Superior Court Affirms the Exclusion of Evidence for the Commonwealth’s Refusal to Identify its Confidential Informant

The Commonwealth was prohibited from introducing evidence it obtained through a search warrant because the affidavit of probable cause relied on information supplied by a confidential informant and the Commonwealth refused to provide the defense with information about this confidential informant.  The Superior Court affirmed the trial court’s decision to preclude this information from evidence earlier this month in Commonwealth v. Jordan, 2014 Pa.Super. 57.

The case involved a police officer’s use of two confidential informants during a narcotics investigation. The first confidential informant had been used ten previous times, and in each instance, his collaboration led to the seizure of drugs and arrests.  The second confidential informant had been used twenty-five previous times, and in each instance his collaboration led to the seizure of drugs and arrests.  Several controlled buys of the defendant were conducted using the confidential informants, which produced packets of crack cocaine.  In each instance, the confidential informants were observed entering the defendant’s home.  Police obtained a search warrant using the information gathered by the confidential informants, and the defendant filed a motion to reveal the identity of the confidential informants used in the investigation.

At a hearing on the defendant’s motion, officers involved in the investigation testified as to the need to keep their informants’ identities secret and stated that they were both still in use, and could face retaliation and be placed in danger if their identities were revealed. The trial court ordered the disclosure of the second informant and warned the Commonwealth that if it failed to disclose, it would be prohibited from presenting any evidence regarding the execution of its search warrant.  The Commonwealth refused to turn over the information and the trial court prohibited the evidence from trial.

The Commonwealth in its appeal appealed only the court’s decision to exclude evidence, and not the court’s order to disclose the identity of the informant. For this reason, the Superior Court’s review was narrow and limited to whether the trial court abused its discretion in ordering sanctions against the Commonwealth for failure to abide by a court order. The Superior Court reasoned that the prosecutor’s flagrant disregard of a court order warranted the court’s extreme remedy of prohibiting the Commonwealth from introducing certain evidence.