MELCHOR DE LOS SANTOS, PETITIONER V. UNITED STATES OF AMERICA No. 87-5167 In the Supreme Court of the United States October Term, 1987 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit Brief for the United States in Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A13) is reported at 810 F.2d 1326. The opinion of the court of appeals on rehearing (Pet. App. A14-A18) is reported at 819 F.2d 94. JURISDICTION The judgment of the court of appeals was filed on February 13, 1987. A petition for rehearing was denied on May 28, 1987, and a suggestion for rehearing en banc was denied on June 10, 1987 (Pet. App. B). The petition for a writ of certiorari was filed on July 24, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's Sixth Amendment rights to confrontation and a public trial were violated when the district court denied his motion to suppress based in part upon information relating to a confidential informant that was disclosed at an in camera proceeding from which petitioner and his counsel were excluded. STATEMENT 1. An indictment filed in the United States District Court for the Western District of Texas charged petitioner with possession of more than 100 grams of heroin with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). Following the denial of his motions to suppress the heroin and to disclose the identity of an informant, petitioner entered a plea of guilty, preserving his right to appeal the rulings on his motions. He was sentenced to 17 years' imprisonment. The court of appeals affirmed (Pet. App. A1-A13, A14-A18). The evidence adduced at the hearing on petitioner's motions is summarized in the first opinion of the court of appeals. It showed that on the evening of October 28, 1985, Drug Enforcement Administration agent Albert Castro saw petitioner drive to the area of Malone and South Flores Streets in San Antonio, Texas. Later that evening, a confidential informant told Agent Castro that on the following morning petitioner would return to the area of Malone and South Flores to pick up a quantity of heroin. Other individuals had previously advised the DEA that petitioner, who had a prior conviction for trafficking in heroin, was once again involved in heroin distribution. Pet. App. A3-A4; Dec. 2, 1985, Tr. 8-13, 33-34. On the morning of October 29 Castro and a surveillance team assembled in the Malone-South Florea area. They saw petitioner arrive at 302 West Malone Street, park his car at the rear of that address, enter the residence, remain for two to four minutes, and then drive off. Several members of the surveillance team followed petitioner's car while others, including Castro, entered the residence and searched it with the consent of the occupant. No drugs were found there. Castro then made radio contact with the officers who were following petitioner and directed them to stop petitioner's car. When the officers stopped the car, one of them saw a brown paper sack protruding from underneath the front seat. The officer removed the sack, opened it, and found 15 ounces of heroin inside. Pet. App. A4; Dec. 2, 1985, Tr. 13-17, 25-28. 2. In the course of the suppression hearing Agent Castro testified that he had known the informant for 10 or 11 years; that the informant had provided reliable information in the past leading to the seizure of drugs; and that the informant was continuing to work on cases for the DEA. When defense counsel persisted in his demand that the informant's identity be made known, the government asked the court to hear additional information regarding the informant in camera. Defense counsel did not object to that procedure and did not ask to attend the in camera portion of the hearing. Pet. App. A4-A5; Dec. 2, 1985, Tr. 11-12, 44-46. A brief in camera proceeding was then held, during which only the trial judge, the prosecutor, and Agent Castro were present. The prosecutor elicited additional facts that could not be disclosed in open court because they would have revealed the informant's identity. Dec. 2, 1985, Tr. 48-53 (sealed proceedings). Based upon that information, together with the evidence adduced in open court, the trial judge held that the police had probable cause to stop petitioner's car and to open the bag containing the heroin. The court also found compelling reasons to keep the informant's identity confidential and found that neither the informant's identity nor Agent Castro's in camera testimony would have been helpful to the defense. Pet. App. A5; Dec. 2, 1985, Tr. 54-55, 62-63. 3. The court of appeals affirmed the district court's denial of the suppression motion and the motion to disclose the informant's identity. With respect to the suppression motion, the court concluded that the evidence available to the DEA, including background information about petitioner, a trip from a reliable informant, and subsequent corroboration of the tip by the agents' own observations, was sufficient to provide probable cause to arrest petitioner and search his automobile (Pet. App. A10-A13). With respect to the motion to disclose the informant's identity, the court of appeals held that under the principles of Roviaro v. United States, 353 U.S. 53 (1957), the district court properly refused to order the government to disclose the informant's identity. The court noted that the informant's tip went only to the existence of probable cause and would not appear to aid petitioner in establishing a defense; the informant was continuing to work with law enforcement agencies in other cases; and the informant's safety would be compromised if his identity were revealed, particularly in light of petitioner's history of violence. Pet. App. A6-A8. The court further found that the district court did not violate petitioner's Sixth Amendment rights to confrontation or to a public trial by conducting a brief in camera proceeding during which Agent Castro identified the informant and described how the informant obtained the information that he communicated to Agent Castro. Id. at A8-A10. On rehearing, the court of appeals filed a supplemental opinion (id. at A15-A18) in which it explained that because disclosing Agent Castro's in camera testimony would necessarily disclose the identity of the informant, protecting the identity of the informant required that petitioner be excluded from a portion of the suppression hearing. In response to petitioner's claim that the showing of probable cause was based on the evidence adduced in the in camera portion of the suppression hearing, the court explained that the evidence that was heard in camera "did not differ greatly from that expressed on the record. The main disclosure was the identity of the informant and the relationship between the informant and (petitioner)" (id. at A17). Agent Castro's on-the-record testimony, the court stated, was "the most important factor in the finding of probable cause" (id. at A17 n.2). While noting that "any exclusion of a criminal defendant from a portion of the criminal proceedings against him requires careful judicial scrutiny" (id. at A18), the court of appeals held that under the circumstances of this case, the district court had reached a permissible accommodation of the competing interests by excluding petitioner and his attorney from only a brief portion of the suppression hearing (ibid.). ARGUMENT 1. Petitioner alleges that the district court deprived him of his rights under the Confrontation Clause of the Sixth Amendment by conducting an in camera session at which neither defense counsel nor petitioner was present, and by relying in part on information presented in that hearing to find that the police had probable cause to arrest him and search his automobile. The first flaw in petitioner's argument is that he did not object when the court decided to take testimony from Agent Castro in camera. Although in his motion for disclosure of the identity of the informant petitioner had requested an in camera hearing on that motion at which he or his attorney would be permitted to be present, he did not suggest to the court at the suppression hearing that there was any impropriety in taking some of Agent Castro's testimony outside the presence of the defendant or defense counsel. Certainly he did not suggest that the Confrontation Clause entitled him to be present for the entire suppression hearing. And when the in camera portion of the hearing was over, petitioner's counsel indicated that he had nothing further to present in connection with his disclosure motion (Dec. 2, 1985, Tr. 46, 54-55). To be sure, the court of appeals found that petitioner's request in his motion papers to have his counsel attend any in camera proceeding was sufficient to overcome a claim of waiver (Pet. App. A8 n.6). Nonetheless, petitioner's failure to press the matter at the hearing is a strong indication that he did not regard his presence at the brief in camera proceeding to be essential to his ability to litigate his suppression motion. Petitioner's Confrontation Clause claim is also defective because it ignores the character of the proceedings at which the in camera testimony was received. First, the proceeding from which petitioner was excluded was not a trial on the merits, but a pretrial suppression hearing. This Court has never held the Confrontation Clause applicable to such a hearing. Rather, the Court has noted, "(t)he right of confrontation is basically a trial right." Barber v. Page, 390 U.S. 719, 725 (1968); see also Pennsylvania v. Ritchie, No. 85-1347 (Feb. 24, 1987), slip op. 11 (plurality opinion); California v. Green, 399 U.S. 149, 157 (1970). Because the suppression hearing was not part of the trial and did not bear on the issue of guilt or innocence, the Confrontation Clause did not afford petitioner a right to be present at the in camera portion of the hearing. See United States v. Bell, 464 F.2d 667, 669-672 (2d Cir.), cert. denied, 409 U.S. 991 (1972); United States v. Gradsky, 434 F.2d 880, 882-883 (5th Cir. 1970), cert. denied, 401 U.S. 925 (1971). /1/ To be sure, this Court has held that principles of due process supplement the Confrontation Clause and require that a defendant be permitted to attend any stage of the proceedings against him, "whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge." Snyder v. Massachusetts, 291 U.S. 97, 105-106 (1934); see also United States v. Gagnon, 470 U.S. 522, 526 (1985). In this case, however, petitioner's absence from the in camera portion of the suppression hearing did not impair his ability to defend against the charges, and thus did not violate his due process right to be present at the proceedings in his case. The in camera portion of the hearing -- which occupied only six pages of the suppression hearing transcript -- concerned the identity of the informant and his relationship to petitioner. As the court of appeals noted (Pet. App. A17), the evidence that the court heard in camera did not differ greatly from the evidence that was developed on the record, except that it revealed the identity of the informant and more details about how the informant obtained his information. Although the district court adverted to the in camera testimony in making the probable cause determination, probable cause for the arrest and search was in fact established in the portion of the hearing at which petitioner and defense counsel were present. Thus, the evidence in the open portion of the hearing showed that the informant was reliable and his information trustworthy; petitioner had previously been convicted of a heroin offense; the informant had been providing accurate information for the past ten years; his information about petitioner's drug activities was corroborated by other informant information; and his tip about petitioner's plans to pick up heroin the next morning from the area of Malone and South Flores was confirmed by the subsequent observations of the agents. That evidence was sufficient to justify petitioner's arrest. The in camera portion of the hearing added nothing that was essential to the probable cause determination; rather, as the court of appeals noted, the evidence adduced during the in camera proceeding was merely supportive of the finding of probable cause (Pet. App. A17 n. 2). Moreover, there was nothing in the in camera portion of the hearing that could have assisted petitioner in trying to undercut the showing of probable cause; as both the district court and the court of appeals observed, the testimony elicited at the closed portion of the hearing was unfavorable to petitioner (Pet. App. A10). For these reasons, the court of appeals was correct in holding that the procedure followed in this case did not violate petitioner's rights under either the Confrontation Clause or the Due Process Clause. /2/ 2. Contrary to petitioner's contention (Pet. 6), the decision of the district court in this case to hear a portion of Agent Castro's testimony in camera is consistent with this Court's decisions regarding the informant's privilege. This Court has held that the informant's privilege permits the government to withhold information concerning a confidential informant in certain circumstances, particularly when that information does not relate to guilt or innocence, but only to the suppression of evidence. Thus, in the context of the informant's privilege, this Court has held that there is no "federal evidentiary rule of compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake" (McCray v. Illinois, 386 U.S. 300, 311 (1967)). Petitioner argues that the principle set out in McCray applies only to the fact of the informant's identity and not to information the informant supplies relating to probable cause. This Court has indicated, however, that the information provided by the informant is protected from disclosure when it would reveal the identity of the informant. See Roviaro v. United States, 353 U.S. 53, 60 (1957) ("where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged"). In this case, the court of appeals noted that revealing the information provided by the informant would have revealed the informant's identity and jeopardized his safety (Pet. App. A10, A15). Under the principles of Roviaro, the district court was therefore correct in holding the informant information to be privileged and to receive it in camera. The Ninth Circuit reached the same result, following a similar line of analysis, in United States v. Anderson, 509 F.2d 724 (9th Cir. 1974), cert. denied, 420 U.S. 910 (1975), and to our knowledge, there is no court of appeals decision to the contrary. Petitioner claims that the Fifth Circuit's decision in this case conflicts with the decision of the Second Circuit in United States v. Coplon, 185 F.2d 629 (2d Cir. 1950), cert. denied, 342 U.S. 920 (1952). In Coplon the government, endeavoring to prove that none of the evidence admitted at trial was the fruit of illegal wiretaps, provided the district court with certain documents and requested that the court deny the defendant access to them because of national security concerns. The court examined the documents without disclosing them to the defense and then agreed with the government that none of its evidence was tainted. The Second Circuit reversed the defendant's conviction, holding that it was error for the district court to honor the government's assertion of a privilege and to read the documents in camera to determine whether or not the wiretaps led to any of the evidence that was introduced at trial. Coplon has not been interpreted to bar a district court from considering other kinds of evidence in camera, such as information that would reveal an informant's identity. In Alderman v. United States, 394 U.S. 165 (1969), the Court held that it was improper for a district court to make an in camera determination whether the evidence in that case derived from illegal wiretaps. The Court distinguished cases involving electronic surveillance from other cases, such as cases involving the identity of informants, in which in camera proceedings had been approved. 394 U.S. at 182-183 n.14. Moreover, the Court noted that the only items it was requiring to be disclosed were the transcripts of the defendant's own conversations and those taking place on his premises, "much of (which) he will already know" (394 U.S. at 184-185). As the Court made clear in a case decided two weeks after Alderman, even in the context of electronic surveillance, it is not necessary to conduct an adversary hearing and make full disclosure of the underlying materials to the defendant. Taglianetti v. United States, 394 U.S. 316, 317 (1969). The Court explained that in camera procedures were disapproved in Alderman only because, with regard to the issues presented in that case, "the task is too complex and the margin for error too great, to rely wholly on the in camera judgment of the trial court" (394 U.S. at 318 (quoting from Alderman, 394 U.S. at 182)). Thus, neither Coplon nor any of this Court's decisions can be read to prohibit a court from taking evidence in camera pertaining to the issue of probable cause, where disclosure of the evidence would reveal the identity of an informant. 3. Petitioner also premises his asserted right to be present at the in camera hearing on the constitutional guarantee of a public trial. As petitioner notes, the Court held in Waller v. Georgia, 467 U.S. 39 (1984), that the Sixth Amendment right to a public trial extends to a suppression hearing conducted before evidence is presented to a jury. The Court recognized, however, that in some circumstances closure may be warranted. Citing Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510-511 (1984), the Court stated that "the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure" (Waller v. Georgia, 467 U.S. at 48). The court of appeals correctly held that the in camera proceeding in this case met those four requirements. Pet. App. A9-A10. The risk to the informant's safety and to other investigations if his identity were revealed was substantial, given petitioner's background of violence and the informant's continuing investigative activities in narcotics cases. The closure was brief; the in camera testimony constituted a small portion of the total testimony adduced at the pretrial hearing; and the in camera testimony was limited to information pertaining to the informant. Moreover, because of the sensitivity of the information revealed in the in camera hearing, there was no ready alternative to closing the hearing to the public. The only alternative that petitioner now suggests is permitting his attorney to attend the hearing. That alternative, of course, would do nothing to avoid the objection that the proceedings were still being conducted in a setting closed to the general public, which is the point of the "public trial" requirement. Under the circumstances of this case, the district court was correct in closing a brief portion of the suppression hearing to the public. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General MERVYN HAMBURG Attorney NOVEMBER 1987 /1/ There is some disagreement among Members of the Court as to whether the Confrontation Clause affords defendants the right to obtain information that would be of assistance at trial. See Kentucky v. Stincer, No. 86-572 (June 19, 1987), slip op. 7-8 n.9. The plurality in Pennsylvania v. Ritchie, supra, interpreted the Confrontation Clause not to impose on the government any obligation to produce such information. Justice Blackmun, on the other hand, took the view that the Confrontation Clause may be violated by a state rule that denies a defendant access to information that would afford him the ability to conduct effective cross-examination at trial. Ritchie, slip op. 2 (Blackmun, J., concurring). Even under Justice Blackmun's view, however, the information that is withheld must be pertinent to the issue of guilt or innocence in order to fall within the reach of the Confrontation Clause, since the Clause is violated only if the denial of the information impairs the defendant's ability to conduct effective cross-examination at trial. The exclusion of petitioner from a portion of the suppression hearing in this case did not violate the Confrontation Clause under either view, because the information revealed in the in camera proceeding was pertinent only to the question whether there was probable cause to arrest petitioner. /2/ Petitioner complains that the district court did not consider other alternatives to the in camera hearing, such as excluding petitioner but permitting his attorney to be present. If petitioner had wanted the court to consider such an alternative, he should have suggested that course at the time of the hearing, rather than acquiescing in the in camera procedure that the court employed. In any event, that compromise solution would not have resolved the Confrontation Clause issue. If the Confrontation Clause were applicable to the suppression hearing, it would not cure the Confrontation Clause objection to permit the defendant's lawyer to attend, but not the defendant himself. Moreover, permitting a defense attorney to attend a hearing from which the defendant is excluded is not a procedure that can casually be mandated for all cases; it is instead an option that must be left to the district court to consider in light of the circumstances of each case, such as the sensitivity of the information and the court's assessment of the likelihood that disclosure to the attorney will not result in disclosure to the defendant or others. The Ninth Circuit's decision in United States v. Anderson, 509 F.2d 724 (9th Cir. 1974), cert. denied, 420 U.S. 910 (1975), on which petitioner relies, does not require any such wooden rule as petitioner advocates. In fact, the court in that case approved the exclusion of both the defendant and defense counsel from a portion of the suppression hearing, noting that the decision whether to permit defense counsel to attend is a matter that should be left to the district court's discretion. 509 F.2d at 729-730.