Before Ruiz and Reid, Associate Judges, and Mack, Senior Judge.
Appeal from the Superior Court of the District of Columbia (Hon. Robert E. Morin, Motions Judge) (Hon. Linda K. Davis, Trial Judge)
Mack, Senior Judge: After a trial by jury, appellant Bueno was convicted of the unlawful distribution of a controlled substance (cocaine) in violation of D.C. Code § 33-541 (a)(1), and unlawful possession with intent to distribute a controlled substance (cocaine) in violation of D.C. Code § 33-541 (a)(1). In this appeal, he urges that the trial court erred in denying his "Motion to Compel Location of a Police Observation Post."
Prior to trial, appellant's counsel filed a "Motion to Compel Location of Observation Post." At the pretrial hearing on the motion, Metropolitan Police Officer Holiday Atkins testified that on July 17, 1995, at 6:30 p.m., he was stationed (with a partner) inside an elevated observation post in a mostly residential, but partly business, neighborhood known for drug transactions. Using 10 by 50 binoculars focused through a window, Atkins observed appellant engage in two separate street transactions wherein he exchanged objects and received money. The first transaction involved an unknown Hispanic man; after conversing with this male, appellant was seen to walk to a nearby electrical box, retrieve a brown piece of paper, remove an object from the paper, and give it to the male in exchange for currency. Officer Atkins, believing the transaction to have been a drug sale, radioed a description of the Hispanic man to an arrest team on the ground but the team failed to locate the suspect.
A similar transaction occurred a short time thereafter when Officer Atkins saw appellant encounter one Lazaro Ugarte. *fn1 The officer radioed a description of Mr. Ugarte to the arrest team which apprehended Ugarte within minutes, and recovered a clear ziplock bag containing a white, rock-like substance later identified as crack cocaine. After receiving confirmation from the arrest team that Ugarte was in custody, the observation officers radioed a description of appellant (as wearing blue jean shorts, white tennis shoes with red strings, and a shirt only over his back), and he was apprehended. Officer Atkins watched the arrest from his post and confirmed to the arrest team that appellant was the individual he was seeking. The arrest team was directed to search the bushes where appellant had been seen placing the brown paper. The team recovered the paper which contained six ziplock bags of a white rock-like substance which in turn tested positive for cocaine. The ziplock bags found in the brown paper matched the one recovered earlier from Mr. Ugarte.
On cross-examination, Officer Atkins testified that his observation post was presently used and had been so for a number of times. Met with the government's opposition to disclosure, defense counsel suggested to the government that she would be willing to take an oath not to disclose the location in order that she could prepare for trial. Government counsel rejected the offer and reminded defense counsel that she would have the opportunity to cross-examine at trial. The motion was denied.
At trial, before a different judge, the government presented the testimony of Officer Stephanie Garner who had been stationed in the observation post with Officer Atkins. She explained that the post was used in this partly residential and business corridor to protect its citizens. She noted that it was Officer Atkins who had used the binoculars and that the two of them had been at an elevated location less than 75 feet away from the scene of the crime. On cross- examination, she said that the distance was more than 25 feet but less than 75 feet, that she did not use the binoculars, and that she did not see any blocking trees or parked cars on that day.
Throughout the trial, defense counsel renewed her request for disclosure, explaining at one point that non-disclosure limited her ability to effectively cross-examine. The defense presented the testimony of an investigator who made several visits over the course of two years and opined that every location in the relevant area was in some way obstructed by walls, trees, buildings, porches or other barriers. He admitted that all of his observations were made from the street or porch levels.
The motion for disclosure was denied and appellant was convicted.
A. Observation Post Privilege
Our court has held that the government has a qualified privilege to withhold information concerning the exact location of a hidden observation post, even where the eyewitness account of an officer situated in the post provides the sole basis for charges brought against the defendant at trial. See generally Anderson v. United States, 607 A.2d 490 (D.C. 1992); Carter v. United States, 614 A.2d 913 (D.C. 1992); Thompson v. United States, 472 A.2d 899, 900 (D.C. 1984). This privilege was created judicially through analogous interpretations of Roviaro v. United States, 353 U.S. 53 (1957), the United States Supreme Court case that established a qualified privilege for the government to withhold the identity of undercover informants. *fn2 See Anderson, supra, 607 A.2d at 495.
The Roviaro court held that the government's privilege to withhold the identity of an informer is a qualified one, to be limited according to the fundamental requirements of fairness. "Where the disclosure of an informer's identity, or the contents of his communications, is relevant and helpful to the defense of an accused, or is essential to the fair determination of a cause, the privilege must give way." Roviaro, supra, 353 U.S. at 60-61. Roviaro outlined a balancing test to determine on a case by case basis whether the privilege to withhold an informer's identity should be upheld:
We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors. Id. at 62 (emphasis added).
In Hicks v. United States, 431 A.2d 18, 21-22 (D.C. 1981), we held, relying on the Roviaro analysis, that the government has an analogous privilege to withhold ...