Johnson v. State

JAMES R. EYLER, Judge. Terrence Johnson, appellant, was convicted of distribution of cocaine after a jury trial in the Circuit Court for Baltimore City. The jury acquitted appellant of possession of cocaine and possession with intent to distribute cocaine. Appellant alleges the trial court erred in granting the State’s motion in limine, which allowed the State not to disclose the covert location from which a police officer observed appellant in a drug transaction.

We perceive no error and affirm the trial court’s ruling on the motion. Factual Background On the evening of September 10, 1999, Baltimore City Police Officer Eric Johnson was in a covert location in the ³⁶⁶ 2000 block of North Forest Park Avenue in Baltimore City. Officer Johnson testified that he saw a man, later identified as appellant, located approximately 75 feet away, “loitering” at a gas station. Appellant was approached by a man in a red truck, later identified as John Milburn, and the two spoke briefly.

Appellant made a hand gesture to an unidentified man across the street, who ran to the gas station and handed a small package to appellant. The unidentified man quickly left. Appellant accepted cash from Milburn before handing him the same package. Milburn then drove off in the truck.

After seeing these events, Officer Johnson believed he had just witnessed a drug deal. He radioed the license plate of the truck and a description of appellant to other officers, who subsequently arrested appellant and the truck driver. Officer Johnson stated that he did not get a good look at the unidentified man, who ran across the street. Thus, he did not give a description of him, and he was not apprehended.

A search incident to arrest revealed that appellant had twenty-one dollars in his possession. On the floor of Milburn’s red truck were two ziplocked baggies of white material, later identified as cocaine. Before appellant’s trial, the State filed a motion in limine to prevent the disclosure of the covert location from which • Officer Johnson observed the events. At the hearing on the motion, after the State made a proffer, the trial court ruled that the proffer was not a sufficient basis on which to grant the motion.

The State then called Officer Johnson to testify out of the presence of the jury. Johnson testified that he observed the transaction in question from an undisclosed building in the 2000 block of North Forest Park Avenue, near the intersection with Windsor Mill Road. The block included three businesses, three or four apartments, four or five houses, a park, a church, a gas station, and a liquor store. Officer Johnson testified that he did not want to disclose the location because “right now there are more operations dealing with that covert location.

Okay. This location, if I would disclose this location, it would endan ³⁶⁷ ger persons. And another thing, if I would disclose the information of this location, then that would damage other cases that are being worked on.” In response to a question from the court, Officer Johnson testified “because the defendant knows that I have arrested many people in that area that he is associated with, and these people, once they find out, they have said that once they find out where I am, then some action will be taken.” Officer Johnson had obtained permission to use the covert location by agreeing not to disclose it. The person or persons who gave permission expressed the fear that their lives or property would be in danger if the location were known.

The trial court ruled that the covert location should not be disclosed, expressly indicating that the primary basis for its ruling was to protect the person or persons who consented to use of the covert location. The court also indicated, however, that Officer Johnson would be subject to extensive cross-examination. At trial, Officer Johnson testified to essentially the same information as presented at the motion hearing. He described the use of covert locations and stated that he had observed street level activities from covert locations over 200 times.

Officer Johnson described the activities involving appellant, stating that he had a clear, unobstructed view from his location. On cross-examination, the following information was elicited. Officer Johnson testified that he was on the corner of Forest Park and Windsor Mill Roads. He was inside a building, ten feet above ground level.

He did not have to look through glass or a “plastic coating”. He testified that he was looking out of a doorway, and he described the buildings and portions of the roadways that he could see from his vantage point. We will comment on additional portions of his testimony below. Discussion Appellant contends it was error to grant the motion in limine, thereby preventing full disclosure of the location used ³⁶⁸ by Officer Johnson.

Appellant claims he could not prepare an adequate defense without knowing the exact location from which the police officer observed the events. Appellant explains that the lighting, vantage point, and obstructions, if any, would be apparent only if the State divulged the exact covert location. The State contends that it was within the trial court’s discretion to deny disclosure of the location. The State further contends that appellant was able to adequately cross-examine the officer, and therefore, no prejudice resulted.

This is a case of first impression in Maryland. Courts in other states and federal courts have addressed this question, however, and they appear to be in agreement that there is a qualified privilege not to disclose a covert surveillance location, analogous to an informer’s privilege. Disclosure depends upon the particular circumstances of each case and is determined by balancing the public’s interest in non-disclosure against a defendant’s interest in cross-examination and accurate fact finding. See, e.g., Haider v. Director of Corrections, 992 F.Supp. 1192, 1196-97 (9th Cir.1998); United States v. Van Horn, 789 F.2d 1492, 1507-08 (11th Cir.1986); United States v. Smith, 780 F.2d 1102, 1108 (4th cir.1985); McKillop v. Regents Of Univ. of California, 386 F.Supp. 1270, 1275 (N.D.Cal.1975) (recognizing the necessity of a case-by-case balancing approach); State v. Moss, 648 So.2d 206, 207 (Fla.

Dist.Ct.App.1994); People v. Knight, 323 Ill.App.3d 1117 , 257 Ill.Dec. 213 , 753 N.E.2d 408, 413 (2001); In re Chris C, 172 Misc.2d 416 , 658 N.Y.S.2d 929, 932 (1997); Commonwealth v. Lugo, 406 Mass. 565 , 548 N.E.2d 1263, 1265 (1990); State v. Williams, 239 N.J.Super. 620 , 571 A.2d 1358, 1361, 1364-65 (1990); State v. Parsons, 64 Ohio App.3d 63 , 580 N.E.2d 800, 803 (1989); Commonwealth v. Jennings, 428 Pa.Super. 297 , 630 A.2d 1257, 1261 (1993); Hollins v. Commonwealth, 19 Va.App. 223 , 450 S.E.2d 397, 399 (1994). The approach generally followed with respect to the issue before us was set forth in United States v. Green, 670 F.2d 1148, 1156 (D.C.Cir.1981), a case frequently cited and, in this case, relied upon by both parties. Green involved testimony ³⁶⁹ at a suppression hearing, but United States v. Harley, 682 F.2d 1018, 1020-21 (D.C.Cir.1982) extended the principles in Green to trial testimony. Accord United States v. Foster, 986 F.2d 541, 543 (D.C.Cir.1993).

The facts in Green are nearly identical to those in the case before us. In Green , a D.C. police officer was stationed at an undisclosed location in a known drug trafficking area. Green, 670 F.2d at 1150 . The officer saw what he believed to be a “two-party drug transaction” where one “receives the money from a customer, carries it to the individual holding the drugs, and returns the purchased drugs to the customer.” Id. at 1151, n. 1 .

Based on what he saw from his hidden surveillance, the officer radioed a description of the people involved to other officers who made the arrest. Id. at 1151 . Similarly, in the case sub judice, the surveillance officer testified that often teams of people sell