Cross-examination on a “confidential location”

Jamison KoehlerDrug Offenses, Evidence, Opinions/Cases

“Confidential location.”

An officer utters these two words in a drug case, and the court automatically shuts down all related cross-examination.

Defense attorneys do not want to endanger anyone.  Nor do we want to compromise the effectiveness of future police surveillance efforts. 

At the same time, to the extent police observations will help determine the legality for the stop (and thus the liberty of our client), we need to know:  Was the officer able to actually see what the officer claims to have seen from this “confidential location” or “confidential observation post”?

And we cannot do that if the court prevents us from asking any questions at all. 

–How far from the alleged transaction were the officers making their observations.
[Police officer looks smug.]

–Were there any obstacles that may have obstructed the officers’ views?
[Police officer looks smug.]

At the very least, we deserve an explanation as to why the location is confidential.

Police in Philadelphia used to set up surveillance operations on the second floor of an abandoned – or even occupied – building.  I can understand how you might want to keep that location secret, even months down the road. 

But I had a case recently in which, after considerable back-and-forth before our motions hearing, the prosecutor finally revealed to me that the officers had made their observations from a car.

From a car.

When during the motions hearing I tried to ask the officer about the “confidential observation post” and was, as expected, immediately shut down by the court [police officer looks smug], I then posed the open-ended question of why the post was confidential. 

The prosecutor and officer both looked surprised when the court overruled the government’s objection here.

“Officer safety,” was the response.

I did not have the presence of mind to pursue this line of questioning further.  Reflecting back on things, however, it is still unclear to me how disclosing the temporary location on a public street of a mobile vehicle could possibly have posed a safety hazard to the two officers 8 months after the incident.   

Were police concerned, for example, that aspiring drug dealers were secretly monitoring these proceedings with the goal of uncovering police tactics and methods?

After all, the courtroom gallery was empty at the time of the motions hearing.  And there was no one on Webex. 

In retrospect, I wish I had thought to suggest to the court that it query the witness privately to determine the location of the post.  It could then have made its own determination as to whether the request for confidentiality was warranted. 

The foundation case for observation posts in D.C. is Hicks v. United States, 431 A.2d 18 (D.C. 1981). 

After noting the defendant’s Sixth Amendment right “to be confronted with the witnesses against him,” the court pointed out that the right to cross-examination is not unlimited. 

The court described the “informant’s privilege,” which allows the government to withhold the identities of informants as long as confidentiality does not jeopardize the fairness of the proceedings.

Analogous to that privilege, the court held, is law enforcement’s interest in protecting the location of observation posts should the disclosure of the location jeopardize safety or law enforcement interests:

The question in each case . . . becomes whether fairness requires that the government’s privilege yield to the defense right of cross-examination.  Given the circumstances, the trial court must balance the public interest in legitimate criminal surveillance against the defendant’s right to cross-examine government witnesses and exercise its sound discretion whether to permit withholding of the information . . .

 A threshold consideration in making this determination is whether the issue before the court is probable cause for an arrest and search . . .or the ultimate guilt or innocence of the defendant . . . When the question is probable cause, the court should consider, among other pertinent concerns, whether the defense has established that the location of the surveillance post is a material and relevant issue; whether the evidence supports a finding of probable cause; and whether the evidence creates a substantial doubt about the credibility of the observer.