee of the Stewarty Motel, testified for the defense that to her knowledge Phillips had never lived in room 110 and 110A. She also stated that on October 4, 1967, four girls were living in those rooms.
Knowledge of the transactions, in which the informer personally participated, is relevant to providing appellant with a fair determination of his guilt or innocence. The disclosure of his identity is necessary to accomplish this purpose.
In the Court of Appeals, appellant claimed error when the trial court did not dismiss Patty Amos as a codefendant. She was dismissed, however, at the conclusion of the state's case for the reason that she was 17 years of age. Even if error, and we make no such finding, we find no prejudice to Phillips. She did not testify, although she was present in the courtroom, which fact does not indicate prejudice to appellant.
In the Court of Appeals, as in this court, appellant submitted that the trial court erred in failing to sustain his motion to suppress evidence claimed to have been found as a result of an illegal search and seizure.
Were the mandates of Chimel v. California (1969), 395 U.S. 752, retroactive? We would have no difficulty in determining that the search and seizure here were unlawful in that the scope of the search was overbroad as incident to the arrests. But Chimel has been held to be only applicable prospectively ( Williams v. United States, 39 L.W. 4365). Consequently, we must examine these facts in the light of an earlier established constitutional standards. The United States Supreme Court has held that the facts of each case must be examined in determining the reasonableness of the search and seizure. United States v. Rabinowitz (1950), 339 U.S. 56; Harris v. United States (1947), 331 U.S. 145. Vital, however, to the legality of a warrantless search incident to an arrest is the validity of the arrest ( Rabinowitz, supra, at 64), and the proximity of the area searched to the place where the arrest was made. See, also, James v. Louisiana (1965), 382 U.S. 36.
The evidence used against appellant was the fruit of a search conducted incident to the earlier arrests of Charles Evans and Patty Amos. We cannot hold that these arrests were not based on "probable cause" and consequently unlawful. See State v. Beck (1964), 379 U.S. 89. The informer's actual purchases of narcotics, the first in the afternoon, and the second that night, together with the observation of the informer and the known presence of Evans in room 110, were sufficient to validate warrantless arrests of Evans and Amos.
Pursuant to a lawful arrest, police officers may make a warrantless search of the place of the arrest, if such place is under the control of the accused. United States v. Rabinowitz, supra, at 61; Preston v. United States (1964), 376 U.S. 364, 367. Furthermore, because the search was conducted for the purpose of uncovering evidence to be later used against the appellant, this does not make the search illegal. Warden v. Hayden (1967), 387 U.S. 294; United States v. Rabinowitz, supra, at 61.
In the instant case, the search conducted was of the premises where Patty Amos was arrested. We cannot hold that a search of these motel rooms, conducted incident to an arrest based on probable cause that narcotics were being sold and possessed, is unreasonable.
Appellant submits that, after he was arrested in room 106, the officers' further searching of rooms 110 and 110A was a second and illegal search. Under the then existing constitutional standards concerning search and seizure, we have not discovered a rule, nor does defendant eention a rule, which requires a search to be completed in any particular time span. If the officers had not completed the search, which it appears they had not, appellant's arrest could not operate to require an otherwise lawful search to be discontinued.
Both in the trial court and the Court of Appeals appellant steadfastly maintained that the evidence discovered as a result of the search by the police officers was the fruit of an illegal search and seizure. In neither court did he specifically raise the constitutional issue that the arrests at the motel, which is not in the city of Dayton, were unlawful in that they were conducted by officers of the city of Dayton. He urges this court on review to decide whether the arrests, and subsequent search and seizures, were legal under those circumstances.
"It is an established rule of long standing in this state that a constitutional question, either in a civil or criminal action, can not be raised in the Supreme Court unless it was presented and urged in the courts below. Hoffman v. Staley, 92 Ohio St. 505, 112 N.E. 1084; Cuthbertson v. State, 106 Ohio St. 658, 140 N.E. 941; Zimmerman v. Morris Plan Bank of Cleveland, 113 Ohio St. 703, 150 N.E. 920; and Village of Clairington v. Althar, 122 Ohio St. 608, 174 N.E. 251." State, ex rel. King, v. Shannon (1960), 170 Ohio St. 393, 394.
Also not raised in the Court of Appeals, but raised in this court, are the following nonconstitutional issues: (1) Error for the trial court to have charged the jury on R.C. 1.17, the aider and abettor statute; (2) error in the peosecutor's closing argument; and (3) error in permitting the state to amend the indictment from its original for,, charging "possession and control," to charge "possession or control."
In State, ex rel. Babcock, v. Perkins (1956), 165 Ohio St. 185, the court held, in paragraph three of the syllabus:
"Where an appeal on questions of law is taken to the Supreme Court from the Court of Appeals, which latter court had jurisdiction of the subject matter of and the parties to the action, the Supreme Court will not consider or determine claimed errors which were not raised and preserved in the Court of Appeals."
No rule of law requires this court to review issues not assigned as error or reviewed by the Court of Appeals.
We therefore find no reason why appellant's conviction under the conspiracy to possess narcotics charge (R.C. 3719.20(H)) should not be allowed to stand. The factors which we have held compel the prosecution to reveal the identity of the informer (for purposes of aiding appellant in his defense of the possession for sale charge) are inapplicable with regard to this offense.
The judgment of the Court of Appeals, so far as it affirmed the conviction of possession of narcotics for sale, is reversed, and the cause is remanded. As to that part of the judgment of the Court of Appeals affirming the conviction for conspiring to possess narcotics, the judgment of the Court of Appeals is affirmed.
Judgment affirmed in part and reversed in part.
O'NEILL, C.J., SCHNEIDER, HERBERT, CORRIGAN, STERN and LEACH, JJ., concur.