United States District Court, D. South Dakota, Southern Division
ORDER ON DEFENDANT’S MOTION FOR DISCOVERY DOCKET NO. 76
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE
Defendant Todd Allen Johnson is before the court on a superseding indictment charging him with possession of 50 grams or more of methamphetamine between April 30, 2014, and May 1, 2014, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(viii). See Docket No. 33. Mr. Johnson now moves the court to require the United States of America (government) to reveal the identity of the source of information (SOI) referenced in paragraphs 1 and 2 of the Affidavit in support of Search Warrant prepared by Detective Dan Christenson. See Docket No. 47-1. The government resists the motion. See Docket No. 77. This matter was referred to this magistrate judge for decision pursuant to the October 16, 2014 standing order of the Honorable Karen E. Schreier, district judge, and 28 U.S.C. § 636(b)(1)(A).
Previously in this case, Mr. Johnson filed a motion to suppress certain evidence gained by police through a seizure and search of his trash and a subsequent search warrant that was executed at his home, on his two vehicles, and on his person. At the evidentiary hearing on the motion to suppress, the affidavit in support of the search warrant was introduced into evidence. See Exhibit 5 from the suppression hearing.
The first two paragraphs of the affidavit in support of the search warrant were as follows:
1. On 4-3-14, I conducted a post-Miranda Interview with a source of Information (SOI) who wished to provide Information against their own penal interest. They will be referred to as SOI 1 for the remainder of this affidavit. SOI 1 stated that their source for methamphetamine is a black male named Todd who is approximately 48 years old. SOI 1 described Todd as being approximately 6'00 tall, 215 pounds, with a goatee and glasses. SOI 1 stated they have met Todd several times and have purchased several ounces of meth from him In 1/8 ounce and 1/4 ounce quantities over the past 6 weeks. SOI 1 stated that Todd is a “big meth dealer" for Sioux Falls. SOI 1 stated Todd has shown them 12-15 ounces of meth at a time. SOI 1 stated they purchased ¼ ounce of meth from Todd three days ago. SOI 1 always meets Todd somewhere in Sioux Falls, and Todd usually shows up in a maroon Cadillac. SOI 1 has also seen Todd in an older blue Chevy car. SOI 1 showed me Todd's number In SOI 1's phone, which was listed as “Todd" with a phone number 605-[XXX-XXXX].
2. I conducted a search of the phone number SOI 1 provided for Todd on the internet. I found that it belonged to Todd Allen. Johnson DOB [X-XX-XXX] with a recent address near Colome, SD. I ran a driver's license check on Johnson and obtained a photograph of him. Johnson is a black male who is 5'10, 210 pounds, with a goatee and glasses.
See Docket No. 47-1 at p. 2.
Mr. Johnson believes he may know the identity of SOI 1 named in the above passage from the affidavit. If he is correct, he believes he has evidence which will show that SOI 1 was not truthful in their discussion with Detective Christensen and that SOI 1 had a motive to fabricate evidence against Mr. Johnson. The government asserts that it does not intend to provide the names of any persons (presumably the government means unidentified informers) unless the government will call that person as a witness at trial. Notably, the government does not represent that SOI 1 will not be a witness at trial, which of course leaves open the possibility that SOI 1 will be a witness at trial.
In Roviaro v. United States, 353 U.S. 53 (1957), the Supreme Court recognized the "informer's privilege, " that is, the government's privilege "to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." Id. at 59. The Supreme Court provided the following rationale for the privilege:
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 law-enforcement officials and, by ...