Tuesday, April 14, 2009
C.A. Protects Police Surveillance Location From Disclosure
By KENNETH OFGANG, Staff Writer
A police officer who witnessed a drug transaction while conducting surveillance was properly allowed to testify at trial without disclosing the location from which he was observing, the First District Court of Appeal ruled yesterday.
Div. Four affirmed Marcel Lewis’ conviction on charges of selling rock cocaine, rejecting his contention that the trial judge should have stricken the officer’s testimony or made a finding adverse to the prosecution.
The officer, identified in the opinion only as “San Francisco police officer Bryant,” testified that he located in a nearby building, using “pretty powerful” binoculars to watch the area where Market St. intersects with Sixth and Taylor streets. He testified that he saw a man later identified as Lewis at the corner of Market and Taylor, about 50 to 100 feet from the officer’s location.
He said he saw the defendant give a woman something and saw her give him some money. He notified other officers by radio and continued to observe as they drove up to the woman, who dropped an object that turned out to be a small rock of cocaine.
Bryant notified other officers, he testified, as to the movements of Lewis, who ran as the officers approached him. Lewis was arrested and searched, leading to the discovery of rock cocaine in an amount, 2.25 grams, that an expert testified was likely possessed for sale under the circumstances.
The defense contended that the amount of cocaine found on Bryant could have been possessed for personal use, and that the fact he did not have much money on him when arrested showed that he was not dealing the drug. The prosecution responded that there was a period of about two minutes during which Bryant was out of sight of the police and could have disposed of cash.
Jurors found him guilty of possessing rock cocaine for sale and of sale of the drug. After admitting a prior conviction, he was sentenced to seven years in prison.
On appeal, the defense argued that San Francisco Superior Court Judge Charles Haines erred in allowing Bryant to refuse to disclose his specific surveillance location, pursuant to the government information privilege.
But Presiding Justice Ignacio Ruvolo, writing for the Court of Appeal, said the trial judge was correct.
The jurist explained that under Evidence Code Sec. 1040, there is a privilege not to disclose nonpublic information acquired in confidence by a government employee, if disclosure would be “against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure.”
In order to protect the due process rights of the defendant, however, Sec. 1042 provides that when the trial judge allows the prosecution to invoke the privilege the court “shall make such order or finding of fact adverse to the [prosecution] as is required by law upon any issue in the proceeding to which the privileged information is material.”
In Lewis’ case, the presiding justice said, the officer’s surveillance location was not material.
The cases on whether a surveillance location is material, Ruvolo wrote, “are not entirely consistent.” But the standard that emerges from the cases, he wrote, does not favor Lewis’ position.
“That standard is as follows: the location from which the surveillance was performed is not material, for the purpose of section 1042’s adverse finding requirement, if the accuracy of the testifying officer’s testimony about the surveillance observations is unquestioned, or at least is sufficiently corroborated by independent evidence such that there is no realistic possibility that disclosing the surveillance location would create a reasonable doubt in the minds of a reasonable jury about the officer’s veracity.”
Counsel for Lewis, the jurist said, did not need to know Bryant’s location in order to cross-examine him about the distance and angle from which he made his observations and “to determine whether any of the potential surveillance locations—i.e., those meeting the officer’s description in terms of distance and angle—are in fact subject to obstructions making it difficult or impossible to obtain a clear view of the defendant’s position at the time of the events described in the officer’s testimony.”
Ruvolo also noted that Bryant’s testimony was corroborated by the officers who arrested Lewis and his customer, further rendering the surveillance location immaterial.
The case is People v. Lewis, A120636.
Copyright 2009, Metropolitan News Company