Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Never Discuss Cheese with Rats: A brief overview of Minnesota’s informant privilege

Never discusscheese with rats.

– Cookie Lyon

There exists at the common law—both state and federal—a privilege that protects an informant from having his identity made known in a criminal case. The privilege exists for good reason: If there were no privilege, there likely would be no informants, only whole deserts devoted to storing them in quiet repose.

A criminal defendant may have his case rise or fall exclusively on the information provided by one of these mysterious whisperers. Accordingly, many criminal defendants (and their hack lawyers) take a keen interest in figuring out the CI. Prosecutors, on the other hand, will always want to keep an informant’s identify from ever seeing the light of day. A whole lot can depend on learning the particulars associated with any given provider of information. Catching a bad informant is a sure way of catching a bad warrant affiant. So it goes.

The privilege in broad strokes

In Roviaro v. United States, the Supreme Court reinforced that the common law affords the government a “privilege to withhold from disclosure the identity of persons who furnish information” to law enforcement.1 The Minnesota Supreme Court has likewise recognized the state’s common law privilege to withhold a confidential informant’s identity because of the state’s “legitimate interest in protecting the identity of persons who provide information to law enforcement.”2 As stated by the Court in Roviaro, “[t]he informant privilege is designed to protect the identity of government informers so as to shield them from retribution and to preserve their usefulness for future operations.”3

Unless a defendant can sniff out an informant on his own, the informant privilege generally stands as a wall between the accused and the informer’s identity. However, the privilege cannot be invoked as a talisman when the circumstances of a given case warrant disclosure. Notwithstanding, when a defendant seeks disclosure of an informant’s identity,
“[t]he defendant has the ultimate burden of establishing the need for the disclosure.”4 It is not always clear how and when this burden may be and is met, and there is no “fixed rule.”5 Instead, the inquiry must be done on a case-by-case basis, with “[t]he public’s interest in protecting the flow of information balanced against the individual’s right to prepare his defense.”6 Courts have repeatedly stated that the touchstone of the inquiry is fundamental fairness.7 When disclosure of an informer’s identity, or the contents of his communications, is relevant to the defense of the accused, the privilege generally must give way.8

Minnesota’s four-factor test

The Minnesota case law treating us to the informant privilege bifurcates informants into two broad categories: (1) an informant who is a mere transmitter of information and not an active participant, and therefore not a competent witness to the crime itself; and (2) an informant who is something other than that.9 In the case of the former category, the inquiry usually terminates and the privilege prevails. In the case of the latter category, courts employ a four-factor inquiry to determine whether disclosure of the informant’s identity is required:

(1) whether the informant was a material witness; (2) whether the informant’s testimony will be material to the issue of guilt; (3) whether testimony of officers is suspect; and (4) whether the informant’s testimony might disclose entrapment.10

And there you have it, kind of. The courts have always been careful to highlight that the four factors above are not exclusive, but are to be used to inform a district court’s analysis, which remains a balancing test between the defendant’s right to prepare a defense and the public’s interest in effective law enforcement.11 So just how do these factors operate in the real world? To answer that question, a strict diet of a case in point is more than reasonable.

State v. Rambahal

In State v. Rambahal, the defendant was charged with unlawful possession of a pistol following an encounter with law enforcement in Burnsville, Minnesota. Rambahal and another man, Donta Holley, were observed walking down the middle of a county road in Dakota County at approximately 1:00 a.m. on New Year’s Day, 2007. An officer got out of her squad and verbally identified the men. Having had prior dealings with Rambahal and Holley, the officer radioed for additional officers. The officer also learned that there was an outstanding warrant for Rambahal’s arrest. The officer arrested Rambahal, and in a pat-down search, located a box of .357-caliber ammunition. A post-arrest search of the immediate vicinity yielded the discovery of a .357-caliber pistol on top of newly fallen snow next to where Rambahal had been standing. The record did not indicate where Holley had been standing in relation to Rambahal or the pistol.

Rambahal and Holley both waived their rights under Miranda and began to sing in separate squads. Rambahal told the officer that the pistol did not belong to him and that he did not know who owned the pistol. Holley told the officer that Rambahal carried the pistol for protection and that upon seeing the officer, Rambahal dropped the pistol on the ground. Rambahal was thereafter charged with unlawful possession of a pistol by a person with a prior conviction for a crime of violence (third-degree burglary).

During the course of discovery, the state disclosed two police reports from a separate robbery investigation. The reports contained information pertaining to a string of aggravated robberies in Burnsville. Specifically, the reports indicated that officers spoke with a “citizen informant” about burglaries at a Burger King and a Kwik Trip store. The informant, who was not named, identified a number of individuals as the perpetrators of the robberies, including Holley, Rambahal’s brother, and another individual. The informant stated that he learned from Rambahal that Holley owned the pistol used in the robberies and that Holley was known to carry the pistol under the seat of his vehicle. The informant also stated that his cousin had seen Holley hold the pistol and that the cousin heard Holley say that he should take his pistol and “go get” a person who had made Holley mad.

After receiving the reports, Rambahal moved the trial court to order the state to disclose the identity of the informant referenced in the reports. The trial court ordered the disclosure, finding that testimony by the informant that the pistol belonged to Holley would be helpful to Rambahal in overcoming an element of the offense with which he was charged, and that it could also help Rambahal find other individuals who might corroborate the informant’s information regarding the ownership of the pistol.

The state appealed the trial court order, and the court of appeals reversed.12 It was a short opinion, and was itself reversed. Which brings us to the Minnesota Supreme Court. As might be surmised, only the first two elements of the four-factor test were germane to the Court’s inquiry. In discussing the first factor—Rambahal’s interest in disclosure—the Court first noted that while the informant was a “mere transmitter of information” (and therefore presumptively protected), the materiality of a witness is not conclusive in the overall analysis.13 “In other words,” said the Court, “the fact that the informant is merely a transmitter of information will not be dispositive in all cases.”14 Instead, fundamental fairness may require a court to consider whether the identity of the informant might be helpful to the defense, which is what led the Court in Rambahal to a consideration of the second factor.15

With regard to this factor, the government contended that the informant had no admissible testimony to offer because the information consisted solely of hearsay accounts about the ownership of the pistol.16 Reasoning that the materiality of an informant’s possible testimony must be assessed by reference to the offense charged and the evidence relating to that charge, the Court rejected the government’s position, stating as follows:

[I]t is not always possible to determine in a pretrial setting what information will be admissible during a future trial. This factor therefore should not be read as limited only to those situations where the defendant can prove at the pretrial stage that the informant will offer evidence admissible at trial.

The overarching concern in applying the [four] factors must be whether disclosing the informant’s identity would be helpful to the defense in overcoming an element of the charge. The information the informant possesses does not have to be dispositive, by itself, on an element of the charge, as the court of appeals seems to have concluded. Rather, the information simply needs to be helpful to the defense in overcoming a charge.

The informant’s statements may be material to whether Rambahal was in possession of the pistol because the statements pertain to the other individual present at the scene when the officer found the pistol. Although ownership does not determine possession and cannot by itself overcome an element of the charge, the fact that the other person with Rambahal may have owned the pistol could be “helpful to defendant in overcoming an element of the crime charged.” For example, evidence from the informant might be used to aid in establishing reasonable doubt by supporting a defense theory that Holley, the person who owned the pistol and who was with Rambahal when the pistol was found, was in possession of it on the night in question. In addition, the complaint reflects that Holley told police that Rambahal carried the pistol for protection. Evidence from the informant about Holley’s ownership might be admissible to impeach Holley’s version of events, and thus it would be helpful to the defense.17

Rambahal is somewhat unique. It varies from the more frequent case in which a defendant attempts to penetrate the privilege in order to attack a search warrant, usually in a drug case, by showing that an officer-affiant made misrepresentations or omissions in a search warrant application. Notwithstanding its singularity—at least as it regards its factual posture—Rambahal is an important case for a number of reasons, not the least of which is the manner in which the Court construed the phrase “helpful to the defense.” In Rambahal, the Court appears to have held that a defendant is entitled to an informant’s identity if he can show that the identity may be admissible merely to impeach another witness. This may be further than the Court intended to go, but it is the law, or at a minimum, arguably the law.

The alternative of in camera review

But what about the case in which information is scarce? What if the client has a hunch of who the informant is, but nothing else to work with? What if the client has more than a hunch but no corroborative information or evidence? These types of situations are common in drug cases, but they do not exist exclusively in that domain. Any case involving an informant cabined in a search warrant application will do.

Take a situation in which information from a “confidential reliable informant” (CRI) led to the issuance of a search warrant for a defendant’s house in which drugs were later located. In the search warrant application, the officer described a conversation with a CRI, whom the officer stated was “reliable.” According to the officer, the attribution of reliability was based on two things: (1) a previous controlled buy between the informant and someone other than the defendant, which led to a criminal conviction; and (2) the absence of any criminal history on the part of the informant. Upon receiving discovery, the defendant has his suspicions of who the informant is—just say for the sake of our situation that it is a small community and there are only a handful of smurfs.18 Our defendant is acquaintances with a Tom Styles, a fellow user of drugs, and also a person who was involved in a controlled buy involving our defendant’s close friend. According to our defendant, the informant in his case must be Mr. Styles. If that is the case, the officer made material misrepresentations in the search warrant application, because Mr. Styles has convictions for felony fleeing, giving a false name to the police, and DWI, all within the past three years. But how does our defendant prove all this?

The remedy in this situation is not full-out disclosure, but a review by the district court in camera. The case law draws a distinction between a defendant’s ultimate burden of establishing the need for disclosure and a defendant’s lesser burden of establishing a basis for inquiry by a court in an in camera hearing.19 Disclosure of an informant’s identity in order to establish police perjury or recklessness in obtaining a search warrant (a Franks issue) is permitted when the defendant has sufficiently challenged the veracity of the affidavit of the officer-affiant and disclosure is necessary to complete the evidentiary attack on the affidavit.20 The decision of disclosure then depends on the district court’s weighing of competing interests: the defendant’s interest in a fair assessment of probable cause free of police recklessness, and the state’s interest in protecting the anonymity of informants.21 All that is needed to justify an in camera inquiry is a “minimal showing of a basis for inquiry but something more than mere speculation by the defendant that examination of the informant might be helpful.”22 The Minnesota Supreme Court has suggested that if the showing is made, a district court should consider the affidavits or interview the informant personally.23 And the Court has favorably cited Professor LaFave for the proposition that “[I]t should not take much to prompt the… judge to order such a hearing.”24

So where does that leave us with our above hypothetical? Clearly our humble defendant can make his showing, yes? In our hypothetical, the defendant would want to file a motion, with supporting affidavits, setting forth all of the bases of knowledge supporting the proposition that Tom Styles is in fact the person referred to as a CRI in the officer’s search warrant application. Depending on the strength of the showing, the court may order disclosure outright, or may opt for the interview. If, in either case, Tom Styles is revealed as the informant, the defendant would then be well-seated for a weighty attack on the search warrant and its fruits.

Some final remarks

Whether a defendant is seeking disclosure outright, an in camera review, or both in the alternative, practitioners and the courts alike should be mindful of both the significant interests enjoyed by an accused in the identity of an informant, and moreover, the strong pronouncements of the Minnesota Supreme Court relative to the low (or seemingly low) burden placed on a defendant in a given case. The fact that disclosure may be necessary for impeachment alone (Rambahal), and the existence of an extremely low doorstep leading to an in camera review, leads to the conclusions that the issue of informant identity should be ripe for contest in many cases. This is not to say that disclosure is, or even should be, the norm. Rather, a defendant intent on maximizing his chances for a successful defense will not want to leave the informant rock unturned altogether, even if it turns out the rock is too heavy. And there ends that sappy metaphor, and this article.


ADAM T. JOHNSON is an attorney at Lundgren & Johnson in Minneapolis.



1 Roviaro v. United States, 353 U.S. 53, 59 (1957). Ironically, Roviaro was decided in the same year that Vito Genovese, the “boss of all bosses,” assumed control of organized crime in New York following the failed attempt on the life of Frank “the Prime Minister” Costello.

2 State v. Litzau, 650 N.W.2d 177, 184 (Minn.2002).

3 Roviaro, 353 U.S. at 60.

4 State v. Ford, 322 N.W.2d 611, 614 (Minn.1982).

5 State v. Wiley, 205 N.W.2d 667, 676 (Minn.1973).

6 Id. at 423.

7 Roviaro, 353 U.S. at 59.

8 Id.

9 State v. Villalon, 305 Minn. 547, 549 (Minn.1975); State v. Werber, 221 N.W.2d 146, 150 (Minn.1974).

10 Syrovatka v. State,278 N.W.2d 558, 561-62 (Minn.1979) (citing to 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence §510(06)).

11 Ford, 322 N.W.2d at 614.

12 State v. Rambahal, No. A07-512, 2007 WL 2770261 (Minn.App. 9/25/2007).

13 Rambahal, 751 N.W.2d at 91.

14 Id.

15 Id.

16 Id.

17 Id. at 91-92 (internal citations omitted).

18 A “smurf” is a person involved in a methamphetamine cook who goes out into the retail community to purchase ingredients necessary for the manufacture of methamphetamine.

19 State v. Moore, 438 N.W.2d 101, 106 (Minn.1989).

20 State v. Luciow, 240 N.W.2d 833, 839 (Minn.1976); Franks v. Delaware, 438 U.S. 154 (1978). In Franks, the United States Supreme Court held that a search warrant may be voided, and any evidence obtained under the warrant suppressed, if a court finds that material facts were knowingly, or with reckless disregard for the truth, omitted from the affidavit.

21 Id.

22 Moore, 438 N.W.2d at 106 (citing Syrovatka, 278 N.W.2d at 562; 1 W. LaFave, Search and Seizure §3.4(a) at 711 (2 ed.1986)).

23 Moore, 438 N.W.2d at 106.

24 Id. (quoting 1 LaFave, Search and Seizure §3.3(g) at 711).

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