COLORADO v. NUNEZ

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ORAL ARGUMENT OF STEVEN LEON BERNARD, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We will arguments first this morning in Colorado against Nunez.

Mr. Bernard, you may proceed whenever you are ready.

Steven Leon Bernard: Mr. Chief Justice, and may it please the Court:

On the 7th day of November of 1981, Denver Detective Sergeant Don DeNovellis obtained information from a confidential informant.

The informant told Detective DeNovellis that a person known as Antonio Guadalupe Nunez had been seen by the informant within the last 24 hours preparing heroin for sale.

He was diluting the heroin and putting it into balloons, a common mode of packaging for sale.

The informant told Detective DeNovellis that Mr. Nunez said that he had recently been to Mexico and in Mexico he had purchased five ounces of heroin.

Detective DeNovellis then obtained a search warrant based upon this information and, along with Adams County Sheriff's officers, went to Mr. Nunez's home in Adams County, Colorado.

They entered the home and searched Mr. Nunez and from his pocket they took 15 balloons which contained heroin.

Mr. Nunez was charged with possession of a Schedule One Controlled Substance in Colorado and his counsel filed a motion to suppress the fruits of that search, alleging in part there was no probable cause for that search.

He also filed a motion for the disclosure of this particular confidential informant who provided this information.

A hearing was held in September of 1982 upon that motion for disclosure.

At that time, Mr. Nunez himself testified.

He stated among other things that he was off in the mountains hunting in his motor home, that he had to been to Mexico, and that the only people who had been at his home within 24 hours of the 7th day of November of 1981 were members of his immediate and extended family.

He also said at one point during cross examination that he did not know what heroin was.

The court, based upon this information, ordered the prosecution to disclose the name of the informant.

Unidentified Justice: Mr. Bernard, do you think that the Colorado court based its holding on federal law?

Steven Leon Bernard: I certainly do, Justice O'Connor, and for the following reasons:

The court in the case of Colorado versus Nunez relied upon three prior Colorado decisions.

The first decision was People versus Dailey which had been decided approximately one and a half years before.

In People versus Dailey, the Colorado Supreme Court referred at one point to the Colorado Constitution, but at that time it was only for the amount of information necessary to begin a veracity hearing.

Unidentified Justice: Well, on that point, I think Dailey states that in Colorado the rule is that a defendant is entitled to a veracity hearing once he shows a good faith basis for believing the material in the affidavit was inaccurate.

Now, do you think that that holding is based on federal law?

Steven Leon Bernard: Your Honor, I would like to say so, but I don't believe that I can, because there is an indication--

Unidentified Justice: Well, no, it is not.

Steven Leon Bernard: --There is an indication clearly that it was based upon the Colorado Constitution.

But, the issue in this case concerns the disclosure of the informant.

The Colorado court in Dailey--

Unidentified Justice: The Roviaro-McCray issue?

Steven Leon Bernard: --That is correct.

That is correct.

Unidentified Justice: On that you think the Colorado law is the same as or based on federal law on that aspect of the question?

Steven Leon Bernard: Yes.

Justice Lohr said exactly that.

They have adopted the same test of Roviaro versus McCray.

If I may elaborate on my answer a little bit, in the Dailey opinion, the Colorado Supreme Court said specifically that while the Colorado Constitution may support a lesser amount of evidence shown, when it talked about what consequences, and disclosure is one of the consequences, that must flow from the decision the court must make after that showing, it referred specifically to both the United States Constitution and to the Colorado Constitution.

At that hearing... After that hearing and after the order of disclosure, the prosecution took an interlocutory appeal to the Supreme Court of the State of Colorado in which that issue was addressed.

The Colorado Supreme Court affirmed the lower court's decision and we petitioned for certiorari.

This Court granted review.

The issue in this case is essentially twofold.

Unidentified Justice: Excuse me.

In Colorado is it true that you could have had an in camera hearing on this point?

Steven Leon Bernard: That is correct, Justice Marshall.

Unidentified Justice: And, you didn't ask for it?

Steven Leon Bernard: No, we did not.

Unidentified Justice: Why?

Steven Leon Bernard: We were concerned for the informant's safety.

Unidentified Justice: In an in camera?

Steven Leon Bernard: Yes, Your Honor.

The first issue in this case is an issue that was reserved in Franks versus Delaware.

In that opinion at page 170, Justice Blackmun reserved the issue, a difficult issue, of whether an informant should be disclosed after a satisfactory showing at a veracity hearing.

The issue in this case also concerns where, as in the case at bar, if the counsel for the accused and the court both concede that the credibility of the police officer of Frank is not at issue, therefore, should there be disclosure at all?

Before we get--

Unidentified Justice: Do you think the federal Constitution imposes some limits on how liberal a state's rule of evidence can be on that point?

Steven Leon Bernard: --Your Honor, I believe that this goes to a question of Fourth Amendment interpretation and the exclusionary rule.

First of all, beginning with Aguilar and Spinelli and with this Court's recent decision in Illinois versus Gates, there is clearly an issue of whether a confidential informant can be used in a search warrant.

When that happens, that becomes a Fourth Amendment issue.

This is not merely a question of evidentiary law, but this is a question of the application of the Fourth Amendment.

The question is, therefore, does the Fourth Amendment require disclosure if, after a veracity hearing, there is a certain showing.

Unidentified Justice: Do you think the Fourth Amendment forbids the disclosure of an informant's name?

Steven Leon Bernard: Yes.

We submit that the Fourth Amendment does that.

And, we submit, even assuming in certain situations that the Fourth Amendment does permit disclosure of an informant's name after an appropriate showing at a veracity hearing in our case, that should not be because the whole purpose of a veracity hearing is to question whether the state itself has erred in any way, whether there has been police misconduct, if the affiant's credibility is not at issue.

In other words, if the affiant in good faith relied upon what he was told by his informant, then there is no purpose, no application, no deterrant result for the exclusionary rule.

Unidentified Justice: How will you get to the veracity if you don't admit who the person is, if you don't have an in camera investigation?

You use the word "veracity".

That means truth, doesn't it?

How do you get to the truth if you hide the truth?

Steven Leon Bernard: Well, Justice Marshall, first of all, I do not believe that the purpose of using confidential informants is to hide the truth.

I think this Court has recognized what their use is in the past.

The issue at a veracity hearing--

Unidentified Justice: Well, what remedy does the defense counsel have if the government says we have this information, but we won't tell you where we got it from?

Steven Leon Bernard: --First, the defense counsel could strenuously cross examine the affiant himself.

The affiant was present in--

Unidentified Justice: Whom I assume also is very capable.

Steven Leon Bernard: --Pardon me?

Unidentified Justice: He is very capable.

He is not a run-of-the-mill person.

Steven Leon Bernard: The affiant?

Unidentified Justice: The officer, yes.

Steven Leon Bernard: I would hope that the officer--

Unidentified Justice: He is a well trained person?

Steven Leon Bernard: --Yes, sir.

Unidentified Justice: So, if you can't break him down, then you lose.

Steven Leon Bernard: Not necessarily, Your Honor.

There is--

Unidentified Justice: What else can you do?

Steven Leon Bernard: --There are alternative forms of information.

For example, as in this case, information from the accused himself, information from other people whom the accused may bring into the court who have information to give to the court on this issue.

Hypothetically, if the assertion had been that I had not been at my home when that person said I was there, and the defendant could bring in people who could say, yes, he was not at his home, he was with me.

That would be an alternative form of establishing that information.

So, I submit there are at least two alternatives.

One is questioning the affiant and one is permitting the defense himself to bring in information to attack the credibility of the affiant.

Unidentified Justice: But, why can't you have the in camera hearing?

Steven Leon Bernard: An in camera hearing--

Unidentified Justice: Is there somebody in there that you don't trust?

Steven Leon Bernard: --No.

Unidentified Justice: Because if you say so, I will ask you to name them.

Steven Leon Bernard: No.

Unidentified Justice: Well, why can't you have an in camera hearing?

Steven Leon Bernard: Because an in camera hearing, we feel, has certain threats.

One threat is this.

If an informant knows that he is going to be brought before a court, even in camera without defense counsel present, he may not provide the police the information that is necessary to either solve a crime or to--

Unidentified Justice: If I assume that correct and I also assume that on the same facts an informant would not hesitate to lie because nothing could be done about it.

Steven Leon Bernard: --Justice Marshall, I submit that there is always the possibility that an informant may lie and I think that is undeniable.

There is always the possibility that a police officer may lie.

But, I don't think that the presumption is either that police officers or informants lie.

I think that the privilege itself was established to permit a flow of information.

And, I think in McCray versus Illinois Justice Weintraub foresaw exactly the problem that we see in this case.

In the quote that I have cited in my brief, Justice Weintraub says that if a defendant knows that he can submit to the court any evidence at all, the court itself is going to order disclosure because they have no ability to impeach.

At that point, the informant will always be disclosed and the whole chain of information will be broken, the flow of information will be dried up.

If at a veracity hearing the purpose is to determine whether there is probable cause to believe that the accused has committed a crime and probable cause to believe that at his residence are the fruits of that crime, then in this case the disclosure of the informant is an ancillary part of that.

It is part of the probable cause determination.

Since Aguilar and Spinelli and Gates made rules under our Constitution to govern the use of confidential informants and warrants the decision whether to disclose them becomes a Fourth Amendment consideration here.

As I said to Justice O'Connor earlier, it is not a question of evidentiary law, state evidentiary law, it is part and parcel of the Franks versus Delaware analysis and it is part and parcel of the issue that this Court reserved in that case.

There is an issue as to whether there was an independent and adequate state grounds for this decision which Justice O'Connor raised.

The tests that this Court has established in a series of cases, Delaware versus Prouse, South Dakota versus Neville, culminating with Michigan versus Long, which was decided in July of 1983, I believe, indicates that this Court presumes that there is not an independent and adequate state grounds if there is not a clear and express showing on the face of the opinion.

In this case, as far as the issue of disclosure is concerned, there was no clear and independent showing of state law.

As far as any remedy to be derived from a veracity hearing, there was no clear and independent showing of state law.

Based upon that presumption, I submit that this Court does and should take jurisdiction.

In the Colorado Supreme Court's decision in the Nunez case... It referred, as I said earlier, to three cases... The case of Dailey, the case of Martinez, and the case of Bueno.

In Dailey, when the Court talked about disclosure, it referred to two things.

First, Franks versus Delaware, which was a case decided by this Court on Fourth Amendment grounds, and then the Court talked about solely in Dailey if there is the affiant's perjury or reckless disregard for the truth, the Colorado Court discussed that remedy in terms of Dailey... Excuse me, in terms of Franks only.

In other words, in terms only of the Colorado Constitution.

In fact--

Unidentified Justice: Of what Constitution?

Steven Leon Bernard: --Excuse me, in the United States Constitution.

I apologize, Justice White.

My mistake.

In fact, that Court said that the test for disclosure is the same as this Court established in Roviaro and in McCray versus Illinois.

Unidentified Justice: May I just ask one question about the disposition of the case?

Your brief ends by saying the judgment should be reversed.

Do you mean by that to say that the Colorado Supreme Court could not reinstated its prior judgment and explain that it really did mean to base it on Colorado law?

Steven Leon Bernard: Justice Stevens, that is always a possibility.

The Colorado Supreme Court could say this was a decision that should have been decided on Colorado State law, refer to the Colorado Constitution and decided that way.

Unidentified Justice: So, the outcome of the case conceivably... we don't say it would... but conceivably be exactly the same no matter what we do.

Steven Leon Bernard: I would submit that if this Court reversed, the Colorado Supreme Court would be bound by this Court's opinion.

If, in a later case, the Colorado Supreme Court wished to adopt the Colorado Constitution, then it could do so.

Unidentified Justice: But, do you think we can tell them they must hold a veracity hearing?

Steven Leon Bernard: Well, I believe--

Unidentified Justice: I mean, they must direct the lower court to hold a veracity hearing?

Steven Leon Bernard: --I believe so, especially since it referred to the United States Constitution.

And, since this Court is the ultimate arbiter of that Constitution, I believe that this Court can say that.

Unidentified Justice: And they have lost their authority to reach the same conclusion based on state law?

Steven Leon Bernard: I would submit that they have.

Unidentified Justice: Well, Mr. Bernard, that is quite a remarkable conclusion, I think, that you reach in answer to Justice Stevens' question that... I can see how we could say in correct case that the Fourth Amendment doesn't require the sort of rule which the Colorado Supreme Court thought it required, but you are saying that even though the Colorado Supreme Court wished to base its ruling on state law, the Fourth Amendment prevents it from doing that.

Steven Leon Bernard: No, I am not saying that, Justice Rehnquist.

Unidentified Justice: Well then, could you spell out exactly how you reach the conclusion that you do in answer to Justice Stevens' question?

Steven Leon Bernard: Certainly.

This Court can decide the federal issue present in this case.

If it does so, then the Court must say that since the Colorado Supreme Court referred to the consequences under the United States Constitution, the Colorado Supreme Court cannot take the United States Constitution and do what it wanted to do in this case.

If the Colorado Supreme Court wishes to rely on the State Constitution, I concur it is the ultimate arbiter of that Constitution.

Unidentified Justice: Yes.

And, in any mandate that comes down from this Court to a state court reversing the state court opinion says the judgment is reversed and the cause or matter for further proceedings is not inconsistent with this opinion.

Wouldn't such a proceeding be a hearing by the Colorado Supreme Court in which it said, well, we also relied on our State Constitution or, although we didn't before, we now rely on our State Constitution to reach the result we did?

Steven Leon Bernard: Justice Rehnquist, I would submit that that certainly is a possibility, however, if, in fact, that were the case, I am not cognizant of the subsequent decisions in Michigan versus Long at the state level and South Dakota versus Neville at the state level.

Unidentified Justice: That wouldn't take our jurisdiction away to hear the case, but I think that that would mean that your answer to Justice Steven's question perhaps ought to be reconsidered.

Steven Leon Bernard: Well, Justice Rehnquist, I guess what my position is is this; that this Court can tell the Colorado Constitution it can't do what it did under the United States Constitution.

If it wishes to do that under the Colorado Constitution, I suppose they can do so.

Unidentified Justice: Haven't several state supreme courts done that after we have reversed on the federal ground here?

Steven Leon Bernard: Yes.

Unidentified Justice: The Opperman case, I think, South Dakota.

Steven Leon Bernard: Yes.

And, I know California has done that too.

Unidentified Justice: Several of them have done that.

That might lead some people to the conclusion that the Court should not have been so ambiguous about the basis of its holding.

Steven Leon Bernard: Well, ultimately I think that that is probably an appropriate resolution anyway.

If a court does decide that it is going to rely on state law... I think Michigan versus Long says if it is going to do that it should make it very clear and that has not been done in this case.

Ultimately, there is no Fourth Amendment violation if an affiant in good faith--

Unidentified Justice: Well, this case was decided before we decided Michigan and Long, wasn't it?

Steven Leon Bernard: --Yes, by the Colorado court it was.

Unidentified Justice: Did we ever say before Michigan and Long that the State Supreme Court had to say clearly when it relied on the--

Steven Leon Bernard: At the time the Colorado case was decided, there was in existence the following cases: Delaware versus Prouse, South Dakota versus Neville, and those cases indicated that there is an appropriate basis for this Court taking jurisdiction.

There may be an independent ground, but it is not adequate and that was the prior test.

In fact, in our petition for writ of certiorari, in the jurisdiction statement at pages 1 through 9, we did argue those cases and not Michigan versus Long.

I think even under those tests there is an appropriate basis for this Court to take jurisdiction and there is not independent adequate state grounds.

Unidentified Justice: --But, you do contend, don't you, that Michigan against Long announced a new rule of law?

Steven Leon Bernard: Well--

Unidentified Justice: Do you argue that rule is retroactive?

Steven Leon Bernard: --Your Honor, I am--

Unidentified Justice: Maybe that is the issue in the case, whether Michigan against Long is retroactive.

Steven Leon Bernard: --That is not the issue here obviously.

Unidentified Justice: Well, it is a jurisdictional issue I might suggest.

Steven Leon Bernard: This Court has to decide whether it has jurisdiction.

And, we have not briefed whether Michigan versus Long is retroactive nor whether--

Unidentified Justice: Are you content to have us decide the jurisdictional issue without reference to Michigan against Long?

Steven Leon Bernard: --I would prefer to have it because I think it is clearer.

Unidentified Justice: You think it is a little helpful to you?

Steven Leon Bernard: Yes, I do.

Unidentified Justice: Yes.

Steven Leon Bernard: The exclusionary rule which was applied in this case, because the evidence was suppressed when the state refused to disclose its informant, balances two social issues.

First of all, the deterrent of police misconduct against convicting guilty people.

There is no deterrence by the application of the exclusionary rule if there is no police misconduct.

Therefore, if there is no deterrent effect, there is no need to let the guilty go free.

The purpose of a veracity hearing, therefore, has to be determine if the affiant, not the informant, has engaged in misconduct.

There will be, I would submit, an effect on law enforcement in revealing the names of confidential informants on a regular basis.

That will dry up sources of information which lead to the solving of crimes and dry up sources of information that lead to the apprehension of criminals.

It is a sad but true fact that some people will not come forward and cooperate with the police unless they are assured of anonymity.

Unidentified Justice: Sometimes it is bad for their health, is it not?

Steven Leon Bernard: It is, Your Honor.

And, that sadly has been something that has happened in the past.

As we indicated before, we say that there is no need as a matter of law ever to reveal an informant's name and I discussed with Justice Marshall the alternatives to disclosure of that informant.

However, even if an informant should be revealed in some circumstances, he should not be revealed here.

It was only private action in this case, although there has been some indication by the Respondent that the Respondent didn't mean to say that he did not question the affiant's credibility, nonetheless, the record contains four separate references to the fact that he was concerned with the informant, not the affiant's credibility.

Secondly, disclosure does not serve in this case, because there was no police misconduct, the Fourth Amendment, or the purposes of the exclusionary rule.

Even people who are involved at the fringes of the warrant process are going to be affected by the fact that they will not be assured of anonymity.

We ask this Court to at least, as far as the Fourth Amendment is concerned, indicate to the State of Colorado that the disclosure of informants should not occur at veracity hearings, and even if this Court feels that disclosure is in some cases appropriate, we ask this Court to indicate that the disclosure of the informant in this case was inappropriate because there was no indication, no allegation, and no proof that the affiant lied or recklessly disregarded the truth.

Chief Justice Warren E. Burger: Mr. Stern?

ORAL ARGUMENT OF KENNETH H. STERN, ESQ. ON BEHALF OF THE RESPONDENT

Kenneth H. Stern: Mr. Chief Justice, and may it please the Court:

The way this case has been postured, both in the briefs and during oral argument, is inconsistent with the record below.

The Petitioner has raised and melded together three separate issues, only one of which was ever adjudicated in the Colorado court system.

In Colorado, the process of challenging a search warrant, in making a veracity challenge, has three separate steps.

One step is making a threshold preliminary showing to be entitled to a hearing in the first place.

The second step is actually being successful on the merits--

Unidentified Justice: What is the purpose of that veracity hearing as you call it out there?

Kenneth H. Stern: --In Colorado?

Unidentified Justice: Yes.

Kenneth H. Stern: Well, the purpose of the veracity hearing at this point in time under Colorado law is to see if the affiant either committed perjury or reckless disregard of the truth.

The Colorado Supreme--

Unidentified Justice: Let's put that in concrete terms.

What did the affiant say about the informant?

What did he say that is going to be tested in this hearing?

Kenneth H. Stern: --One, does the information even exist; and, two, if the informant does exist, did he actually relate to the affiant what the affiant placed in the affidavit.

Unidentified Justice: Now, that doesn't tell me much in concrete terms.

What is it said that the informant informed to the police in this case?

Kenneth H. Stern: In the affidavit there is certain information allegedly stated by an informant.

Unidentified Justice: What was it?

Kenneth H. Stern: It was that on a certain date that the informant was in the home of the defendant and observed the defendant engaged in certain conduct.

Unidentified Justice: And, what was the conduct?

Kenneth H. Stern: The conduct was packaging heroin.

Unidentified Justice: And, what happened when they made the search?

Kenneth H. Stern: They did find heroin.

Unidentified Justice: Does that have any bearing on whether he was telling the truth?

Kenneth H. Stern: Obviously, it would have some bearing, Chief Justice, however, there are other possible sources of information that could have lead to the conclusion that Mr. Nunez had heroin which didn't come through an informant.

In fact, a number of the commentators have stated that it is possible that information could have come through an illegal wiretap.

Unidentified Justice: Now, let me see.

I am not sure I track you.

You say the informant told the police that on a given day he was in the home of Nunez and that he saw him engaged in handle dope, packaging it?

Kenneth H. Stern: That is correct.

Unidentified Justice: And then he gave that information to the police?

Kenneth H. Stern: That is correct.

Unidentified Justice: And, they put that in whatever form is required in Colorado law to get a warrant to search the house, is that right?

Kenneth H. Stern: Correct.

Unidentified Justice: And then the police took that warrant and went and searched the house, is that right?

Kenneth H. Stern: Correct.

Unidentified Justice: And then they found the packages exactly as the informant said they would, is that right?

Kenneth H. Stern: Very close to how he said they would be, that is correct.

Unidentified Justice: What is the problem about his veracity then?

Kenneth H. Stern: The problem about his veracity is that the defendant testified that the informant could not have done what it was alleged he had done in the affidavit because on those dates in question the defendant had not been in his home.

He was away for two weeks.

He could not have been delivering heroin using his vehicle during those two weeks.

He was not in his home when the informant said he was there.

He was on a fishing trip and that the only people who were there the second half of the day were his immediate relatives.

So, there was testimony from the defendant that created in the mind of the trial court judge a good faith basis and fact to question the accuracy of the affidavit.

And, under that particular test, under Colorado law--

Unidentified Justice: What if the informant had said to the police that he had been in the home of this man on a day within recent weeks or months, and he could not remember the day or the week, but that he distinctly saw him putting narcotics in packages on that day unnamed?

It would make it a little difficult for the man to say he wasn't there at that time, wouldn't it?

Kenneth H. Stern: --That would create a different problem of proof.

Unidentified Justice: Would it be sufficient to issue a warrant if the informant could not fix the date?

Kenneth H. Stern: That would be up to the magistrate to determine if that was sufficient to establish probable cause.

However, in the instant case, you have an informant saying he was located in the house at a particular time when, based upon testimony under oath by the defendant and other collateral evidence, he could not... At least created a reasonable basis and fact to believe that he could not have been in the house, and, therefore, Colorado, under Colorado's common law, as an evidentiary matter allows the informant to be disclosed, either in camera or to all the parties so that the defendant can have a reasonable opportunity to make the showing that he must make at the veracity hearing itself.

Unidentified Justice: Who was it that had to decide whether the defendant here was telling the truth when he said he was out on a fishing trip on that day?

Kenneth H. Stern: The trial court judge.

Unidentified Justice: Without a jury?

Kenneth H. Stern: Without a jury.

Unidentified Justice: And, is that an in camera proceeding in Colorado or is it an open hearing?

Kenneth H. Stern: Well, the first stage where the defendant must meet his burden of showing good faith basis and fact... the affidavit contains inaccuracies... is an opening hearing.

If after hearing that, the trial court judge decides that the defendant has met his burden and, therefore, is entitled to either disclosure in camera or to all the parties, then they would proceed accordingly.

Unidentified Justice: Mr. Stern, do you think that applying the standard and the balancing explained in the Roviaro opinion under the federal standard for when an informant's identity will be disclosed, that the disclosure would have been ordered in this case applying that standard?

Kenneth H. Stern: Applying that standard, I believe it would nave been.

Unidentified Justice: There would have been disclosure?

Kenneth H. Stern: There would have been disclosure.

Unidentified Justice: Do you think the Colorado court applied that standard?

Kenneth H. Stern: I do not.

As I was stating before, the issue regarding a preliminary threshold showing and the issue of what you must prove to be successful at the veracity hearing itself were never raised in this case.

In fact, if you were to remand this case... the motion to suppress which contained the veracity challenge is still pending before the trial court.

It was never decided.

The only issue ever decided was disclosure of confidential informants.

So, therefore, if the case was reversed, we would pick up with that veracity challenge and go to hearing on it.

Suppression was not issued pursuant to the Fourth Amendment.

Suppression was issued as a discovery sanction.

After the motion to disclose, informant was decided, was heard, the trial court judge ordered disclosure.

When the prosecution did not comply with that discovery order, the defense counsel filed a second motion to suppress.

That second motion to suppress, which was ultimately granted, was based as a sanction for failure to comply with the discovery order.

Unidentified Justice: Well, this chronology doesn't lead, I would think, to the necessary conclusion that there is not a federal basis for the Supreme Court of Colorado's decision.

It is just that its decision is a narrower one than you say your opponents have painted.

Kenneth H. Stern: My response is twofold.

First, the only issue is the motion to disclose informant.

Second, if you were to look at the four corners of the Nunez opinion, there is not one federal authority cited, not one federal case cited.

It is only state cases.

Unidentified Justice: Well, let me put this question... Supposing that the District Court in Adams County says I am going to order the disclosure of this informant pursuant to Roviaro, which I think as being on us, the no suppression, but, in like Hickman against Hiller where someone has to go to jail in order to raise a question in Appellate Court, the District Court says, no, we won't disclose, but I am going to appeal to the Supreme Court of Colorado.

The Supreme Court of Colorado says under Roviaro this informant should have been disclosed.

I think that person can come here and say you have got a federal question, don't you?

Kenneth H. Stern: Absolutely.

Unidentified Justice: You just say that is not what happened here.

Kenneth H. Stern: That is absolutely not what happened, because, again, if you look at the four corners of the Nunez opinion, they don't mention a single federal case or federal authority.

Even if this Court should decide to go beyond the four corners of the opinion and look to the underlying cases, yes, Roviaro is mentioned.

However, in no way is it mentioned as being compelling or binding upon the Colorado Supreme Court.

In fact, the particular rules of law which govern disclosure in Colorado, number one, that there be a good faith basis and fact to question the accuracy of the affidavit; and, number two, that a defendant must show that there is a reasonable basis and fact to believe either, one, the informant doesn't exist, or, two, if he does exist, he did not relate to the police officer what is contained in the affidavit, are unique creations of Colorado law.

When the Colorado Supreme Court made these specific rules, they did not cite any federal authority at all.

In fact, they didn't even cite the authority from any other jurisdiction.

This is the creation of Colorado law pure and simple.

And, Roviaro is mentioned, but there is nothing in the opinion that states even explicitly or implicitly that we are compelled to follow Roviaro.

We are required to follow Roviaro.

In fact, the Model Penal Code is also mentioned.

Professor Lafave's Treatise on Search and Seizure is mentioned.

Neither of them are mentioned in any kind of binding way, but merely for guidance.

And, when the decision is actually made, it is again a unique creation of Colorado law.

And, yes, there is no plain statement pursuant to Michigan v. Long.

And, as the questions clearly showed, the decision in Michigan v. Long came five months after the decision in Nunez.

But, what we really have in this case is not a situation where we are arguing or where the Respondent is arguing that there is an independent and adequate state ground, because that implies that there is a federal ground to begin with, and it is the Respondent's position that there is no federal ground whatsoever in the instant case.

It was determined entirely on state law.

And, that the other issues regarding preliminary threshold showing and regarding what a defendant needs to be successful on a veracity challenge were matters decided in other cases.

And, as a matter of fact, in the Dailey case, what the Colorado Supreme Court said about veracity challenges is not only consistent with Franks, but they stated our rule was the same prior to Franks.

And, in fact, in the Appendix to the Franks decision, it lists Colorado as one of the states that allows a veracity challenge based upon the exact same showing that came down in Franks v. Delaware prior to your decision.

Unidentified Justice: Do you think Roviaro is itself a decision which construes the federal Constitution?

Kenneth H. Stern: Roviaro is... This Court, as I understand it, is acting in a supervisory capacity dealing with an evidentiary matter based upon federal common law.

Unidentified Justice: But, McCray, of course, would be construing the Constitution.

Kenneth H. Stern: Absolutely.

And, in fact, it was McCray that established clearly that Roviaro was not constitutional litigation or adjudication, but was rather this Court acting in a supervisory capacity.

And, there is nothing inconsistent in McCray from what Colorado has done.

In fact, I think the McCray decision is the most supportive of the authority and right of the Colorado Supreme Court to create evidentiary rules regarding the common law informant's privilege as it sees fit, just the way it can create privileges with respect to the husband and wife privilege.

Unidentified Justice: Well, it can be more favorable to the defendant, criminal defendant in that area.

It can't be less favorable.

Isn't that what it--

Kenneth H. Stern: Well, the only way, in my opinion, that the United States Constitution would get involved in this question would be if the Colorado Supreme Court interpreted the common law informant's privilege in such a way that it infringed upon defendant's rights.

For example, if it said a defendant may never get disclosure for trial or at a suppression hearing, that would run afoul of the Fourteenth Amendment.

But, if Colorado did come up with a liberal interpretation, certainly since there is no constitutional principle or no constitutional right enjoyed by a law enforcement agent or by the informant to not have the identity disclosed, I don't believe that emanates from any constitutional provision, but rather from the common law.

Given that fact, as long as the Colorado Supreme Court does not run afoul of another constitutional provision by cutting off some of defendant's other rights, I don't believe it is a constitutional issue at all.

And, it is not even a federal issue which we have been arguing throughout these proceedings.

It is purely a matter of state concern.

And, again, as Justice Marshall inquired, Colorado has not adopted any kind of per se rule so that any time there is an informant in an affidavit a defendant is entitled to disclosure.

In fact, Colorado, in its decisions, has clearly stated it supports the common law informant's privilege.

It gives it a great deal of weight.

And, in reaction to that in the instant case, it states that a defendant must make a preliminary showing.

There is a mandatory showing a defendant must make before he can gain disclosure.

And, secondly, there is another safeguard built in and that is the in camera hearing, which in this case was not requested by the prosecution, but in other cases has been requested and has been granted, and is a way to actually balance this very difficult problem between keeping the information--

Unidentified Justice: --Of course, if you are right, whether this is quite a sensible opinion of the Supreme Court... We can think they are bananas if we want to, but if it is the state ground, it is none of our business.

Kenneth H. Stern: --That is true.

I was hoping to convey the opinion that they weren't bananas, but--

[Laughter]

--that is absolutely correct.

In conclusion, Respondents would argue that the writ that previously has been granted in this case should be dismissed as being improvidently granted or, at a minimum, the decision of the Colorado Supreme Court should be affirmed.

Chief Justice Warren E. Burger: Do you have any thing further, Mr. Bernard?

Steven Leon Bernard: Just one, Mr. Chief Justice, just one point.

The issue on disclosure was argued below and the record will bear that out.

But, I think that there is some confusion here between what Mr. Stern says and what I say.

Mr. Stern suggests that this is merely a discovery issue.

I submit that it is not a discovery issue.

The issue here is the use of disclosure in a veracity hearing which triggers constitutional issues of probable cause and police misconduct.

It is not a question of disclosure for trial at which an accused may want to have someone who witnessed the crime present to testify.

But, it is an issue of the warrant process and the warrant process is part and parcel of this Court's determination.

In Dailey, the case upon which the Colorado Supreme Court relied, when that Court discussed disclosure it referred to the Fourth Amendment, to Franks versus Delaware, to the sanctions that should fall under Franks versus Delaware, and under the Fourth Amendment, and in no place did it refer to any bit of Colorado Constitution.

It talked about McCray, it talked about Roviaro, it talked about Franks.

ORAL ARGUMENT OF STEVEN LEON BERNARD, ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL

Unidentified Justice: May I interrupt you right there?

On the reference to Roviaro, is it the state's position that that was a constitutional case?

Steven Leon Bernard: No, however--

Unidentified Justice: Then, what is the relevance of the Colorado Supreme Court's reference to Roviaro?

Steven Leon Bernard: --Roviaro talks about the privilege in a general sense.

In Roviaro... That was not in this context.

It was a situation where the accused saw the crime, the act upon which the charge was based, and that was the focus of this Court's concern in Roviaro.

It was a due process concern.

Unidentified Justice: Doesn't the citation of Roviaro, which is a non-constitutional case, by the Colorado Supreme Court suggest that they thought they had a non-constitutional issue before them?

Steven Leon Bernard: I don't think it is that clear, Your Honor.

I submit--

Unidentified Justice: But, to the extent that Roviaro sheds any light on the matter, it would point in that direction, wouldn't it?

Steven Leon Bernard: --Well, there was also the reference to Franks versus Delaware which is obviously a constitutional issue.

Unidentified Justice: Yes, but the earlier Colorado cases did precede Franks against Delaware, didn't they?

Steven Leon Bernard: Yes, they did.

And, the issue as far as Roviaro was concerned is that in Roviaro the Court was talking about the existence of an informer privilege.

In McCray, it talked about the disclosure of informants when the issue was not whether the informant perceived the crime on which the charge was based.

And, finally we have now the melding of McCray and Franks presented in this case.

Chief Justice Warren E. Burger: Thank you, gentlemen, the case is submitted.